About GPO   |   Newsroom/Media   |   Congressional Relations   |   Inspector General   |   Careers   |   Contact   |   askGPO   |   Help  
 
Home   |   Customers   |   Vendors   |   Libraries  

The Electronic Code of Federal Regulations (e-CFR) is a regularly updated, unofficial editorial compilation of CFR material and Federal Register amendments produced by the National Archives and Records Administration's Office of the Federal Register (OFR) and the Government Printing Office.

Parallel Table of Authorities and Rules for the Code of Federal Regulations and the United States Code
Text | PDF

Find, review, and submit comments on Federal rules that are open for comment and published in the Federal Register using Regulations.gov.

Purchase individual CFR titles from the U.S. Government Online Bookstore.

Find issues of the CFR (including issues prior to 1996) at a local Federal depository library.

[2]
 
 

Electronic Code of Federal Regulations

e-CFR Data is current as of July 22, 2014

Title 40: Protection of Environment


PART 51—REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF IMPLEMENTATION PLANS


Contents

Subpart A—Air Emissions Reporting Requirements

General Information for Inventory Preparers

§51.1   Who is responsible for actions described in this subpart?
§51.5   What tools are available to help prepare and report emissions data?
§51.10   How does my state report emissions that are required by the NOX SIP Call?

Specific Reporting Requirements

§51.15   What data does my state need to report to EPA?
§51.20   What are the emission thresholds that separate point and nonpoint sources?
§51.25   What geographic area must my state's inventory cover?
§51.30   When does my state report which emissions data to EPA?
§51.35   How can my state equalize the emission inventory effort from year to year?
§51.40   In what form and format should my state report the data to EPA?
§51.45   Where should my state report the data?
§51.50   What definitions apply to this subpart?
Appendix A to Subpart A of Part 51—Tables

Subparts B-E [Reserved]

Subpart F—Procedural Requirements

§51.100   Definitions.
§51.101   Stipulations.
§51.102   Public hearings.
§51.103   Submission of plans, preliminary review of plans.
§51.104   Revisions.
§51.105   Approval of plans.

Subpart G—Control Strategy

§51.110   Attainment and maintenance of national standards.
§51.111   Description of control measures.
§51.112   Demonstration of adequacy.
§51.113   [Reserved]
§51.114   Emissions data and projections.
§51.115   Air quality data and projections.
§51.116   Data availability.
§51.117   Additional provisions for lead.
§51.118   Stack height provisions.
§51.119   Intermittent control systems.
§51.120   Requirements for State Implementation Plan revisions relating to new motor vehicles.
§51.121   Findings and requirements for submission of State implementation plan revisions relating to emissions of oxides of nitrogen.
§51.122   Emissions reporting requirements for SIP revisions relating to budgets for NOX emissions.
§51.123   Findings and requirements for submission of State implementation plan revisions relating to emissions of oxides of nitrogen pursuant to the Clean Air Interstate Rule.
§51.124   Findings and requirements for submission of State implementation plan revisions relating to emissions of sulfur dioxide pursuant to the Clean Air Interstate Rule.
§51.125   [Reserved]
§51.126   Determination of widespread use of ORVR and waiver of CAA section 182(b)(3) Stage II gasoline vapor recovery requirements.

Subpart H—Prevention of Air Pollution Emergency Episodes

§51.150   Classification of regions for episode plans.
§51.151   Significant harm levels.
§51.152   Contingency plans.
§51.153   Reevaluation of episode plans.

Subpart I—Review of New Sources and Modifications

§51.160   Legally enforceable procedures.
§51.161   Public availability of information.
§51.162   Identification of responsible agency.
§51.163   Administrative procedures.
§51.164   Stack height procedures.
§51.165   Permit requirements.
§51.166   Prevention of significant deterioration of air quality.

Subpart J—Ambient Air Quality Surveillance

§51.190   Ambient air quality monitoring requirements.

Subpart K—Source Survelliance

§51.210   General.
§51.211   Emission reports and recordkeeping.
§51.212   Testing, inspection, enforcement, and complaints.
§51.213   Transportation control measures.
§51.214   Continuous emission monitoring.

Subpart L—Legal Authority

§51.230   Requirements for all plans.
§51.231   Identification of legal authority.
§51.232   Assignment of legal authority to local agencies.

Subpart M—Intergovernmental Consultation

Agency Designation

§51.240   General plan requirements.
§51.241   Nonattainment areas for carbon monoxide and ozone.
§51.242   [Reserved]

Subpart N—Compliance Schedules

§51.260   Legally enforceable compliance schedules.
§51.261   Final compliance schedules.
§51.262   Extension beyond one year.

Subpart O—Miscellaneous Plan Content Requirements

§51.280   Resources.
§51.281   Copies of rules and regulations.
§51.285   Public notification.
§51.286   Electronic reporting.

Subpart P—Protection of Visibility

§51.300   Purpose and applicability.
§51.301   Definitions.
§51.302   Implementation control strategies for reasonably attributable visibility impairment.
§51.303   Exemptions from control.
§51.304   Identification of integral vistas.
§51.305   Monitoring for reasonably attributable visibility impairment.
§51.306   Long-term strategy requirements for reasonably attributable visibility impairment.
§51.307   New source review.
§51.308   Regional haze program requirements.
§51.309   Requirements related to the Grand Canyon Visibility Transport Commission.

Subpart Q—Reports

Air Quality Data Reporting

§51.320   Annual air quality data report.

Source Emissions and State Action Reporting

§51.321   Annual source emissions and State action report.
§51.322   Sources subject to emissions reporting.
§51.323   Reportable emissions data and information.
§51.324   Progress in plan enforcement.
§51.326   Reportable revisions.
§51.327   Enforcement orders and other State actions.
§51.328   [Reserved]

Subpart R—Extensions

§51.341   Request for 18-month extension.

Subpart S—Inspection/Maintenance Program Requirements

§51.350   Applicability.
§51.351   Enhanced I/M performance standard.
§51.352   Basic I/M performance standard.
§51.353   Network type and program evaluation.
§51.354   Adequate tools and resources.
§51.355   Test frequency and convenience.
§51.356   Vehicle coverage.
§51.357   Test procedures and standards.
§51.358   Test equipment.
§51.359   Quality control.
§51.360   Waivers and compliance via diagnostic inspection.
§51.361   Motorist compliance enforcement.
§51.362   Motorist compliance enforcement program oversight.
§51.363   Quality assurance.
§51.364   Enforcement against contractors, stations and inspectors.
§51.365   Data collection.
§51.366   Data analysis and reporting.
§51.367   Inspector training and licensing or certification.
§51.368   Public information and consumer protection.
§51.369   Improving repair effectiveness.
§51.370   Compliance with recall notices.
§51.371   On-road testing.
§51.372   State Implementation Plan submissions.
§51.373   Implementation deadlines.
Appendix A to Subpart S of Part 51—Calibrations, Adjustments and Quality Control
Appendix B to Subpart S of Part 51—Test Procedures
Appendix C to Subpart S of Part 51—Steady-State Short Test Standards
Appendix D to Subpart S of Part 51—Steady-State Short Test Equipment
Appendix E to Subpart S of Part 51—Transient Test Driving Cycle

Subpart T—Conformity to State or Federal Implementation Plans of Transportation Plans, Programs, and Projects Developed, Funded or Approved Under Title 23 U.S.C. or the Federal Transit Laws

§51.390   Implementation plan revision.

Subpart U—Economic Incentive Programs

§51.490   Applicability.
§51.491   Definitions.
§51.492   State program election and submittal.
§51.493   State program requirements.
§51.494   Use of program revenues.

Subpart W—Determining Conformity of General Federal Actions to State or Federal Implementation Plans

§51.850   [Reserved]
§51.851   State implementation plan (SIP) or Tribal implementation plan (TIP) revision.
§§51.852-51.860   [Reserved]

Subpart X—Provisions for Implementation of 8-hour Ozone National Ambient Air Quality Standard

§51.900   Definitions.
§51.901   Applicability of part 51.
§51.902   Which classification and nonattainment area planning provisions of the CAA shall apply to areas designated nonattainment for the 1997 8-hour NAAQS?
§51.903   How do the classification and attainment date provisions in section 181 of subpart 2 of the CAA apply to areas subject to §51.902(a)?
§51.904   How do the classification and attainment date provisions in section 172(a) of subpart 1 of the CAA apply to areas subject to §51.902(b)?
§51.905   How do areas transition from the 1-hour NAAQS to the 1997 8-hour NAAQS and what are the anti-backsliding provisions?
§51.906   Redesignation to nonattainment following initial designations for the 8-hour NAAQS.
§51.907   For an area that fails to attain the 8-hour NAAQS by its attainment date, how does EPA interpret sections 172(a)(2)(C)(ii) and 181(a)(5)(B) of the CAA?
§51.908   What modeling and attainment demonstration requirements apply for purposes of the 8-hour ozone NAAQS?
§51.909   [Reserved]
§51.910   What requirements for reasonable further progress (RFP) under sections 172(c)(2) and 182 apply for areas designated nonattainment for the 8-hour ozone NAAQS?
§51.911   [Reserved]
§51.912   What requirements apply for reasonably available control technology (RACT) and reasonably available control measures (RACM) under the 8-hour NAAQS?
§51.913   How do the section 182(f) NOX exemption provisions apply for the 8-hour NAAQS?
§51.914   What new source review requirements apply for 8-hour ozone nonattainment areas?
§51.915   What emissions inventory requirements apply under the 8-hour NAAQS?
§51.916   What are the requirements for an Ozone Transport Region under the 8-hour NAAQS?
§51.917   What is the effective date of designation for the Las Vegas, NV, 8-hour ozone nonattainment area?
§51.918   Can any SIP planning requirements be suspended in 8-hour ozone nonattainment areas that have air quality data that meets the NAAQS?

Subpart Y—Mitigation Requirements

§51.930   Mitigation of Exceptional Events.

Subpart Z—Provisions for Implementation of PM2.5 National Ambient Air Quality Standards

§51.1000   Definitions.
§51.1001   Applicability of part 51.
§51.1002   Submittal of State implementation plan.
§51.1003   [Reserved]
§51.1004   Attainment dates.
§51.1005   One-year extensions of the attainment date.
§51.1006   Redesignation to nonattainment following initial designations for the PM2.5 NAAQS.
§51.1007   Attainment demonstration and modeling requirements.
§51.1008   Emission inventory requirements for the PM2.5 NAAQS.
§51.1009   Reasonable further progress (RFP) requirements.
§51.1010   Requirements for reasonably available control technology (RACT) and reasonably available control measures (RACM).
§51.1011   Requirements for mid-course review.
§51.1012   Requirement for contingency measures.

Subpart AA—Provisions for Implementation of the 2008 Ozone National Ambient Air Quality Standards

§51.1100   Definitions.
§51.1101   Applicability of part 51.
§51.1102   Classification and nonattainment area planning provisions.
§51.1103   Application of classification and attainment date provisions in CAA section 181 of subpart 2 to areas subject to §51.1102(a).
Appendixes A-K to Part 51 [Reserved]
Appendix L to Part 51—Example Regulations for Prevention of Air Pollution Emergency Episodes
Appendix M to Part 51—Recommended Test Methods for State Implementation Plans
Appendixes N-O to Part 51 [Reserved]
Appendix P to Part 51—Minimum Emission Monitoring Requirements
Appendixes Q-R to Part 51 [Reserved]
Appendix S to Part 51—Emission Offset Interpretative Ruling
Appendixes T-U to Part 51 [Reserved]
Appendix V to Part 51—Criteria for Determining the Completeness of Plan Submissions
Appendix W to Part 51—Guideline on Air Quality Models
Appendix X to Part 51—Examples of Economic Incentive Programs
Appendix Y to Part 51—Guidelines for BART Determinations Under the Regional Haze Rule

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

Source: 36 FR 22398, Nov. 25, 1971, unless otherwise noted.

Subpart A—Air Emissions Reporting Requirements

Source: 73 FR 76552, Dec. 17, 2008, unless otherwise noted.

General Information for Inventory Preparers

§51.1   Who is responsible for actions described in this subpart?

States must inventory emission sources located on nontribal lands and report this information to EPA.

§51.5   What tools are available to help prepare and report emissions data?

(a) We urge your state to use estimation procedures described in documents from the Emission Inventory Improvement Program (EIIP), available at the following Internet address: http://www.epa.gov/ttn/chief/eiip. These procedures are standardized and ranked according to relative uncertainty for each emission estimating technique. Using this guidance will enable others to use your state's data and evaluate its quality and consistency with other data.

(b) Where current EIIP guidance materials have been supplanted by state-of-the-art emission estimation approaches or are not applicable to sources or source categories, states are urged to use applicable, state-of-the-art techniques for estimating emissions.

§51.10   How does my state report emissions that are required by the NOX SIP Call?

The District of Columbia and states that are subject to the NOX SIP Call §51.121) are subject to the emissions reporting provisions of §51.122. This subpart A incorporates the pollutants, source, time periods, and required data elements for these reporting requirements.

Specific Reporting Requirements

§51.15   What data does my state need to report to EPA?

(a) Pollutants. Report actual emissions of the following (see §51.50 for precise definitions as required):

(1) Required pollutants for triennial reports of annual (12-month) emissions for all sources and every-year reports of annual emissions from Type A sources:

(i) Sulfur dioxide (SO2).

(ii) Volatile organic compounds (VOC).

(iii) Nitrogen oxides (NOX).

(iv) Carbon monoxide (CO).

(v) Lead and lead compounds.

(vi) Primary PM2.5. As applicable, also report filterable and condensable components.

(vii) Primary PM10. As applicable, also report filterable and condensable components.

(viii) Ammonia (NH3).

(2) Required pollutants for all reports of ozone season (5 months) emissions: NOX.

(3) Required pollutants for triennial reports of summer day emissions:

(i) NOX.

(ii) VOC.

(4) Required pollutants for every-year reports of summer day emissions: NOX.

(5) A state may, at its option, include estimates of emissions for additional pollutants (such as other pollutants listed in paragraph (a)(1) of this section or hazardous air pollutants) in its emission inventory reports.

(b) Sources. Emissions should be reported from the following sources in all parts of the state, excluding sources located on tribal lands:

(1) Point.

(2) Nonpoint.

(3) Onroad mobile.

(4) Nonroad mobile.

(c) Supporting Information. You must report the data elements in Tables 2a through 2c in Appendix A of this subpart. We may ask you for other data on a voluntary basis to meet special purposes.

(d) Confidential Data. We do not consider the data in Tables 2a through 2c in appendix A of this subpart confidential, but some states limit release of this type of data. Any data that you submit to EPA under this subpart will be considered in the public domain and cannot be treated as confidential. If Federal and state requirements are inconsistent, consult your EPA Regional Office for a final reconciliation.

(e) Option to Submit Inputs to Emission Inventory Estimation Models in Lieu of Emission Estimates. For a given inventory year, EPA may allow states to submit comprehensive input values for models capable of estimating emissions from a certain source type on a national scale, in lieu of submitting the emission estimates otherwise required by this subpart.

§51.20   What are the emission thresholds that separate point and nonpoint sources?

(a) All anthropogenic stationary sources must be included in your inventory as either point or nonpoint sources.

(b) Sources that meet the definition of point source in this subpart must be reported as point sources. All pollutants specified in §51.15(a) must be reported for point sources, not just the pollutant(s) that qualify the source as a point source. The reporting of wildland and agricultural fires is encouraged but not required.

(c) If your state has lower emission reporting thresholds for point sources than paragraph (b) of this section, then you may use these in reporting your emissions to EPA.

(d) All stationary sources that are not reported as point sources must be reported as nonpoint sources. Episodic wind-generated particulate matter (PM) emissions from sources that are not major sources may be excluded, for example dust lifted by high winds from natural or tilled soil. In addition, if not reported as point sources, wildland and agricultural fires must be reported as nonpoint sources. Emissions of nonpoint sources may be aggregated to the county level, but must be separated and identified by source classification code (SCC). Nonpoint source categories or emission events reasonably estimated by the state to represent a de minimis percentage of total county and state emissions of a given pollutant may be omitted.

§51.25   What geographic area must my state's inventory cover?

Because of the regional nature of these pollutants, your state's inventory must be statewide, regardless of any area's attainment status.

§51.30   When does my state report which emissions data to EPA?

All states are required to report two basic types of emission inventories to EPA: Every-year Cycle Inventory; and Three-year Cycle Inventory. The sources and pollutants to be reported vary among states.

(a) Every-year cycle. See Tables 2a, 2b, and 2c of appendix A of this subpart for the specific data elements to report every year.

(1) All states are required to report every year the annual (12-month) emissions of all pollutants listed in §51.15(a)(1) from Type A (large) point sources, as defined in Table 1 of appendix A of this subpart. The first every-year cycle inventory will be for the 2009 inventory year and must be submitted to EPA within 12 months, i.e., by December 31, 2010.

(2) States subject to the emission reporting requirements of §51.122 (the NOX SIP Call) are required to report every year the ozone season emissions of NOX and summer day emissions of NOX from any point, nonpoint, onroad mobile, or nonroad mobile source for which the state specified control measures in its SIP submission under §51.121(g). This requirement begins with the inventory year prior to the year in which compliance with the NOX SIP Call requirements is first required.

(3) In inventory years that fall under the 3-year cycle requirements, the reporting required by the 3-year cycle satisfies the every-year reporting requirements of paragraph (a).

(b) Three-year cycle. See Tables 2a, 2b and 2c to appendix A of subpart A for the specific data elements that must be reported triennially.

(1) All states are required to report for every third inventory year the annual (12-month) emissions of all pollutants listed in §51.15(a)(1) from all point sources, nonpoint sources, onroad mobile sources, and nonroad mobile sources. The first 3-year cycle inventory will be for the 2011 inventory and must be submitted to us within 12 months, i.e., by December 31, 2012. Subsequent 3-year cycle (2011, 2014, etc.) inventories will be due 12 months after the end of the inventory year, i.e., by December 31 of the following year.

(2) States subject to §51.122 must report ozone season emissions and summer day emissions of NOX from all point sources, nonpoint sources, onroad mobile sources, and nonroad mobile sources. The first 3-year cycle inventory will be for the 2008 inventory year and must be submitted to EPA within 12 months, i.e., by December 31, 2009. Subsequent 3-year cycle inventories will be due as specified under paragraph (b)(1) of this section.

(3) Any state with an area for which EPA has made an 8-hour ozone nonattainment designation finding (regardless of whether that finding has reached its effective date) must report summer day emissions of VOC and NOX from all point sources, nonpoint sources, onroad mobile sources, and nonroad mobile sources. Summer day emissions of NOX and VOC for sources in attainment counties that are covered by the nonattainment area modeling domain used to demonstrate reasonable further progress (RFP) must be included. The first 3-year cycle inventory will be for the 2011 inventory year and must be submitted to EPA within 12 months, i.e., by December 31, 2012. Subsequent three-year cycle inventories will be due as specified under paragraph (b)(1) of this section.

(4) States with CO nonattainment areas and states with CO attainment areas subject to maintenance plans must report winter work weekday emissions of CO with their 3-year cycle inventories.

§51.35   How can my state equalize the emission inventory effort from year to year?

(a) Compiling a 3-year cycle inventory means more effort every 3 years. As an option, your state may ease this workload spike by using the following approach:

(1) Each year, collect and report data for all Type A (large) point sources (this is required for all Type A point sources).

(2) Each year, collect data for one-third of your sources that are not Type A point sources. Collect data for a different third of these sources each year so that data has been collected for all of the sources that are not Type A point sources by the end of each 3-year cycle. You must save 3 years of data and then report all emissions from the sources that are not Type A point sources on the 3-year cycle due date.

(3) Each year, collect data for one-third of the nonpoint, nonroad mobile, and onroad mobile sources. You must save 3 years of data for each such source and then report all of these data on the 3-year cycle due date.

(b) For the sources described in paragraph (a) of this section, your state will have data from 3 successive years at any given time, rather than from the single year in which it is compiled.

(c) If your state chooses the method of inventorying one-third of your sources that are not Type A point sources and 3-year cycle nonpoint, nonroad mobile, and onroad mobile sources each year, your state must compile each year of the 3-year period identically. For example, if a process has not changed for a source category or individual plant, your state must use the same emission factors to calculate emissions for each year of the 3-year period. If your state has revised emission factors during the 3 years for a process that has not changed, you must resubmit previous years' data using the revised factor. If your state uses models to estimate emissions, you must make sure that the model is the same for all 3 years.

(d) If your state needs a new reference year emission inventory for a selected pollutant, your state cannot use these optional reporting frequencies for the new reference year.

(e) If your state is a NOX SIP Call state, you cannot use these optional reporting frequencies for NOX SIP Call reporting.

§51.40   In what form and format should my state report the data to EPA?

(a) You must report your emission inventory data to us in electronic form.

(b) We support specific electronic data reporting formats, and you are required to report your data in a format consistent with these. The term format encompasses the definition of one or more specific data fields for each of the data elements listed in Tables 2a, 2b, and 2c in appendix A of this subpart; allowed code values for categorical data fields; transmittal information; and data table relational structure. Because electronic reporting technology changes continually, contact the EPA Emission Inventory and Analysis Group (EIAG) for the latest specific formats. You can find information on the current formats at the following Internet address: http://www.epa.gov/ttn/chief/nif/index.html. You may also call the air emissions contact in your EPA Regional Office or our Info CHIEF help desk at (919) 541-1000 or send e-mail to info.chief@epa.gov.

§51.45   Where should my state report the data?

(a) Your state submits or reports data by providing it directly to EPA.

(b) The latest information on data reporting procedures is available at the following Internet address: http://www.epa.gov/ttn/chief. You may also call our Info CHIEF help desk at (919) 541-1000 or e-mail to info.chief@epa.gov.

§51.50   What definitions apply to this subpart?

Activity throughput means a measurable factor or parameter that relates directly or indirectly to the emissions of an air pollution source during the period for which emissions are reported. Depending on the type of source category, activity information may refer to the amount of fuel combusted, raw material processed, product manufactured, or material handled or processed. It may also refer to population, employment, or number of units. Activity throughput is typically the value that is multiplied against an emission factor to generate an emissions estimate.

Annual emissions means actual emissions for a plant, point, or process that are measured or calculated to represent a calendar year.

Ash content means inert residual portion of a fuel.

Contact name means the complete name of the lead contact person for the organization transmitting the data set, including first name, middle name or initial, and surname.

Contact phone number means the phone number for the contact name.

Control device type means the name of the type of control device (e.g., wet scrubber, flaring, or process change).

Day/wk in operations means days per week that the emitting process operates, averaged over the inventory period.

Design capacity means a measure of the size of a point source, based on the reported maximum continuous throughput or output capacity of the unit. For a boiler, design capacity is based on the reported maximum continuous steam flow, usually in units of million BTU per hour.

Emission factor means the ratio relating emissions of a specific pollutant to an activity or material throughput level.

Emission release point type means the code for physical configuration of the release point.

Emission type means the code describing temporal designation of emissions reported, i.e., Entire Period, Average Weekday, etc.

Exit gas flow rate means the numeric value of the flow rate of a stack gas.

Exit gas temperature means the numeric value of the temperature of an exit gas stream.

Exit gas velocity means the numeric value of the velocity of an exit gas stream.

Facility ID codes means the unique codes for a plant or facility treated as a point source, containing one or more pollutant-emitting units. The EPA's reporting format for a given inventory year may require several facility ID codes to ensure proper matching between databases, e.g., the state's own current and most recent facility ID codes, the EPA-assigned facility ID codes, and the ORIS (Department of Energy) ID code if applicable.

Fall throughput (percent) means the part of the throughput or activity attributable to the three fall months (September, October, November). This expresses part of the annual activity information based on four seasons—typically spring, summer, fall, and winter. It is a percentage of the annual activity (e.g., out of 600 units produced each year, 150 units are produced in the fall which is 25 percent of the annual activity).

FIPS Code. Federal Information Placement System (FIPS) means the system of unique numeric codes the government developed to identify states, counties and parishes for the entire United States, Puerto Rico, and Guam.

Heat content means the amount of thermal heat energy in a solid, liquid, or gaseous fuel, averaged over the period for which emissions are reported. Fuel heat content is typically expressed in units of Btu/lb of fuel, Btu/gal of fuel, joules/kg of fuel, etc.

Hr/day in operations means the hours per day that the emitting process operates averaged over the inventory period.

Inventory end date means the last day of the inventory period.

Inventory start date means the first day of the inventory period.

Inventory year means the year for which emissions estimates are calculated.

Lead (Pb) means lead as defined in 40 CFR 50.12. Lead should be reported as elemental lead and its compounds.

NAICS means North American Industry Classification System code. The NAICS codes are U.S. Department of Commerce's codes for businesses by products or services and have replaced Standard Industrial Classification codes.

Maximum nameplate capacity means a measure of the size of a generator which is put on the unit's nameplate by the manufacturer. The data element is reported in megawatts or kilowatts.

Method accuracy description (MAD) codes means a set of six codes used to define the accuracy of latitude/longitude data for point sources. The six codes and their definitions are:

(1) Coordinate Data Source Code: The code that represents the party responsible for providing the latitude/longitude.

(2) Horizontal Collection Method Code: Method used to determine the latitude/longitude coordinates for a point on the earth.

(3) Horizontal Accuracy Measure: The measure of accuracy (in meters) of the latitude/longitude coordinates.

(4) Horizontal Reference Datum Code: Code that represents the reference datum used to determine the latitude/longitude coordinates.

(5) Reference Point Code: The code that represents the place for which geographic coordinates were established. Code value should be 106 (e.g., point where substance is released).

(6) Source Map Scale Number: The number that represents the proportional distance on the ground for one unit of measure on the map or photo.

Mobile source means a motor vehicle, nonroad engine or nonroad vehicle, where:

(1) A motor vehicle is any self-propelled vehicle used to carry people or property on a street or highway;

(2) A nonroad engine is an internal combustion engine (including fuel system) that is not used in a motor vehicle or a vehicle used solely for competition, or that is not affected by sections 111 or 202 of the CAA; and

(3) A nonroad vehicle is a vehicle that is run by a nonroad engine and that is not a motor vehicle or a vehicle used solely for competition.

Nitrogen oxides (NOX) means nitrogen oxides (NOX) as defined in 40 CFR 60.2 as all oxides of nitrogen except N2O. Nitrogen oxides should be reported on an equivalent molecular weight basis as nitrogen dioxide (NO2).

Nonpoint sources. Nonpoint sources collectively represent individual sources that have not been inventoried as specific point or mobile sources. These individual sources treated collectively as nonpoint sources are typically too small, numerous, or difficult to inventory using the methods for the other classes of sources.

Ozone season means the period from May 1 through September 30 of a year.

Particulate Matter (PM). Particulate matter is a criteria air pollutant. For the purpose of this subpart, the following definitions apply:

(1) Filterable PM2.5 or Filterable PM10: Particles that are directly emitted by a source as a solid or liquid at stack or release conditions and captured on the filter of a stack test train. Filterable PM2.5 is particulate matter with an aerodynamic diameter equal to or less than 2.5 micrometers. Filterable PM10 is particulate matter with an aerodynamic diameter equal to or less than 10 micrometers.

(2) Condensable PM: Material that is vapor phase at stack conditions, but which condenses and/or reacts upon cooling and dilution in the ambient air to form solid or liquid PM immediately after discharge from the stack. Note that all condensable PM, if present from a source, is typically in the PM2.5 size fraction, and therefore all of it is a component of both primary PM2.5 and primary PM10.

(3) Primary PM2.5: The sum of filterable PM2.5 and condensable PM.

(4) Primary PM10: The sum of filterable PM10 and condensable PM.

(5) Secondary PM: Particles that form or grow in mass through chemical reactions in the ambient air well after dilution and condensation have occurred. Secondary PM is usually formed at some distance downwind from the source. Secondary PM should not be reported in the emission inventory and is not covered by this subpart.

Physical address means the street address of a facility. This is the address of the location where the emissions occur; not, for example, the corporate headquarters.

Point source means large, stationary (nonmobile), identifiable sources of emissions that release pollutants into the atmosphere. A point source is a facility that is a major source under 40 CFR part 70 for the pollutants for which reporting is required, except for the emissions of hazardous air pollutants, which are not considered in determining whether a source is a point source under this subpart. The minimum point source reporting thresholds in tons per year of pollutant are as follows, as measured in potential to emit:

Pollutant Annual cycle
(Type A sources)
Three-year cycle
Type B sources1 NAA sources2
(1) SOX2500100100.
(2) VOC250100O3 (moderate) 100.
(3) VOCO3 (serious) 50.
(4) VOCO3 (severe) 25.
(5) VOCO3 (extreme) 10.
(6) NOX 2500 100 100.
(7) CO 25001000O3 (all areas) 100.
(8) COCO (all areas) 100.
(9) Pb 5 5.
(10) PM10 250 100PM10 (moderate) 100.
(11) PM10PM10 (serious) 70.
(12) PM2.5 250 100 100.
(13) NH3 250 100 100.

1Type A sources are a subset of the Type B sources and are the larger emitting sources by pollutant.

2NAA = Nonattainment Area. Special point source reporting thresholds apply for certain pollutants by type of nonattainment area. The pollutants by nonattainment area are: Ozone: VOC, NOX, CO; CO: CO; PM10: PM10.

Pollutant code means a unique code for each reported pollutant assigned by the reporting format specified by EPA for each inventory year.

Primary capture and control efficiencies means two values indicating the emissions capture efficiency and the emission reduction efficiency of a primary control device. Capture and control efficiencies are usually expressed as a percentage.

Process ID code means a unique code for the process generating the emissions, typically a description of a process.

Roadway class means a classification system developed by the Federal Highway Administration that defines all public roadways as to type based on land use and physical characteristics of the roadway.

Rule effectiveness (RE) means a rating of how well a regulatory program achieves all possible emissions reductions. This rating reflects the assumption that controls typically are not 100 percent effective because of equipment downtime, upsets, decreases in control efficiencies, and other deficiencies in emission estimates. Rule effectiveness adjusts the control efficiency from what could be realized under ideal conditions to what is actually emitted in practice due to less than ideal conditions.

Rule penetration means the percentage of a nonpoint source category covered by an applicable regulation.

SCC means source classification code, a process-level code that describes the equipment and/or operation which is emitting pollutants.

Site name means the name of the facility.

Spring throughput (percent) means part of the throughput or activity attributable to the three Spring months (March, April, May). See also the definition of Fall throughput.

Stack diameter means the inner physical diameter of a stack.

Stack height means physical height of a stack above the surrounding terrain.

Stack ID code means a unique code for the point where emissions from one or more processes release into the atmosphere.

Sulfur content means the sulfur content of a fuel, usually expressed as percent by weight.

Summer day emissions means an average day's emissions for a typical summer work weekday. The state will select the particular month(s) in summer and the day(s) in the work week to be represented. The selection of conditions should be coordinated with the conditions assumed in the development of reasonable further progress (RFP) plans, rate of progress plans and demonstrations, and/or emissions budgets for transportation conformity, to allow comparability of daily emission estimates.

Summer throughput (percent) means the part of throughput or activity attributable to the three Summer months (June, July, August). See also the definition of Fall throughput.

Total capture and control efficiency (percent) means the net emission reduction efficiency of all emissions collection devices.

Type A source means large point sources with actual annual emissions greater than or equal to any of the emission thresholds listed in Table 1 of Appendix A of this subpart for Type A sources. If a source is a Type A source for any pollutant listed in Table 1, then the emissions for all Table 1 pollutants must be reported for that source.

Unit ID code means a unique code for the unit of generation of emissions, typically a physical piece of or a closely related set of equipment. The EPA's reporting format for a given inventory year may require multiple unit ID codes to ensure proper matching between databases, e.g., the state's own current and most recent unit ID codes, the EPA-assigned unit ID codes if any, and the ORIS (Department of Energy) ID code if applicable.

VMT by SCC means vehicle miles traveled disaggregated to the SCC level, i.e., reflecting combinations of vehicle type and roadway class. Vehicle miles traveled expresses vehicle activity and is used with emission factors. The emission factors are usually expressed in terms of grams per mile of travel. Because VMT does not correlate directly to emissions that occur while the vehicle is not moving, nonmoving emissions are incorporated into the emission factors in EPA's MOBILE Model.

VOC means volatile organic compounds. The EPA's regulatory definition of VOC is in 40 CFR 51.100.

Winter throughput (percent) means the part of throughput or activity attributable to the three winter months (January, February, December of the same year, e.g., winter 2005 is composed of January 2005, February 2005, and December 2005). See also the definition of Fall throughput.

Wk/yr in operation means weeks per year that the emitting process operates.

Work weekday means any day of the week except Saturday or Sunday.

X stack coordinate (longitude) means an object's east-west geographical coordinate.

Y stack coordinate (latitude) means an object's north-south geographical coordinate.

Appendix A to Subpart A of Part 51—Tables

Table 1 to Appendix A of Subpart A—Emission Thresholds by Pollutant (tpy1) for Treatment of Point Sources as Type A Under 40 CFR 51.30.

Pollutant Emissions threshold for
Type A treatment
(1) SO2≥2500.
(2) VOC≥250.
(3) NOX≥2500.
(4) CO≥2500.
(5) PbDoes not determine Type A status.
(6) PM10≥250.
(7) PM2.5≥250.
(8) NH32≥250.

1tpy = Tons per year of actual emissions.

2Ammonia threshold applies only in areas where ammonia emissions are a factor in determining whether a source is a major source, i.e., where ammonia is considered a significant precursor of PM2.5.

Table 2a to Appendix A of Subpart A—Data Elements for Reporting on Emissions From Point Sources, Where Required by 40 CFR 51.30

Data elementsEvery-year
reporting
Three-year
reporting
(1) Inventory year
(2) Inventory start date
(3) Inventory end date
(4) Contact name
(5) Contact phone number
(6) FIPS code
(7) Facility ID codes
(8) Unit ID code
(9) Process ID code
(10) Stack ID code
(11) Site name
(12) Physical address
(13) SCC
(14) Heat content (fuel) (annual average)
(15) Heat content (fuel) (ozone season, if applicable)
(16) Ash content (fuel) (annual average)
(17) Sulfur content (fuel) (annual average)
(18) Pollutant code
(19) Activity/throughput (for each period reported)
(20) Summer day emissions (if applicable)
(21) Ozone season emissions (if applicable)
(22) Annual emissions
(23) Emission factor
(24) Winter throughput (percent)
(25) Spring throughput (percent)
(26) Summer throughput (percent)
(27) Fall throughput (percent)
(28) Hr/day in operation
(29) Day/wk in operation
(30) Wk/yr in operation
(31) X stack coordinate (longitude)
(32) Y stack coordinate (latitude)
(33) Method accuracy description (MAD) codes
(34) Stack height
(35) Stack diameter
(36) Exit gas temperature
(37) Exit gas velocity
(38) Exit gas flow rate
(39) NAICS at the Facility level
(40) Design capacity (including boiler capacity if applicable)
(41) Maximum generator nameplate Capacity
(42) Primary capture and control efficiencies (percent)
(43) Total capture and control efficiency (percent)
(44) Control device type
(45) Emission type
(46) Emission release point type
(47) Rule effectiveness (percent)
(48) Winter work weekday emissions of CO (if applicable)

Table 2b to Appendix A of Subpart A—Data Elements for Reporting on Emissions From Nonpoint Sources and Nonroad Mobile Sources, Where Required by 40 CFR 51.30

Data elements Every-year
reporting
Three-year
reporting
(1) Inventory year
(2) Inventory start date
(3) Inventory end date
(4) Contact name
(5) Contact phone number
(6) FIPS code
(7) SCC
(8) Emission factor
(9) Activity/throughput level (for each period reported)
(10) Total capture/control efficiency (percent)
(11) Rule effectiveness (percent)
(12) Rule penetration (percent)
(13) Pollutant code
(14) Ozone season emissions (if applicable)
(15) Summer day emissions (if applicable)
(16) Annual emissions
(17) Winter throughput (percent)
(18) Spring throughput (percent)
(19) Summer throughput (percent)
(20) Fall throughput (percent)
(21) Hrs/day in operation
(22) Days/wk in operation
(23) Wks/yr in operation
(24) Winter work weekday emissions of CO (if applicable)

Table 2c to Appendix A of Subpart A—Data Elements for Reporting on Emissions From Onroad Mobile Sources, Where Required by 40 CFR 51.30

Data elements Every-year
reporting
Three-year
reporting
1. Inventory year
2. Inventory start date
3. Inventory end date
4. Contact name
5. Contact phone number
6. FIPS code
7. SCC
8. Emission factor
9. Activity (VMT by SCC)
10. Pollutant code
11. Ozone season emissions (if applicable)
12. Summer day emissions (if applicable)
13. Annual emissions
14. Winter throughput (percent)
15. Spring throughput (percent)
16. Summer throughput (percent)
17. Fall throughput (percent)
18. Winter work weekday emissions of CO (if applicable)

Subparts B-E [Reserved]

Subpart F—Procedural Requirements

Authority: 42 U.S.C. 7401, 7411, 7412, 7413, 7414, 7470-7479, 7501-7508, 7601, and 7602.

§51.100   Definitions.

As used in this part, all terms not defined herein will have the meaning given them in the Act:

(a) Act means the Clean Air Act (42 U.S.C. 7401 et seq., as amended by Pub. L. 91-604, 84 Stat. 1676 Pub. L. 95-95, 91 Stat., 685 and Pub. L. 95-190, 91 Stat., 1399.)

(b) Administrator means the Administrator of the Environmental Protection Agency (EPA) or an authorized representative.

(c) Primary standard means a national primary ambient air quality standard promulgated pursuant to section 109 of the Act.

(d) Secondary standard means a national secondary ambient air quality standard promulgated pursuant to section 109 of the Act.

(e) National standard means either a primary or secondary standard.

(f) Owner or operator means any person who owns, leases, operates, controls, or supervises a facility, building, structure, or installation which directly or indirectly result or may result in emissions of any air pollutant for which a national standard is in effect.

(g) Local agency means any local government agency other than the State agency, which is charged with responsibility for carrying out a portion of the plan.

(h) Regional Office means one of the ten (10) EPA Regional Offices.

(i) State agency means the air pollution control agency primarily responsible for development and implementation of a plan under the Act.

(j) Plan means an implementation plan approved or promulgated under section 110 of 172 of the Act.

(k) Point source means the following:

(1) For particulate matter, sulfur oxides, carbon monoxide, volatile organic compounds (VOC) and nitrogen dioxide—

(i) Any stationary source the actual emissions of which are in excess of 90.7 metric tons (100 tons) per year of the pollutant in a region containing an area whose 1980 urban place population, as defined by the U.S. Bureau of the Census, was equal to or greater than 1 million.

(ii) Any stationary source the actual emissions of which are in excess of 22.7 metric tons (25 tons) per year of the pollutant in a region containing an area whose 1980 urban place population, as defined by the U.S. Bureau of the Census, was less than 1 million; or

(2) For lead or lead compounds measured as elemental lead, any stationary source that actually emits a total of 4.5 metric tons (5 tons) per year or more.

(l) Area source means any small residential, governmental, institutional, commercial, or industrial fuel combustion operations; onsite solid waste disposal facility; motor vehicles, aircraft vessels, or other transportation facilities or other miscellaneous sources identified through inventory techniques similar to those described in the “AEROS Manual series, Vol. II AEROS User's Manual,” EPA-450/2-76-029 December 1976.

(m) Region means an area designated as an air quality control region (AQCR) under section 107(c) of the Act.

(n) Control strategy means a combination of measures designated to achieve the aggregate reduction of emissions necessary for attainment and maintenance of national standards including, but not limited to, measures such as:

(1) Emission limitations.

(2) Federal or State emission charges or taxes or other economic incentives or disincentives.

(3) Closing or relocation of residential, commercial, or industrial facilities.

(4) Changes in schedules or methods of operation of commercial or industrial facilities or transportation systems, including, but not limited to, short-term changes made in accordance with standby plans.

(5) Periodic inspection and testing of motor vehicle emission control systems, at such time as the Administrator determines that such programs are feasible and practicable.

(6) Emission control measures applicable to in-use motor vehicles, including, but not limited to, measures such as mandatory maintenance, installation of emission control devices, and conversion to gaseous fuels.

(7) Any transportation control measure including those transportation measures listed in section 108(f) of the Clean Air Act as amended.

(8) Any variation of, or alternative to any measure delineated herein.

(9) Control or prohibition of a fuel or fuel additive used in motor vehicles, if such control or prohibition is necessary to achieve a national primary or secondary air quality standard and is approved by the Administrator under section 211(c)(4)(C) of the Act.

(o) Reasonably available control technology (RACT) means devices, systems, process modifications, or other apparatus or techniques that are reasonably available taking into account:

(1) The necessity of imposing such controls in order to attain and maintain a national ambient air quality standard;

(2) The social, environmental, and economic impact of such controls; and

(3) Alternative means of providing for attainment and maintenance of such standard. (This provision defines RACT for the purposes of §51.341(b) only.)

(p) Compliance schedule means the date or dates by which a source or category of sources is required to comply with specific emission limitations contained in an implementation plan and with any increments of progress toward such compliance.

(q) Increments of progress means steps toward compliance which will be taken by a specific source, including:

(1) Date of submittal of the source's final control plan to the appropriate air pollution control agency;

(2) Date by which contracts for emission control systems or process modifications will be awarded; or date by which orders will be issued for the purchase of component parts to accomplish emission control or process modification;

(3) Date of initiation of on-site construction or installation of emission control equipment or process change;

(4) Date by which on-site construction or installation of emission control equipment or process modification is to be completed; and

(5) Date by which final compliance is to be achieved.

(r) Transportation control measure means any measure that is directed toward reducing emissions of air pollutants from transportation sources. Such measures include, but are not limited to, those listed in section 108(f) of the Clean Air Act.

(s) Volatile organic compounds (VOC) means any compound of carbon, excluding carbon monoxide, carbon dioxide, carbonic acid, metallic carbides or carbonates, and ammonium carbonate, which participates in atmospheric photochemical reactions.

(1) This includes any such organic compound other than the following, which have been determined to have negligible photochemical reactivity: methane; ethane; methylene chloride (dichloromethane); 1,1,1-trichloroethane (methyl chloroform); 1,1,2-trichloro-1,2,2-trifluoroethane (CFC-113); trichlorofluoromethane (CFC-11); dichlorodifluoromethane (CFC-12); chlorodifluoromethane (HCFC-22); trifluoromethane (HFC-23); 1,2-dichloro 1,1,2,2-tetrafluoroethane (CFC-114); chloropentafluoroethane (CFC-115); 1,1,1-trifluoro 2,2-dichloroethane (HCFC-123); 1,1,1,2-tetrafluoroethane (HFC-134a); 1,1-dichloro 1-fluoroethane (HCFC-141b); 1-chloro 1,1-difluoroethane (HCFC-142b); 2-chloro-1,1,1,2-tetrafluoroethane (HCFC-124); pentafluoroethane (HFC-125); 1,1,2,2-tetrafluoroethane (HFC-134); 1,1,1-trifluoroethane (HFC-143a); 1,1-difluoroethane (HFC-152a); parachlorobenzotrifluoride (PCBTF); cyclic, branched, or linear completely methylated siloxanes; acetone; perchloroethylene (tetrachloroethylene); 3,3-dichloro-1,1,1,2,2-pentafluoropropane (HCFC-225ca); 1,3-dichloro-1,1,2,2,3-pentafluoropropane (HCFC-225cb); 1,1,1,2,3,4,4,5,5,5-decafluoropentane (HFC 43-10mee); difluoromethane (HFC-32); ethylfluoride (HFC-161); 1,1,1,3,3,3-hexafluoropropane (HFC-236fa); 1,1,2,2,3-pentafluoropropane (HFC-245ca); 1,1,2,3,3-pentafluoropropane (HFC-245ea); 1,1,1,2,3-pentafluoropropane (HFC-245eb); 1,1,1,3,3-pentafluoropropane (HFC-245fa); 1,1,1,2,3,3-hexafluoropropane (HFC-236ea); 1,1,1,3,3-pentafluorobutane (HFC-365mfc); chlorofluoromethane (HCFC-31); 1 chloro-1-fluoroethane (HCFC-151a); 1,2-dichloro-1,1,2-trifluoroethane (HCFC-123a); 1,1,1,2,2,3,3,4,4-nonafluoro-4-methoxy-butane (C4F9OCH3 or HFE-7100); 2-(difluoromethoxymethyl)-1,1,1,2,3,3,3-heptafluoropropane ((CF3)2CFCF2OCH3); 1-ethoxy-1,1,2,2,3,3,4,4,4-nonafluorobutane (C4F9OC2H5 or HFE-7200); 2-(ethoxydifluoromethyl)-1,1,1,2,3,3,3-heptafluoropropane ((CF3)2CFCF2OC2H5); methyl acetate; 1,1,1,2,2,3,3-heptafluoro-3-methoxy-propane (n-C3F7OCH3, HFE-7000); 3-ethoxy- 1,1,1,2,3,4,4,5,5,6,6,6-dodecafluoro-2-(trifluoromethyl) hexane (HFE-7500); 1,1,1,2,3,3,3-heptafluoropropane (HFC 227ea); methyl formate (HCOOCH3); 1,1,1,2,2,3,4,5,5,5-decafluoro-3-methoxy-4-trifluoromethyl-pentane (HFE-7300); propylene carbonate; dimethyl carbonate; trans-1,3,3,3-tetrafluoropropene; HCF2OCF2H (HFE-134); HCF2OCF2OCF2H (HFE-236cal2); HCF2OCF2CF2OCF2H (HFE-338pcc13); HCF2OCF2OCF2CF2OCF2H (H-Galden 1040x or H-Galden ZT 130 (or 150 or 180)); trans 1-chloro-3,3,3-trifluoroprop-1-ene; 2,3,3,3-tetrafluoropropene; 2-amino-2-methyl-1-propanol; and perfluorocarbon compounds which fall into these classes:

(i) Cyclic, branched, or linear, completely fluorinated alkanes;

(ii) Cyclic, branched, or linear, completely fluorinated ethers with no unsaturations;

(iii) Cyclic, branched, or linear, completely fluorinated tertiary amines with no unsaturations; and

(iv) Sulfur containing perfluorocarbons with no unsaturations and with sulfur bonds only to carbon and fluorine.

(2) For purposes of determining compliance with emissions limits, VOC will be measured by the test methods in the approved State implementation plan (SIP) or 40 CFR part 60, appendix A, as applicable. Where such a method also measures compounds with negligible photochemical reactivity, these negligibility-reactive compounds may be excluded as VOC if the amount of such compounds is accurately quantified, and such exclusion is approved by the enforcement authority.

(3) As a precondition to excluding these compounds as VOC or at any time thereafter, the enforcement authority may require an owner or operator to provide monitoring or testing methods and results demonstrating, to the satisfaction of the enforcement authority, the amount of negligibly-reactive compounds in the source's emissions.

(4) For purposes of Federal enforcement for a specific source, the EPA shall use the test methods specified in the applicable EPA-approved SIP, in a permit issued pursuant to a program approved or promulgated under title V of the Act, or under 40 CFR part 51, subpart I or appendix S, or under 40 CFR parts 52 or 60. The EPA shall not be bound by any State determination as to appropriate methods for testing or monitoring negligibly-reactive compounds if such determination is not reflected in any of the above provisions.

(5) The following compound(s) are VOC for purposes of all recordkeeping, emissions reporting, photochemical dispersion modeling and inventory requirements which apply to VOC and shall be uniquely identified in emission reports, but are not VOC for purposes of VOC emissions limitations or VOC content requirements: t-butyl acetate.

(6) For the purposes of determining compliance with California's aerosol coatings reactivity-based regulation, (as described in the California Code of Regulations, Title 17, Division 3, Chapter 1, Subchapter 8.5, Article 3), any organic compound in the volatile portion of an aerosol coating is counted towards that product's reactivity-based limit. Therefore, the compounds identified in paragraph (s) of this section as negligibly reactive and excluded from EPA's definition of VOCs are to be counted towards a product's reactivity limit for the purposes of determining compliance with California's aerosol coatings reactivity-based regulation.

(7) For the purposes of determining compliance with EPA's aerosol coatings reactivity based regulation (as described in 40 CFR part 59—National Volatile Organic Compound Emission Standards for Consumer and Commercial Products) any organic compound in the volatile portion of an aerosol coating is counted towards the product's reactivity-based limit, as provided in 40 CFR part 59, subpart E. Therefore, the compounds that are used in aerosol coating products and that are identified in paragraphs (s)(1) or (s)(5) of this section as excluded from EPA's definition of VOC are to be counted towards a product's reactivity limit for the purposes of determining compliance with EPA's aerosol coatings reactivity-based national regulation, as provided in 40 CFR part 59, subpart E.

(t)-(w) [Reserved]

(x) Time period means any period of time designated by hour, month, season, calendar year, averaging time, or other suitable characteristics, for which ambient air quality is estimated.

(y) Variance means the temporary deferral of a final compliance date for an individual source subject to an approved regulation, or a temporary change to an approved regulation as it applies to an individual source.

(z) Emission limitation and emission standard mean a requirement established by a State, local government, or the Administrator which limits the quantity, rate, or concentration of emissions of air pollutants on a continuous basis, including any requirements which limit the level of opacity, prescribe equipment, set fuel specifications, or prescribe operation or maintenance procedures for a source to assure continuous emission reduction.

(aa) Capacity factor means the ratio of the average load on a machine or equipment for the period of time considered to the capacity rating of the machine or equipment.

(bb) Excess emissions means emissions of an air pollutant in excess of an emission standard.

(cc) Nitric acid plant means any facility producing nitric acid 30 to 70 percent in strength by either the pressure or atmospheric pressure process.

(dd) Sulfuric acid plant means any facility producing sulfuric acid by the contact process by burning elemental sulfur, alkylation acid, hydrogen sulfide, or acid sludge, but does not include facilities where conversion to sulfuric acid is utilized primarily as a means of preventing emissions to the atmosphere of sulfur dioxide or other sulfur compounds.

(ee) Fossil fuel-fired steam generator means a furnance or bioler used in the process of burning fossil fuel for the primary purpose of producing steam by heat transfer.

(ff) Stack means any point in a source designed to emit solids, liquids, or gases into the air, including a pipe or duct but not including flares.

(gg) A stack in existence means that the owner or operator had (1) begun, or caused to begin, a continuous program of physical on-site construction of the stack or (2) entered into binding agreements or contractual obligations, which could not be cancelled or modified without substantial loss to the owner or operator, to undertake a program of construction of the stack to be completed within a reasonable time.

(hh)(1) Dispersion technique means any technique which attempts to affect the concentration of a pollutant in the ambient air by:

(i) Using that portion of a stack which exceeds good engineering practice stack height:

(ii) Varying the rate of emission of a pollutant according to atmospheric conditions or ambient concentrations of that pollutant; or

(iii) Increasing final exhaust gas plume rise by manipulating source process parameters, exhaust gas parameters, stack parameters, or combining exhaust gases from several existing stacks into one stack; or other selective handling of exhaust gas streams so as to increase the exhaust gas plume rise.

(2) The preceding sentence does not include:

(i) The reheating of a gas stream, following use of a pollution control system, for the purpose of returning the gas to the temperature at which it was originally discharged from the facility generating the gas stream;

(ii) The merging of exhaust gas streams where:

(A) The source owner or operator demonstrates that the facility was originally designed and constructed with such merged gas streams;

(B) After July 8, 1985 such merging is part of a change in operation at the facility that includes the installation of pollution controls and is accompanied by a net reduction in the allowable emissions of a pollutant. This exclusion from the definition of dispersion techniques shall apply only to the emission limitation for the pollutant affected by such change in operation; or

(C) Before July 8, 1985, such merging was part of a change in operation at the facility that included the installation of emissions control equipment or was carried out for sound economic or engineering reasons. Where there was an increase in the emission limitation or, in the event that no emission limitation was in existence prior to the merging, an increase in the quantity of pollutants actually emitted prior to the merging, the reviewing agency shall presume that merging was significantly motivated by an intent to gain emissions credit for greater dispersion. Absent a demonstration by the source owner or operator that merging was not significantly motivated by such intent, the reviewing agency shall deny credit for the effects of such merging in calculating the allowable emissions for the source;

(iii) Smoke management in agricultural or silvicultural prescribed burning programs;

(iv) Episodic restrictions on residential woodburning and open burning; or

(v) Techniques under §51.100(hh)(1)(iii) which increase final exhaust gas plume rise where the resulting allowable emissions of sulfur dioxide from the facility do not exceed 5,000 tons per year.

(ii) Good engineering practice (GEP) stack height means the greater of:

(1) 65 meters, measured from the ground-level elevation at the base of the stack:

(2)(i) For stacks in existence on January 12, 1979, and for which the owner or operator had obtained all applicable permits or approvals required under 40 CFR parts 51 and 52.

Hg = 2.5H,

provided the owner or operator produces evidence that this equation was actually relied on in establishing an emission limitation:

(ii) For all other stacks,

Hg = H + 1.5L

where:

Hg = good engineering practice stack height, measured from the ground-level elevation at the base of the stack,

H = height of nearby structure(s) measured from the ground-level elevation at the base of the stack.

L = lesser dimension, height or projected width, of nearby structure(s)

provided that the EPA, State or local control agency may require the use of a field study or fluid model to verify GEP stack height for the source; or

(3) The height demonstrated by a fluid model or a field study approved by the EPA State or local control agency, which ensures that the emissions from a stack do not result in excessive concentrations of any air pollutant as a result of atmospheric downwash, wakes, or eddy effects created by the source itself, nearby structures or nearby terrain features.

(jj) Nearby as used in §51.100(ii) of this part is defined for a specific structure or terrain feature and

(1) For purposes of applying the formulae provided in §51.100(ii)(2) means that distance up to five times the lesser of the height or the width dimension of a structure, but not greater than 0.8 km ( 12 mile), and

(2) For conducting demonstrations under §51.100(ii)(3) means not greater than 0.8 km ( 12 mile), except that the portion of a terrain feature may be considered to be nearby which falls within a distance of up to 10 times the maximum height (Ht) of the feature, not to exceed 2 miles if such feature achieves a height (Ht) 0.8 km from the stack that is at least 40 percent of the GEP stack height determined by the formulae provided in §51.100(ii)(2)(ii) of this part or 26 meters, whichever is greater, as measured from the ground-level elevation at the base of the stack. The height of the structure or terrain feature is measured from the ground-level elevation at the base of the stack.

(kk) Excessive concentration is defined for the purpose of determining good engineering practice stack height under §51.100(ii)(3) and means:

(1) For sources seeking credit for stack height exceeding that established under §51.100(ii)(2) a maximum ground-level concentration due to emissions from a stack due in whole or part to downwash, wakes, and eddy effects produced by nearby structures or nearby terrain features which individually is at least 40 percent in excess of the maximum concentration experienced in the absence of such downwash, wakes, or eddy effects and which contributes to a total concentration due to emissions from all sources that is greater than an ambient air quality standard. For sources subject to the prevention of significant deterioration program (40 CFR 51.166 and 52.21), an excessive concentration alternatively means a maximum ground-level concentration due to emissions from a stack due in whole or part to downwash, wakes, or eddy effects produced by nearby structures or nearby terrain features which individually is at least 40 percent in excess of the maximum concentration experienced in the absence of such downwash, wakes, or eddy effects and greater than a prevention of significant deterioration increment. The allowable emission rate to be used in making demonstrations under this part shall be prescribed by the new source performance standard that is applicable to the source category unless the owner or operator demonstrates that this emission rate is infeasible. Where such demonstrations are approved by the authority administering the State implementation plan, an alternative emission rate shall be established in consultation with the source owner or operator.

(2) For sources seeking credit after October 11, 1983, for increases in existing stack heights up to the heights established under §51.100(ii)(2), either (i) a maximum ground-level concentration due in whole or part to downwash, wakes or eddy effects as provided in paragraph (kk)(1) of this section, except that the emission rate specified by any applicable State implementation plan (or, in the absence of such a limit, the actual emission rate) shall be used, or (ii) the actual presence of a local nuisance caused by the existing stack, as determined by the authority administering the State implementation plan; and

(3) For sources seeking credit after January 12, 1979 for a stack height determined under §51.100(ii)(2) where the authority administering the State implementation plan requires the use of a field study or fluid model to verify GEP stack height, for sources seeking stack height credit after November 9, 1984 based on the aerodynamic influence of cooling towers, and for sources seeking stack height credit after December 31, 1970 based on the aerodynamic influence of structures not adequately represented by the equations in §51.100(ii)(2), a maximum ground-level concentration due in whole or part to downwash, wakes or eddy effects that is at least 40 percent in excess of the maximum concentration experienced in the absence of such downwash, wakes, or eddy effects.

(ll)-(mm) [Reserved]

(nn) Intermittent control system (ICS) means a dispersion technique which varies the rate at which pollutants are emitted to the atmosphere according to meteorological conditions and/or ambient concentrations of the pollutant, in order to prevent ground-level concentrations in excess of applicable ambient air quality standards. Such a dispersion technique is an ICS whether used alone, used with other dispersion techniques, or used as a supplement to continuous emission controls (i.e., used as a supplemental control system).

(oo) Particulate matter means any airborne finely divided solid or liquid material with an aerodynamic diameter smaller than 100 micrometers.

(pp) Particulate matter emissions means all finely divided solid or liquid material, other than uncombined water, emitted to the ambient air as measured by applicable reference methods, or an equivalent or alternative method, specified in this chapter, or by a test method specified in an approved State implementation plan.

(qq) PM10 means particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers as measured by a reference method based on appendix J of part 50 of this chapter and designated in accordance with part 53 of this chapter or by an equivalent method designated in accordance with part 53 of this chapter.

(rr) PM10 emissions means finely divided solid or liquid material, with an aerodynamic diameter less than or equal to a nominal 10 micrometers emitted to the ambient air as measured by an applicable reference method, or an equivalent or alternative method, specified in this chapter or by a test method specified in an approved State implementation plan.

(ss) Total suspended particulate means particulate matter as measured by the method described in appendix B of part 50 of this chapter.

[51 FR 40661, Nov. 7, 1986]

Editorial Note: For Federal Register citations affecting §51.100, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.fdsys.gov.

§51.101   Stipulations.

Nothing in this part will be construed in any manner:

(a) To encourage a State to prepare, adopt, or submit a plan which does not provide for the protection and enhancement of air quality so as to promote the public health and welfare and productive capacity.

(b) To encourage a State to adopt any particular control strategy without taking into consideration the cost-effectiveness of such control strategy in relation to that of alternative control strategies.

(c) To preclude a State from employing techniques other than those specified in this part for purposes of estimating air quality or demonstrating the adequacy of a control strategy, provided that such other techniques are shown to be adequate and appropriate for such purposes.

(d) To encourage a State to prepare, adopt, or submit a plan without taking into consideration the social and economic impact of the control strategy set forth in such plan, including, but not limited to, impact on availability of fuels, energy, transportation, and employment.

(e) To preclude a State from preparing, adopting, or submitting a plan which provides for attainment and maintenance of a national standard through the application of a control strategy not specifically identified or described in this part.

(f) To preclude a State or political subdivision thereof from adopting or enforcing any emission limitations or other measures or combinations thereof to attain and maintain air quality better than that required by a national standard.

(g) To encourage a State to adopt a control strategy uniformly applicable throughout a region unless there is no satisfactory alternative way of providing for attainment and maintenance of a national standard throughout such region.

[61 FR 30163, June 14, 1996]

§51.102   Public hearings.

(a) Except as otherwise provided in paragraph (c) of this section and within the 30 day notification period as required by paragraph (d) of this section, States must provide notice, provide the opportunity to submit written comments and allow the public the opportunity to request a public hearing. The State must hold a public hearing or provide the public the opportunity to request a public hearing. The notice announcing the 30 day notification period must include the date, place and time of the public hearing. If the State provides the public the opportunity to request a public hearing and a request is received the State must hold the scheduled hearing or schedule a public hearing (as required by paragraph (d) of this section). The State may cancel the public hearing through a method it identifies if no request for a public hearing is received during the 30 day notification period and the original notice announcing the 30 day notification period clearly states: If no request for a public hearing is received the hearing will be cancelled; identifies the method and time for announcing that the hearing has been cancelled; and provides a contact phone number for the public to call to find out if the hearing has been cancelled. These requirements apply for adoption and submission to EPA of:

(1) Any plan or revision of it required by §51.104(a).

(2) Any individual compliance schedule under (§51.260).

(3) Any revision under §51.104(d).

(b) Separate hearings may be held for plans to implement primary and secondary standards.

(c) No hearing will be required for any change to an increment of progress in an approved individual compliance schedule unless such change is likely to cause the source to be unable to comply with the final compliance date in the schedule. The requirements of §§51.104 and 51.105 will be applicable to such schedules, however.

(d) Any hearing required by paragraph (a) of this section will be held only after reasonable notice, which will be considered to include, at least 30 days prior to the date of such hearing(s):

(1) Notice given to the public by prominent advertisement in the area affected announcing the date(s), time(s), and place(s) of such hearing(s);

(2) Availability of each proposed plan or revision for public inspection in at least one location in each region to which it will apply, and the availability of each compliance schedule for public inspection in at least one location in the region in which the affected source is located;

(3) Notification to the Administrator (through the appropriate Regional Office);

(4) Notification to each local air pollution control agency which will be significantly impacted by such plan, schedule or revision;

(5) In the case of an interstate region, notification to any other States included, in whole or in part, in the regions which are significantly impacted by such plan or schedule or revision.

(e) The State must prepare and retain, for inspection by the Administrator upon request, a record of each hearing. The record must contain, as a minimum, a list of witnesses together with the text of each presentation.

(f) The State must submit with the plan, revision, or schedule, a certification that the requirements in paragraph (a) and (d) of this section were met. Such certification will include the date and place of any public hearing(s) held or that no public hearing was requested during the 30 day notification period.

(g) Upon written application by a State agency (through the appropriate Regional Office), the Administrator may approve State procedures for public hearings. The following criteria apply:

(1) Procedures approved under this section shall be deemed to satisfy the requirement of this part regarding public hearings.

(2) Procedures different from this part may be approved if they—

(i) Ensure public participation in matters for which hearings are required; and

(ii) Provide adequate public notification of the opportunity to participate.

(3) The Administrator may impose any conditions on approval he or she deems necessary.

[36 FR 22938, Nov. 25, 1971, as amended at 65 FR 8657, Feb. 22, 2000; 72 FR 38792, July 16, 2007]

§51.103   Submission of plans, preliminary review of plans.

(a) The State makes an official plan submission to EPA only when the submission conforms to the requirements of appendix V to this part, and the State delivers five hard copies or at least two hard copies with an electronic version of the hard copy (unless otherwise agreed to by the State and Regional Office) of the plan to the appropriate Regional Office, with a letter giving notice of such action. If the State submits an electronic copy, it must be an exact duplicate of the hard copy.

(b) Upon request of a State, the Administrator will provide preliminary review of a plan or portion thereof submitted in advance of the date such plan is due. Such requests must be made in writing to the appropriate Regional Office, must indicate changes (such as, redline/strikethrough) to the existing approved plan, where applicable and must be accompanied by five hard copies or at least two hard copies with an electronic version of the hard copy (unless otherwise agreed to by the State and Regional Office). Requests for preliminary review do not relieve a State of the responsibility of adopting and submitting plans in accordance with prescribed due dates.

[72 FR 38792, July 16, 2007]

§51.104   Revisions.

(a) States may revise the plan from time to time consistent with the requirements applicable to implementation plans under this part.

(b) The States must submit any revision of any regulation or any compliance schedule under paragraph (c) of this section to the Administrator no later than 60 days after its adoption.

(c) EPA will approve revisions only after applicable hearing requirements of §51.102 have been satisfied.

(d) In order for a variance to be considered for approval as a revision to the State implementation plan, the State must submit it in accordance with the requirements of this section.

[51 FR 40661, Nov. 7, 1986, as amended at 61 FR 16060, Apr. 11, 1996]

§51.105   Approval of plans.

Revisions of a plan, or any portion thereof, will not be considered part of an applicable plan until such revisions have been approved by the Administrator in accordance with this part.

[51 FR 40661, Nov. 7, 1986, as amended at 60 FR 33922, June 29, 1995]

Subpart G—Control Strategy

Source: 51 FR 40665, Nov. 7, 1986, unless otherwise noted.

§51.110   Attainment and maintenance of national standards.

(a) Each plan providing for the attainment of a primary or secondary standard must specify the projected attainment date.

(b)-(f) [Reserved]

(g) During developing of the plan, EPA encourages States to identify alternative control strategies, as well as the costs and benefits of each such alternative for attainment or maintenance of the national standard.

[51 FR 40661 Nov. 7, 1986 as amended at 61 FR 16060, Apr. 11, 1996; 61 FR 30163, June 14, 1996]

§51.111   Description of control measures.

Each plan must set forth a control strategy which includes the following:

(a) A description of enforcement methods including, but not limited to:

(1) Procedures for monitoring compliance with each of the selected control measures,

(2) Procedures for handling violations, and

(3) A designation of agency responsibility for enforcement of implementation.

(b) [Reserved]

[51 FR 40665, Nov. 7, 1986, as amended at 60 FR 33922, June 29, 1995]

§51.112   Demonstration of adequacy.

(a) Each plan must demonstrate that the measures, rules, and regulations contained in it are adequate to provide for the timely attainment and maintenance of the national standard that it implements.

(1) The adequacy of a control strategy shall be demonstrated by means of applicable air quality models, data bases, and other requirements specified in appendix W of this part (Guideline on Air Quality Models).

(2) Where an air quality model specified in appendix W of this part (Guideline on Air Quality Models) is inappropriate, the model may be modified or another model substituted. Such a modification or substitution of a model may be made on a case-by-case basis or, where appropriate, on a generic basis for a specific State program. Written approval of the Administrator must be obtained for any modification or substitution. In addition, use of a modified or substituted model must be subject to notice and opportunity for public comment under procedures set forth in §51.102.

(b) The demonstration must include the following:

(1) A summary of the computations, assumptions, and judgments used to determine the degree of reduction of emissions (or reductions in the growth of emissions) that will result from the implementation of the control strategy.

(2) A presentation of emission levels expected to result from implementation of each measure of the control strategy.

(3) A presentation of the air quality levels expected to result from implementation of the overall control strategy presented either in tabular form or as an isopleth map showing expected maximum pollutant concentrations.

(4) A description of the dispersion models used to project air quality and to evaluate control strategies.

(5) For interstate regions, the analysis from each constituent State must, where practicable, be based upon the same regional emission inventory and air quality baseline.

[51 FR 40665, Nov. 7, 1986, as amended at 58 FR 38821, July 20, 1993; 60 FR 40468, Aug. 9, 1995; 61 FR 41840, Aug. 12, 1996]

§51.113   [Reserved]

§51.114   Emissions data and projections.

(a) Except for lead, each plan must contain a detailed inventory of emissions from point and area sources. Lead requirements are specified in §51.117. The inventory must be based upon measured emissions or, where measured emissions are not available, documented emission factors.

(b) Each plan must contain a summary of emission levels projected to result from application of the new control strategy.

(c) Each plan must identify the sources of the data used in the projection of emissions.

§51.115   Air quality data and projections.

(a) Each plan must contain a summary of data showing existing air quality.

(b) Each plan must:

(1) Contain a summary of air quality concentrations expected to result from application of the control strategy, and

(2) Identify and describe the dispersion model, other air quality model, or receptor model used.

(c) Actual measurements of air quality must be used where available if made by methods specified in appendix C to part 58 of this chapter. Estimated air quality using appropriate modeling techniques may be used to supplement measurements.

(d) For purposes of developing a control strategy, background concentration shall be taken into consideration with respect to particulate matter. As used in this subpart, background concentration is that portion of the measured ambient levels that cannot be reduced by controlling emissions from man-made sources.

(e) In developing an ozone control strategy for a particular area, background ozone concentrations and ozone transported into an area must be considered. States may assume that the ozone standard will be attained in upwind areas.

§51.116   Data availability.

(a) The State must retain all detailed data and calculations used in the preparation of each plan or each plan revision, and make them available for public inspection and submit them to the Administrator at his request.

(b) The detailed data and calculations used in the preparation of plan revisions are not considered a part of the plan.

(c) Each plan must provide for public availability of emission data reported by source owners or operators or otherwise obtained by a State or local agency. Such emission data must be correlated with applicable emission limitations or other measures. As used in this paragraph, correlated means presented in such a manner as to show the relationship between measured or estimated amounts of emissions and the amounts of such emissions allowable under the applicable emission limitations or other measures.

§51.117   Additional provisions for lead.

In addition to other requirements in §§51.100 through 51.116 the following requirements apply to lead. To the extent they conflict, there requirements are controlling over those of the proceeding sections.

(a) Control strategy demonstration. Each plan must contain a demonstration showing that the plan will attain and maintain the standard in the following areas:

(1) Areas in the vicinity of the following point sources of lead: Primary lead smelters, Secondary lead smelters, Primary copper smelters, Lead gasoline additive plants, Lead-acid storage battery manufacturing plants that produce 2,000 or more batteries per day. Any other stationary source that actually emits 25 or more tons per year of lead or lead compounds measured as elemental lead.

(2) Any other area that has lead air concentrations in excess of the national ambient air quality standard concentration for lead, measured since January 1, 1974.

(b) Time period for demonstration of adequacy. The demonstration of adequacy of the control strategy required under §51.112 may cover a longer period if allowed by the appropriate EPA Regional Administrator.

(c) Special modeling provisions. (1) For urbanized areas with measured lead concentrations in excess of 4.0 µg/m3, quarterly mean measured since January 1, 1974, the plan must employ the modified rollback model for the demonstration of attainment as a minimum, but may use an atmospheric dispersion model if desired, consistent with requirements contained in §51.112(a). If a proportional model is used, the air quality data should be the same year as the emissions inventory required under the paragraph e.

(2) For each point source listed in §51.117(a), that plan must employ an atmospheric dispersion model for demonstration of attainment, consistent with requirements contained in §51.112(a).

(3) For each area in the vicinity of an air quality monitor that has recorded lead concentrations in excess of the lead national standard concentration, the plan must employ the modified rollback model as a minimum, but may use an atmospheric dispersion model if desired for the demonstration of attainment, consistent with requirements contained in §51.112(a).

(d) Air quality data and projections. (1) Each State must submit to the appropriate EPA Regional Office with the plan, but not part of the plan, all lead air quality data measured since January 1, 1974. This requirement does not apply if the data has already been submitted.

(2) The data must be submitted in accordance with the procedures and data forms specified in Chapter 3.4.0 of the “AEROS User's Manual” concerning storage and retrieval of aerometric data (SAROAD) except where the Regional Administrator waives this requirement.

(3) If additional lead air quality data are desired to determine lead air concentrations in areas suspected of exceeding the lead national ambient air quality standard, the plan may include data from any previously collected filters from particulate matter high volume samplers. In determining the lead content of the filters for control strategy demonstration purposes, a State may use, in addition to the reference method, X-ray fluorescence or any other method approved by the Regional Administrator.

(e) Emissions data. (1) The point source inventory on which the summary of the baseline for lead emissions inventory is based must contain all sources that emit 0.5 or more tons of lead per year.

(2) Each State must submit lead emissions data to the appropriate EPA Regional Office with the original plan. The submission must be made with the plan, but not as part of the plan, and must include emissions data and information related to point and area source emissions. The emission data and information should include the information identified in the Hazardous and Trace Emissions System (HATREMS) point source coding forms for all point sources and the area source coding forms for all sources that are not point sources, but need not necessarily be in the format of those forms.

[41 FR 18388, May 3, 1976, as amended at 58 FR 38822, July 20, 1993; 73 FR 67057, Nov. 12, 2008]

§51.118   Stack height provisions.

(a) The plan must provide that the degree of emission limitation required of any source for control of any air pollutant must not be affected by so much of any source's stack height that exceeds good engineering practice or by any other dispersion technique, except as provided in §51.118(b). The plan must provide that before a State submits to EPA a new or revised emission limitation that is based on a good engineering practice stack height that exceeds the height allowed by §51.100(ii) (1) or (2), the State must notify the public of the availabilty of the demonstration study and must provide opportunity for a public hearing on it. This section does not require the plan to restrict, in any manner, the actual stack height of any source.

(b) The provisions of §51.118(a) shall not apply to (1) stack heights in existence, or dispersion techniques implemented on or before December 31, 1970, except where pollutants are being emitted from such stacks or using such dispersion techniques by sources, as defined in section 111(a)(3) of the Clean Air Act, which were constructed, or reconstructed, or for which major modifications, as defined in §§51.165(a)(1)(v)(A), 51.166(b)(2)(i) and 52.21(b)(2)(i), were carried out after December 31, 1970; or (2) coal-fired steam electric generating units subject to the provisions of section 118 of the Clean Air Act, which commenced operation before July 1, 1957, and whose stacks were construced under a construction contract awarded before February 8, 1974.

§51.119   Intermittent control systems.

(a) The use of an intermittent control system (ICS) may be taken into account in establishing an emission limitation for a pollutant under a State implementation plan, provided:

(1) The ICS was implemented before December 31, 1970, according to the criteria specified in §51.119(b).

(2) The extent to which the ICS is taken into account is limited to reflect emission levels and associated ambient pollutant concentrations that would result if the ICS was the same as it was before December 31, 1970, and was operated as specified by the operating system of the ICS before December 31, 1970.

(3) The plan allows the ICS to compensate only for emissions from a source for which the ICS was implemented before December 31, 1970, and, in the event the source has been modified, only to the extent the emissions correspond to the maximum capacity of the source before December 31, 1970. For purposes of this paragraph, a source for which the ICS was implemented is any particular structure or equipment the emissions from which were subject to the ICS operating procedures.

(4) The plan requires the continued operation of any constant pollution control system which was in use before December 31, 1970, or the equivalent of that system.

(5) The plan clearly defines the emission limits affected by the ICS and the manner in which the ICS is taken into account in establishing those limits.

(6) The plan contains requirements for the operation and maintenance of the qualifying ICS which, together with the emission limitations and any other necessary requirements, will assure that the national ambient air quality standards and any applicable prevention of significant deterioration increments will be attained and maintained. These requirements shall include, but not necessarily be limited to, the following:

(i) Requirements that a source owner or operator continuously operate and maintain the components of the ICS specified at §51.119(b)(3) (ii)-(iv) in a manner which assures that the ICS is at least as effective as it was before December 31, 1970. The air quality monitors and meteorological instrumentation specified at §51.119(b) may be operated by a local authority or other entity provided the source has ready access to the data from the monitors and instrumentation.

(ii) Requirements which specify the circumstances under which, the extent to which, and the procedures through which, emissions shall be curtailed through the activation of ICS.

(iii) Requirements for recordkeeping which require the owner or operator of the source to keep, for periods of at least 3 years, records of measured ambient air quality data, meteorological information acquired, and production data relating to those processes affected by the ICS.

(iv) Requirements for reporting which require the owner or operator of the source to notify the State and EPA within 30 days of a NAAQS violation pertaining to the pollutant affected by the ICS.

(7) Nothing in this paragraph affects the applicability of any new source review requirements or new source performance standards contained in the Clean Air Act or 40 CFR subchapter C. Nothing in this paragraph precludes a State from taking an ICS into account in establishing emission limitations to any extent less than permitted by this paragraph.

(b) An intermittent control system (ICS) may be considered implemented for a pollutant before December 31, 1970, if the following criteria are met:

(1) The ICS must have been established and operational with respect to that pollutant prior to December 31, 1970, and reductions in emissions of that pollutant must have occurred when warranted by meteorological and ambient monitoring data.

(2) The ICS must have been designed and operated to meet an air quality objective for that pollutant such as an air quality level or standard.

(3) The ICS must, at a minimum, have included the following components prior to December 31, 1970:

(i) Air quality monitors. An array of sampling stations whose location and type were consistent with the air quality objective and operation of the system.

(ii) Meteorological instrumentation. A meteorological data acquisition network (may be limited to a single station) which provided meteorological prediction capabilities sufficient to determine the need for, and degree of, emission curtailments necessary to achieve the air quality design objective.

(iii) Operating system. A system of established procedures for determining the need for curtailments and for accomplishing such curtailments. Documentation of this system, as required by paragraph (n)(4), may consist of a compendium of memoranda or comparable material which define the criteria and procedures for curtailments and which identify the type and number of personnel authorized to initiate curtailments.

(iv) Meteorologist. A person, schooled in meteorology, capable of interpreting data obtained from the meteorological network and qualified to forecast meteorological incidents and their effect on ambient air quality. Sources may have obtained meteorological services through a consultant. Services of such a consultant could include sufficient training of source personnel for certain operational procedures, but not for design, of the ICS.

(4) Documentation sufficient to support the claim that the ICS met the criteria listed in this paragraph must be provided. Such documentation may include affidavits or other documentation.

§51.120   Requirements for State Implementation Plan revisions relating to new motor vehicles.

(a) The EPA Administrator finds that the State Implementation Plans (SIPs) for the States of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, and Vermont, the portion of Virginia included (as of November 15, 1990) within the Consolidated Metropolitan Statistical Area that includes the District of Columbia, are substantially inadequate to comply with the requirements of section 110(a)(2)(D) of the Clean Air Act, 42 U.S.C. 7410(a)(2)(D), and to mitigate adequately the interstate pollutant transport described in section 184 of the Clean Air Act, 42 U.S.C. 7511C, to the extent that they do not provide for emission reductions from new motor vehicles in the amount that would be achieved by the Ozone Transport Commission low emission vehicle (OTC LEV) program described in paragraph (c) of this section. This inadequacy will be deemed cured for each of the aforementioned States (including the District of Columbia) in the event that EPA determines through rulemaking that a national LEV-equivalent new motor vehicle emission control program is an acceptable alternative for OTC LEV and finds that such program is in effect. In the event no such finding is made, each of those States must adopt and submit to EPA by February 15, 1996 a SIP revision meeting the requirements of paragraph (b) of this section in order to cure the SIP inadequacy.

(b) If a SIP revision is required under paragraph (a) of this section, it must contain the OTC LEV program described in paragraph (c) of this section unless the State adopts and submits to EPA, as a SIP revision, other emission-reduction measures sufficient to meet the requirements of paragraph (d) of this section. If a State adopts and submits to EPA, as a SIP revision, other emission-reduction measures pursuant to paragraph (d) of this section, then for purposes of determining whether such a SIP revision is complete within the meaning of section 110(k)(1) (and hence is eligible at least for consideration to be approved as satisfying paragraph (d) of this section), such a SIP revision must contain other adopted emission-reduction measures that, together with the identified potentially broadly practicable measures, achieve at least the minimum level of emission reductions that could potentially satisfy the requirements of paragraph (d) of this section. All such measures must be fully adopted and enforceable.

(c) The OTC LEV program is a program adopted pursuant to section 177 of the Clean Air Act.

(1) The OTC LEV program shall contain the following elements:

(i) It shall apply to all new 1999 and later model year passenger cars and light-duty trucks (0-5750 pounds loaded vehicle weight), as defined in Title 13, California Code of Regulations, section 1900(b)(11) and (b)(8), respectively, that are sold, imported, delivered, purchased, leased, rented, acquired, received, or registered in any area of the State that is in the Northeast Ozone Transport Region as of December 19, 1994.

(ii) All vehicles to which the OTC LEV program is applicable shall be required to have a certificate from the California Air Resources Board (CARB) affirming compliance with California standards.

(iii) All vehicles to which this LEV program is applicable shall be required to meet the mass emission standards for Non-Methane Organic Gases (NMOG), Carbon Monoxide (CO), Oxides of Nitrogen (NOX), Formaldehyde (HCHO), and particulate matter (PM) as specified in Title 13, California Code of Regulations, section 1960.1(f)(2) (and formaldehyde standards under section 1960.1(e)(2), as applicable) or as specified by California for certification as a TLEV (Transitional Low-Emission Vehicle), LEV (Low-Emission Vehicle), ULEV (Ultra-Low-Emission Vehicle), or ZEV (Zero-Emission Vehicle) under section 1960.1(g)(1) (and section 1960.1(e)(3), for formaldehyde standards, as applicable).

(iv) All manufacturers of vehicles subject to the OTC LEV program shall be required to meet the fleet average NMOG exhaust emission values for production and delivery for sale of their passenger cars, light-duty trucks 0-3750 pounds loaded vehicle weight, and light-duty trucks 3751-5750 pounds loaded vehicle weight specified in Title 13, California Code of Regulations, section 1960.1(g)(2) for each model year beginning in 1999. A State may determine not to implement the NMOG fleet average in the first model year of the program if the State begins implementation of the program late in a calendar year. However, all States must implement the NMOG fleet average in any full model years of the LEV program.

(v) All manufacturers shall be allowed to average, bank and trade credits in the same manner as allowed under the program specified in Title 13, California Code of Regulations, section 1960.1(g)(2) footnote 7 for each model year beginning in 1999. States may account for credits banked by manufacturers in California or New York in years immediately preceding model year 1999, in a manner consistent with California banking and discounting procedures.

(vi) The provisions for small volume manufacturers and intermediate volume manufacturers, as applied by Title 13, California Code of Regulations to California's LEV program, shall apply. Those manufacturers defined as small volume manufacturers and intermediate volume manufacturers in California under California's regulations shall be considered small volume manufacturers and intermediate volume manufacturers under this program.

(vii) The provisions for hybrid electric vehicles (HEVs), as defined in Title 13 California Code of Regulations, section 1960.1, shall apply for purposes of calculating fleet average NMOG values.

(viii) The provisions for fuel-flexible vehicles and dual-fuel vehicles specified in Title 13, California Code of Regulations, section 1960.1(g)(1) footnote 4 shall apply.

(ix) The provisions for reactivity adjustment factors, as defined by Title 13, California Code of Regulations, shall apply.

(x) The aforementioned State OTC LEV standards shall be identical to the aforementioned California standards as such standards exist on December 19, 1994.

(xi) All States' OTC LEV programs must contain any other provisions of California's LEV program specified in Title 13, California Code of Regulations necessary to comply with section 177 of the Clean Air Act.

(2) States are not required to include the mandate for production of ZEVs specified in Title 13, California Code of Regulations, section 1960.1(g)(2) footnote 9.

(3) Except as specified elsewhere in this section, States may implement the OTC LEV program in any manner consistent with the Act that does not decrease the emissions reductions or jeopardize the effectiveness of the program.

(d) The SIP revision that paragraph (b) of this section describes as an alternative to the OTC LEV program described in paragraph (c) of this section must contain a set of State-adopted measures that provides at least the following amount of emission reductions in time to bring serious ozone nonattainment areas into attainment by their 1999 attainment date:

(1) Reductions at least equal to the difference between:

(i) The nitrogen oxides (NOX) emission reductions from the 1990 statewide emissions inventory achievable through implementation of all of the Clean Air Act-mandated and potentially broadly practicable control measures throughout all portions of the State that are within the Northeast Ozone Transport Region created under section 184(a) of the Clean Air Act as of December 19, 1994; and

(ii) A reduction in NOX emissions from the 1990 statewide inventory in such portions of the State of 50% or whatever greater reduction is necessary to prevent significant contribution to nonattainment in, or interference with maintenance by, any downwind State.

(2) Reductions at least equal to the difference between:

(i) The VOC emission reductions from the 1990 statewide emissions inventory achievable through implementation of all of the Clean Air Act-mandated and potentially broadly practicable control measures in all portions of the State in, or near and upwind of, any of the serious or severe ozone nonattainment areas lying in the series of such areas running northeast from the Washington, DC, ozone nonattainment area to and including the Portsmouth, New Hampshire ozone nonattainment area; and

(ii) A reduction in VOC emissions from the 1990 emissions inventory in all such areas of 50% or whatever greater reduction is necessary to prevent significant contribution to nonattainment in, or interference with maintenance by, any downwind State.

[60 FR 4736, Jan. 24, 1995]

§51.121   Findings and requirements for submission of State implementation plan revisions relating to emissions of oxides of nitrogen.

(a)(1) The Administrator finds that the State implementation plan (SIP) for each jurisdiction listed in paragraph (c) of this section is substantially inadequate to comply with the requirements of section 110(a)(2)(D)(i)(I) of the Clean Air Act (CAA), 42 U.S.C. 7410(a)(2)(D)(i)(I), because the SIP does not include adequate provisions to prohibit sources and other activities from emitting nitrogen oxides (“NOX”) in amounts that will contribute significantly to nonattainment in one or more other States with respect to the 1-hour ozone national ambient air quality standards (NAAQS). Each of the jurisdictions listed in paragraph (c) of this section must submit to EPA a SIP revision that cures the inadequacy.

(2) Under section 110(a)(1) of the CAA, 42 U.S.C. 7410(a)(1), the Administrator determines that each jurisdiction listed in paragraph (c) of this section must submit a SIP revision to comply with the requirements of section 110(a)(2)(D)(i)(I), 42 U.S.C. 7410(a)(2)(D)(i)(I), through the adoption of adequate provisions prohibiting sources and other activities from emitting NOX in amounts that will contribute significantly to nonattainment in, or interfere with maintenance by, one or more other States with respect to the 8-hour ozone NAAQS.

(3)(i) For purposes of this section, the term “Phase I SIP Submission” means those SIP revisions submitted by States on or before October 30, 2000 in compliance with paragraph (b)(1)(ii) of this section. A State's Phase I SIP submission may include portions of the NOX budget, under paragraph (e)(3) of this section, that a State is required to include in a Phase II SIP submission.

(ii) For purposes of this section, the term “Phase II SIP Submission” means those SIP revisions that must be submitted by a State in compliance with paragraph (b)(1)(ii) of this section and which includes portions of the NOX budget under paragraph (e)(3) of this section.

(b)(1) For each jurisdiction listed in paragraph (c) of this section, the SIP revision required under paragraph (a) of this section will contain adequate provisions, for purposes of complying with section 110(a)(2)(D)(i)(I) of the CAA, 42 U.S.C. 7410(a)(2)(D)(i)(I), only if the SIP revision:

(i) Contains control measures adequate to prohibit emissions of NOX that would otherwise be projected, in accordance with paragraph (g) of this section, to cause the jurisdiction's overall NOX emissions to be in excess of the budget for that jurisdiction described in paragraph (e) of this section (except as provided in paragraph (b)(2) of this section),

(ii) Requires full implementation of all such control measures by no later than May 31, 2004 for the sources covered by a Phase I SIP submission and May 1, 2007 for the sources covered by a Phase II SIP submission.

(iii) Meets the other requirements of this section. The SIP revision's compliance with the requirement of paragraph (b)(1)(i) of this section shall be considered compliance with the jurisdiction's budget for purposes of this section.

(2) The requirements of paragraph (b)(1)(i) of this section shall be deemed satisfied, for the portion of the budget covered by an interstate trading program, if the SIP revision:

(i) Contains provisions for an interstate trading program that EPA determines will, in conjunction with interstate trading programs for one or more other jurisdictions, prohibit NOX emissions in excess of the sum of the portion of the budgets covered by the trading programs for those jurisdictions; and

(ii) Conforms to the following criteria:

(A) Emissions reductions used to demonstrate compliance with the revision must occur during the ozone season.

(B) Emissions reductions occurring prior to the first year in which any sources covered by Phase I or Phase II SIP submission are subject to control measures under paragraph (b)(1)(i) of this section may be used by a source to demonstrate compliance with the SIP revision for the first and second ozone seasons in which any sources covered by a Phase I or Phase II SIP submission are subject to such control measures, provided the SIPs provisions regarding such use comply with the requirements of paragraph (e)(4) of this section.

(C) Emissions reductions credits or emissions allowances held by a source or other person following the first ozone season in which any sources covered by a Phase I or Phase II SIP submission are subject to control measures under paragraph (b)(1)(i) of this section or any ozone season thereafter that are not required to demonstrate compliance with the SIP for the relevant ozone season may be banked and used to demonstrate compliance with the SIP in a subsequent ozone season.

(D) Early reductions created according to the provisions in paragraph (b)(2)(ii)(B) of this section and used in the first ozone season in which any sources covered by Phase I or Phase II submissions are subject to the control measures under paragraph (b)(1)(i) of this section are not subject to the flow control provisions set forth in paragraph (b)(2)(ii)(E) of this section.

(E) Starting with the second ozone season in which any sources covered by a Phase I or Phase II SIP submission are subject to control measures under paragraph (b)(1)(i) of this section, the SIP shall include provisions to limit the use of banked emissions reductions credits or emissions allowances beyond a predetermined amount as calculated by one of the following approaches:

(1) Following the determination of compliance after each ozone season, if the total number of emissions reduction credits or banked allowances held by sources or other persons subject to the trading program exceeds 10 percent of the sum of the allowable ozone season NOX emissions for all sources subject to the trading program, then all banked allowances used for compliance for the following ozone season shall be subject to the following:

(i) A ratio will be established according to the following formula: (0.10) × (the sum of the allowable ozone season NOX emissions for all sources subject to the trading program) ÷ (the total number of banked emissions reduction credits or emissions allowances held by all sources or other persons subject to the trading program).

(ii) The ratio, determined using the formula specified in paragraph (b)(2)(ii)(E)(1)(i) of this section, will be multiplied by the number of banked emissions reduction credits or emissions allowances held in each account at the time of compliance determination. The resulting product is the number of banked emissions reduction credits or emissions allowances in the account which can be used in the current year's ozone season at a rate of 1 credit or allowance for every 1 ton of emissions. The SIP shall specify that banked emissions reduction credits or emissions allowances in excess of the resulting product either may not be used for compliance, or may only be used for compliance at a rate no less than 2 credits or allowances for every 1 ton of emissions.

(2) At the time of compliance determination for each ozone season, if the total number of banked emissions reduction credits or emissions allowances held by a source subject to the trading program exceeds 10 percent of the source's allowable ozone season NOX emissions, all banked emissions reduction credits or emissions allowances used for compliance in such ozone season by the source shall be subject to the following:

(i) The source may use an amount of banked emissions reduction credits or emissions allowances not greater than 10 percent of the source's allowable ozone season NOX emissions for compliance at a rate of 1 credit or allowance for every 1 ton of emissions.

(ii) The SIP shall specify that banked emissions reduction credits or emissions allowances in excess of 10 percent of the source's allowable ozone season NOX emissions may not be used for compliance, or may only be used for compliance at a rate no less than 2 credits or allowances for every 1 ton of emissions.

(c) The following jurisdictions (hereinafter referred to as “States”) are subject to the requirement of this section:

(1) With respect to the 1-hour ozone NAAQS: Connecticut, Delaware, Illinois, Indiana, Kentucky, Maryland, Massachusetts, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee, Virginia, West Virginia, and the District of Columbia.

(2) With respect to the 1-hour ozone NAAQS, the portions of Missouri, Michigan, and Alabama within the fine grid of the OTAG modeling domain. The fine grid is the area encompassed by a box with the following geographic coordinates: Southwest Corner, 92 degrees West longitude and 32 degrees North latitude; and Northeast Corner, 69.5 degrees West longitude and 44 degrees North latitude.

(d)(1) The SIP submissions required under paragraph (a) of this section must be submitted to EPA by no later than October 30, 2000 for Phase I SIP submissions and no later than April 1, 2005 for Phase II SIP submissions.

(2) The State makes an official submission of its SIP revision to EPA only when:

(i) The submission conforms to the requirements of appendix V to this part; and

(ii) The State delivers five copies of the plan to the appropriate Regional Office, with a letter giving notice of such action.

(e)(1) Except as provided in paragraph (e)(2)(ii) of this section, the NOX budget for a State listed in paragraph (c) of this section is defined as the total amount of NOX emissions from all sources in that State, as indicated in paragraph (e)(2)(i) of this section with respect to that State, which the State must demonstrate that it will not exceed in the 2007 ozone season pursuant to paragraph (g)(1) of this section.

(2)(i) The State-by-State amounts of the NOX budget, expressed in tons, are as follows:

State Final budget Budget
Alabama119,827
Connecticut42,850
Delaware22,862
District of Columbia6,657
Illinois271,091
Indiana230,381
Kentucky162,519
Maryland81,947
Massachusetts84,848
Michigan190,908
Missouri61,406
New Jersey96,876
New York240,322
North Carolina165,306
Ohio249,541
Pennsylvania257,928
Rhode Island9,378
South Carolina123,496
Tennessee198,286
Virginia180,521
West Virginia83,921
Total$3,031,527

(ii) (A) For purposes of paragraph (e)(2)(i) of this section, in the case of each State listed in paragraphs (e)(2)(ii)(B) through (E) of this section, the NOX budget is defined as the total amount of NOX emissions from all sources in the specified counties in that State, as indicated in paragraph (e)(2)(i) of this section with respect to the State, which the State must demonstrate that it will not exceed in the 2007 ozone season pursuant to paragraph (g)(1) of this section.

(B) In the case of Alabama, the counties are: Autauga, Bibb, Blount, Calhoun, Chambers, Cherokee, Chilton, Clay, Cleburne, Colbert, Coosa, Cullman, Dallas, De Kalb, Elmore, Etowah, Fayette, Franklin, Greene, Hale, Jackson, Jefferson, Lamar, Lauderdale, Lawrence, Lee, Limestone, Macon, Madison, Marion, Marshall, Morgan, Perry, Pickens, Randolph, Russell, St. Clair, Shelby, Sumter, Talladega, Tallapoosa, Tuscaloosa, Walker, and Winston.

(C) [Reserved]

(D) In the case of Michigan, the counties are: Allegan, Barry, Bay, Berrien, Branch, Calhoun, Cass, Clinton, Eaton, Genesee, Gratiot, Hillsdale, Ingham, Ionia, Isabella, Jackson, Kalamazoo, Kent, Lapeer, Lenawee, Livingston, Macomb, Mecosta, Midland, Monroe, Montcalm, Muskegon, Newaygo, Oakland, Oceana, Ottawa, Saginaw, St. Clair, St. Joseph, Sanilac, Shiawassee, Tuscola, Van Buren, Washtenaw, and Wayne.

(E) In the case of Missouri, the counties are: Bollinger, Butler, Cape Girardeau, Carter, Clark, Crawford, Dent, Dunklin, Franklin, Gasconade, Iron, Jefferson, Lewis, Lincoln, Madison, Marion, Mississippi, Montgomery, New Madrid, Oregon, Pemiscot, Perry, Pike, Ralls, Reynolds, Ripley, St. Charles, St. Genevieve, St. Francois, St. Louis, St. Louis City, Scott, Shannon, Stoddard, Warren, Washington, and Wayne.

(3) The State-by-State amounts of the portion of the NOX budget provided in paragraph (e)(1) of this section, expressed in tons, that the States may include in a Phase II SIP submission are as follows:

State Phase II incremental budget
Alabama4,968
Connecticut41
Delaware660
District of Columbia1
Illinois7,055
Indiana4,244
Kentucky2,556
Maryland780
Massachusetts1,023
Michigan1,033
New Jersey−994
New York1,659
North Carolina6,026
Ohio2,741
Pennsylvania10,230
Rhode Island192
South Carolina4,260
Tennessee2,877
Virginia6,168
West Virginia1,124
Total56,644

(4)(i) Notwithstanding the State's obligation to comply with the budgets set forth in paragraph (e)(2) of this section, a SIP revision may allow sources required by the revision to implement NOX emission control measures to demonstrate compliance in the first and second ozone seasons in which any sources covered by a Phase I or Phase II SIP submission are subject to control measures under paragraph (b)(1)(i) of this section using credit issued from the State's compliance supplement pool, as set forth in paragraph (e)(4)(iii) of this section.

(ii) A source may not use credit from the compliance supplement pool to demonstrate compliance after the second ozone season in which any sources are covered by a Phase I or Phase II SIP submission.

(iii) The State-by-State amounts of the compliance supplement pool are as follows:

State Compliance
supplement pool
(tons of NOX)
Alabama8,962
Connecticut569
Delaware168
District of Columbia0
Illinois17,688
Indiana19,915
Kentucky13,520
Maryland3,882
Massachusetts404
Michigan9,907
Missouri5,630
New Jersey1,550
New York2,764
North Carolina10,737
Ohio22,301
Pennsylvania15,763
Rhode Island15
South Carolina5,344
Tennessee10,565
Virginia5,504
West Virginia16,709
Total182,625

(iv) The SIP revision may provide for the distribution of the compliance supplement pool to sources that are required to implement control measures using one or both of the following two mechanisms:

(A) The State may issue some or all of the compliance supplement pool to sources that implement emissions reductions during the ozone season beyond all applicable requirements in the first ozone season in which any sources covered by a Phase I or Phase II SIP submission are subject to control measures under paragraph (b)(1)(i) of this section.

(1) The State shall complete the issuance process by no later than the commencement of the first ozone season in which any sources covered by a Phase I or Phase II SIP submission are subject to control measures under paragraph (b)(1)(i) of this section.

(2) The emissions reduction may not be required by the State's SIP or be otherwise required by the CAA.

(3) The emissions reductions must be verified by the source as actually having occurred during an ozone season between September 30, 1999 and the commencement of the first ozone season in which any sources covered by a Phase I or Phase II SIP submission are subject to control measures under paragraph (b)(1)(i) of this section.

(4) The emissions reduction must be quantified according to procedures set forth in the SIP revision and approved by EPA. Emissions reductions implemented by sources serving electric generators with a nameplate capacity greater than 25 MWe, or boilers, combustion turbines or combined cycle units with a maximum design heat input greater than 250 mmBtu/hr, must be quantified according to the requirements in paragraph (i)(4) of this section.

(5) If the SIP revision contains approved provisions for an emissions trading program, sources that receive credit according to the requirements of this paragraph may trade the credit to other sources or persons according to the provisions in the trading program.

(B) The State may issue some or all of the compliance supplement pool to sources that demonstrate a need for an extension of the earliest date on which any sources covered by a Phase I or Phase II SIP submission are subject to control measures under paragraph (b)(1)(i) of this section according to the following provisions:

(1) The State shall initiate the issuance process by the later date of September 30 before the first ozone season in which any sources covered by a Phase I or Phase II SIP submission are subject to control measures under paragraph (b)(1)(i) of this section or after the State issues credit according to the procedures in paragraph (e)(4)(iv)(A) of this section.

(2) The State shall complete the issuance process by no later than the commencement of the first ozone season in which any sources covered by a Phase I or Phase II SIP submission are subject to control measures under paragraph (b)(1)(i) of this section.

(3) The State shall issue credit to a source only if the source demonstrates the following:

(i) For a source used to generate electricity, compliance with the SIP revision's applicable control measures by the commencement of the first ozone season in which any sources covered by a Phase I or Phase II SIP submission are subject to control measures under paragraph (b)(1)(i) of this section, would create undue risk for the reliability of the electricity supply. This demonstration must include a showing that it would not be feasible to import electricity from other electricity generation systems during the installation of control technologies necessary to comply with the SIP revision.

(ii) For a source not used to generate electricity, compliance with the SIP revision's applicable control measures by the commencement of the first ozone season in which any sources covered by a Phase I or Phase II SIP submission are subject to control measures under paragraph (b)(1)(i) of this section would create undue risk for the source or its associated industry to a degree that is comparable to the risk described in paragraph (e)(4)(iv)(B)(3)(i) of this section.

(iii) For a source subject to an approved SIP revision that allows for early reduction credits in accordance with paragraph (e)(4)(iv)(A) of this section, it was not possible for the source to comply with applicable control measures by generating early reduction credits or acquiring early reduction credits from other sources.

(iv) For a source subject to an approved emissions trading program, it was not possible to comply with applicable control measures by acquiring sufficient credit from other sources or persons subject to the emissions trading program.

(4) The State shall ensure the public an opportunity, through a public hearing process, to comment on the appropriateness of allocating compliance supplement pool credits to a source under paragraph (e)(3)(iv)(B) of this section.

(5) If, no later than February 22, 1999, any member of the public requests revisions to the source-specific data and vehicle miles traveled (VMT) and nonroad mobile growth rates, VMT distribution by vehicle class, average speed by roadway type, inspection and maintenance program parameters, and other input parameters used to establish the State budgets set forth in paragraph (e)(2) of this section or the 2007 baseline sub-inventory information set forth in paragraph (g)(2)(ii) of this section, then EPA will act on that request no later than April 23, 1999 provided:

(i) The request is submitted in electronic format;

(ii) Information is provided to corroborate and justify the need for the requested modification;

(iii) The request includes the following data information regarding any electricity-generating source at issue:

(A) Federal Information Placement System (FIPS) State Code;

(B) FIPS County Code;

(C) Plant name;

(D) Plant ID numbers (ORIS code preferred, State agency tracking number also or otherwise);

(E) Unit ID numbers (a unit is a boiler or other combustion device);

(F) Unit type;

(G) Primary fuel on a heat input basis;

(H) Maximum rated heat input capacity of unit;

(I) Nameplate capacity of the largest generator the unit serves;

(J) Ozone season heat inputs for the years 1995 and 1996;

(K) 1996 (or most recent) average NOX rate for the ozone season;

(L) Latitude and longitude coordinates;

(M) Stack parameter information ;

(N) Operating parameter information;

(O) Identification of specific change to the inventory; and

(P) Reason for the change;

(iv) The request includes the following data information regarding any non-electricity generating point source at issue:

(A) FIPS State Code;

(B) FIPS County Code;

(C) Plant name;

(D) Facility primary standard industrial classification code (SIC);

(E) Plant ID numbers (NEDS, AIRS/AFS, and State agency tracking number also or otherwise);

(F) Unit ID numbers (a unit is a boiler or other combustion device);

(G) Primary source classification code (SCC);

(H) Maximum rated heat input capacity of unit;

(I) 1995 ozone season or typical ozone season daily NOX emissions;

(J) 1995 existing NOX control efficiency;

(K) Latitude and longitude coordinates;

(L) Stack parameter information;

(M) Operating parameter information;

(N) Identification of specific change to the inventory; and

(O) Reason for the change;

(v) The request includes the following data information regarding any stationary area source or nonroad mobile source at issue:

(A) FIPS State Code;

(B) FIPS County Code;

(C) Primary source classification code (SCC);

(D) 1995 ozone season or typical ozone season daily NOX emissions;

(E) 1995 existing NOX control efficiency;

(F) Identification of specific change to the inventory; and

(G) Reason for the change;

(vi) The request includes the following data information regarding any highway mobile source at issue:

(A) FIPS State Code;

(B) FIPS County Code;

(C) Primary source classification code (SCC) or vehicle type;

(D) 1995 ozone season or typical ozone season daily vehicle miles traveled (VMT);

(E) 1995 existing NOX control programs;

(F) identification of specific change to the inventory; and

(G) reason for the change.

(f) Each SIP revision must set forth control measures to meet the NOX budget in accordance with paragraph (b)(1)(i) of this section, which include the following:

(1) A description of enforcement methods including, but not limited to:

(i) Procedures for monitoring compliance with each of the selected control measures;

(ii) Procedures for handling violations; and

(iii) A designation of agency responsibility for enforcement of implementation.

(2) Should a State elect to impose control measures on fossil fuel-fired NOX sources serving electric generators with a nameplate capacity greater than 25 MWe or boilers, combustion turbines or combined cycle units with a maximum design heat input greater than 250 mmBtu/hr as a means of meeting its NOX budget, then those measures must:

(i)(A) Impose a NOX mass emissions cap on each source;

(B) Impose a NOX emissions rate limit on each source and assume maximum operating capacity for every such source for purposes of estimating mass NOX emissions; or

(C) Impose any other regulatory requirement which the State has demonstrated to EPA provides equivalent or greater assurance than options in paragraphs (f)(2)(i)(A) or (f)(2)(i)(B) of this section that the State will comply with its NOX budget in the 2007 ozone season; and

(ii) Impose enforceable mechanisms, in accordance with paragraphs (b)(1) (i) and (ii) of this section, to assure that collectively all such sources, including new or modified units, will not exceed in the 2007 ozone season the total NOX emissions projected for such sources by the State pursuant to paragraph (g) of this section.

(3) For purposes of paragraph (f)(2) of this section, the term “fossil fuel-fired” means, with regard to a NOX source:

(i) The combustion of fossil fuel, alone or in combination with any other fuel, where fossil fuel actually combusted comprises more than 50 percent of the annual heat input on a Btu basis during any year starting in 1995 or, if a NOX source had no heat input starting in 1995, during the last year of operation of the NOX source prior to 1995; or

(ii) The combustion of fossil fuel, alone or in combination with any other fuel, where fossil fuel is projected to comprise more than 50 percent of the annual heat input on a Btu basis during any year; provided that the NOX source shall be “fossil fuel-fired” as of the date, during such year, on which the NOX source begins combusting fossil fuel.

(g)(1) Each SIP revision must demonstrate that the control measures contained in it are adequate to provide for the timely compliance with the State's NOX budget during the 2007 ozone season.

(2) The demonstration must include the following:

(i) Each revision must contain a detailed baseline inventory of NOX mass emissions from the following sources in the year 2007, absent the control measures specified in the SIP submission: electric generating units (EGU), non-electric generating units (non-EGU), area, nonroad and highway sources. The State must use the same baseline emissions inventory that EPA used in calculating the State's NOX budget, as set forth for the State in paragraph (g)(2)(ii) of this section, except that EPA may direct the State to use different baseline inventory information if the State fails to certify that it has implemented all of the control measures assumed in developing the baseline inventory.

(ii) The revised NOX emissions sub-inventories for each State, expressed in tons per ozone season, are as follows:

State EGU Non-EGU Area Nonroad Highway Total
Alabama29,02243,41528,76220,14651,274172,619
Connecticut2,6525,2164,82110,73619,42442,849
Delaware5,2502,4731,1295,6518,35822,861
District of Columbia2072828303,1352,2046,658
Illinois32,37259,5779,36956,724112,518270,560
Indiana47,73147,36329,07026,49479,307229,965
Kentucky36,50325,66931,80715,02553,268162,272
Maryland14,65612,5854,44820,02630,18381,898
Massachusetts15,14610,29811,04820,16628,19084,848
Michigan32,22860,05531,72126,93578,763229,702
Missouri24,21621,6027,34120,82951,615125,603
New Jersey10,25015,46412,43123,56535,16696,876
New York31,03625,47717,42342,091124,261240,288
North Carolina31,82126,43411,06722,00573,695165,022
Ohio48,99040,19421,86043,38094,850249,274
Pennsylvania47,46970,13217,84230,57191,578257,592
Rhode Island9971,6354482,4553,8439,378
South Carolina16,77227,7879,41514,63754,494123,105
Tennessee25,81439,63613,33352,92066,342198,045
Virginia17,18735,21627,73827,85972,195180,195
West Virginia26,85920,2385,45910,43320,84483,833
Wisconsin17,38119,85311,25317,96569,319135,771
Total544,961640,317321,827540,2151,310,4663,357,786

Note to paragraph (g)(2)(ii): Totals may not sum due to rounding.

(iii) Each revision must contain a summary of NOX mass emissions in 2007 projected to result from implementation of each of the control measures specified in the SIP submission and from all NOX sources together following implementation of all such control measures, compared to the baseline 2007 NOX emissions inventory for the State described in paragraph (g)(2)(i) of this section. The State must provide EPA with a summary of the computations, assumptions, and judgments used to determine the degree of reduction in projected 2007 NOX emissions that will be achieved from the implementation of the new control measures compared to the baseline emissions inventory.

(iv) Each revision must identify the sources of the data used in the projection of emissions.

(h) Each revision must comply with §51.116 of this part (regarding data availability).

(i) Each revision must provide for monitoring the status of compliance with any control measures adopted to meet the NOX budget. Specifically, the revision must meet the following requirements:

(1) The revision must provide for legally enforceable procedures for requiring owners or operators of stationary sources to maintain records of and periodically report to the State:

(i) Information on the amount of NOX emissions from the stationary sources; and

(ii) Other information as may be necessary to enable the State to determine whether the sources are in compliance with applicable portions of the control measures;

(2) The revision must comply with §51.212 of this part (regarding testing, inspection, enforcement, and complaints);

(3) If the revision contains any transportation control measures, then the revision must comply with §51.213 of this part (regarding transportation control measures);

(4) If the revision contains measures to control fossil fuel-fired NOX sources serving electric generators with a nameplate capacity greater than 25 MWe or boilers, combustion turbines or combined cycle units with a maximum design heat input greater than 250 mmBtu/hr, then the revision must require such sources to comply with the monitoring provisions of part 75, subpart H.

(5) For purposes of paragraph (i)(4) of this section, the term “fossil fuel-fired” means, with regard to a NOX source:

(i) The combustion of fossil fuel, alone or in combination with any other fuel, where fossil fuel actually combusted comprises more than 50 percent of the annual heat input on a Btu basis during any year starting in 1995 or, if a NOX source had no heat input starting in 1995, during the last year of operation of the NOX source prior to 1995; or

(ii) The combustion of fossil fuel, alone or in combination with any other fuel, where fossil fuel is projected to comprise more than 50 percent of the annual heat input on a Btu basis during any year, provided that the NOX source shall be “fossil fuel-fired” as of the date, during such year, on which the NOX source begins combusting fossil fuel.

(j) Each revision must show that the State has legal authority to carry out the revision, including authority to:

(1) Adopt emissions standards and limitations and any other measures necessary for attainment and maintenance of the State's NOX budget specified in paragraph (e) of this section;

(2) Enforce applicable laws, regulations, and standards, and seek injunctive relief;

(3) Obtain information necessary to determine whether air pollution sources are in compliance with applicable laws, regulations, and standards, including authority to require recordkeeping and to make inspections and conduct tests of air pollution sources;

(4) Require owners or operators of stationary sources to install, maintain, and use emissions monitoring devices and to make periodic reports to the State on the nature and amounts of emissions from such stationary sources; also authority for the State to make such data available to the public as reported and as correlated with any applicable emissions standards or limitations.

(k)(1) The provisions of law or regulation which the State determines provide the authorities required under this section must be specifically identified, and copies of such laws or regulations must be submitted with the SIP revision.

(2) Legal authority adequate to fulfill the requirements of paragraphs (j)(3) and (4) of this section may be delegated to the State under section 114 of the CAA.

(l)(1) A revision may assign legal authority to local agencies in accordance with §51.232 of this part.

(2) Each revision must comply with §51.240 of this part (regarding general plan requirements).

(m) Each revision must comply with §51.280 of this part (regarding resources).

(n) For purposes of the SIP revisions required by this section, EPA may make a finding as applicable under section 179(a)(1)-(4) of the CAA, 42 U.S.C. 7509(a)(1)-(4), starting the sanctions process set forth in section 179(a) of the CAA. Any such finding will be deemed a finding under §52.31(c) of this part and sanctions will be imposed in accordance with the order of sanctions and the terms for such sanctions established in §52.31 of this part.

(o) Each revision must provide for State compliance with the reporting requirements set forth in §51.122 of this part.

(p)(1) Notwithstanding any other provision of this section, if a State adopts regulations substantively identical to 40 CFR part 96 (the model NOX budget trading program for SIPs), incorporates such part by reference into its regulations, or adopts regulations that differ substantively from such part only as set forth in paragraph (p)(2) of this section, then that portion of the State's SIP revision is automatically approved as satisfying the same portion of the State's NOX emission reduction obligations as the State projects such regulations will satisfy, provided that:

(i) The State has the legal authority to take such action and to implement its responsibilities under such regulations, and

(ii) The SIP revision accurately reflects the NOX emissions reductions to be expected from the State's implementation of such regulations.

(2) If a State adopts an emissions trading program that differs substantively from 40 CFR part 96 in only the following respects, then such portion of the State's SIP revision is approved as set forth in paragraph (p)(1) of this section:

(i) The State may expand the applicability provisions of the trading program to include units (as defined in 40 CFR 96.2) that are smaller than the size criteria thresholds set forth in 40 CFR 96.4(a);

(ii) The State may decline to adopt the exemption provisions set forth in 40 CFR 96.4(b);

(iii) The State may decline to adopt the opt-in provisions set forth in subpart I of 40 CFR part 96;

(iv) The State may decline to adopt the allocation provisions set forth in subpart E of 40 CFR part 96 and may instead adopt any methodology for allocating NOX allowances to individual sources, provided that:

(A) The State's methodology does not allow the State to allocate NOX allowances in excess of the total amount of NOX emissions which the State has assigned to its trading program; and

(B) The State's methodology conforms with the timing requirements for submission of allocations to the Administrator set forth in 40 CFR 96.41; and

(v) The State may decline to adopt the early reduction credit provisions set forth in 40 CFR 96.55(c) and may instead adopt any methodology for issuing credit from the State's compliance supplement pool that complies with paragraph (e)(3) of this section.

(3) If a State adopts an emissions trading program that differs substantively from 40 CFR part 96 other than as set forth in paragraph (p)(2) of this section, then such portion of the State's SIP revision is not automatically approved as set forth in paragraph (p)(1) of this section but will be reviewed by the Administrator for approvability in accordance with the other provisions of this section.

(q) Stay of Findings of Significant Contribution with respect to the 8-hour standard. Notwithstanding any other provisions of this subpart, the effectiveness of paragraph (a)(2) of this section is stayed.

(r)(1) Notwithstanding any provisions of paragraph (p) of this section, subparts A through I of part 96 of this chapter, and any State's SIP to the contrary, the Administrator will not carry out any of the functions set forth for the Administrator in subparts A through I of part 96 of this chapter, or in any emissions trading program in a State's SIP approved under paragraph (p) of this section, with regard to any ozone season that occurs after September 30, 2008.

(2) Except as provided in §51.123(bb) with regard to an ozone season that occurs before January 1, 2012, a State whose SIP is approved as meeting the requirements of this section and that includes an emissions trading program approved under paragraph (p) of this section must revise the SIP to adopt control measures that satisfy the same portion of the State's NOX emission reduction requirements under this section as the State projected such emissions trading program would satisfy.

[63 FR 57491, Oct. 27, 1998, as amended at 63 FR 71225, Dec. 24, 1998; 64 FR 26305, May 14, 1999; 65 FR 11230, Mar. 2, 2000; 65 FR 56251, Sept. 18, 2000; 69 FR 21642, Apr. 21, 2004; 70 FR 25317, May 12, 2005; 70 FR 51597, Aug. 31, 2005; 73 FR 21538, Apr. 22, 2008; 76 FR 48353, Aug. 8, 2011]

§51.122   Emissions reporting requirements for SIP revisions relating to budgets for NOX emissions.

(a) As used in this section, words and terms shall have the meanings set forth in §51.50.

(b) For its transport SIP revision under §51.121, each state must submit to EPA NOX emissions data as described in this section.

(c) Each revision must provide for periodic reporting by the state of NOX emissions data to demonstrate whether the state's emissions are consistent with the projections contained in its approved SIP submission.

(1) For the every-year reporting cycle, each revision must provide for reporting of NOX emissions data every year as follows:

(i) The state must report to EPA emissions data from all NOX sources within the state for which the state specified control measures in its SIP submission under §51.121(g), including all sources for which the state has adopted measures that differ from the measures incorporated into the baseline inventory for the year 2007 that the state developed in accordance with §51.121(g).

(ii) If sources report NOX emissions data to EPA for a given year pursuant to a trading program approved under §51.121(p) or pursuant to the monitoring and reporting requirements of 40 CFR part 75, then the state need not provide an every-year cycle report to EPA for such sources.

(2) For the three-year cycle reporting, each plan must provide for triennial (i.e., every third year) reporting of NOX emissions data from all sources within the state.

(3) The data availability requirements in §51.116 must be followed for all data submitted to meet the requirements of paragraphs (b)(1) and (2) of this section.

(d) The data reported in paragraph (b) of this section must meet the requirements of subpart A of this part.

(e) Approval of ozone season calculation by EPA. Each state must submit for EPA approval an example of the calculation procedure used to calculate ozone season emissions along with sufficient information to verify the calculated value of ozone season emissions.

(f) Reporting schedules.

(1) Data collection is to begin during the ozone season 1 year prior to the state's NOX SIP Call compliance date.

(2) Reports are to be submitted according to paragraph (b) of this section.

(3) Through 2011, reports are to be submitted according to the schedule in Table 1 of this paragraph. After 2011, triennial reports are to be submitted every third year and annual reports are to be submitted each year that a triennial report is not required.

Table 1—Schedule for Submitting Reports

Data collection year Type of
report required
2005Triennial.
2006Annual.
2007Annual.
2008Triennial.
2009Annual.
2010Annual.
2011Triennial.

(4) States must submit data for a required year within the time specified after the end of the inventory year for which the data are collected. The first inventory (the 2009 inventory year) and all subsequent years will be due 12 months following the end of the inventory year, i.e., the 2009 inventory must be reported to EPA by December 31, 2010.

(g) Data reporting procedures are given in subpart A. When submitting a formal NOX Budget Emissions Report and associated data, states shall notify the appropriate EPA Regional Office.

[73 FR 76558, Dec. 17, 2008]

§51.123   Findings and requirements for submission of State implementation plan revisions relating to emissions of oxides of nitrogen pursuant to the Clean Air Interstate Rule.

(a)(1) Under section 110(a)(1) of the CAA, 42 U.S.C. 7410(a)(1), the Administrator determines that each State identified in paragraph (c)(1) and (2) of this section must submit a SIP revision to comply with the requirements of section 110(a)(2)(D)(i)(I) of the CAA, 42 U.S.C. 7410(a)(2)(D)(i)(I), through the adoption of adequate provisions prohibiting sources and other activities from emitting NOX in amounts that will contribute significantly to nonattainment in, or interfere with maintenance by, one or more other States with respect to the fine particles (PM2.5) NAAQS.

(2)(a) Under section 110(a)(1) of the CAA, 42 U.S.C. 7410(a)(1), the Administrator determines that each State identified in paragraph (c)(1) and (3) of this section must submit a SIP revision to comply with the requirements of section 110(a)(2)(D)(i)(I) of the CAA, 42 U.S.C. 7410(a)(2)(D)(i)(I), through the adoption of adequate provisions prohibiting sources and other activities from emitting NOX in amounts that will contribute significantly to nonattainment in, or interfere with maintenance by, one or more other States with respect to the 8-hour ozone NAAQS.

(3) Notwithstanding the other provisions of this section, such provisions are not applicable as they relate to the State of Minnesota as of December 3, 2009.

(b) For each State identified in paragraph (c) of this section, the SIP revision required under paragraph (a) of this section will contain adequate provisions, for purposes of complying with section 110(a)(2)(D)(i)(I) of the CAA, 42 U.S.C. 7410(a)(2)(D)(i)(I), only if the SIP revision contains control measures that assure compliance with the applicable requirements of this section.

(c) In addition to being subject to the requirements in paragraphs (b) and (d) of this section:

(1) Alabama, Delaware, Florida, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maryland, Michigan, Mississippi, Missouri, New Jersey, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia, West Virginia, Wisconsin, and the District of Columbia shall be subject to the requirements contained in paragraphs (e) through (cc) of this section;

(2) Georgia, Minnesota, and Texas shall be subject to the requirements in paragraphs (e) through (o) and (cc) of this section; and

(3) Arkansas, Connecticut, and Massachusetts shall be subject to the requirements contained in paragraphs (q) through (cc) of this section.

(d)(1) The State's SIP revision under paragraph (a) of this section must be submitted to EPA by no later than September 11, 2006.

(2) The requirements of appendix V to this part shall apply to the SIP revision under paragraph (a) of this section.

(3) The State shall deliver 5 copies of the SIP revision under paragraph (a) of this section to the appropriate Regional Office, with a letter giving notice of such action.

(e) The State's SIP revision shall contain control measures and demonstrate that they will result in compliance with the State's Annual EGU NOX Budget, if applicable, and achieve the State's Annual Non-EGU NOX Reduction Requirement, if applicable, for the appropriate periods. The amounts of the State's Annual EGU NOX Budget and Annual Non-EGU NOX Reduction Requirement shall be determined as follows:

(1)(i) The Annual EGU NOX Budget for the State is defined as the total amount of NOX emissions from all EGUs in that State for a year, if the State meets the requirements of paragraph (a)(1) of this section by imposing control measures, at least in part, on EGUs. If the State imposes control measures under this section on only EGUs, the Annual EGU NOX Budget for the State shall not exceed the amount, during the indicated periods, specified in paragraph (e)(2) of this section.

(ii) The Annual Non-EGU NOX Reduction Requirement, if applicable, is defined as the total amount of NOX emission reductions that the State demonstrates, in accordance with paragraph (g) of this section, it will achieve from non-EGUs during the appropriate period. If the State meets the requirements of paragraph (a)(1) of this section by imposing control measures on only non-EGUs, then the State's Annual Non-EGU NOX Reduction Requirement shall equal or exceed, during the appropriate periods, the amount determined in accordance with paragraph (e)(3) of this section.

(iii) If a State meets the requirements of paragraph (a)(1) of this section by imposing control measures on both EGUs and non-EGUs, then:

(A) The Annual Non-EGU NOX Reduction Requirement shall equal or exceed the difference between the amount specified in paragraph (e)(2) of this section for the appropriate period and the amount of the State's Annual EGU NOX Budget specified in the SIP revision for the appropriate period; and

(B) The Annual EGU NOX Budget shall not exceed, during the indicated periods, the amount specified in paragraph (e)(2) of this section plus the amount of the Annual Non-EGU NOX Reduction Requirement under paragraph (e)(1)(iii)(A) of this section for the appropriate period.

(2) For a State that complies with the requirements of paragraph (a)(1) of this section by imposing control measures on only EGUs, the amount of the Annual EGU NOX Budget, in tons of NOX per year, shall be as follows, for the indicated State for the indicated period:

State Annual EGU NOX budget for 2009-2014 (tons) Annual EGU NOX budget for 2015 and thereafter (tons)
Alabama69,02057,517
Delaware4,1663,472
District of Columbia144120
Florida99,44582,871
Georgia66,32155,268
Illinois76,23063,525
Indiana108,93590,779
Iowa32,69227,243
Kentucky83,20569,337
Louisiana35,51229,593
Maryland27,72423,104
Michigan65,30454,420
Minnesota31,44326,203
Mississippi17,80714,839
Missouri59,87149,892
New Jersey12,67010,558
New York45,61738,014
North Carolina62,18351,819
Ohio108,66790,556
Pennsylvania99,04982,541
South Carolina32,66227,219
Tennessee50,97342,478
Texas181,014150,845
Virginia36,07430,062
West Virginia74,22061,850
Wisconsin40,75933,966

(3) For a State that complies with the requirements of paragraph (a)(1) of this section by imposing control measures on only non-EGUs, the amount of the Annual Non-EGU NOX Reduction Requirement, in tons of NOX per year, shall be determined, for the State for 2009 and thereafter, by subtracting the amount of the State's Annual EGU NOX Budget for the appropriate year, specified in paragraph (e)(2) of this section from the amount of the State's NOX baseline EGU emissions inventory projected for the appropriate year, specified in Table 5 of “Regional and State SO2 and NOX Budgets”, March 2005 (available at http://www.epa.gov/cleanairinterstaterule).

(4)(i) Notwithstanding the State's obligation to comply with paragraph (e)(2) or (3) of this section, the State's SIP revision may allow sources required by the revision to implement control measures to demonstrate compliance using credit issued from the State's compliance supplement pool, as set forth in paragraph (e)(4)(ii) of this section.

(ii) The State-by-State amounts of the compliance supplement pool are as follows:

State Compliance supplement pool
Alabama10,166
Delaware843
District of Columbia0
Florida8,335
Georgia12,397
Illinois11,299
Indiana20,155
Iowa6,978
Kentucky14,935
Louisiana2,251
Maryland4,670
Michigan8,347
Minnesota6,528
Mississippi3,066
Missouri9,044
New Jersey660
New York0
North Carolina0
Ohio25,037
Pennsylvania16,009
South Carolina2,600
Tennessee8,944
Texas772
Virginia5,134
West Virginia16,929
Wisconsin4,898

(iii) The SIP revision may provide for the distribution of credits from the compliance supplement pool to sources that are required to implement control measures using one or both of the following two mechanisms:

(A) The State may issue credit from compliance supplement pool to sources that are required by the SIP revision to implement NOX emission control measures and that implement NOX emission reductions in 2007 and 2008 that are not necessary to comply with any State or federal emissions limitation applicable at any time during such years. Such a source may be issued one credit from the compliance supplement pool for each ton of such emission reductions in 2007 and 2008.

(1) The State shall complete the issuance process by January 1, 2010.

(2) The emissions reductions for which credits are issued must have been demonstrated by the owners and operators of the source to have occurred during 2007 and 2008 and not to be necessary to comply with any applicable State or federal emissions limitation.

(3) The emissions reductions for which credits are issued must have been quantified by the owners and operators of the source:

(i) For EGUs and for fossil-fuel-fired non-EGUs that are boilers or combustion turbines with a maximum design heat input greater than 250 mmBut/hr, using emissions data determined in accordance with subpart H of part 75 of this chapter; and

(ii) For non-EGUs not described in paragraph (e)(4)(iii)(A)(3)(i) of this section, using emissions data determined in accordance with subpart H of part 75 of this chapter or, if the State demonstrates that compliance with subpart H of part 75 of this chapter is not practicable, determined, to the extent practicable, with the same degree of assurance with which emissions data are determined for sources subject to subpart H of part 75.

(4) If the SIP revision contains approved provisions for an emissions trading program, the owners and operators of sources that receive credit according to the requirements of this paragraph may transfer the credit to other sources or persons according to the provisions in the emissions trading program.

(B) The State may issue credit from the compliance supplement pool to sources that are required by the SIP revision to implement NOX emission control measures and whose owners and operators demonstrate a need for an extension, beyond 2009, of the deadline for the source for implementing such emission controls.

(1) The State shall complete the issuance process by January 1, 2010.

(2) The State shall issue credit to a source only if the owners and operators of the source demonstrate that:

(i) For a source used to generate electricity, implementation of the SIP revision's applicable control measures by 2009 would create undue risk for the reliability of the electricity supply. This demonstration must include a showing that it would not be feasible for the owners and operators of the source to obtain a sufficient amount of electricity, to prevent such undue risk, from other electricity generation facilities during the installation of control technology at the source necessary to comply with the SIP revision.

(ii) For a source not used to generate electricity, compliance with the SIP revision's applicable control measures by 2009 would create undue risk for the source or its associated industry to a degree that is comparable to the risk described in paragraph (e)(4)(iii)(B)(2)(i) of this section.

(iii) This demonstration must include a showing that it would not be possible for the source to comply with applicable control measures by obtaining sufficient credits under paragraph (e)(4)(iii)(A) of this section, or by acquiring sufficient credits from other sources or persons, to prevent undue risk.

(f) Each SIP revision must set forth control measures to meet the amounts specified in paragraph (e) of this section, as applicable, including the following:

(1) A description of enforcement methods including, but not limited to:

(i) Procedures for monitoring compliance with each of the selected control measures;

(ii) Procedures for handling violations; and

(iii) A designation of agency responsibility for enforcement of implementation.

(2)(i) If a State elects to impose control measures on EGUs, then those measures must impose an annual NOX mass emissions cap on all such sources in the State.

(ii) If a State elects to impose control measures on fossil fuel-fired non-EGUs that are boilers or combustion turbines with a maximum design heat input greater than 250 mmBtu/hr, then those measures must impose an annual NOX mass emissions cap on all such sources in the State.

(iii) If a State elects to impose control measures on non-EGUs other than those described in paragraph (f)(2)(ii) of this section, then those measures must impose an annual NOX mass emissions cap on all such sources in the State or the State must demonstrate why such emissions cap is not practicable and adopt alternative requirements that ensure that the State will comply with its requirements under paragraph (e) of this section, as applicable, in 2009 and subsequent years.

(g)(1) Each SIP revision that contains control measures covering non-EGUs as part or all of a State's obligation in meeting its requirement under paragraph (a)(1) of this section must demonstrate that such control measures are adequate to provide for the timely compliance with the State's Annual Non-EGU NOX Reduction Requirement under paragraph (e) of this section and are not adopted or implemented by the State, as of May 12, 2005, and are not adopted or implemented by the Federal government, as of the date of submission of the SIP revision by the State to EPA.

(2) The demonstration under paragraph (g)(1) of this section must include the following, with respect to each source category of non-EGUs for which the SIP revision requires control measures:

(i) A detailed historical baseline inventory of NOX mass emissions from the source category in a representative year consisting, at the State's election, of 2002, 2003, 2004, or 2005, or an average of 2 or more of those years, absent the control measures specified in the SIP revision.

(A) This inventory must represent estimates of actual emissions based on monitoring data in accordance with subpart H of part 75 of this chapter, if the source category is subject to monitoring requirements in accordance with subpart H of part 75 of this chapter.

(B) In the absence of monitoring data in accordance with subpart H of part 75 of this chapter, actual emissions must be quantified, to the maximum extent practicable, with the same degree of assurance with which emissions are quantified for sources subject to subpart H of part 75 of this chapter and using source-specific or source-category-specific assumptions that ensure a source's or source category's actual emissions are not overestimated. If a State uses factors to estimate emissions, production or utilization, or effectiveness of controls or rules for a source category, such factors must be chosen to ensure that emissions are not overestimated.

(C) For measures to reduce emissions from motor vehicles, emission estimates must be based on an emissions model that has been approved by EPA for use in SIP development and must be consistent with the planning assumptions regarding vehicle miles traveled and other factors current at the time of the SIP development.

(D) For measures to reduce emissions from nonroad engines or vehicles, emission estimates methodologies must be approved by EPA.

(ii) A detailed baseline inventory of NOX mass emissions from the source category in the years 2009 and 2015, absent the control measures specified in the SIP revision and reflecting changes in these emissions from the historical baseline year to the years 2009 and 2015, based on projected changes in the production input or output, population, vehicle miles traveled, economic activity, or other factors as applicable to this source category.

(A) These inventories must account for implementation of any control measures that are otherwise required by final rules already promulgated, as of May 12, 2005, or adopted or implemented by any federal agency, as of the date of submission of the SIP revision by the State to EPA, and must exclude any control measures specified in the SIP revision to meet the NOX emissions reduction requirements of this section.

(B) Economic and population forecasts must be as specific as possible to the applicable industry, State, and county of the source or source category and must be consistent with both national projections and relevant official planning assumptions, including estimates of population and vehicle miles traveled developed through consultation between State and local transportation and air quality agencies. However, if these official planning assumptions are inconsistent with official U.S. Census projections of population or with energy consumption projections contained in the U.S. Department of Energy's most recent Annual Energy Outlook, then the SIP revision must make adjustments to correct the inconsistency or must demonstrate how the official planning assumptions are more accurate.

(C) These inventories must account for any changes in production method, materials, fuels, or efficiency that are expected to occur between the historical baseline year and 2009 or 2015, as appropriate.

(iii) A projection of NOX mass emissions in 2009 and 2015 from the source category assuming the same projected changes as under paragraph (g)(2)(ii) of this section and resulting from implementation of each of the control measures specified in the SIP revision.

(A) These inventories must address the possibility that the State's new control measures may cause production or utilization, and emissions, to shift to unregulated or less stringently regulated sources in the source category in the same or another State, and these inventories must include any such amounts of emissions that may shift to such other sources.

(B) The State must provide EPA with a summary of the computations, assumptions, and judgments used to determine the degree of reduction in projected 2009 and 2015 NOX emissions that will be achieved from the implementation of the new control measures compared to the relevant baseline emissions inventory.

(iv) The result of subtracting the amounts in paragraph (g)(2)(iii) of this section for 2009 and 2015, respectively, from the lower of the amounts in paragraph (g)(2)(i) or (g)(2)(ii) of this section for 2009 and 2015, respectively, may be credited towards the State's Annual Non-EGU NOX Reduction Requirement in paragraph (e)(3) of this section for the appropriate period.

(v) Each SIP revision must identify the sources of the data used in each estimate and each projection of emissions.

(h) Each SIP revision must comply with §51.116 (regarding data availability).

(i) Each SIP revision must provide for monitoring the status of compliance with any control measures adopted to meet the State's requirements under paragraph (e) of this section as follows:

(1) The SIP revision must provide for legally enforceable procedures for requiring owners or operators of stationary sources to maintain records of, and periodically report to the State:

(i) Information on the amount of NOX emissions from the stationary sources; and

(ii) Other information as may be necessary to enable the State to determine whether the sources are in compliance with applicable portions of the control measures;

(2) The SIP revision must comply with §51.212 (regarding testing, inspection, enforcement, and complaints);

(3) If the SIP revision contains any transportation control measures, then the SIP revision must comply with §51.213 (regarding transportation control measures);

(4)(i) If the SIP revision contains measures to control EGUs, then the SIP revision must require such sources to comply with the monitoring, recordkeeping, and reporting provisions of subpart H of part 75 of this chapter.

(ii) If the SIP revision contains measures to control fossil fuel-fired non-EGUs that are boilers or combustion turbines with a maximum design heat input greater than 250 mmBtu/hr, then the SIP revision must require such sources to comply with the monitoring, recordkeeping, and reporting provisions of subpart H of part 75 of this chapter.

(iii) If the SIP revision contains measures to control any other non-EGUs that are not described in paragraph (i)(4)(ii) of this section, then the SIP revision must require such sources to comply with the monitoring, recordkeeping, and reporting provisions of subpart H of part 75 of this chapter, or the State must demonstrate why such requirements are not practicable and adopt alternative requirements that ensure that the required emissions reductions will be quantified, to the maximum extent practicable, with the same degree of assurance with which emissions are quantified for sources subject to subpart H of part 75 of this chapter.

(j) Each SIP revision must show that the State has legal authority to carry out the SIP revision, including authority to:

(1) Adopt emissions standards and limitations and any other measures necessary for attainment and maintenance of the State's relevant Annual EGU NOX Budget or the Annual Non-EGU NOX Reduction Requirement, as applicable, under paragraph (e) of this section;

(2) Enforce applicable laws, regulations, and standards and seek injunctive relief;

(3) Obtain information necessary to determine whether air pollution sources are in compliance with applicable laws, regulations, and standards, including authority to require recordkeeping and to make inspections and conduct tests of air pollution sources; and

(4)(i) Require owners or operators of stationary sources to install, maintain, and use emissions monitoring devices and to make periodic reports to the State on the nature and amounts of emissions from such stationary sources; and

(ii) Make the data described in paragraph (j)(4)(i) of this section available to the public within a reasonable time after being reported and as correlated with any applicable emissions standards or limitations.

(k)(1) The provisions of law or regulation that the State determines provide the authorities required under this section must be specifically identified, and copies of such laws or regulations must be submitted with the SIP revision.

(2) Legal authority adequate to fulfill the requirements of paragraphs (j)(3) and (4) of this section may be delegated to the State under section 114 of the CAA.

(l)(1) A SIP revision may assign legal authority to local agencies in accordance with §51.232.

(2) Each SIP revision must comply with §51.240 (regarding general plan requirements).

(m) Each SIP revision must comply with §51.280 (regarding resources).

(n) Each SIP revision must provide for State compliance with the reporting requirements in §51.125.

(o)(1) Notwithstanding any other provision of this section, if a State adopts regulations substantively identical to subparts AA through II of part 96 of this chapter (CAIR NOX Annual Trading Program), incorporates such subparts by reference into its regulations, or adopts regulations that differ substantively from such subparts only as set forth in paragraph (o)(2) of this section, then such emissions trading program in the State's SIP revision is automatically approved as meeting the requirements of paragraph (e) of this section, provided that the State has the legal authority to take such action and to implement its responsibilities under such regulations. Before January 1, 2009, a State's regulations shall be considered to be substantively identical to subparts AA through II of part 96 of this chapter, or differing substantively only as set forth in paragraph (o)(2) of this section, regardless of whether the State's regulations include the definition of “Biomass”, paragraph (3) of the definition of “Cogeneration unit”, and the second sentence of the definition of “Total energy input” in §96.102 of this chapter promulgated on October 19, 2007, provided that the State timely submits to the Administrator a SIP revision that revises the State's regulations to include such provisions. Submission to the Administrator of a SIP revision that revises the State's regulations to include such provisions shall be considered timely if the submission is made by January 1, 2009.

(2) If a State adopts an emissions trading program that differs substantively from subparts AA through II of part 96 of this chapter only as follows, then the emissions trading program is approved as set forth in paragraph (o)(1) of this section.

(i) The State may decline to adopt the CAIR NOX opt-in provisions of:

(A) Subpart II of this part and the provisions applicable only to CAIR NOX opt-in units in subparts AA through HH of this part;

(B) Section 96.188(b) of this chapter and the provisions of subpart II of this part applicable only to CAIR NOX opt-in units under §96.188(b); or

(C) Section 96.188(c) of this chapter and the provisions of subpart II of this part applicable only to CAIR NOX opt-in units under §96.188(c).

(ii) The State may decline to adopt the allocation provisions set forth in subpart EE of part 96 of this chapter and may instead adopt any methodology for allocating CAIR NOX allowances to individual sources, as follows:

(A) The State's methodology must not allow the State to allocate CAIR NOX allowances for a year in excess of the amount in the State's Annual EGU NOX Budget for such year;

(B) The State's methodology must require that, for EGUs commencing operation before January 1, 2001, the State will determine, and notify the Administrator of, each unit's allocation of CAIR NOX allowances by October 31, 2006 for 2009, 2010, and 2011 and by October 31, 2008 and October 31 of each year thereafter for 4th the year after the year of the notification deadline;

(C) The State's methodology must require that, for EGUs commencing operation on or after January 1, 2001, the State will determine, and notify the Administrator of, each unit's allocation of CAIR NOX allowances by October 31 of the year for which the CAIR NOX allowances are allocated; and

(D) The State's methodology for allocating the compliance supplement pool must be substantively identical to §97.143 (except that the permitting authority makes the allocations and the Administrator records the allocations made by the permitting authority) or otherwise in accordance with paragraph (e)(4) of this section.

(3) A State that adopts an emissions trading program in accordance with paragraph (o)(1) or (2) of this section is not required to adopt an emissions trading program in accordance with paragraph (aa)(1) or (2) of this section or §96.124(o)(1) or (2).

(4) If a State adopts an emissions trading program that differs substantively from subparts AA through HH of part 96 of this chapter, other than as set forth in paragraph (o)(2) of this section, then such emissions trading program is not automatically approved as set forth in paragraph (o)(1) or (2) of this section and will be reviewed by the Administrator for approvability in accordance with the other provisions of this section, provided that the NOX allowances issued under such emissions trading program shall not, and the SIP revision shall state that such NOX allowances shall not, qualify as CAIR NOX allowances or CAIR NOX Ozone Season allowances under any emissions trading program approved under paragraphs (o)(1) or (2) or (aa)(1) or (2) of this section.

(p) Notwithstanding any other provision of this section, a State may adopt, and include in a SIP revision submitted by March 31, 2007, regulations relating to the Federal CAIR NOX Annual Trading Program under subparts AA through HH of part 97 of this chapter as follows:

(1) The State may adopt, as CAIR NOX allowance allocation provisions replacing the provisions in subpart EE of part 97 of this chapter:

(i) Allocation provisions substantively identical to subpart EE of part 96 of this chapter, under which the permitting authority makes the allocations; or

(ii) Any methodology for allocating CAIR NOX allowances to individual sources under which the permitting authority makes the allocations, provided that:

(A) The State's methodology must not allow the permitting authority to allocate CAIR NOX allowances for a year in excess of the amount in the State's Annual EGU NOX budget for such year.

(B) The State's methodology must require that, for EGUs commencing operation before January 1, 2001, the permitting authority will determine, and notify the Administrator of, each unit's allocation of CAIR NOX allowances by April 30, 2007 for 2009, 2010, and 2011 and by October 31, 2008 and October 31 of each year thereafter for the 4th year after the year of the notification deadline.

(C) The State's methodology must require that, for EGUs commencing operation on or after January 1, 2001, the permitting authority will determine, and notify the Administrator of, each unit's allocation of CAIR NOX allowances by October 31 of the year for which the CAIR NOX allowances are allocated.

(2) The State may adopt, as compliance supplement pool provisions replacing the provisions in §97.143 of this chapter:

(i) Provisions for allocating the State's compliance supplement pool that are substantively identical to §97.143 of this chapter, except that the permitting authority makes the allocations and the Administrator records the allocations made by the permitting authority;

(ii) Provisions for allocating the State's compliance supplement pool that are substantively identical to §96.143 of this chapter; or

(iii) Other provisions for allocating the State's compliance supplement pool that are in accordance with paragraph (e)(4) of this section.

(3) The State may adopt CAIR opt-in unit provisions as follows:

(i) Provisions for CAIR opt-in units, including provisions for applications for CAIR opt-in permits, approval of CAIR opt-in permits, treatment of units as CAIR opt-in units, and allocation and recordation of CAIR NOX allowances for CAIR opt-in units, that are substantively identical to subpart II of part 96 of this chapter and the provisions of subparts AA through HH that are applicable to CAIR opt-in units or units for which a CAIR opt-in permit application is submitted and not withdrawn and a CAIR opt-in permit is not yet issued or denied;

(ii) Provisions for CAIR opt-in units, including provisions for applications for CAIR opt-in permits, approval of CAIR opt-in permits, treatment of units as CAIR opt-in units, and allocation and recordation of CAIR NOX allowances for CAIR opt-in units, that are substantively identical to subpart II of part 96 of this chapter and the provisions of subparts AA through HH that are applicable to CAIR opt-in units or units for which a CAIR opt-in permit application is submitted and not withdrawn and a CAIR opt-in permit is not yet issued or denied, except that the provisions exclude §96.188(b) of this chapter and the provisions of subpart II of part 96 of this chapter that apply only to units covered by §96.188(b) of this chapter; or

(iii) Provisions for applications for CAIR opt-in units, including provisions for CAIR opt-in permits, approval of CAIR opt-in permits, treatment of units as CAIR opt-in units, and allocation and recordation of CAIR NOX allowances for CAIR opt-in units, that are substantively identical to subpart II of part 96 of this chapter and the provisions of subparts AA through HH that are applicable to CAIR opt-in units or units for which a CAIR opt-in permit application is submitted and not withdrawn and a CAIR opt-in permit is not yet issued or denied, except that the provisions exclude §96.188(c) of this chapter and the provisions of subpart II of part 96 of this chapter that apply only to units covered by §96.188(c) of this chapter.

(q) The State's SIP revision shall contain control measures and demonstrate that they will result in compliance with the State's Ozone Season EGU NOX Budget, if applicable, and achieve the State's Ozone Season Non-EGU NOX Reduction Requirement, if applicable, for the appropriate periods. The amounts of the State's Ozone Season EGU NOX Budget and Ozone Season Non-EGU NOX Reduction Requirement shall be determined as follows:

(1)(i) The Ozone Season EGU NOX Budget for the State is defined as the total amount of NOX emissions from all EGUs in that State for an ozone season, if the State meets the requirements of paragraph (a)(2) of this section by imposing control measures, at least in part, on EGUs. If the State imposes control measures under this section on only EGUs, the Ozone Season EGU NOX Budget for the State shall not exceed the amount, during the indicated periods, specified in paragraph (q)(2) of this section.

(ii) The Ozone Season Non-EGU NOX Reduction Requirement, if applicable, is defined as the total amount of NOX emission reductions that the State demonstrates, in accordance with paragraph (s) of this section, it will achieve from non-EGUs during the appropriate period. If the State meets the requirements of paragraph (a)(2) of this section by imposing control measures on only non-EGUs, then the State's Ozone Season Non-EGU NOX Reduction Requirement shall equal or exceed, during the appropriate periods, the amount determined in accordance with paragraph (q)(3) of this section.

(iii) If a State meets the requirements of paragraph (a)(2) of this section by imposing control measures on both EGUs and non-EGUs, then:

(A) The Ozone Season Non-EGU NOX Reduction Requirement shall equal or exceed the difference between the amount specified in paragraph (q)(2) of this section for the appropriate period and the amount of the State's Ozone Season EGU NOX Budget specified in the SIP revision for the appropriate period; and

(B) The Ozone Season EGU NOX Budget shall not exceed, during the indicated periods, the amount specified in paragraph (q)(2) of this section plus the amount of the Ozone Season Non-EGU NOX Reduction Requirement under paragraph (q)(1)(iii)(A) of this section for the appropriate period.

(2) For a State that complies with the requirements of paragraph (a)(2) of this section by imposing control measures on only EGUs, the amount of the Ozone Season EGU NOX Budget, in tons of NOX per ozone season, shall be as follows, for the indicated State for the indicated period:

State Ozone season EGU NOX budget for 2009-2014 (tons) Ozone season EGU NOX budget for 2015 and thereafter (tons)
Alabama32,18226,818
Arkansas11,5159,596
Connecticut2,5592,559
Delaware2,2261,855
District of Columbia11294
Florida47,91239,926
Illinois30,70128,981
Indiana45,95239,273
Iowa14,26311,886
Kentucky36,04530,587
Louisiana17,08514,238
Maryland12,83410,695
Massachusetts7,5516,293
Michigan28,97124,142
Mississippi8,7147,262
Missouri26,67822,231
New Jersey6,6545,545
New York20,63217,193
North Carolina28,39223,660
Ohio45,66439,945
Pennsylvania42,17135,143
South Carolina15,24912,707
Tennessee22,84219,035
Virginia15,99413,328
West Virginia26,85926,525
Wisconsin17,98714,989

(3) For a State that complies with the requirements of paragraph (a)(2) of this section by imposing control measures on only non-EGUs, the amount of the Ozone Season Non-EGU NOX Reduction Requirement, in tons of NOX per ozone season, shall be determined, for the State for 2009 and thereafter, by subtracting the amount of the State's Ozone Season EGU NOX Budget for the appropriate year, specified in paragraph (q)(2) of this section, from the amount of the State's NOX baseline EGU emissions inventory projected for the ozone season in the appropriate year, specified in Table 7 of “Regional and State SO2 and NOX Budgets”, March 2005 (available at: http://www.epa.gov/cleanairinterstaterule).

(4) Notwithstanding the State's obligation to comply with paragraph (q)(2) or (3) of this section, the State's SIP revision may allow sources required by the revision to implement NOX emission control measures to demonstrate compliance using NOX SIP Call allowances allocated under the NOX Budget Trading Program for any ozone season during 2003 through 2008 that have not been deducted by the Administrator under the NOX Budget Trading Program, if the SIP revision ensures that such allowances will not be available for such deduction under the NOX Budget Trading Program.

(r) Each SIP revision must set forth control measures to meet the amounts specified in paragraph (q) of this section, as applicable, including the following:

(1) A description of enforcement methods including, but not limited to:

(i) Procedures for monitoring compliance with each of the selected control measures;

(ii) Procedures for handling violations; and

(iii) A designation of agency responsibility for enforcement of implementation.

(2)(i) If a State elects to impose control measures on EGUs, then those measures must impose an ozone season NOX mass emissions cap on all such sources in the State.

(ii) If a State elects to impose control measures on fossil fuel-fired non-EGUs that are boilers or combustion turbines with a maximum design heat input greater than 250 mmBtu/hr, then those measures must impose an ozone season NOX mass emissions cap on all such sources in the State.

(iii) If a State elects to impose control measures on non-EGUs other than those described in paragraph (r)(2)(ii) of this section, then those measures must impose an ozone season NOX mass emissions cap on all such sources in the State or the State must demonstrate why such emissions cap is not practicable and adopt alternative requirements that ensure that the State will comply with its requirements under paragraph (q) of this section, as applicable, in 2009 and subsequent years.

(s)(1) Each SIP revision that contains control measures covering non-EGUs as part or all of a State's obligation in meeting its requirement under paragraph (a)(2) of this section must demonstrate that such control measures are adequate to provide for the timely compliance with the State's Ozone Season Non-EGU NOX Reduction Requirement under paragraph (q) of this section and are not adopted or implemented by the State, as of May 12, 2005, and are not adopted or implemented by the federal government, as of the date of submission of the SIP revision by the State to EPA.

(2) The demonstration under paragraph (s)(1) of this section must include the following, with respect to each source category of non-EGUs for which the SIP revision requires control measures:

(i) A detailed historical baseline inventory of NOX mass emissions from the source category in a representative ozone season consisting, at the State's election, of the ozone season in 2002, 2003, 2004, or 2005, or an average of 2 or more of those ozone seasons, absent the control measures specified in the SIP revision.

(A) This inventory must represent estimates of actual emissions based on monitoring data in accordance with subpart H of part 75 of this chapter, if the source category is subject to monitoring requirements in accordance with subpart H of part 75 of this chapter.

(B) In the absence of monitoring data in accordance with subpart H of part 75 of this chapter, actual emissions must be quantified, to the maximum extent practicable, with the same degree of assurance with which emissions are quantified for sources subject to subpart H of part 75 of this chapter and using source-specific or source-category-specific assumptions that ensure a source's or source category's actual emissions are not overestimated. If a State uses factors to estimate emissions, production or utilization, or effectiveness of controls or rules for a source category, such factors must be chosen to ensure that emissions are not overestimated.

(C) For measures to reduce emissions from motor vehicles, emission estimates must be based on an emissions model that has been approved by EPA for use in SIP development and must be consistent with the planning assumptions regarding vehicle miles traveled and other factors current at the time of the SIP development.

(D) For measures to reduce emissions from nonroad engines or vehicles, emission estimates methodologies must be approved by EPA.

(ii) A detailed baseline inventory of NOX mass emissions from the source category in ozone seasons 2009 and 2015, absent the control measures specified in the SIP revision and reflecting changes in these emissions from the historical baseline ozone season to the ozone seasons 2009 and 2015, based on projected changes in the production input or output, population, vehicle miles traveled, economic activity, or other factors as applicable to this source category.

(A) These inventories must account for implementation of any control measures that are adopted or implemented by the State, as of May 12, 2005, or adopted or implemented by the federal government, as of the date of submission of the SIP revision by the State to EPA, and must exclude any control measures specified in the SIP revision to meet the NOX emissions reduction requirements of this section.

(B) Economic and population forecasts must be as specific as possible to the applicable industry, State, and county of the source or source category and must be consistent with both national projections and relevant official planning assumptions including estimates of population and vehicle miles traveled developed through consultation between State and local transportation and air quality agencies. However, if these official planning assumptions are inconsistent with official U.S. Census projections of population or with energy consumption projections contained in the U.S. Department of Energy's most recent Annual Energy Outlook, then the SIP revision must make adjustments to correct the inconsistency or must demonstrate how the official planning assumptions are more accurate.

(C) These inventories must account for any changes in production method, materials, fuels, or efficiency that are expected to occur between the historical baseline ozone season and ozone season 2009 or ozone season 2015, as appropriate.

(iii) A projection of NOX mass emissions in ozone season 2009 and ozone season 2015 from the source category assuming the same projected changes as under paragraph (s)(2)(ii) of this section and resulting from implementation of each of the control measures specified in the SIP revision.

(A) These inventories must address the possibility that the State's new control measures may cause production or utilization, and emissions, to shift to unregulated or less stringently regulated sources in the source category in the same or another State, and these inventories must include any such amounts of emissions that may shift to such other sources.

(B) The State must provide EPA with a summary of the computations, assumptions, and judgments used to determine the degree of reduction in projected ozone season 2009 and ozone season 2015 NOX emissions that will be achieved from the implementation of the new control measures compared to the relevant baseline emissions inventory.

(iv) The result of subtracting the amounts in paragraph (s)(2)(iii) of this section for ozone season 2009 and ozone season 2015, respectively, from the lower of the amounts in paragraph (s)(2)(i) or (s)(2)(ii) of this section for ozone season 2009 and ozone season 2015, respectively, may be credited towards the State's Ozone Season Non-EGU NOX Reduction Requirement in paragraph (q)(3) of this section for the appropriate period.

(v) Each SIP revision must identify the sources of the data used in each estimate and each projection of emissions.

(t) Each SIP revision must comply with §51.116 (regarding data availability).

(u) Each SIP revision must provide for monitoring the status of compliance with any control measures adopted to meet the State's requirements under paragraph (q) of this section as follows:

(1) The SIP revision must provide for legally enforceable procedures for requiring owners or operators of stationary sources to maintain records of, and periodically report to the State:

(i) Information on the amount of NOX emissions from the stationary sources; and

(ii) Other information as may be necessary to enable the State to determine whether the sources are in compliance with applicable portions of the control measures;

(2) The SIP revision must comply with §51.212 (regarding testing, inspection, enforcement, and complaints);

(3) If the SIP revision contains any transportation control measures, then the SIP revision must comply with §51.213 (regarding transportation control measures);

(4)(i) If the SIP revision contains measures to control EGUs, then the SIP revision must require such sources to comply with the monitoring, recordkeeping, and reporting provisions of subpart H of part 75 of this chapter.

(ii) If the SIP revision contains measures to control fossil fuel-fired non-EGUs that are boilers or combustion turbines with a maximum design heat input greater than 250 mmBtu/hr, then the SIP revision must require such sources to comply with the monitoring, recordkeeping, and reporting provisions of subpart H of part 75 of this chapter.

(iii) If the SIP revision contains measures to control any other non-EGUs that are not described in paragraph (u)(4)(ii) of this section, then the SIP revision must require such sources to comply with the monitoring, recordkeeping, and reporting provisions of subpart H of part 75 of this chapter, or the State must demonstrate why such requirements are not practicable and adopt alternative requirements that ensure that the required emissions reductions will be quantified, to the maximum extent practicable, with the same degree of assurance with which emissions are quantified for sources subject to subpart H of part 75 of this chapter.

(v) Each SIP revision must show that the State has legal authority to carry out the SIP revision, including authority to:

(1) Adopt emissions standards and limitations and any other measures necessary for attainment and maintenance of the State's relevant Ozone Season EGU NOX Budget or the Ozone Season Non-EGU NOX Reduction Requirement, as applicable, under paragraph (q) of this section;

(2) Enforce applicable laws, regulations, and standards and seek injunctive relief;

(3) Obtain information necessary to determine whether air pollution sources are in compliance with applicable laws, regulations, and standards, including authority to require recordkeeping and to make inspections and conduct tests of air pollution sources; and

(4)(i) Require owners or operators of stationary sources to install, maintain, and use emissions monitoring devices and to make periodic reports to the State on the nature and amounts of emissions from such stationary sources; and

(ii) Make the data described in paragraph (v)(4)(i) of this section available to the public within a reasonable time after being reported and as correlated with any applicable emissions standards or limitations.

(w)(1) The provisions of law or regulation that the State determines provide the authorities required under this section must be specifically identified, and copies of such laws or regulations must be submitted with the SIP revision.

(2) Legal authority adequate to fulfill the requirements of paragraphs (v)(3) and (4) of this section may be delegated to the State under section 114 of the CAA.

(x)(1) A SIP revision may assign legal authority to local agencies in accordance with §51.232.

(2) Each SIP revision must comply with §51.240 (regarding general plan requirements).

(y) Each SIP revision must comply with §51.280 (regarding resources).

(z) Each SIP revision must provide for State compliance with the reporting requirements in §51.125.

(aa)(1) Notwithstanding any other provision of this section, if a State adopts regulations substantively identical to subparts AAAA through IIII of part 96 of this chapter (CAIR Ozone Season NOX Trading Program), incorporates such subparts by reference into its regulations, or adopts regulations that differ substantively from such subparts only as set forth in paragraph (aa)(2) of this section, then such emissions trading program in the State's SIP revision is automatically approved as meeting the requirements of paragraph (q) of this section, provided that the State has the legal authority to take such action and to implement its responsibilities under such regulations. Before January 1, 2009, a State's regulations shall be considered to be substantively identical to subparts AAAA through IIII of part 96 of the chapter, or differing substantively only as set forth in paragraph (o)(2) of this section, regardless of whether the State's regulations include the definition of “Biomass”, paragraph (3) of the definition of “Cogeneration unit”, and the second sentence of the definition of “Total energy input” in §96.302 of this chapter promulgated on October 19, 2007, provided that the State timely submits to the Administrator a SIP revision that revises the State's regulations to include such provisions. Submission to the Administrator of a SIP revision that revises the State's regulations to include such provisions shall be considered timely if the submission is made by January 1, 2009.

(2) If a State adopts an emissions trading program that differs substantively from subparts AAAA through IIII of part 96 of this chapter only as follows, then the emissions trading program is approved as set forth in paragraph (aa)(1) of this section.

(i) The State may expand the applicability provisions in §96.304 to include all non-EGUs subject to the State's emissions trading program approved under §51.121(p).

(ii) The State may decline to adopt the CAIR NOX Ozone Season opt-in provisions of:

(A) Subpart IIII of this part and the provisions applicable only to CAIR NOX Ozone Season opt-in units in subparts AAAA through HHHH of this part;

(B) Section 96.388(b) of this chapter and the provisions of subpart IIII of this part applicable only to CAIR NOX Ozone Season opt-in units under §96.388(b); or

(C) Section 96.388(c) of this chapter and the provisions of subpart IIII of this part applicable only to CAIR NOX Ozone Season opt-in units under §96.388(c).

(iii) The State may decline to adopt the allocation provisions set forth in subpart EEEE of part 96 of this chapter and may instead adopt any methodology for allocating CAIR NOX Ozone Season allowances to individual sources, as follows:

(A) The State may provide for issuance of an amount of CAIR Ozone Season NOX allowances for an ozone season, in addition to the amount in the State's Ozone Season EGU NOX Budget for such ozone season, not exceeding the amount of NOX SIP Call allowances allocated for the ozone season under the NOX Budget Trading Program to non-EGUs that the applicability provisions in §96.304 are expanded to include under paragraph (aa)(2)(i) of this section;

(B) The State's methodology must not allow the State to allocate CAIR Ozone Season NOX allowances for an ozone season in excess of the amount in the State's Ozone Season EGU NOX Budget for such ozone season plus any additional amount of CAIR Ozone Season NOX allowances issued under paragraph (aa)(2)(iii)(A) of this section for such ozone season;

(C) The State's methodology must require that, for EGUs commencing operation before January 1, 2001, the State will determine, and notify the Administrator of, each unit's allocation of CAIR NOX allowances by October 31, 2006 for the ozone seasons 2009, 2010, and 2011 and by October 31, 2008 and October 31 of each year thereafter for the ozone season in the 4th year after the year of the notification deadline; and

(D) The State's methodology must require that, for EGUs commencing operation on or after January 1, 2001, the State will determine, and notify the Administrator of, each unit's allocation of CAIR Ozone Season NOX allowances by July 31 of the calendar year of the ozone season for which the CAIR Ozone Season NOX allowances are allocated.

(3) A State that adopts an emissions trading program in accordance with paragraph (aa)(1) or (2) of this section is not required to adopt an emissions trading program in accordance with paragraph (o)(1) or (2) of this section or §51.153(o)(1) or (2).

(4) If a State adopts an emissions trading program that differs substantively from subparts AAAA through IIII of part 96 of this chapter, other than as set forth in paragraph (aa)(2) of this section, then such emissions trading program is not automatically approved as set forth in paragraph (aa)(1) or (2) of this section and will be reviewed by the Administrator for approvability in accordance with the other provisions of this section, provided that the NOX allowances issued under such emissions trading program shall not, and the SIP revision shall state that such NOX allowances shall not, qualify as CAIR NOX allowances or CAIR Ozone Season NOX allowances under any emissions trading program approved under paragraphs (o)(1) or (2) or (aa)(1) or (2) of this section.

(bb)(1)(i) The State may revise its SIP to provide that, for each ozone season during which a State implements control measures on EGUs or non-EGUs through an emissions trading program approved under paragraph (aa)(1) or (2) of this section, such EGUs and non-EGUs shall not be subject to the requirements of the State's SIP meeting the requirements of §51.121, if the State meets the requirement in paragraph (bb)(1)(ii) of this section.

(ii) For a State under paragraph (bb)(1)(i) of this section, if the State's amount of tons specified in paragraph (q)(2) of this section exceeds the State's amount of NOX SIP Call allowances allocated for the ozone season in 2009 or in any year thereafter for the same types and sizes of units as those covered by the amount of tons specified in paragraph (q)(2) of this section, then the State must replace the former amount for such ozone season by the latter amount for such ozone season in applying paragraph (q) of this section.

(2) Rhode Island may revise its SIP to provide that, for each ozone season during which Rhode Island implements control measures on EGUs and non-EGUs through an emissions trading program adopted in regulations that differ substantively from subparts AAAA through IIII of part 96 of this chapter as set forth in this paragraph, such EGUs and non-EGUs shall not be subject to the requirements of the State's SIP meeting the requirements of §51.121.

(i) Rhode Island must expand the applicability provisions in §96.304 to include all non-EGUs subject to Rhode Island's emissions trading program approved under §51.121(p).

(ii) Rhode Island may decline to adopt the CAIR NOX Ozone Season opt-in provisions of:

(A) Subpart IIII of this part and the provisions applicable only to CAIR NOX Ozone Season opt-in units in subparts AAAA through HHHH of this part;

(B) Section 96.388(b) of this chapter and the provisions of subpart IIII of this part applicable only to CAIR NOX Ozone Season opt-in units under §96.388(b); or

(C) Section 96.388(c) of this chapter and the provisions of subpart IIII of this part applicable only to CAIR NOX Ozone Season opt-in units under §96.388(c).

(iii) Rhode Island may adopt the allocation provisions set forth in subpart EEEE of part 96 of this chapter, provided that Rhode Island must provide for issuance of an amount of CAIR Ozone Season NOX allowances for an ozone season not exceeding 936 tons for 2009 and thereafter;

(iv) Rhode Island may adopt any methodology for allocating CAIR NOX Ozone Season allowances to individual sources, as follows:

(A) Rhode Island's methodology must not allow Rhode Island to allocate CAIR Ozone Season NOX allowances for an ozone season in excess of 936 tons for 2009 and thereafter;

(B) Rhode Island's methodology must require that, for EGUs commencing operation before January 1, 2001, Rhode Island will determine, and notify the Administrator of, each unit's allocation of CAIR NOX allowances by October 31, 2006 for the ozone seasons 2009, 2010, and 2011 and by October 31, 2008 and October 31 of each year thereafter for the ozone season in the 4th year after the year of the notification deadline; and

(C) Rhode Island's methodology must require that, for EGUs commencing operation on or after January 1, 2001, Rhode Island will determine, and notify the Administrator of, each unit's allocation of CAIR Ozone Season NOX allowances by July 31 of the calendar year of the ozone season for which the CAIR Ozone Season NOX allowances are allocated.

(3) Notwithstanding a SIP revision by a State authorized under paragraph (bb)(1) of this section or by Rhode Island under paragraph (bb)(2) of this section, if the State's or Rhode Island's SIP that, without such SIP revision, imposes control measures on EGUs or non-EGUs under §51.121 is determined by the Administrator to meet the requirements of §51.121, such SIP shall be deemed to continue to meet the requirements of §51.121.

(cc) The terms used in this section shall have the following meanings:

Administrator means the Administrator of the United States Environmental Protection Agency or the Administrator's duly authorized representative.

Allocate or allocation means, with regard to allowances, the determination of the amount of allowances to be initially credited to a source or other entity.

Biomass means—

(1) Any organic material grown for the purpose of being converted to energy;

(2) Any organic byproduct of agriculture that can be converted into energy; or

(3) Any material that can be converted into energy and is nonmerchantable for other purposes, that is segregated from other nonmerchantable material, and that is;

(i) A forest-related organic resource, including mill residues, precommercial thinnings, slash, brush, or byproduct from conversion of trees to merchantable material; or

(ii) A wood material, including pallets, crates, dunnage, manufacturing and construction materials (other than pressure-treated, chemically-treated, or painted wood products), and landscape or right-of-way tree trimmings.

Boiler means an enclosed fossil- or other-fuel-fired combustion device used to produce heat and to transfer heat to recirculating water, steam, or other medium.

Bottoming-cycle cogeneration unit means a cogeneration unit in which the energy input to the unit is first used to produce useful thermal energy and at least some of the reject heat from the useful thermal energy application or process is then used for electricity production.

Clean Air Act or CAA means the Clean Air Act, 42 U.S.C. 7401, et seq.

Cogeneration unit means a stationary, fossil-fuel-fired boiler or stationary, fossil-fuel-fired combustion turbine:

(1) Having equipment used to produce electricity and useful thermal energy for industrial, commercial, heating, or cooling purposes through the sequential use of energy; and

(2) Producing during the 12-month period starting on the date the unit first produces electricity and during any calendar year after the calendar year in which the unit first produces electricity—

(i) For a topping-cycle cogeneration unit,

(A) Useful thermal energy not less than 5 percent of total energy output; and

(B) Useful power that, when added to one-half of useful thermal energy produced, is not less then 42.5 percent of total energy input, if useful thermal energy produced is 15 percent or more of total energy output, or not less than 45 percent of total energy input, if useful thermal energy produced is less than 15 percent of total energy output.

(ii) For a bottoming-cycle cogeneration unit, useful power not less than 45 percent of total energy input;

(3) Provided that the total energy input under paragraphs (2)(i)(B) and (2)(ii) of this definition shall equal the unit's total energy input from all fuel except biomass if the unit is a boiler.

Combustion turbine means:

(1) An enclosed device comprising a compressor, a combustor, and a turbine and in which the flue gas resulting from the combustion of fuel in the combustor passes through the turbine, rotating the turbine; and

(2) If the enclosed device under paragraph (1) of this definition is combined cycle, any associated duct burner, heat recovery steam generator, and steam turbine.

Commence operation means to have begun any mechanical, chemical, or electronic process, including, with regard to a unit, start-up of a unit's combustion chamber.

Electric generating unit or EGU means:

(1)(i) Except as provided in paragraph (2) of this definition, a stationary, fossil-fuel-fired boiler or stationary, fossil-fuel-fired combustion turbine serving at any time, since the later of November 15, 1990 or the start-up of the unit's combustion chamber, a generator with nameplate capacity of more than 25 MWe producing electricity for sale.

(ii) If a stationary boiler or stationary combustion turbine that, under paragraph (1)(i) of this section, is not an electric generating unit begins to combust fossil fuel or to serve a generator with nameplate capacity of more than 25 MWe producing electricity for sale, the unit shall become an electric generating unit as provided in paragraph (1)(i) of this section on the first date on which it both combusts fossil fuel and serves such generator.

(2) A unit that meets the requirements set forth in paragraphs (2)(i)(A), (2)(ii)(A), or (2)(ii)(B) of this definition paragraph shall not be an electric generating unit:

(i)(A) Any unit that is an electric generating unit under paragraph (1)(i) or (ii) of this definition:

(1) Qualifying as a cogeneration unit during the 12-month period starting on the date the unit first produces electricity and continuing to qualify as a cogeneration unit; and

(2) Not serving at any time, since the later of November 15, 1990 or the start-up of the unit's combustion chamber, a generator with nameplate capacity of more than 25 MWe supplying in any calendar year more than one-third of the unit's potential electric output capacity or 219,000 MWh, whichever is greater, to any utility power distribution system for sale.

(B) If a unit qualifies as a cogeneration unit during the 12-month period starting on the date the unit first produces electricity and meets the requirements of paragraphs (2)(i)(A) of this section for at least one calendar year, but subsequently no longer meets all such requirements, the unit shall become an electric generating unit starting on the earlier of January 1 after the first calendar year during which the unit first no longer qualifies as a cogeneration unit or January 1 after the first calendar year during which the unit no longer meets the requirements of paragraph (2)(i)(A)(2) of this section.

(ii)(A) Any unit that is an electric generating unit under paragraph (1)(i) or (ii) of this definition commencing operation before January 1, 1985:

(1) Qualifying as a solid waste incineration unit; and

(2) With an average annual fuel consumption of non-fossil fuel for 1985-1987 exceeding 80 percent (on a Btu basis) and an average annual fuel consumption of non-fossil fuel for any 3 consecutive calendar years after 1990 exceeding 80 percent (on a Btu basis).

(B) Any unit that is an electric generating unit under paragraph (1)(i) or (ii) of this definition commencing operation on or after January 1, 1985:

(1) Qualifying as a solid waste incineration unit; and

(2) With an average annual fuel consumption of non-fossil fuel for the first 3 calendar years of operation exceeding 80 percent (on a Btu basis) and an average annual fuel consumption of non-fossil fuel for any 3 consecutive calendar years after 1990 exceeding 80 percent (on a Btu basis).

(C) If a unit qualifies as a solid waste incineration unit and meets the requirements of paragraph (2)(ii)(A) or (B) of this section for at least 3 consecutive calendar years, but subsequently no longer meets all such requirements, the unit shall become an electric generating unit starting on the earlier of January 1 after the first calendar year during which the unit first no longer qualifies as a solid waste incineration unit or January 1 after the first 3 consecutive calendar years after 1990 for which the unit has an average annual fuel consumption of fossil fuel of 20 percent or more.

Fossil fuel means natural gas, petroleum, coal, or any form of solid, liquid, or gaseous fuel derived from such material.

Fossil-fuel-fired means, with regard to a unit, combusting any amount of fossil fuel in any calendar year.

Generator means a device that produces electricity.

Maximum design heat input means the maximum amount of fuel per hour (in Btu/hr) that a unit is capable of combusting on a steady state basis as of the initial installation of the unit as specified by the manufacturer of the unit.

NAAQS means National Ambient Air Quality Standard.

Nameplate capacity means, starting from the initial installation of a generator, the maximum electrical generating output (in MWe) that the generator is capable of producing on a steady state basis and during continuous operation (when not restricted by seasonal or other deratings) as of such installation as specified by the manufacturer of the generator or, starting from the completion of any subsequent physical change in the generator resulting in an increase in the maximum electrical generating output (in MWe) that the generator is capable of producing on a steady state basis and during continuous operation (when not restricted by seasonal or other deratings), such increased maximum amount as of such completion as specified by the person conducting the physical change.

Non-EGU means a source of NOX emissions that is not an EGU.

NOX Budget Trading Program means a multi-state nitrogen oxides air pollution control and emission reduction program approved and administered by the Administrator in accordance with subparts A through I of this part and §51.121, as a means of mitigating interstate transport of ozone and nitrogen oxides.

NOX SIP Call allowance means a limited authorization issued by the Administrator under the NOX Budget Trading Program to emit up to one ton of nitrogen oxides during the ozone season of the specified year or any year thereafter, provided that the provision in §51.121(b)(2)(ii)(E) shall not be used in applying this definition.

Ozone season means the period, which begins May 1 and ends September 30 of any year.

Potential electrical output capacity means 33 percent of a unit's maximum design heat input, divided by 3,413 Btu/kWh, divided by 1,000 kWh/MWh, and multiplied by 8,760 hr/yr.

Sequential use of energy means:

(1) For a topping-cycle cogeneration unit, the use of reject heat from electricity production in a useful thermal energy application or process; or

(2) For a bottoming-cycle cogeneration unit, the use of reject heat from useful thermal energy application or process in electricity production.

Solid waste incineration unit means a stationary, fossil-fuel-fired boiler or stationary, fossil-fuel-fired combustion turbine that is a “solid waste incineration unit” as defined in section 129(g)(1) of the Clean Air Act.

Topping-cycle cogeneration unit means a cogeneration unit in which the energy input to the unit is first used to produce useful power, including electricity, and at least some of the reject heat from the electricity production is then used to provide useful thermal energy.

Total energy input means, with regard to a cogeneration unit, total energy of all forms supplied to the cogeneration unit, excluding energy produced by the cogeneration unit itself. Each form of energy supplied shall be measured by the lower heating value of that form of energy calculated as follows:

LHV = HHV − 10.55(W + 9H)

Where:

LHV = lower heating value of fuel in Btu/lb,

HHV = higher heating value of fuel in Btu/lb,

W = Weight % of moisture in fuel, and

H = Weight % of hydrogen in fuel.

Total energy output means, with regard to a cogeneration unit, the sum of useful power and useful thermal energy produced by the cogeneration unit.

Unit means a stationary, fossil-fuel-fired boiler or a stationary, fossil-fuel-fired combustion turbine.

Useful power means, with regard to a cogeneration unit, electricity or mechanical energy made available for use, excluding any such energy used in the power production process (which process includes, but is not limited to, any on-site processing or treatment of fuel combusted at the unit and any on-site emission controls).

Useful thermal energy means, with regard to a cogeneration unit, thermal energy that is:

(1) Made available to an industrial or commercial process, excluding any heat contained in condensate return or makeup water;

(2) Used in a heating application (e.g., space heating or domestic hot water heating); or

(3) Used in a space cooling application (i.e., thermal energy used by an absorption chiller).

Utility power distribution system means the portion of an electricity grid owned or operated by a utility and dedicated to delivering electricity to customers.

(dd) New Hampshire may revise its SIP to implements control measures on EGUs and non-EGUs through an emissions trading program adopted in regulations that differ substantively from subparts AAAA through IIII of part 96 of this chapter as set forth in this paragraph.

(1) New Hampshire must expand the applicability provisions in §96.304 of this chapter to include all non-EGUs subject to New Hampshire's emissions trading program at New Hampshire Code of Administrative Rules, chapter Env-A 3200 (2004).

(2) New Hampshire may decline to adopt the CAIR NOX Ozone Season opt-in provisions of:

(i) Subpart IIII of this part and the provisions applicable only to CAIR NOX Ozone Season opt-in units in subparts AAAA through HHHH of this part;

(ii) Section 96.388(b) of this chapter and the provisions of subpart IIII of this part applicable only to CAIR NOX Ozone Season opt-in units under §96.388(b); or

(iii) Section 96.388(c) of this chapter and the provisions of subpart IIII of this part applicable only to CAIR NOX Ozone Season opt-in units under §96.388(c).

(3) New Hampshire may adopt the allocation provisions set forth in subpart EEEE of part 96 of this chapter, provided that New Hampshire must provide for issuance of an amount of CAIR Ozone Season NOX allowances for an ozone season not exceeding 3,000 tons for 2009 and thereafter;

(4) New Hampshire may adopt any methodology for allocating CAIR NOX Ozone Season allowances to individual sources, as follows:

(i) New Hampshire's methodology must not allow New Hampshire to allocate CAIR Ozone Season NOX allowances for an ozone season in excess of 3,000 tons for 2009 and thereafter;

(ii) New Hampshire's methodology must require that, for EGUs commencing operation before January 1, 2001, New Hampshire will determine, and notify the Administrator of, each unit's allocation of CAIR NOX allowances by October 31, 2006 for the ozone seasons 2009, 2010, and 2011 and by October 31, 2008 and October 31 of each year thereafter for the ozone season in the 4th year after the year of the notification deadline; and

(iii) New Hampshire's methodology must require that, for EGUs commencing operation on or after January 1, 2001, New Hampshire will determine, and notify the Administrator of, each unit's allocation of CAIR Ozone Season NOX allowances by July 31 of the calendar year of the ozone season for which the CAIR Ozone Season NOX allowances are allocated.

(ee) Notwithstanding any other provision of this section, a State may adopt, and include in a SIP revision submitted by March 31, 2007, regulations relating to the Federal CAIR NOX Ozone Season Trading Program under subparts AAAA through HHHH of part 97 of this chapter as follows:

(1) The State may adopt, as applicability provisions replacing the provisions in §97.304 of this chapter, provisions for applicability that are substantively identical to the provisions in §96.304 of this chapter expanded to include all non-EGUs subject to the State's emissions trading program approved under §51.121(p). Before January 1, 2009, a State's applicability provisions shall be considered to be substantively identical to §96.304 of this chapter (with the expansion allowed under this paragraph) regardless of whether the State's regulations include the definition of “Biomass”, paragraph (3) of the definition of “Cogeneration unit”, and the second sentence of the definition of “Total energy input” in §97.102 of this chapter promulgated on October 19, 2007, provided that the State timely submits to the Administrator a SIP revision that revises the State's regulations to include such provisions. Submission to the Administrator of a SIP revision that revises the State's regulations to include such provisions shall be considered timely if the submission is made by January 1, 2009.

(2) The State may adopt, as CAIR NOX Ozone Season allowance allocation provisions replacing the provisions in subpart EEEE of part 97 of this chapter:

(i) Allocation provisions substantively identical to subpart EEEE of part 96 of this chapter, under which the permitting authority makes the allocations; or

(ii) Any methodology for allocating CAIR NOX Ozone Season allowances to individual sources under which the permitting authority makes the allocations, provided that:

(A) The State may provide for issuance of an amount of CAIR Ozone Season NOX allowances for an ozone season, in addition to the amount in the State's Ozone Season EGU NOX Budget for such ozone season, not exceeding the portion of the State's trading program budget, under the State's emissions trading program approved under §51.121(p), attributed to the non-EGUs that the applicability provisions in §96.304 of this chapter are expanded to include under paragraph (ee)(1) of this section.

(B) The State's methodology must not allow the State to allocate CAIR Ozone Season NOX allowances for an ozone season in excess of the amount in the State's Ozone Season EGU NOX Budget for such ozone season plus any additional amount of CAIR Ozone Season NOX allowances issued under paragraph (ee)(2)(ii)(A) of this section for such ozone season.

(C) The State's methodology must require that, for EGUs commencing operation before January 1, 2001, the permitting authority will determine, and notify the Administrator of, each unit's allocation of CAIR NOX Ozone Season allowances by April 30, 2007 for 2009, 2010, and 2011 and by October 31, 2008 and October 31 of each year thereafter for the 4th year after the year of the notification deadline.

(D) The State's methodology must require that, for EGUs commencing operation on or after January 1, 2001, the permitting authority will determine, and notify the Administrator of, each unit's allocation of CAIR NOX Ozone Season allowances by July 31 of the year for which the CAIR NOX Ozone Season allowances are allocated.

(3) The State may adopt CAIR opt-in unit provisions as follows:

(i) Provisions for CAIR opt-in units, including provisions for applications for CAIR opt-in permits, approval of CAIR opt-in permits, treatment of units as CAIR opt-in units, and allocation and recordation of CAIR NOX Ozone Season allowances for CAIR opt-in units, that are substantively identical to subpart IIII of part 96 of this chapter and the provisions of subparts AAAA through HHHH that are applicable to CAIR opt-in units or units for which a CAIR opt-in permit application is submitted and not withdrawn and a CAIR opt-in permit is not yet issued or denied;

(ii) Provisions for CAIR opt-in units, including provisions for applications for CAIR opt-in permits, approval of CAIR opt-in permits, treatment of units as CAIR opt-in units, and allocation and recordation of CAIR NOX Ozone Season allowances for CAIR opt-in units, that are substantively identical to subpart IIII of part 96 of this chapter and the provisions of subparts AAAA through HHHH that are applicable to CAIR opt-in units or units for which a CAIR opt-in permit application is submitted and not withdrawn and a CAIR opt-in permit is not yet issued or denied, except that the provisions exclude §96.388(b) of this chapter and the provisions of subpart IIII of part 96 of this chapter that apply only to units covered by §96.388(b) of this chapter; or

(iii) Provisions for applications for CAIR opt-in units, including provisions for CAIR opt-in permits, approval of CAIR opt-in permits, treatment of units as CAIR opt-in units, and allocation and recordation of CAIR NOX allowances for CAIR opt-in units, that are substantively identical to subpart IIII of part 96 of this chapter and the provisions of subparts AAAA through HHHH that are applicable to CAIR opt-in units or units for which a CAIR opt-in permit application is submitted and not withdrawn and a CAIR opt-in permit is not yet issued or denied, except that the provisions exclude §96.388(c) of this chapter and the provisions of subpart IIII of part 96 of this chapter that apply only to units covered by §96.388(c) of this chapter.

(ff) Notwithstanding any provisions of paragraphs (a) through (ee) of this section, subparts AA through II and AAAA through IIII of part 96 of this chapter, subparts AA through II and AAAA through IIII of part 97 of this chapter, and any State's SIP to the contrary:

(1) With regard to any control period that begins after December 31, 2011, the Administrator:

(i) Rescinds the determination in paragraph (a) of this section that the States identified in paragraph (c) of this section must submit a SIP revision with respect to the fine particles (PM2.5) NAAQS and the 8-hour ozone NAAQS meeting the requirements of paragraphs (b) through (ee) of this section; and

(ii) Will not carry out any of the functions set forth for the Administrator in subparts AA through II and AAAA through IIII of part 96 of this chapter, subparts AA through II and AAAA through IIII of part 97 of this chapter, or in any emissions trading program provisions in a State's SIP approved under this section;

(2) The Administrator will not deduct for excess emissions any CAIR NOX allowances or CAIR NOX Ozone Season allowances allocated for 2012 or any year thereafter;

(3) By November 7, 2011, the Administrator will remove from the CAIR NOX Allowance Tracking System accounts all CAIR NOX allowances allocated for a control period in 2012 and any subsequent year, and, thereafter, no holding or surrender of CAIR NOX allowances will be required with regard to emissions or excess emissions for such control periods; and

(4) By November 7, 2011, the Administrator will remove from the CAIR NOX Ozone Season Allowance Tracking System accounts all CAIR NOX Ozone Season allowances allocated for a control period in 2012 and any subsequent year, and, thereafter, no holding or surrender of CAIR NOX Ozone Season allowances will be required with regard to emissions or excess emissions for such control periods.

[70 FR 25319, May 12, 2005, as amended at 71 FR 25301, 25370, Apr. 28, 2006; 71 FR 74793, Dec. 13, 2006; 72 FR 59203, Oct. 19, 2007; 74 FR 56726, Nov. 3, 2009; 76 FR 48353, Aug. 8, 2011]

§51.124   Findings and requirements for submission of State implementation plan revisions relating to emissions of sulfur dioxide pursuant to the Clean Air Interstate Rule.

(a)(1) Under section 110(a)(1) of the CAA, 42 U.S.C. 7410(a)(1), the Administrator determines that each State identified in paragraph (c) of this section must submit a SIP revision to comply with the requirements of section 110(a)(2)(D)(i)(I) of the CAA, 42 U.S.C. 7410(a)(2)(D)(i)(I), through the adoption of adequate provisions prohibiting sources and other activities from emitting SO2 in amounts that will contribute significantly to nonattainment in, or interfere with maintenance by, one or more other States with respect to the fine particles (PM2.5) NAAQS.

(2) Notwithstanding the other provisions of this section, such provisions are not applicable as they relate to the State of Minnesota as of December 3, 2009.

(b) For each State identified in paragraph (c) of this section, the SIP revision required under paragraph (a) of this section will contain adequate provisions, for purposes of complying with section 110(a)(2)(D)(i)(I) of the CAA, 42 U.S.C. 7410(a)(2)(D)(i)(I), only if the SIP revision contains control measures that assure compliance with the applicable requirements of this section.

(c) The following States are subject to the requirements of this section: Alabama, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Missouri, New Jersey, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, West Virginia, Wisconsin, and the District of Columbia.

(d)(1) The SIP revision under paragraph (a) of this section must be submitted to EPA by no later than September 11, 2006.

(2) The requirements of appendix V to this part shall apply to the SIP revision under paragraph (a) of this section.

(3) The State shall deliver 5 copies of the SIP revision under paragraph (a) of this section to the appropriate Regional Office, with a letter giving notice of such action.

(e) The State's SIP revision shall contain control measures and demonstrate that they will result in compliance with the State's Annual EGU SO2 Budget, if applicable, and achieve the State's Annual Non-EGU SO2 Reduction Requirement, if applicable, for the appropriate periods. The amounts of the State's Annual EGU SO2 Budget and Annual Non-EGU SO2 Reduction Requirement shall be determined as follows:

(1)(i) The Annual EGU SO2 Budget for the State is defined as the total amount of SO2 emissions from all EGUs in that State for a year, if the State meets the requirements of paragraph (a) of this section by imposing control measures, at least in part, on EGUs. If the State imposes control measures under this section on only EGUs, the Annual EGU SO2 Budget for the State shall not exceed the amount, during the indicated periods, specified in paragraph (e)(2) of this section.

(ii) The Annual Non-EGU SO2 Reduction Requirement, if applicable, is defined as the total amount of SO2 emission reductions that the State demonstrates, in accordance with paragraph (g) of this section, it will achieve from non-EGUs during the appropriate period. If the State meets the requirements of paragraph (a) of this section by imposing control measures on only non-EGUs, then the State's Annual Non-EGU SO2 Reduction Requirement shall equal or exceed, during the appropriate periods, the amount determined in accordance with paragraph (e)(3) of this section.

(iii) If a State meets the requirements of paragraph (a) of this section by imposing control measures on both EGUs and non-EGUs, then:

(A) The Annual Non-EGU SO2 Reduction Requirement shall equal or exceed the difference between the amount specified in paragraph (e)(2) of this section for the appropriate period and the amount of the State's Annual EGU SO2 Budget specified in the SIP revision for the appropriate period; and

(B) The Annual EGU SO2 Budget shall not exceed, during the indicated periods, the amount specified in paragraph (e)(2) of this section plus the amount of the Annual Non-EGU SO2 Reduction Requirement under paragraph (e)(1)(iii)(A) of this section for the appropriate period.

(2) For a State that complies with the requirements of paragraph (a) of this section by imposing control measures on only EGUs, the amount of the Annual EGU SO2 Budget, in tons of SO2 per year, shall be as follows, for the indicated State for the indicated period:

State Annual EGU SO2 budget for 2010-2014 (tons) Annual EGU SO2 budget for 2015 and thereafter (tons)
Alabama157,582110,307
Delaware22,41115,687
District of Columbia708495
Florida253,450177,415
Georgia213,057149,140
Illinois192,671134,869
Indiana254,599178,219
Iowa64,09544,866
Kentucky188,773132,141
Louisiana59,94841,963
Maryland70,69749,488
Michigan178,605125,024
Minnesota49,98734,991
Mississippi33,76323,634
Missouri137,21496,050
New Jersey32,39222,674
New York135,13994,597
North Carolina137,34296,139
Ohio333,520233,464
Pennsylvania275,990193,193
South Carolina57,27140,089
Tennessee137,21696,051
Texas320,946224,662
Virginia63,47844,435
West Virginia215,881151,117
Wisconsin87,26461,085

(3) For a State that complies with the requirements of paragraph (a) of this section by imposing control measures on only non-EGUs, the amount of the Annual Non-EGU SO2 Reduction Requirement, in tons of SO2 per year, shall be determined, for the State for 2010 and thereafter, by subtracting the amount of the State's Annual EGU SO2 Budget for the appropriate year, specified in paragraph (e)(2) of this section, from an amount equal to 2 times the State's Annual EGU SO2 Budget for 2010 through 2014, specified in paragraph (e)(2) of this section.

(f) Each SIP revision must set forth control measures to meet the amounts specified in paragraph (e) of this section, as applicable, including the following:

(1) A description of enforcement methods including, but not limited to:

(i) Procedures for monitoring compliance with each of the selected control measures;

(ii) Procedures for handling violations; and

(iii) A designation of agency responsibility for enforcement of implementation.

(2)(i) If a State elects to impose control measures on EGUs, then those measures must impose an annual SO2 mass emissions cap on all such sources in the State.

(ii) If a State elects to impose control measures on fossil fuel-fired non-EGUs that are boilers or combustion turbines with a maximum design heat input greater than 250 mmBtu/hr, then those measures must impose an annual SO2 mass emissions cap on all such sources in the State.

(iii) If a State elects to impose control measures on non-EGUs other than those described in paragraph (f)(2)(ii) of this section, then those measures must impose an annual SO2 mass emissions cap on all such sources in the State, or the State must demonstrate why such emissions cap is not practicable, and adopt alternative requirements that ensure that the State will comply with its requirements under paragraph (e) of this section, as applicable, in 2010 and subsequent years.

(g)(1) Each SIP revision that contains control measures covering non-EGUs as part or all of a State's obligation in meeting its requirement under paragraph (a) of this section must demonstrate that such control measures are adequate to provide for the timely compliance with the State's Annual Non-EGU SO2 Reduction Requirement under paragraph (e) of this section and are not adopted or implemented by the State, as of May 12, 2005, and are not adopted or implemented by the federal government, as of the date of submission of the SIP revision by the State to EPA.

(2) The demonstration under paragraph (g)(1) of this section must include the following, with respect to each source category of non-EGUs for which the SIP revision requires control measures:

(i) A detailed historical baseline inventory of SO2 mass emissions from the source category in a representative year consisting, at the State's election, of 2002, 2003, 2004, or 2005, or an average of 2 or more of those years, absent the control measures specified in the SIP revision.

(A) This inventory must represent estimates of actual emissions based on monitoring data in accordance with part 75 of this chapter, if the source category is subject to part 75 monitoring requirements in accordance with part 75 of this chapter.

(B) In the absence of monitoring data in accordance with part 75 of this chapter, actual emissions must be quantified, to the maximum extent practicable, with the same degree of assurance with which emissions are quantified for sources subject to part 75 of this chapter and using source-specific or source-category-specific assumptions that ensure a source's or source category's actual emissions are not overestimated. If a State uses factors to estimate emissions, production or utilization, or effectiveness of controls or rules for a source category, such factors must be chosen to ensure that emissions are not overestimated.

(C) For measures to reduce emissions from motor vehicles, emission estimates must be based on an emissions model that has been approved by EPA for use in SIP development and must be consistent with the planning assumptions regarding vehicle miles traveled and other factors current at the time of the SIP development.

(D) For measures to reduce emissions from nonroad engines or vehicles, emission estimates methodologies must be approved by EPA.

(ii) A detailed baseline inventory of SO2 mass emissions from the source category in the years 2010 and 2015, absent the control measures specified in the SIP revision and reflecting changes in these emissions from the historical baseline year to the years 2010 and 2015, based on projected changes in the production input or output, population, vehicle miles traveled, economic activity, or other factors as applicable to this source category.

(A) These inventories must account for implementation of any control measures that are adopted or implemented by the State, as of May 12, 2005, or adopted or implemented by the federal government, as of the date of submission of the SIP revision by the State to EPA, and must exclude any control measures specified in the SIP revision to meet the SO2 emissions reduction requirements of this section.

(B) Economic and population forecasts must be as specific as possible to the applicable industry, State, and county of the source or source category and must be consistent with both national projections and relevant official planning assumptions, including estimates of population and vehicle miles traveled developed through consultation between State and local transportation and air quality agencies. However, if these official planning assumptions are inconsistent with official U.S. Census projections of population or with energy consumption projections contained in the U.S. Department of Energy's most recent Annual Energy Outlook, then the SIP revision must make adjustments to correct the inconsistency or must demonstrate how the official planning assumptions are more accurate.

(C) These inventories must account for any changes in production method, materials, fuels, or efficiency that are expected to occur between the historical baseline year and 2010 or 2015, as appropriate.

(iii) A projection of SO2 mass emissions in 2010 and 2015 from the source category assuming the same projected changes as under paragraph (g)(2)(ii) of this section and resulting from implementation of each of the control measures specified in the SIP revision.

(A) These inventories must address the possibility that the State's new control measures may cause production or utilization, and emissions, to shift to unregulated or less stringently regulated sources in the source category in the same or another State, and these inventories must include any such amounts of emissions that may shift to such other sources.

(B) The State must provide EPA with a summary of the computations, assumptions, and judgments used to determine the degree of reduction in projected 2010 and 2015 SO2 emissions that will be achieved from the implementation of the new control measures compared to the relevant baseline emissions inventory.

(iv) The result of subtracting the amounts in paragraph (g)(2)(iii) of this section for 2010 and 2015, respectively, from the lower of the amounts in paragraph (g)(2)(i) or (g)(2)(ii) of this section for 2010 and 2015, respectively, may be credited towards the State's Annual Non-EGU SO2 Reduction Requirement in paragraph (e)(3) of this section for the appropriate period.

(v) Each SIP revision must identify the sources of the data used in each estimate and each projection of emissions.

(h) Each SIP revision must comply with §51.116 (regarding data availability).

(i) Each SIP revision must provide for monitoring the status of compliance with any control measures adopted to meet the State's requirements under paragraph (e) of this section, as follows:

(1) The SIP revision must provide for legally enforceable procedures for requiring owners or operators of stationary sources to maintain records of, and periodically report to the State:

(i) Information on the amount of SO2 emissions from the stationary sources; and

(ii) Other information as may be necessary to enable the State to determine whether the sources are in compliance with applicable portions of the control measures;

(2) The SIP revision must comply with §51.212 (regarding testing, inspection, enforcement, and complaints);

(3) If the SIP revision contains any transportation control measures, then the SIP revision must comply with §51.213 (regarding transportation control measures);

(4)(i) If the SIP revision contains measures to control EGUs, then the SIP revision must require such sources to comply with the monitoring, recordkeeping, and reporting provisions of part 75 of this chapter.

(ii) If the SIP revision contains measures to control fossil fuel-fired non-EGUs that are boilers or combustion turbines with a maximum design heat input greater than 250 mmBtu/hr, then the SIP revision must require such sources to comply with the monitoring, recordkeeping, and reporting provisions of part 75 of this chapter.

(iii) If the SIP revision contains measures to control any other non-EGUs that are not described in paragraph (i)(4)(ii) of this section, then the SIP revision must require such sources to comply with the monitoring, recordkeeping, and reporting provisions of part 75 of this chapter, or the State must demonstrate why such requirements are not practicable and adopt alternative requirements that ensure that the required emissions reductions will be quantified, to the maximum extent practicable, with the same degree of assurance with which emissions are quantified for sources subject to part 75 of this chapter.

(j) Each SIP revision must show that the State has legal authority to carry out the SIP revision, including authority to:

(1) Adopt emissions standards and limitations and any other measures necessary for attainment and maintenance of the State's relevant Annual EGU SO2 Budget or the Annual Non-EGU SO2 Reduction Requirement, as applicable, under paragraph (e) of this section;

(2) Enforce applicable laws, regulations, and standards and seek injunctive relief;

(3) Obtain information necessary to determine whether air pollution sources are in compliance with applicable laws, regulations, and standards, including authority to require recordkeeping and to make inspections and conduct tests of air pollution sources; and

(4)(i) Require owners or operators of stationary sources to install, maintain, and use emissions monitoring devices and to make periodic reports to the State on the nature and amounts of emissions from such stationary sources; and

(ii) Make the data described in paragraph (j)(4)(i) of this section available to the public within a reasonable time after being reported and as correlated with any applicable emissions standards or limitations.

(k)(1) The provisions of law or regulation that the State determines provide the authorities required under this section must be specifically identified, and copies of such laws or regulations must be submitted with the SIP revision.

(2) Legal authority adequate to fulfill the requirements of paragraphs (j)(3) and (4) of this section may be delegated to the State under section 114 of the CAA.

(l)(1) A SIP revision may assign legal authority to local agencies in accordance with §51.232.

(2) Each SIP revision must comply with §51.240 (regarding general plan requirements).

(m) Each SIP revision must comply with §51.280 (regarding resources).

(n) Each SIP revision must provide for State compliance with the reporting requirements in §51.125.

(o)(1) Notwithstanding any other provision of this section, if a State adopts regulations substantively identical to subparts AAA through III of part 96 of this chapter (CAIR SO2 Trading Program), incorporates such subparts by reference into its regulations, or adopts regulations that differ substantively from such subparts only as set forth in paragraph (o)(2) of this section, then such emissions trading program in the State's SIP revision is automatically approved as meeting the requirements of paragraph (e) of this section, provided that the State has the legal authority to take such action and to implement its responsibilities under such regulations. Before January 1, 2009, a State's regulations shall be considered to be substantively identical to subparts AAA through III of part 96 of the chapter, or differing substantively only as set forth in paragraph (o)(2) of this section, regardless of whether the State's regulations include the definition of “Biomass”, paragraph (3) of the definition of “Cogeneration unit”, and the second sentence of the definition of “Total energy input” in §96.202 of this chapter promulgated on October 19, 2007, provided that the State timely submits to the Administrator a SIP revision that revises the State's regulations to include such provisions. Submission to the Administrator of a SIP revision that revises the State's regulations to include such provisions shall be considered timely if the submission is made by January 1, 2009.

(2) If a State adopts an emissions trading program that differs substantively from subparts AAA through III of part 96 of this chapter only as follows, then the emissions trading program is approved as set forth in paragraph (o)(1) of this section.

(i) The State may decline to adopt the CAIR SO2 opt-in provisions of subpart III of this part and the provisions applicable only to CAIR SO2 opt-in units in subparts AAA through HHH of this part.

(ii) The State may decline to adopt the CAIR SO2 opt-in provisions of §96.288(b) of this chapter and the provisions of subpart III of this part applicable only to CAIR SO2 opt-in units under §96.288(b).

(iii) The State may decline to adopt the CAIR SO2 opt-in provisions of §96.288(c) of this chapter and the provisions of subpart II of this part applicable only to CAIR SO2 opt-in units under §96.288(c).

(3) A State that adopts an emissions trading program in accordance with paragraph (o)(1) or (2) of this section is not required to adopt an emissions trading program in accordance with §96.123 (o)(1) or (2) or (aa)(1) or (2) of this chapter.

(4) If a State adopts an emissions trading program that differs substantively from subparts AAA through III of part 96 of this chapter, other than as set forth in paragraph (o)(2) of this section, then such emissions trading program is not automatically approved as set forth in paragraph (o)(1) or (2) of this section and will be reviewed by the Administrator for approvability in accordance with the other provisions of this section, provided that the SO2 allowances issued under such emissions trading program shall not, and the SIP revision shall state that such SO2 allowances shall not, qualify as CAIR SO2 allowances under any emissions trading program approved under paragraph (o)(1) or (2) of this section.

(p) If a State's SIP revision does not contain an emissions trading program approved under paragraph (o)(1) or (2) of this section but contains control measures on EGUs as part or all of a State's obligation in meeting its requirement under paragraph (a) of this section:

(1) The SIP revision shall provide, for each year that the State has such obligation, for the permanent retirement of an amount of Acid Rain allowances allocated to sources in the State for that year and not deducted by the Administrator under the Acid Rain Program and any emissions trading program approved under paragraph (o)(1) or (2) of this section, equal to the difference between—

(A) The total amount of Acid Rain allowances allocated under the Acid Rain Program to the sources in the State for that year; and

(B) If the State's SIP revision contains only control measures on EGUs, the State's Annual EGU SO2 Budget for the appropriate period as specified in paragraph (e)(2) of this section or, if the State's SIP revision contains control measures on EGUs and non-EGUs, the State's Annual EGU SO2 Budget for the appropriate period as specified in the SIP revision.

(2) The SIP revision providing for permanent retirement of Acid Rain allowances under paragraph (p)(1) of this section must ensure that such allowances are not available for deduction by the Administrator under the Acid Rain Program and any emissions trading program approved under paragraph (o)(1) or (2) of this section.

(q) The terms used in this section shall have the following meanings:

Acid Rain allowance means a limited authorization issued by the Administrator under the Acid Rain Program to emit up to one ton of sulfur dioxide during the specified year or any year thereafter, except as otherwise provided by the Administrator.

Acid Rain Program means a multi-State sulfur dioxide and nitrogen oxides air pollution control and emissions reduction program established by the Administrator under title IV of the CAA and parts 72 through 78 of this chapter.

Administrator means the Administrator of the United States Environmental Protection Agency or the Administrator's duly authorized representative.

Allocate or allocation means, with regard to allowances, the determination of the amount of allowances to be initially credited to a source or other entity.

Biomass means—

(1) Any organic material grown for the purpose of being converted to energy;

(2) Any organic byproduct of agriculture that can be converted into energy; or

(3) Any material that can be converted into energy and is nonmerchantable for other purposes, that is segregated from other nonmerchantable material, and that is;

(i) A forest-related organic resource, including mill residues, precommercial thinnings, slash, brush, or byproduct from conversion of trees to merchantable material; or

(ii) A wood material, including pallets, crates, dunnage, manufacturing and construction materials (other than pressure-treated, chemically-treated, or painted wood products), and landscape or right-of-way tree trimmings.

Boiler means an enclosed fossil- or other-fuel-fired combustion device used to produce heat and to transfer heat to recirculating water, steam, or other medium.

Bottoming-cycle cogeneration unit means a cogeneration unit in which the energy input to the unit is first used to produce useful thermal energy and at least some of the reject heat from the useful thermal energy application or process is then used for electricity production.

Clean Air Act or CAA means the Clean Air Act, 42 U.S.C. 7401, et seq.

Cogeneration unit means a stationary, fossil-fuel-fired boiler or stationary, fossil-fuel-fired combustion turbine:

(1) Having equipment used to produce electricity and useful thermal energy for industrial, commercial, heating, or cooling purposes through the sequential use of energy; and

(2) Producing during the 12-month period starting on the date the unit first produces electricity and during any calendar year after the calendar year in which the unit first produces electricity—

(i) For a topping-cycle cogeneration unit,

(A) Useful thermal energy not less than 5 percent of total energy output; and

(B) Useful power that, when added to one-half of useful thermal energy produced, is not less then 42.5 percent of total energy input, if useful thermal energy produced is 15 percent or more of total energy output, or not less than 45 percent of total energy input, if useful thermal energy produced is less than 15 percent of total energy output.

(ii) For a bottoming-cycle cogeneration unit, useful power not less than 45 percent of total energy input;

(3) Provided that the total energy input under paragraphs (2)(i)(B) and (2)(ii) of this definition shall equal the unit's total energy input from all fuel except biomass if the unit is a boiler.

Combustion turbine means:

(1) An enclosed device comprising a compressor, a combustor, and a turbine and in which the flue gas resulting from the combustion of fuel in the combustor passes through the turbine, rotating the turbine; and

(2) If the enclosed device under paragraph (1) of this definition is combined cycle, any associated duct burner, heat recovery steam generator, and steam turbine.

Commence operation means to have begun any mechanical, chemical, or electronic process, including, with regard to a unit, start-up of a unit's combustion chamber.

Electric generating unit or EGU means:

(1)(i) Except as provided in paragraph (2) of this definition, a stationary, fossil-fuel-fired boiler or stationary, fossil-fuel-fired combustion turbine serving at any time, since the later of November 15, 1990 or the start-up of the unit's combustion chamber, a generator with nameplate capacity of more than 25 MWe producing electricity for sale.

(ii) If a stationary boiler or stationary combustion turbine that, under paragraph (1)(i) of this section, is not an electric generating unit begins to combust fossil fuel or to serve a generator with nameplate capacity of more than 25 MWe producing electricity for sale, the unit shall become an electric generating unit as provided in paragraph (1)(i) of this section on the first date on which it both combusts fossil fuel and serves such generator.

(2) A unit that meets the requirements set forth in paragraphs (2)(i)(A), (2)(ii)(A), or (2)(ii)(B) of this definition paragraph shall not be an electric generating unit:

(i)(A) Any unit that is an electric generating unit under paragraph (1)(i) or (ii) of this definition:

(1) Qualifying as a cogeneration unit during the 12-month period starting on the date the unit first produces electricity and continuing to qualify as a cogeneration unit; and

(2) Not serving at any time, since the later of November 15, 1990 or the start-up of the unit's combustion chamber, a generator with nameplate capacity of more than 25 MWe supplying in any calendar year more than one-third of the unit's potential electric output capacity or 219,000 MWh, whichever is greater, to any utility power distribution system for sale.

(B) If a unit qualifies as a cogeneration unit during the 12-month period starting on the date the unit first produces electricity and meets the requirements of paragraphs (2)(i)(A) of this section for at least one calendar year, but subsequently no longer meets all such requirements, the unit shall become an electric generating unit starting on the earlier of January 1 after the first calendar year during which the unit first no longer qualifies as a cogeneration unit or January 1 after the first calendar year during which the unit no longer meets the requirements of paragraph (2)(i)(A)(2) of this section.

(ii)(A) Any unit that is an electric generating unit under paragraph (1)(i) or (ii) of this definition commencing operation before January 1, 1985:

(1) Qualifying as a solid waste incineration unit; and

(2) With an average annual fuel consumption of non-fossil fuel for 1985-1987 exceeding 80 percent (on a Btu basis) and an average annual fuel consumption of non-fossil fuel for any 3 consecutive calendar years after 1990 exceeding 80 percent (on a Btu basis).

(B) Any unit that is an electric generating unit under paragraph (1)(i) or (ii) of this definition commencing operation on or after January 1, 1985:

(1) Qualifying as a solid waste incineration unit; and

(2) With an average annual fuel consumption of non-fossil fuel for the first 3 calendar years of operation exceeding 80 percent (on a Btu basis) and an average annual fuel consumption of non-fossil fuel for any 3 consecutive calendar years after 1990 exceeding 80 percent (on a Btu basis).

(C) If a unit qualifies as a solid waste incineration unit and meets the requirements of paragraph (2)(ii)(A) or (B) of this section for at least 3 consecutive calendar years, but subsequently no longer meets all such requirements, the unit shall become an electric generating unit starting on the earlier of January 1 after the first calendar year during which the unit first no longer qualifies as a solid waste incineration unit or January 1 after the first 3 consecutive calendar years after 1990 for which the unit has an average annual fuel consumption of fossil fuel of 20 percent or more.

Fossil fuel means natural gas, petroleum, coal, or any form of solid, liquid, or gaseous fuel derived from such material.

Fossil-fuel-fired means, with regard to a unit, combusting any amount of fossil fuel in any calendar year.

Generator means a device that produces electricity.

Maximum design heat input means the maximum amount of fuel per hour (in Btu/hr) that a unit is capable of combusting on a steady state basis as of the initial installation of the unit as specified by the manufacturer of the unit.

NAAQS means National Ambient Air Quality Standard.

Nameplate capacity means, starting from the initial installation of a generator, the maximum electrical generating output (in MWe) that the generator is capable of producing on a steady state basis and during continuous operation (when not restricted by seasonal or other deratings as of such installation as specified by the manufacturer of the generator or, starting from the completion of any subsequent physical change in the generator resulting in an increase in the maximum electrical generating output (in MWe) that the generator is capable of producing on a steady state basis and during continuous operation (when not restricted by seasonal or other deratings), such increased maximum amount as of such completion as specified by the person conducting the physical change.

Non-EGU means a source of SO2 emissions that is not an EGU.

Potential electrical output capacity means 33 percent of a unit's maximum design heat input, divided by 3,413 Btu/kWh, divided by 1,000 kWh/MWh, and multiplied by 8,760 hr/yr.

Sequential use of energy means:

(1) For a topping-cycle cogeneration unit, the use of reject heat from electricity production in a useful thermal energy application or process; or

(2) For a bottoming-cycle cogeneration unit, the use of reject heat from useful thermal energy application or process in electricity production.

Solid waste incineration unit means a stationary, fossil-fuel-fired boiler or stationary, fossil-fuel-fired combustion turbine that is a “solid waste incineration unit” as defined in section 129(g)(1) of the Clean Air Act.

Topping-cycle cogeneration unit means a cogeneration unit in which the energy input to the unit is first used to produce useful power, including electricity, and at least some of the reject heat from the electricity production is then used to provide useful thermal energy.

Total energy input means, with regard to a cogeneration unit, total energy of all forms supplied to the cogeneration unit, excluding energy produced by the cogeneration unit itself.

Total energy output means, with regard to a cogeneration unit, the sum of useful power and useful thermal energy produced by the cogeneration unit. Each form of energy supplied shall be measured by the lower heating value of that form of energy calculated as follows:

LHV = HHV − 10.55(W + 9H)

Where:

LHV = lower heating value of fuel in Btu/lb,

HHV = higher heating value of fuel in Btu/lb,

W = Weight % of moisture in fuel, and

H = Weight % of hydrogen in fuel.

Unit means a stationary, fossil-fuel-fired boiler or a stationary, fossil-fuel fired combustion turbine.

Useful power means, with regard to a cogeneration unit, electricity or mechanical energy made available for use, excluding any such energy used in the power production process (which process includes, but is not limited to, any on-site processing or treatment of fuel combusted at the unit and any on-site emission controls).

Useful thermal energy means, with regard to a cogeneration unit, thermal energy that is:

(1) Made available to an industrial or commercial process, excluding any heat contained in condensate return or makeup water;

(2) Used in a heating application (e.g., space heating or domestic hot water heating); or

(3) Used in a space cooling application (i.e., thermal energy used by an absorption chiller).

Utility power distribution system means the portion of an electricity grid owned or operated by a utility and dedicated to delivering electricity to customers.

(r) Notwithstanding any other provision of this section, a State may adopt, and include in a SIP revision submitted by March 31, 2007, regulations relating to the Federal CAIR SO2 Trading Program under subparts AAA through HHH of part 97 of this chapter as follows. The State may adopt the following CAIR opt-in unit provisions:

(1) Provisions for CAIR opt-in units, including provisions for applications for CAIR opt-in permits, approval of CAIR opt-in permits, treatment of units as CAIR opt-in units, and allocation and recordation of CAIR SO2 allowances for CAIR opt-in units, that are substantively identical to subpart III of part 96 of this chapter and the provisions of subparts AAA through HHH that are applicable to CAIR opt-in units or units for which a CAIR opt-in permit application is submitted and not withdrawn and a CAIR opt-in permit is not yet issued or denied;

(2) Provisions for CAIR opt-in units, including provisions for applications for CAIR opt-in permits, approval of CAIR opt-in permits, treatment of units as CAIR opt-in units, and allocation and recordation of CAIR SO2 allowances for CAIR opt-in units, that are substantively identical to subpart III of part 96 of this chapter and the provisions of subparts AAA through HHH that are applicable to CAIR opt-in units or units for which a CAIR opt-in permit application is submitted and not withdrawn and a CAIR opt-in permit is not yet issued or denied, except that the provisions exclude §96.288(b) of this chapter and the provisions of subpart III of part 96 of this chapter that apply only to units covered by §96.288(b) of this chapter; or

(3) Provisions for applications for CAIR opt-in units, including provisions for CAIR opt-in permits, approval of CAIR opt-in permits, treatment of units as CAIR opt-in units, and allocation and recordation of CAIR SO2 allowances for CAIR opt-in units, that are substantively identical to subpart III of part 96 of this chapter and the provisions of subparts AAA through HHH that are applicable to CAIR opt-in units or units for which a CAIR opt-in permit application is submitted and not withdrawn and a CAIR opt-in permit is not yet issued or denied, except that the provisions exclude §96.288(c) of this chapter and the provisions of subpart III of part 96 of this chapter that apply only to units covered by §96.288(c) of this chapter.

(s) Notwithstanding any provisions of paragraphs (a) through (r) of this section, subparts AAA through III of part 96 of this chapter, subparts AAA through III of part 97 of this chapter, and any State's SIP to the contrary:

(1) With regard to any control period that begins after December 31, 2011, the Administrator:

(i) Rescinds the determination in paragraph (a) of this section that the States identified in paragraph (c) of this section must submit a SIP revision with respect to the fine particles (PM2.5) NAAQS meeting the requirements of paragraphs (b) through (r) of this section; and

(ii) Will not carry out any of the functions set forth for the Administrator in subparts AAA through III of part 96 of this chapter, subparts AAA through III of part 97 of this chapter, or in any emissions trading program in a State's SIP approved under this section; and

(2) The Administrator will not deduct for excess emissions any CAIR SO2 allowances allocated for 2012 or any year thereafter.

[70 FR 25328, May 12, 2005, as amended at 71 FR 25302, 25372, Apr. 28, 2006; 71 FR 74793, Dec. 13, 2006; 72 FR 59204, Oct. 19, 2007; 74 FR 56726, Nov. 3, 2009; 76 FR 48353, Aug. 8, 2011]

§51.125   [Reserved]

§51.126   Determination of widespread use of ORVR and waiver of CAA section 182(b)(3) Stage II gasoline vapor recovery requirements.

(a) Pursuant to section 202(a)(6) of the Clean Air Act, the Administrator has determined that, effective May 16, 2012, onboard refueling vapor recovery (ORVR) systems are in widespread use in the motor vehicle fleet within the United States.

(b) Effective May 16, 2012, the Administrator waives the requirement of Clean Air Act section 182(b)(3) for Stage II vapor recovery systems in ozone nonattainment areas regardless of classification. States must submit and receive EPA approval of a revision to their approved State Implementation Plans before removing Stage II requirements that are contained therein.

[77 FR 28782, May 16, 2012]

Subpart H—Prevention of Air Pollution Emergency Episodes

Source: 51 FR 40668, Nov. 7, 1986, unless otherwise noted.

§51.150   Classification of regions for episode plans.

(a) This section continues the classification system for episode plans. Each region is classified separately with respect to each of the following pollutants: Sulfur oxides, particulate matter, carbon monoxide, nitrogen dioxide, and ozone.

(b) Priority I Regions means any area with greater ambient concentrations than the following:

(1) Sulfur dioxide—100 µg/m3 (0.04 ppm) annual arithmetic mean; 455 µg/m3 (0.17 ppm) 24-hour maximum.

(2) Particulate matter—95 µg/m3 annual geometric mean; 325 µg/m3 24-hour maximum.

(3) Carbon monoxide—55 mg/m3 (48 ppm) 1-hour maximum; 14 mg/m3 (12 ppm) 8-hour maximum.

(4) Nitrogen dioxide—100 µg/m3 (0.06 ppm) annual arithmetic mean.

(5) Ozone—195 µg/m3 (0.10 ppm) 1-hour maximum.

(c) Priority IA Region means any area which is Priority I primarily because of emissions from a single point source.

(d) Priority II Region means any area which is not a Priority I region and has ambient concentrations between the following:

(1) Sulfur Dioxides—60-100 µg/m3 (0.02-0.04 ppm) annual arithmetic mean; 260-445 µg/m3 (0.10-0.17 ppm) 24-hour maximum; any concentration above 1,300 µg/m3 (0.50 ppm) three-hour average.

(2) Particulate matter—60-95 µg/m3 annual geometric mean; 150-325 µg/m3 24-hour maximum.

(e) In the absence of adequate monitoring data, appropriate models must be used to classify an area under paragraph (b) of this section, consistent with the requirements contained in §51.112(a).

(f) Areas which do not meet the above criteria are classified Priority III.

[51 FR 40668, Nov. 7, 1986, as amended at 58 FR 38822, July 20, 1993]

§51.151   Significant harm levels.

Each plan for a Priority I region must include a contingency plan which must, as a mimimum, provide for taking action necessary to prevent ambient pollutant concentrations at any location in such region from reaching the following levels:

Sulfur dioxide—2.620 µg/m3 (1.0 ppm) 24-hour average.

PM10—600 micrograms/cubic meter; 24-hour average.

Carbon monoxide—57.5 mg/m3 (50 ppm) 8-hour average; 86.3 mg/m3 (75 ppm) 4-hour average; 144 mg/m3 (125 ppm) 1-hour average.

Ozone—1,200 ug/m3 (0.6 ppm) 2-hour average.

Nitrogen dioxide—3.750 ug/m3 (2.0 ppm) 1-hour average; 938 ug/m3 (0.5 ppm) 24-hour average.

[51 FR 40668, Nov. 7, 1986, as amended at 52 FR 24713, July 1, 1987]

§51.152   Contingency plans.

(a) Each contingency plan must—

(1) Specify two or more stages of episode criteria such as those set forth in appendix L to this part, or their equivalent;

(2) Provide for public announcement whenever any episode stage has been determined to exist; and

(3) Specify adequate emission control actions to be taken at each episode stage. (Examples of emission control actions are set forth in appendix L.)

(b) Each contingency plan for a Priority I region must provide for the following:

(1) Prompt acquisition of forecasts of atmospheric stagnation conditions and of updates of such forecasts as frequently as they are issued by the National Weather Service.

(2) Inspection of sources to ascertain compliance with applicable emission control action requirements.

(3) Communications procedures for transmitting status reports and orders as to emission control actions to be taken during an episode stage, including procedures for contact with public officials, major emission sources, public health, safety, and emergency agencies and news media.

(c) Each plan for a Priority IA and II region must include a contingency plan that meets, as a minimum, the requirements of paragraphs (b)(1) and (b)(2) of this section. Areas classified Priority III do not need to develop episode plans.

(d) Notwithstanding the requirements of paragraphs (b) and (c) of this section, the Administrator may, at his discretion—

(1) Exempt from the requirements of this section those portions of Priority I, IA, or II regions which have been designated as attainment or unclassifiable for national primary and secondary standards under section 107 of the Act; or

(2) Limit the requirements pertaining to emission control actions in Priority I regions to—

(i) Urbanized areas as identified in the most recent United States Census, and

(ii) Major emitting facilities, as defined by section 169(1) of the Act, outside the urbanized areas.

§51.153   Reevaluation of episode plans.

(a) States should periodically reevaluate priority classifications of all Regions or portion of Regions within their borders. The reevaluation must consider the three most recent years of air quality data. If the evaluation indicates a change to a higher priority classification, appropriate changes in the episode plan must be made as expeditiously as practicable.

(b) [Reserved]

Subpart I—Review of New Sources and Modifications

Source: 51 FR 40669, Nov. 7, 1986, unless otherwise noted.

§51.160   Legally enforceable procedures.

(a) Each plan must set forth legally enforceable procedures that enable the State or local agency to determine whether the construction or modification of a facility, building, structure or installation, or combination of these will result in—

(1) A violation of applicable portions of the control strategy; or

(2) Interference with attainment or maintenance of a national standard in the State in which the proposed source (or modification) is located or in a neighboring State.

(b) Such procedures must include means by which the State or local agency responsible for final decisionmaking on an application for approval to construct or modify will prevent such construction or modification if—

(1) It will result in a violation of applicable portions of the control strategy; or

(2) It will interfere with the attainment or maintenance of a national standard.

(c) The procedures must provide for the submission, by the owner or operator of the building, facility, structure, or installation to be constructed or modified, of such information on—

(1) The nature and amounts of emissions to be emitted by it or emitted by associated mobile sources;

(2) The location, design, construction, and operation of such facility, building, structure, or installation as may be necessary to permit the State or local agency to make the determination referred to in paragraph (a) of this section.

(d) The procedures must provide that approval of any construction or modification must not affect the responsibility to the owner or operator to comply with applicable portions of the control strategy.

(e) The procedures must identify types and sizes of facilities, buildings, structures, or installations which will be subject to review under this section. The plan must discuss the basis for determining which facilities will be subject to review.

(f) The procedures must discuss the air quality data and the dispersion or other air quality modeling used to meet the requirements of this subpart.

(1) All applications of air quality modeling involved in this subpart shall be based on the applicable models, data bases, and other requirements specified in appendix W of this part (Guideline on Air Quality Models).

(2) Where an air quality model specified in appendix W of this part (Guideline on Air Quality Models) is inappropriate, the model may be modified or another model substituted. Such a modification or substitution of a model may be made on a case-by-case basis or, where appropriate, on a generic basis for a specific State program. Written approval of the Administrator must be obtained for any modification or substitution. In addition, use of a modified or substituted model must be subject to notice and opportunity for public comment under procedures set forth in §51.102.

[51 FR 40669, Nov. 7, 1986, as amended at 58 FR 38822, July 20, 1993; 60 FR 40468, Aug. 9, 1995; 61 FR 41840, Aug. 12, 1996]

§51.161   Public availability of information.

(a) The legally enforceable procedures in §51.160 must also require the State or local agency to provide opportunity for public comment on information submitted by owners and operators. The public information must include the agency's analysis of the effect of construction or modification on ambient air quality, including the agency's proposed approval or disapproval.

(b) For purposes of paragraph (a) of this section, opportunity for public comment shall include, as a minimum—

(1) Availability for public inspection in at least one location in the area affected of the information submitted by the owner or operator and of the State or local agency's analysis of the effect on air quality;

(2) A 30-day period for submittal of public comment; and

(3) A notice by prominent advertisement in the area affected of the location of the source information and analysis specified in paragraph (b)(1) of this section.

(c) Where the 30-day comment period required in paragraph (b) of this section would conflict with existing requirements for acting on requests for permission to construct or modify, the State may submit for approval a comment period which is consistent with such existing requirements.

(d) A copy of the notice required by paragraph (b) of this section must also be sent to the Administrator through the appropriate Regional Office, and to all other State and local air pollution control agencies having jurisdiction in the region in which such new or modified installation will be located. The notice also must be sent to any other agency in the region having responsibility for implementing the procedures required under this subpart. For lead, a copy of the notice is required for all point sources. The definition of point for lead is given in §51.100(k)(2).

§51.162   Identification of responsible agency.

Each plan must identify the State or local agency which will be responsible for meeting the requirements of this subpart in each area of the State. Where such responsibility rests with an agency other than an air pollution control agency, such agency will consult with the appropriate State or local air pollution control agency in carrying out the provisions of this subpart.

§51.163   Administrative procedures.

The plan must include the administrative procedures, which will be followed in making the determination specified in paragraph (a) of §51.160.

§51.164   Stack height procedures.

Such procedures must provide that the degree of emission limitation required of any source for control of any air pollutant must not be affected by so much of any source's stack height that exceeds good engineering practice or by any other dispersion technique, except as provided in §51.118(b). Such procedures must provide that before a State issues a permit to a source based on a good engineering practice stack height that exceeds the height allowed by §51.100(ii) (1) or (2), the State must notify the public of the availability of the demonstration study and must provide opportunity for public hearing on it. This section does not require such procedures to restrict in any manner the actual stack height of any source.

§51.165   Permit requirements.

(a) State Implementation Plan and Tribal Implementation Plan provisions satisfying sections 172(c)(5) and 173 of the Act shall meet the following conditions:

(1) All such plans shall use the specific definitions. Deviations from the following wording will be approved only if the State specifically demonstrates that the submitted definition is more stringent, or at least as stringent, in all respects as the corresponding definition below:

(i) Stationary source means any building, structure, facility, or installation which emits or may emit a regulated NSR pollutant.

(ii) Building, structure, facility, or installation means all of the pollutant-emitting activities which belong to the same industrial grouping, are located on one or more contiguous or adjacent properties, and are under the control of the same person (or persons under common control) except the activities of any vessel. Pollutant-emitting activities shall be considered as part of the same industrial grouping if they belong to the same Major Group (i.e., which have the same two-digit code) as described in the Standard Industrial Classification Manual, 1972, as amended by the 1977 Supplement (U.S. Government Printing Office stock numbers 4101-0065 and 003-005-00176-0, respectively).

(iii) Potential to emit means the maximum capacity of a stationary source to emit a pollutant under its physical and operational design. Any physical or operational limitation on the capacity of the source to emit a pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design only if the limitation or the effect it would have on emissions is federally enforceable. Secondary emissions do not count in determining the potential to emit of a stationary source.

(iv)(A) Major stationary source means:

(1) Any stationary source of air pollutants that emits, or has the potential to emit, 100 tons per year or more of any regulated NSR pollutant, except that lower emissions thresholds shall apply in areas subject to subpart 2, subpart 3, or subpart 4 of part D, title I of the Act, according to paragraphs (a)(1)(iv)(A)(1)(i) through (vi) of this section.

(i) 50 tons per year of volatile organic compounds in any serious ozone nonattainment area.

(ii) 50 tons per year of volatile organic compounds in an area within an ozone transport region, except for any severe or extreme ozone nonattainment area.

(iii) 25 tons per year of volatile organic compounds in any severe ozone nonattainment area.

(iv) 10 tons per year of volatile organic compounds in any extreme ozone nonattainment area.

(v) 50 tons per year of carbon monoxide in any serious nonattainment area for carbon monoxide, where stationary sources contribute significantly to carbon monoxide levels in the area (as determined under rules issued by the Administrator).

(vi) 70 tons per year of PM-10 in any serious nonattainment area for PM-10;

(2) For the purposes of applying the requirements of paragraph (a)(8) of this section to stationary sources of nitrogen oxides located in an ozone nonattainment area or in an ozone transport region, any stationary source which emits, or has the potential to emit, 100 tons per year or more of nitrogen oxides emissions, except that the emission thresholds in paragraphs (a)(1)(iv)(A)(2)(i) through (vi) of this section shall apply in areas subject to subpart 2 of part D, title I of the Act.

(i) 100 tons per year or more of nitrogen oxides in any ozone nonattainment area classified as marginal or moderate.

(ii) 100 tons per year or more of nitrogen oxides in any ozone nonattainment area classified as a transitional, submarginal, or incomplete or no data area, when such area is located in an ozone transport region.

(iii) 100 tons per year or more of nitrogen oxides 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.

(iv) 50 tons per year or more of nitrogen oxides in any serious nonattainment area for ozone.

(v) 25 tons per year or more of nitrogen oxides in any severe nonattainment area for ozone.

(vi) 10 tons per year or more of nitrogen oxides in any extreme nonattainment area for ozone; or

(3) Any physical change that would occur at a stationary source not qualifying under paragraphs (a)(1)(iv)(A)(1) or (2) of this section as a major stationary source, if the change would constitute a major stationary source by itself.

(B) A major stationary source that is major for volatile organic compounds shall be considered major for ozone

(C) The fugitive emissions of a stationary source shall not be included in determining for any of the purposes of this paragraph whether it is a major stationary source, unless the source belongs to one of the following categories of stationary sources:

(1) Coal cleaning plants (with thermal dryers);

(2) Kraft pulp mills;

(3) Portland cement plants;

(4) Primary zinc smelters;

(5) Iron and steel mills;

(6) Primary aluminum ore reduction plants;

(7) Primary copper smelters;

(8) Municipal incinerators capable of charging more than 250 tons of refuse per day;

(9) Hydrofluoric, sulfuric, or nitric acid plants;

(10) Petroleum refineries;

(11) Lime plants;

(12) Phosphate rock processing plants;

(13) Coke oven batteries;

(14) Sulfur recovery plants;

(15) Carbon black plants (furnace process);

(16) Primary lead smelters;

(17) Fuel conversion plants;

(18) Sintering plants;

(19) Secondary metal production plants;

(20) Chemical process plants—The term chemical processing plant shall not include ethanol production facilities that produce ethanol by natural fermentation included in NAICS codes 325193 or 312140;

(21) Fossil-fuel boilers (or combination thereof) totaling more than 250 million British thermal units per hour heat input;

(22) Petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels;

(23) Taconite ore processing plants;

(24) Glass fiber processing plants;

(25) Charcoal production plants;

(26) Fossil fuel-fired steam electric plants of more than 250 million British thermal units per hour heat input; and

(27) Any other stationary source category which, as of August 7, 1980, is being regulated under section 111 or 112 of the Act.

(v)(A) Major modification means any physical change in or change in the method of operation of a major stationary source that would result in:

(1) A significant emissions increase of a regulated NSR pollutant (as defined in paragraph (a)(1)(xxxvii) of this section); and

(2) A significant net emissions increase of that pollutant from the major stationary source.

(B) Any significant emissions increase (as defined in paragraph (a)(1)(xxvii) of this section) from any emissions units or net emissions increase (as defined in paragraph (a)(1)(vi) of this section) at a major stationary source that is significant for volatile organic compounds shall be considered significant for ozone.

(C) A physical change or change in the method of operation shall not include:

(1) Routine maintenance, repair and replacement. Routine maintenance, repair and replacement shall include, but not be limited to, any activity(s) that meets the requirements of the equipment replacement provisions contained in paragraph (h) of this section;

Note to paragraph (a)(1)(v)(C)(1): On December 24, 2003, the second sentence of this paragraph (a)(1)(v)(C)(1) is stayed indefinitely by court order. The stayed provisions will become effective immediately if the court terminates the stay. At that time, EPA will publish a document in the Federal Register advising the public of the termination of the stay.

(2) Use of an alternative fuel or raw material by reason of an order under sections 2 (a) and (b) of the Energy Supply and Environmental Coordination Act of 1974 (or any superseding legislation) or by reason of a natural gas curtailment plan pursuant to the Federal Power Act;

(3) Use of an alternative fuel by reason of an order or rule section 125 of the Act;

(4) Use of an alternative fuel at a steam generating unit to the extent that the fuel is generated from municipal solid waste;

(5) Use of an alternative fuel or raw material by a stationary source which;

(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 subpart I or §51.166, or

(ii) The source is approved to use under any permit issued under regulations approved pursuant to this section;

(6) 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 I or 40 CFR 51.166.

(7) Any change in ownership at a stationary source.

(8) [Reserved]

(9) The installation, operation, cessation, or removal of a temporary clean coal technology demonstration project, provided that the project complies with:

(i) The State Implementation Plan for the State in which the project is located, and

(ii) Other requirements necessary to attain and maintain the national ambient air quality standard during the project and after it is terminated.

(D) This definition shall not apply with respect to a particular regulated NSR pollutant when the major stationary source is complying with the requirements under paragraph (f) of this section for a PAL for that pollutant. Instead, the definition at paragraph (f)(2)(viii) of this section shall apply.

(E) For the purpose of applying the requirements of (a)(8) of this section to modifications at major stationary sources of nitrogen oxides located in ozone nonattainment areas or in ozone transport regions, whether or not subject to subpart 2, part D, title I of the Act, any significant net emissions increase of nitrogen oxides is considered significant for ozone.

(F) Any physical change in, or change in the method of operation of, a major stationary source of volatile organic compounds that results in any increase in emissions of volatile organic compounds from any discrete operation, emissions unit, or other pollutant emitting activity at the source shall be considered a significant net emissions increase and a major modification for ozone, if the major stationary source is located in an extreme ozone nonattainment area that is subject to subpart 2, part D, title I of the Act.

(G) Fugitive emissions shall not be included in determining for any of the purposes of this section whether a physical change in or change in the method of operation of a major stationary source is a major modification, unless the source belongs to one of the source categories listed in paragraph (a)(1)(iv)(C) of this section.

(vi)(A) Net emissions increase means, with respect to any regulated NSR pollutant emitted by a major stationary source, the amount by which the sum of the following exceeds zero:

(1) The increase in emissions from a particular physical change or change in the method of operation at a stationary source as calculated pursuant to paragraph (a)(2)(ii) of this section; and

(2) Any other increases and decreases in actual emissions at the major stationary source that are contemporaneous with the particular change and are otherwise creditable. Baseline actual emissions for calculating increases and decreases under this paragraph (a)(1)(vi)(A)(2) shall be determined as provided in paragraph (a)(1)(xxxv) of this section, except that paragraphs (a)(1)(xxxv)(A)(3) and (a)(1)(xxxv)(B)(4) of this section shall not apply.

(B) An increase or decrease in actual emissions is contemporaneous with the increase from the particular change only if it occurs before the date that the increase from the particular change occurs;

(C) An increase or decrease in actual emissions is creditable only if:

(1) It occurs within a reasonable period to be specified by the reviewing authority; and

(2) The reviewing authority has not relied on it in issuing a permit for the source under regulations approved pursuant to this section, which permit is in effect when the increase in actual emissions from the particular change occurs; and

(3) As it pertains to an increase or decrease in fugitive emissions (to the extent quantifiable), it occurs at an emissions unit that is part of one of the source categories listed in paragraph (a)(1)(iv)(C) of this section or it occurs at an emissions unit that is located at a major stationary source that belongs to one of the listed source categories. Fugitive emission increases or decreases are not creditable for those emissions units located at a facility whose primary activity is not represented by one of the source categories listed in paragraph (a)(1)(iv)(C) of this section and that are not, by themselves, part of a listed source category.

(D) An increase in actual emissions is creditable only to the extent that the new level of actual emissions exceeds the old level.

(E) A decrease in actual emissions is creditable only to the extent that:

(1) The old level of actual emission or the old level of allowable emissions whichever is lower, exceeds the new level of actual emissions;

(2) It is enforceable as a practical matter at and after the time that actual construction on the particular change begins; and

(3) The reviewing authority has not relied on it in issuing any permit under regulations approved pursuant to 40 CFR part 51 subpart I or the State has not relied on it in demonstrating attainment or reasonable further progress;

(4) It has approximately the same qualitative significance for public health and welfare as that attributed to the increase from the particular change; and

(F) An increase that results from a physical change at a source occurs when the emissions unit on which construction occurred becomes operational and begins to emit a particular pollutant. Any replacement unit that requires shakedown becomes operational only after a reasonable shakedown period, not to exceed 180 days.

(G) Paragraph (a)(1)(xii)(B) of this section shall not apply for determining creditable increases and decreases or after a change.

(vii) Emissions unit means any part of a stationary source that emits or would have the potential to emit any regulated NSR pollutant and includes an electric steam generating unit as defined in paragraph (a)(1)(xx) of this section. For purposes of this section, there are two types of emissions units as described in paragraphs (a)(1)(vii)(A) and (B) of this section.

(A) A new emissions unit is any emissions unit which is (or will be) newly constructed and which has existed for less than 2 years from the date such emissions unit first operated.

(B) An existing emissions unit is any emissions unit that does not meet the requirements in paragraph (a)(1)(vii)(A) of this section. A replacement unit, as defined in paragraph (a)(1)(xxi) of this section, is an existing emissions unit.

(viii) Secondary emissons 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 operation of the major stationary source of 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.

(ix) Fugitive emissions means those emissions which could not reasonably pass through a stack, chimney, vent or other functionally equivalent opening.

(x)(A) Significant means, in reference to a net emissions increase or the potential of a source to emit any of the following pollutants, a rate of emissions that would equal or exceed any of the following rates:

Pollutant Emission Rate

Carbon monoxide: 100 tons per year (tpy)

Nitrogen oxides: 40 tpy

Sulfur dioxide: 40 tpy

Ozone: 40 tpy of volatile organic compounds or nitrogen oxides

Lead: 0.6 tpy

PM10: 15 tpy

PM2.5: 10 tpy of direct PM2.5 emissions; 40 tpy of sulfur dioxide emissions; 40 tpy of nitrogen oxide emissions unless demonstrated not to be a PM2.5 precursor under paragraph (a)(1)(xxxvii) of this section

(B) Notwithstanding the significant emissions rate for ozone in paragraph (a)(1)(x)(A) of this section, significant means, in reference to an emissions increase or a net emissions increase, any increase in actual emissions of volatile organic compounds that would result from any physical change in, or change in the method of operation of, a major stationary source locating in a serious or severe ozone nonattainment area that is subject to subpart 2, part D, title I of the Act, if such emissions increase of volatile organic compounds exceeds 25 tons per year.

(C) For the purposes of applying the requirements of paragraph (a)(8) of this section to modifications at major stationary sources of nitrogen oxides located in an ozone nonattainment area or in an ozone transport region, the significant emission rates and other requirements for volatile organic compounds in paragraphs (a)(1)(x)(A), (B), and (E) of this section shall apply to nitrogen oxides emissions.

(D) Notwithstanding the significant emissions rate for carbon monoxide under paragraph (a)(1)(x)(A) of this section, significant means, in reference to an emissions increase or a net emissions increase, any increase in actual emissions of carbon monoxide that would result from any physical change in, or change in the method of operation of, a major stationary source in a serious nonattainment area for carbon monoxide if such increase equals or exceeds 50 tons per year, provided the Administrator has determined that stationary sources contribute significantly to carbon monoxide levels in that area.

(E) Notwithstanding the significant emissions rates for ozone under paragraphs (a)(1)(x)(A) and (B) of this section, any increase in actual emissions of volatile organic compounds from any emissions unit at a major stationary source of volatile organic compounds located in an extreme ozone nonattainment area that is subject to subpart 2, part D, title I of the Act shall be considered a significant net emissions increase.

(xi) Allowable emissions means the emissions rate of a stationary source calculated using the maximum rated capacity of the source (unless the source is subject to federally enforceable limits which restrict the operating rate, or hours of operation, or both) and the most stringent of the following:

(A) The applicable standards set forth in 40 CFR part 60 or 61;

(B) Any applicable State Implementation Plan emissions limitation including those with a future compliance date; or

(C) The emissions rate specified as a federally enforceable permit condition, including those with a future compliance date.

(xii)(A) Actual emissions means the actual rate of emissions of a regulated NSR pollutant from an emissions unit, as determined in accordance with paragraphs (a)(1)(xii)(B) through (D) of this section, except that this definition shall not apply for calculating whether a significant emissions increase has occurred, or for establishing a PAL under paragraph (f) of this section. Instead, paragraphs (a)(1)(xxviii) and (xxxv) of this section shall apply for those purposes.

(B) In general, actual emissions as of a particular date shall equal the average rate, in tons per year, at which the unit actually emitted the pollutant during a consecutive 24-month period which precedes the particular date and which is representative of normal source operation. The reviewing authority shall allow the use of a different time period upon a determination that it is more representative of normal source operation. Actual emissions shall be calculated using the unit's actual operating hours, production rates, and types of materials processed, stored, or combusted during the selected time period.

(C) The reviewing authority may presume that source-specific allowable emissions for the unit are equivalent to the actual emissions of the unit.

(D) For any emissions unit that has not begun normal operations on the particular date, actual emissions shall equal the potential to emit of the unit on that date.

(xiii) Lowest achievable emission rate (LAER) means, for any source, the more stringent rate of emissions based on the following:

(A) The most stringent emissions limitation which is contained in the implementation plan of any State for such class or category of stationary source, unless the owner or operator of the proposed stationary source demonstrates that such limitations are not achievable; or

(B) The most stringent emissions limitation which is achieved in practice by such class or category of stationary sources. This limitation, when applied to a modification, means the lowest achievable emissions rate for the new or modified emissions units within or stationary source. In no event shall the application of the term permit a proposed new or modified stationary source to emit any pollutant in excess of the amount allowable under an applicable new source standard of performance.

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

(xv) Begin actual construction means in general, initiation of physical on-site construction activities on an emissions unit which are of a permanent nature. Such activities include, but are not limited to, installation of building supports and foundations, laying of underground pipework, and construction of permanent storage structures. With respect to a change in method of operating this term refers to those on-site activities other than preparatory activities which mark the initiation of the change.

(xvi) Commence as applied to construction of a major stationary source or major modification means that the owner or operator has all necessary preconstruction approvals or permits and either has:

(A) Begun, or caused to begin, a continuous program of actual on-site construction of the source, to be completed within a reasonable time; or

(B) Entered into binding agreements or contractual obligations, which cannot be canceled or modified without substantial loss to the owner or operator, to undertake a program of actual construction of the source to be completed within a reasonable time.

(xvii) Necessary preconstruction approvals or permits means those Federal air quality control laws and regulations and those air quality control laws and regulations which are part of the applicable State Implementation Plan.

(xviii) Construction means any physical change or change in the method of operation (including fabrication, erection, installation, demolition, or modification of an emissions unit) that would result in a change in emissions.

(xix)Volatile organic compounds (VOC) is as defined in §51.100(s) of this part.

(xx) Electric utility steam generating unit means any steam electric generating unit that is constructed for the purpose of supplying more than one-third of its potential electric output capacity and more than 25 MW electrical output to any utility power distribution system for sale. Any steam supplied to a steam distribution system for the purpose of providing steam to a steam-electric generator that would produce electrical energy for sale is also considered in determining the electrical energy output capacity of the affected facility.

(xxi) Replacement unit means an emissions unit for which all the criteria listed in paragraphs (a)(1)(xxi)(A) through (D) of this section are met. No creditable emission reductions shall be generated from shutting down the existing emissions unit that is replaced.

(A) The emissions unit is a reconstructed unit within the meaning of §60.15(b)(1) of this chapter, or the emissions unit completely takes the place of an existing emissions unit.

(B) The emissions unit is identical to or functionally equivalent to the replaced emissions unit.

(C) The replacement does not alter the basic design parameters (as discussed in paragraph (h)(2) of this section) of the process unit.

(D) 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.

(xxii) Temporary clean coal technology demonstration project means a clean coal technology demonstration project that is operated for a period of 5 years or less, and which complies with the State Implementation Plan for the State in which the project is located and other requirements necessary to attain and maintain the national ambient air quality standards during the project and after it is terminated.

(xxiii) Clean coal technology means any technology, including technologies applied at the precombustion, combustion, or post combustion stage, at a new or existing facility which will achieve significant reductions in air emissions of sulfur dioxide or oxides of nitrogen associated with the utilization of coal in the generation of electricity, or process steam which was not in widespread use as of November 15, 1990.

(xxiv) Clean coal technology demonstration project means a project using funds appropriated under the heading “Department of Energy-Clean Coal Technology,” up to a total amount of $2,500,000,000 for commercial demonstration of clean coal technology, or similar projects funded through appropriations for the Environmental Protection Agency. The Federal contribution for a qualifying project shall be at least 20 percent of the total cost of the demonstration project.

(xxv) [Reserved]

(xxvi) Pollution prevention means any activity that through process changes, product reformulation or redesign, or substitution of less polluting raw materials, eliminates or reduces the release of air pollutants (including fugitive emissions) and other pollutants to the environment prior to recycling, treatment, or disposal; it does not mean recycling (other than certain “in-process recycling” practices), energy recovery, treatment, or disposal.

(xxvii) Significant emissions increase means, for a regulated NSR pollutant, an increase in emissions that is significant (as defined in paragraph (a)(1)(x) of this section) for that pollutant.

(xxviii)(A) Projected actual emissions means, the maximum annual rate, in tons per year, at which an existing emissions unit is projected to emit a regulated NSR pollutant in any one of the 5 years (12-month period) following the date the unit resumes regular operation after the project, or in any one of the 10 years following that date, if the project involves increasing the emissions unit's design capacity or its potential to emit of that regulated NSR pollutant and full utilization of the unit would result in a significant emissions increase or a significant net emissions increase at the major stationary source.

(B) In determining the projected actual emissions under paragraph (a)(1)(xxviii)(A) of this section before beginning actual construction, the owner or operator of the major stationary source:

(1) Shall consider all relevant information, including but not limited to, historical operational data, the company's own representations, the company's expected business activity and the company's highest projections of business activity, the company's filings with the State or Federal regulatory authorities, and compliance plans under the approved plan; and

(2) Shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and malfunctions; and

(3) Shall exclude, in calculating any increase in emissions that results from the particular project, that portion of the unit's emissions following the project that an existing unit could have accommodated during the consecutive 24-month period used to establish the baseline actual emissions under paragraph (a)(1)(xxxv) of this section and that are also unrelated to the particular project, including any increased utilization due to product demand growth; or,

(4) In lieu of using the method set out in paragraphs (a)(1)(xxviii)(B)(1) through (3) of this section, may elect to use the emissions unit's potential to emit, in tons per year, as defined under paragraph (a)(1)(iii) of this section.

(xxix) [Reserved]

(xxx) Nonattainment major new source review (NSR) program means a major source preconstruction permit program that has been approved by the Administrator and incorporated into the plan to implement the requirements of this section, or a program that implements part 51, appendix S, Sections I through VI of this chapter. Any permit issued under such a program is a major NSR permit.

(xxxi) Continuous emissions monitoring system (CEMS) means all of the equipment that may be required to meet the data acquisition and availability requirements of this section, to sample, condition (if applicable), analyze, and provide a record of emissions on a continuous basis.

(xxxii) Predictive emissions monitoring system (PEMS) means all of the equipment necessary to monitor process and control device operational parameters (for example, control device secondary voltages and electric currents) and other information (for example, gas flow rate, O2 or CO2 concentrations), and calculate and record the mass emissions rate (for example, lb/hr) on a continuous basis.

(xxxiii) Continuous parameter monitoring system (CPMS) means all of the equipment necessary to meet the data acquisition and availability requirements of this section, to monitor process and control device operational parameters (for example, control device secondary voltages and electric currents) and other information (for example, gas flow rate, O2 or CO2 concentrations), and to record average operational parameter value(s) on a continuous basis.

(xxxiv) Continuous emissions rate monitoring system (CERMS) means the total equipment required for the determination and recording of the pollutant mass emissions rate (in terms of mass per unit of time).

(xxxv) Baseline actual emissions means the rate of emissions, in tons per year, of a regulated NSR pollutant, as determined in accordance with paragraphs (a)(1)(xxxv)(A) through (D) of this section.

(A) For any existing electric utility steam generating unit, baseline actual emissions means the average rate, in tons per year, at which the unit actually emitted the pollutant during any consecutive 24-month period selected by the owner or operator within the 5-year period immediately preceding when the owner or operator begins actual construction of the project. The reviewing authority shall allow the use of a different time period upon a determination that it is more representative of normal source operation.

(1) The average rate shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and malfunctions.

(2) The average rate shall be adjusted downward to exclude any non-compliant emissions that occurred while the source was operating above any emission limitation that was legally enforceable during the consecutive 24-month period.

(3) 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.

(4) The average rate shall not be based on any consecutive 24-month period for which there is inadequate information for determining annual emissions, in tons per year, and for adjusting this amount if required by paragraph (a)(1)(xxxv)(A)(2) of this section.

(B) For an existing emissions unit (other than an electric utility steam generating unit), baseline actual emissions means the average rate, in tons per year, at which the emissions unit actually emitted the pollutant during any consecutive 24-month period selected by the owner or operator within the 10-year period immediately preceding either the date the owner or operator begins actual construction of the project, or the date a complete permit application is received by the reviewing authority for a permit required either under this section or under a plan approved by the Administrator, whichever is earlier, except that the 10-year period shall not include any period earlier than November 15, 1990.

(1) The average rate shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and malfunctions.

(2) The average rate shall be adjusted downward to exclude any non-compliant emissions that occurred while the source was operating above an emission limitation that was legally enforceable during the consecutive 24-month period.

(3) The average rate shall be adjusted downward to exclude any emissions that would have exceeded an emission limitation with which the major stationary source must currently comply, had such major stationary source been required to comply with such limitations during the consecutive 24-month period. However, if an emission limitation is part of a maximum achievable control technology standard that the Administrator proposed or promulgated under part 63 of this chapter, the baseline actual emissions need only be adjusted if the State has taken credit for such emissions reductions in an attainment demonstration or maintenance plan consistent with the requirements of paragraph (a)(3)(ii)(G) of this section.

(4) 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.

(5) The average rate shall not be based on any consecutive 24-month period for which there is inadequate information for determining annual emissions, in tons per year, and for adjusting this amount if required by paragraphs (a)(1)(xxxv)(B)(2) and (3) of this section.

(C) For a new emissions unit, the baseline actual emissions for purposes of determining the emissions increase that will result from the initial construction and operation of such unit shall equal zero; and thereafter, for all other purposes, shall equal the unit's potential to emit.

(D) For a PAL for a major stationary source, the baseline actual emissions shall be calculated for existing electric utility steam generating units in accordance with the procedures contained in paragraph (a)(1)(xxxv)(A) of this section, for other existing emissions units in accordance with the procedures contained in paragraph (a)(1)(xxxv)(B) of this section, and for a new emissions unit in accordance with the procedures contained in paragraph (a)(1)(xxxv)(C) of this section.

(xxxvi) [Reserved]

(xxxvii) Regulated NSR pollutant, for purposes of this section, means the following:

(A) Nitrogen oxides or any volatile organic compounds;

(B) Any pollutant for which a national ambient air quality standard has been promulgated;

(C) Any pollutant that is identified under this paragraph (a)(1)(xxxvii)(C) as a constituent or precursor of a general pollutant listed under paragraph (a)(1)(xxxvii)(A) or (B) of this section, provided that such constituent or precursor pollutant may only be regulated under NSR as part of regulation of the general pollutant. Precursors identified by the Administrator for purposes of NSR are the following:

(1) Volatile organic compounds and nitrogen oxides are precursors to ozone in all ozone nonattainment areas.

(2) Sulfur dioxide is a precursor to PM2.5 in all PM2.5 nonattainment areas.

(3) Nitrogen oxides are presumed to be precursors to PM2.5 in all PM2.5 nonattainment areas, unless the State demonstrates to the Administrator's satisfaction or EPA demonstrates that emissions of nitrogen oxides from sources in a specific area are not a significant contributor to that area's ambient PM2.5 concentrations.

(4) Volatile organic compounds and ammonia are presumed not to be precursors to PM2.5 in any PM2.5 nonattainment area, unless the State demonstrates to the Administrator's satisfaction or EPA demonstrates that emissions of volatile organic compounds or ammonia from sources in a specific area are a significant contributor to that area's ambient PM2.5 concentrations; or

(D) PM2.5 emissions and PM10 emissions shall include gaseous emissions from a source or activity which condense to form particulate matter at ambient temperatures. On or after January 1, 2011 (or any earlier date established in the upcoming rulemaking codifying test methods), such condensable particulate matter shall be accounted for in applicability determinations and in establishing emissions limitations for PM2.5 and PM10 in nonattainment major NSR permits. Compliance with emissions limitations for PM2.5 and PM10 issued prior to this date shall not be based on condensable particulate matter unless required by the terms and conditions of the permit or the applicable implementation plan. Applicability determinations made prior to this date without accounting for condensable particulate matter shall not be considered in violation of this section unless the applicable implementation plan required condensable particulate matter to be included.

(xxxviii) Reviewing authority means the State air pollution control agency, local agency, other State agency, Indian tribe, or other agency authorized by the Administrator to carry out a permit program under this section and §51.166, or the Administrator in the case of EPA-implemented permit programs under §52.21.

(xxxix) Project means a physical change in, or change in the method of operation of, an existing major stationary source.

(xl) Best available control technology (BACT) means an emissions limitation (including a visible emissions standard) based on the maximum degree of reduction for each regulated NSR pollutant which would be emitted from any proposed major stationary source or major modification which the reviewing authority, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for such source or modification through application of production processes or available methods, systems, and techniques, including fuel cleaning or treatment or innovative fuel combustion techniques for control of such pollutant. In no event shall application of best available control technology result in emissions of any pollutant which would exceed the emissions allowed by any applicable standard under 40 CFR part 60 or 61. If the reviewing authority determines that technological or economic limitations on the application of measurement methodology to a particular emissions unit would make the imposition of an emissions standard infeasible, a design, equipment, work practice, operational standard, or combination thereof, may be prescribed instead to satisfy the requirement for the application of BACT. Such standard shall, to the degree possible, set forth the emissions reduction achievable by implementation of such design, equipment, work practice or operation, and shall provide for compliance by means which achieve equivalent results.

(xli) 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.

(xlii) Federal Land Manager means, with respect to any lands in the United States, the Secretary of the department with authority over such lands.

(xliii)(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.

(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) For replacement cost purposes, components shared between two or more process units are proportionately allocated based on capacity.

(D) 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 preheaters, 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.

Note to paragraph (a)(1)(xliii): By a court order on December 24, 2003, this paragraph (a)(1)(xliii) is stayed indefinitely. The stayed provisions will become effective immediately if the court terminates the stay. At that time, EPA will publish a document in the Federal Register advising the public of the termination of the stay.

(xliv) Functionally equivalent component means a component that serves the same purpose as the replaced component.

Note to paragraph (a)(1)(xliv): By a court order on December 24, 2003, this paragraph (a)(1)(xliv) is stayed indefinitely. The stayed provisions will become effective immediately if the court terminates the stay. At that time, EPA will publish a document in the Federal Register advising the public of the termination of the stay.

(xlv) Fixed capital cost means the capital needed to provide all the depreciable components. “Depreciable components” refers to all components of fixed capital cost and is calculated by subtracting land and working capital from the total capital investment, as defined in paragraph (a)(1)(xlvi) of this section.

Note to paragraph (a)(1)(xlv): By a court order on December 24, 2003, this paragraph (a)(1)(xlv) is stayed indefinitely. The stayed provisions will become effective immediately if the court terminates the stay. At that time, EPA will publish a document in the Federal Register advising the public of the termination of the stay.

(xlvi) Total capital investment means the sum of the following: All costs required to purchase needed process equipment (purchased equipment costs); the costs of labor and materials for installing that equipment (direct installation costs); the costs of site preparation and buildings; other costs such as engineering, construction and field expenses, fees to contractors, startup and performance tests, and contingencies (indirect installation costs); land for the process equipment; and working capital for the process equipment.

Note to paragraph (a)(1)(xlvi): By a court order on December 24, 2003, this paragraph (a)(1)(xlvi) is stayed indefinitely. The stayed provisions will become effective immediately if the court terminates the stay. At that time, EPA will publish a document in the Federal Register advising the public of the termination of the stay.

(2) Applicability procedures. (i) Each plan shall adopt a preconstruction review program to satisfy the requirements of sections 172(c)(5) and 173 of the Act for any area designated nonattainment for any national ambient air quality standard under subpart C of 40 CFR part 81. Such a program shall apply to any new major stationary source or major modification that is major for the pollutant for which the area is designated nonattainment under section 107(d)(1)(A)(i) of the Act, if the stationary source or modification would locate anywhere in the designated nonattainment area.

(ii) Each plan shall use the specific provisions of paragraphs (a)(2)(ii)(A) through (F) of this section. Deviations from these provisions will be approved only if the State specifically demonstrates that the submitted provisions are more stringent than or at least as stringent in all respects as the corresponding provisions in paragraphs (a)(2)(ii)(A) through (F) of this section.

(A) Except as otherwise provided in paragraphs (a)(2)(iii) and (iv) of this section, and consistent with the definition of major modification contained in paragraph (a)(1)(v)(A) of this section, a project is a major modification for a regulated NSR pollutant if it causes two types of emissions increases—a significant emissions increase (as defined in paragraph (a)(1)(xxvii) of this section), and a significant net emissions increase (as defined in paragraphs (a)(1)(vi) and (x) of this section). The project is not a major modification if it does not cause a significant emissions increase. If the project causes a significant emissions increase, then the project is a major modification only if it also results in a significant net emissions increase.

(B) The procedure for calculating (before beginning actual construction) whether a significant emissions increase (i.e., the first step of the process) will occur depends upon the type of emissions units being modified, according to paragraphs (a)(2)(ii)(C) through (F) of this section. The procedure for calculating (before beginning actual construction) whether a significant net emissions increase will occur at the major stationary source (i.e., the second step of the process) is contained in the definition in paragraph (a)(1)(vi) of this section. Regardless of any such preconstruction projections, a major modification results if the project causes a significant emissions increase and a significant net emissions increase.

(C) Actual-to-projected-actual applicability test for projects that only involve existing emissions units. A significant emissions increase of a regulated NSR pollutant is projected to occur if the sum of the difference between the projected actual emissions (as defined in paragraph (a)(1)(xxviii) of this section) and the baseline actual emissions (as defined in paragraphs (a)(1)(xxxv)(A) and (B) of this section, as applicable), for each existing emissions unit, equals or exceeds the significant amount for that pollutant (as defined in paragraph (a)(1)(x) of this section).

(D) Actual-to-potential test for projects that only involve construction of a new emissions unit(s). A significant emissions increase of a regulated NSR pollutant is projected to occur if the sum of the difference between the potential to emit (as defined in paragraph (a)(1)(iii) of this section) from each new emissions unit following completion of the project and the baseline actual emissions (as defined in paragraph (a)(1)(xxxv)(C) of this section) of these units before the project equals or exceeds the significant amount for that pollutant (as defined in paragraph (a)(1)(x) of this section).

(E) [Reserved]

(F) Hybrid test for projects that involve multiple types of emissions units. A significant emissions increase of a regulated NSR pollutant is projected to occur if the sum of the emissions increases for each emissions unit, using the method specified in paragraphs (a)(2)(ii)(C) through (D) of this section as applicable with respect to each emissions unit, for each type of emissions unit equals or exceeds the significant amount for that pollutant (as defined in paragraph (a)(1)(x) of this section).

(iii) The plan shall require that for any major stationary source for a PAL for a regulated NSR pollutant, the major stationary source shall comply with requirements under paragraph (f) of this section.

(3)(i) Each plan shall provide that for sources and modifications subject to any preconstruction review program adopted pursuant to this subsection the baseline for determining credit for emissions reductions is the emissions limit under the applicable State Implementation Plan in effect at the time the application to construct is filed, except that the offset baseline shall be the actual emissions of the source from which offset credit is obtained where;

(A) The demonstration of reasonable further progress and attainment of ambient air quality standards is based upon the actual emissions of sources located within a designated nonattainment area for which the preconstruction review program was adopted; or

(B) The applicable State Implementation Plan does not contain an emissions limitation for that source or source category.

(ii) The plan shall further provide that:

(A) Where the emissions limit under the applicable State Implementation Plan allows greater emissions than the potential to emit of the source, emissions offset credit will be allowed only for control below this potential;

(B) For an existing fuel combustion source, credit shall be based on the allowable emissions under the applicable State Implementation Plan for the type of fuel being burned at the time the application to construct is filed. If the existing source commits to switch to a cleaner fuel at some future date, emissions offset credit based on the allowable (or actual) emissions for the fuels involved is not acceptable, unless the permit is conditioned to require the use of a specified alternative control measure which would achieve the same degree of emissions reduction should the source switch back to a dirtier fuel at some later date. The reviewing authority should ensure that adequate long-term supplies of the new fuel are available before granting emissions offset credit for fuel switches,

(C)(1) Emissions reductions achieved by shutting down an existing emission unit or curtailing production or operating hours may be generally credited for offsets if they meet the requirements in paragraphs (a)(3)(ii)(C)(1)(i) through (ii) of this section.

(i) Such reductions are surplus, permanent, quantifiable, and federally enforceable.

(ii) The shutdown or curtailment occurred after the last day of the base year for the SIP planning process. For purposes of this paragraph, a reviewing authority may choose to consider a prior shutdown or curtailment to have occurred after the last day of the base year if the projected emissions inventory used to develop the attainment demonstration explicitly includes the emissions from such previously shutdown or curtailed emission units. However, in no event may credit be given for shutdowns that occurred before August 7, 1977.

(2) Emissions reductions achieved by shutting down an existing emissions unit or curtailing production or operating hours and that do not meet the requirements in paragraph (a)(3)(ii)(C)(1)(ii) of this section may be generally credited only if:

(i) The shutdown or curtailment occurred on or after the date the construction permit application is filed; or

(ii) The applicant can establish that the proposed new emissions unit is a replacement for the shutdown or curtailed emissions unit, and the emissions reductions achieved by the shutdown or curtailment met the requirements of paragraph (a)(3)(ii)(C)(1)(i) of this section.

(D) No emissions credit may be allowed for replacing one hydrocarbon compound with another of lesser reactivity, except for those compounds listed in 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.))

(E) All emission reductions claimed as offset credit shall be federally enforceable;

(F) Procedures relating to the permissible location of offsetting emissions shall be followed which are at least as stringent as those set out in 40 CFR part 51 appendix S section IV.D.

(G) Credit for an emissions reduction can be claimed to the extent that the reviewing authority has not relied on it in issuing any permit under regulations approved pursuant to 40 CFR part 51 subpart I or the State has not relied on it in demonstration attainment or reasonable further progress.

(H) [Reserved]

(I) [Reserved]

(J) The total tonnage of increased emissions, in tons per year, resulting from a major modification that must be offset in accordance with section 173 of the Act shall be determined by summing the difference between the allowable emissions after the modification (as defined by paragraph (a)(1)(xi) of this section) and the actual emissions before the modification (as defined in paragraph (a)(1)(xii) of this section) for each emissions unit.

(4) Each plan may provide that the provisions of this paragraph do not apply to a source or modification that would be a major stationary source or major modification only if fugitive emissions, to the extent quantifiable, are considered in calculating the potential to emit of the stationary source or modification and the source does not belong to any of the following categories:

(i) Coal cleaning plants (with thermal dryers);

(ii) Kraft pulp mills;

(iii) Portland cement plants;

(iv) Primary zinc smelters;

(v) Iron and steel mills;

(vi) Primary aluminum ore reduction plants;

(vii) Primary copper smelters;

(viii) Municipal incinerators capable of charging more than 250 tons of refuse per day;

(ix) Hydrofluoric, sulfuric, or citric acid plants;

(x) Petroleum refineries;

(xi) Lime plants;

(xii) Phosphate rock processing plants;

(xiii) Coke oven batteries;

(xiv) Sulfur recovery plants;

(xv) Carbon black plants (furnace process);

(xvi) Primary lead smelters;

(xvii) Fuel conversion plants;

(xviii) Sintering plants;

(xix) Secondary metal production plants;

(xx) Chemical process plants—The term chemical processing plant shall not include ethanol production facilities that produce ethanol by natural fermentation included in NAICS codes 325193 or 312140;

(xxi) Fossil-fuel boilers (or combination thereof) totaling more than 250 million British thermal units per hour heat input;

(xxii) Petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels;

(xxiii) Taconite ore processing plants;

(xxiv) Glass fiber processing plants;

(xxv) Charcoal production plants;

(xxvi) Fossil fuel-fired steam electric plants of more than 250 million British thermal units per hour heat input;

(xxvii) Any other stationary source category which, as of August 7, 1980, is being regulated under section 111 or 112 of the Act.

(5) Each plan shall include enforceable procedures to provide that:

(i) Approval to construct shall not relieve any owner or operator of the responsibility to comply fully with applicable provision of the plan and any other requirements under local, State or Federal law.

(ii) At such time that a particular source or modification becomes a major stationary source or major modification solely by virtue of a relaxation in any enforcement limitation which was established after August 7, 1980, on the capacity of the source or modification otherwise to emit a pollutant, such as a restriction on hours of operation, then the requirements 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;

(6) Each plan shall provide that, except as otherwise provided in paragraph (a)(6)(vi) of this section, the following specific provisions apply with respect to any regulated NSR pollutant emitted from projects at existing emissions units at a major stationary source (other than projects at a source with a PAL) in circumstances where there is a reasonable possibility, within the meaning of paragraph (a)(6)(vi) of this section, that a project that is not a part of a major modification may result in a significant emissions increase of such pollutant, and the owner or operator elects to use the method specified in paragraphs (a)(1)(xxviii)(B)(1) through (3) of this section for calculating projected actual emissions. Deviations from these provisions will be approved only if the State specifically demonstrates that the submitted provisions are more stringent than or at least as stringent in all respects as the corresponding provisions in paragraphs (a)(6)(i) through (vi) of this section.

(i) Before beginning actual construction of the project, the owner or operator shall document and maintain a record of the following information:

(A) A description of the project;

(B) Identification of the emissions unit(s) whose emissions of a regulated NSR pollutant could be affected by the project; and

(C) A description of the applicability test used to determine that the project is not a major modification for any regulated NSR pollutant, including the baseline actual emissions, the projected actual emissions, the amount of emissions excluded under paragraph (a)(1)(xxviii)(B)(3) of this section and an explanation for why such amount was excluded, and any netting calculations, if applicable.

(ii) If the emissions unit is an existing electric utility steam generating unit, before beginning actual construction, the owner or operator shall provide a copy of the information set out in paragraph (a)(6)(i) of this section to the reviewing authority. Nothing in this paragraph (a)(6)(ii) shall be construed to require the owner or operator of such a unit to obtain any determination from the reviewing authority before beginning actual construction.

(iii) The owner or operator shall monitor the emissions of any regulated NSR pollutant that could increase as a result of the project and that is emitted by any emissions units identified in paragraph (a)(6)(i)(B) of this section; and calculate and maintain a record of the annual emissions, in tons per year on a calendar year basis, for a period of 5 years following resumption of regular operations after the change, or for a period of 10 years following resumption of regular operations after the change if the project increases the design capacity or potential to emit of that regulated NSR pollutant at such emissions unit.

(iv) If the unit is an existing electric utility steam generating unit, the owner or operator shall submit a report to the reviewing authority within 60 days after the end of each year during which records must be generated under paragraph (a)(6)(iii) of this section setting out the unit's annual emissions during the year that preceded submission of the report.

(v) If the unit is an existing unit other than an electric utility steam generating unit, the owner or operator shall submit a report to the reviewing authority if the annual emissions, in tons per year, from the project identified in paragraph (a)(6)(i) of this section, exceed the baseline actual emissions (as documented and maintained pursuant to paragraph (a)(6)(i)(C) of this section, by a significant amount (as defined in paragraph (a)(1)(x) of this section) for that regulated NSR pollutant, and if such emissions differ from the preconstruction projection as documented and maintained pursuant to paragraph (a)(6)(i)(C) of this section. Such report shall be submitted to the reviewing authority within 60 days after the end of such year. The report shall contain the following:

(A) The name, address and telephone number of the major stationary source;

(B) The annual emissions as calculated pursuant to paragraph (a)(6)(iii) of this section; and

(C) Any other information that the owner or operator wishes to include in the report (e.g., an explanation as to why the emissions differ from the preconstruction projection).

(vi) A “reasonable possibility” under paragraph (a)(6) of this section occurs when the owner or operator calculates the project to result in either:

(A) A projected actual emissions increase of at least 50 percent of the amount that is a “significant emissions increase,” as defined under paragraph (a)(1)(xxvii) of this section (without reference to the amount that is a significant net emissions increase), for the regulated NSR pollutant; or

(B) A projected actual emissions increase that, added to the amount of emissions excluded under paragraph (a)(1)(xxviii)(B)(3), sums to at least 50 percent of the amount that is a “significant emissions increase,” as defined under paragraph (a)(1)(xxvii) of this section (without reference to the amount that is a significant net emissions increase), for the regulated NSR pollutant. For a project for which a reasonable possibility occurs only within the meaning of paragraph (a)(6)(vi)(B) of this section, and not also within the meaning of paragraph (a)(6)(vi)(A) of this section, then provisions (a)(6)(ii) through (v) do not apply to the project.

(7) Each plan shall provide that the owner or operator of the source shall make the information required to be documented and maintained pursuant to paragraph (a)(6) of this section available for review upon a request for inspection by the reviewing authority or the general public pursuant to the requirements contained in §70.4(b)(3)(viii) of this chapter.

(8) The plan shall provide that the requirements of this section applicable to major stationary sources and major modifications of volatile organic compounds shall apply to nitrogen oxides emissions from major stationary sources and major modifications of nitrogen oxides in an ozone transport region or in any ozone nonattainment area, except in ozone nonattainment areas or in portions of an ozone transport region where the Administrator has granted a NOX waiver applying the standards set forth under section 182(f) of the Act and the waiver continues to apply.

(9)(i) The plan shall require that in meeting the emissions offset requirements of paragraph (a)(3) of this section, the ratio of total actual emissions reductions to the emissions increase shall be at least 1:1 unless an alternative ratio is provided for the applicable nonattainment area in paragraphs (a)(9)(ii) through (a)(9)(iv) of this section.

(ii) The plan shall require that in meeting the emissions offset requirements of paragraph (a)(3) of this section for ozone nonattainment areas that are subject to subpart 2, part D, title I of the Act, the ratio of total actual emissions reductions of VOC to the emissions increase of VOC shall be as follows:

(A) In any marginal nonattainment area for ozone—at least 1.1:1;

(B) In any moderate nonattainment area for ozone—at least 1.15:1;

(C) In any serious nonattainment area for ozone—at least 1.2:1;

(D) In any severe nonattainment area for ozone—at least 1.3:1 (except that the ratio may be at least 1.2:1 if the approved plan also requires all existing major sources in such nonattainment area to use BACT for the control of VOC); and

(E) In any extreme nonattainment area for ozone—at least 1.5:1 (except that the ratio may be at least 1.2:1 if the approved plan also requires all existing major sources in such nonattainment area to use BACT for the control of VOC); and

(iii) Notwithstanding the requirements of paragraph (a)(9)(ii) of this section for meeting the requirements of paragraph (a)(3) of this section, the ratio of total actual emissions reductions of VOC to the emissions increase of VOC shall be at least 1.15:1 for all areas within an ozone transport region that is subject to subpart 2, part D, title I of the Act, except for serious, severe, and extreme ozone nonattainment areas that are subject to subpart 2, part D, title I of the Act.

(iv) The plan shall require that in meeting the emissions offset requirements of paragraph (a)(3) of this section for ozone nonattainment areas that are subject to subpart 1, part D, title I of the Act (but are not subject to subpart 2, part D, title I of the Act, including 8-hour ozone nonattainment areas subject to 40 CFR 51.902(b)), the ratio of total actual emissions reductions of VOC to the emissions increase of VOC shall be at least 1:1.

(10) The plan shall require that the requirements of this section applicable to major stationary sources and major modifications of PM-10 shall also apply to major stationary sources and major modifications of PM-10 precursors, except where the Administrator determines that such sources do not contribute significantly to PM-10 levels that exceed the PM-10 ambient standards in the area.

(11) The plan shall require that in meeting the emissions offset requirements of paragraph (a)(3) of this section, the emissions offsets obtained shall be for the same regulated NSR pollutant unless interprecursor offsetting is permitted for a particular pollutant as specified in this paragraph. The plan may allow the offset requirements in paragraph (a)(3) of this section for direct PM2.5 emissions or emissions of precursors of PM2.5 to be satisfied by offsetting reductions in direct PM2.5 emissions or emissions of any PM2.5 precursor identified under paragraph (a)(1)(xxxvii)(C) of this section if such offsets comply with the interprecursor trading hierarchy and ratio established in the approved plan for a particular nonattainment area.

(b)(1) Each plan shall include a preconstruction review permit program or its equivalent to satisfy the requirements of section 110(a)(2)(D)(i) of the Act for any new major stationary source or major modification as defined in paragraphs (a)(1) (iv) and (v) of this section. Such a program shall apply to any such source or modification that would locate in any area designated as attainment or unclassifiable for any national ambient air quality standard pursuant to section 107 of the Act, when it would cause or contribute to a violation of any national ambient air quality standard.

(2) A major source or major modification will be considered to cause or contribute to a violation of a national ambient air quality standard when such source or modification would, at a minimum, exceed the following significance levels at any locality that does not or would not meet the applicable national standard:

PollutantAnnualAveraging time (hours)
24831
SO21.0 µg/m35 µg/m325 µg/m3
PM101.0 µg/m35 µg/m3
PM2.50.3 µg/m31.2 µg/m3
NO21.0 µg/m3
CO0.5 mg/m32 mg/m3

(3) Such a program may include a provision which allows a proposed major source or major modification subject to paragraph (b) of this section to reduce the impact of its emissions upon air quality by obtaining sufficient emission reductions to, at a minimum, compensate for its adverse ambient impact where the major source or major modification would otherwise cause or contribute to a violation of any national ambient air quality standard. The plan shall require that, in the absence of such emission reductions, the State or local agency shall deny the proposed construction.

(4) The requirements of paragraph (b) of this section shall not apply to a major stationary source or major modification with respect to a particular pollutant if the owner or operator demonstrates that, as to that pollutant, the source or modification is located in an area designated as nonattainment pursuant to section 107 of the Act.

(c)-(e) [Reserved]

(f) Actuals PALs. The plan shall provide for PALs according to the provisions in paragraphs (f)(1) through (15) of this section.

(1) Applicability. (i) The reviewing authority may approve the use of an actuals PAL for any existing major stationary source (except as provided in paragraph (f)(1)(ii) of this section) if the PAL meets the requirements in paragraphs (f)(1) through (15) of this section. The term “PAL” shall mean “actuals PAL” throughout paragraph (f) of this section.

(ii) The reviewing authority shall not allow an actuals PAL for VOC or NOX for any major stationary source located in an extreme ozone nonattainment area.

(iii) Any physical change in or change in the method of operation of a major stationary source that maintains its total source-wide emissions below the PAL level, meets the requirements in paragraphs (f)(1) through (15) of this section, and complies with the PAL permit:

(A) Is not a major modification for the PAL pollutant;

(B) Does not have to be approved through the plan's nonattainment major NSR program; and

(C) Is not subject to the provisions in paragraph (a)(5)(ii) of this section (restrictions on relaxing enforceable emission limitations that the major stationary source used to avoid applicability of the nonattainment major NSR program).

(iv) Except as provided under paragraph (f)(1)(iii)(C) of this section, a major stationary source shall continue to comply with all applicable Federal or State requirements, emission limitations, and work practice requirements that were established prior to the effective date of the PAL.

(2) Definitions. The plan shall use the definitions in paragraphs (f)(2)(i) through (xi) of this section for the purpose of developing and implementing regulations that authorize the use of actuals PALs consistent with paragraphs (f)(1) through (15) of this section. When a term is not defined in these paragraphs, it shall have the meaning given in paragraph (a)(1) of this section or in the Act.

(i) Actuals PAL for a major stationary source means a PAL based on the baseline actual emissions (as defined in paragraph (a)(1)(xxxv) of this section) of all emissions units (as defined in paragraph (a)(1)(vii) of this section) at the source, that emit or have the potential to emit the PAL pollutant.

(ii) Allowable emissions means “allowable emissions” as defined in paragraph (a)(1)(xi) of this section, except as this definition is modified according to paragraphs (f)(2)(ii)(A) through (B) of this section.

(A) The allowable emissions for any emissions unit shall be calculated considering any emission limitations that are enforceable as a practical matter on the emissions unit's potential to emit.

(B) An emissions unit's potential to emit shall be determined using the definition in paragraph (a)(1)(iii) of this section, except that the words “or enforceable as a practical matter” should be added after “federally enforceable.”

(iii) Small emissions unit means an emissions unit that emits or has the potential to emit the PAL pollutant in an amount less than the significant level for that PAL pollutant, as defined in paragraph (a)(1)(x) of this section or in the Act, whichever is lower.

(iv) Major emissions unit means:

(A) Any emissions unit that emits or has the potential to emit 100 tons per year or more of the PAL pollutant in an attainment area; or

(B) Any emissions unit that emits or has the potential to emit the PAL pollutant in an amount that is equal to or greater than the major source threshold for the PAL pollutant as defined by the Act for nonattainment areas. For example, in accordance with the definition of major stationary source in section 182(c) of the Act, an emissions unit would be a major emissions unit for VOC if the emissions unit is located in a serious ozone nonattainment area and it emits or has the potential to emit 50 or more tons of VOC per year.

(v) Plantwide applicability limitation (PAL) means an emission limitation expressed in tons per year, for a pollutant at a major stationary source, that is enforceable as a practical matter and established source-wide in accordance with paragraphs (f)(1) through (f)(15) of this section.

(vi) PAL effective date generally means the date of issuance of the PAL permit. However, the PAL effective date for an increased PAL is the date any emissions unit which is part of the PAL major modification becomes operational and begins to emit the PAL pollutant.

(vii) PAL effective period means the period beginning with the PAL effective date and ending 10 years later.

(viii) PAL major modification means, notwithstanding paragraphs (a)(1)(v) and (vi) of this section (the definitions for major modification and net emissions increase), any physical change in or change in the method of operation of the PAL source that causes it to emit the PAL pollutant at a level equal to or greater than the PAL.

(ix) PAL permit means the major NSR permit, the minor NSR permit, or the State operating permit under a program that is approved into the plan, or the title V permit issued by the reviewing authority that establishes a PAL for a major stationary source.

(x) PAL pollutant means the pollutant for which a PAL is established at a major stationary source.

(xi) Significant emissions unit means an emissions unit that emits or has the potential to emit a PAL pollutant in an amount that is equal to or greater than the significant level (as defined in paragraph (a)(1)(x) of this section or in the Act, whichever is lower) for that PAL pollutant, but less than the amount that would qualify the unit as a major emissions unit as defined in paragraph (f)(2)(iv) of this section.

(3) Permit application requirements. As part of a permit application requesting a PAL, the owner or operator of a major stationary source shall submit the following information to the reviewing authority for approval:

(i) A list of all emissions units at the source designated as small, significant or major based on their potential to emit. In addition, the owner or operator of the source shall indicate which, if any, Federal or State applicable requirements, emission limitations or work practices apply to each unit.

(ii) Calculations of the baseline actual emissions (with supporting documentation). Baseline actual emissions are to include emissions associated not only with operation of the unit, but also emissions associated with startup, shutdown and malfunction.

(iii) The calculation procedures that the major stationary source owner or operator proposes to use to convert the monitoring system data to monthly emissions and annual emissions based on a 12-month rolling total for each month as required by paragraph (f)(13)(i) of this section.

(4) General requirements for establishing PALs. (i) The plan allows the reviewing authority to establish a PAL at a major stationary source, provided that at a minimum, the requirements in paragraphs (f)(4)(i)(A) through (G) of this section are met.

(A) The PAL shall impose an annual emission limitation in tons per year, that is enforceable as a practical matter, for the entire major stationary source. For each month during the PAL effective period after the first 12 months of establishing a PAL, the major stationary source owner or operator shall show that the sum of the monthly emissions from each emissions unit under the PAL for the previous 12 consecutive months is less than the PAL (a 12-month average, rolled monthly). For each month during the first 11 months from the PAL effective date, the major stationary source owner or operator shall show that the sum of the preceding monthly emissions from the PAL effective date for each emissions unit under the PAL is less than the PAL.

(B) The PAL shall be established in a PAL permit that meets the public participation requirements in paragraph (f)(5) of this section.

(C) The PAL permit shall contain all the requirements of paragraph (f)(7) of this section.

(D) The PAL shall include fugitive emissions, to the extent quantifiable, from all emissions units that emit or have the potential to emit the PAL pollutant at the major stationary source.

(E) Each PAL shall regulate emissions of only one pollutant.

(F) Each PAL shall have a PAL effective period of 10 years.

(G) The owner or operator of the major stationary source with a PAL shall comply with the monitoring, recordkeeping, and reporting requirements provided in paragraphs (f)(12) through (14) of this section for each emissions unit under the PAL through the PAL effective period.

(ii) At no time (during or after the PAL effective period) are emissions reductions of a PAL pollutant, which occur during the PAL effective period, creditable as decreases for purposes of offsets under paragraph (a)(3)(ii) of this section unless the level of the PAL is reduced by the amount of such emissions reductions and such reductions would be creditable in the absence of the PAL.

(5) Public participation requirement for PALs. PALs for existing major stationary sources shall be established, renewed, or increased through a procedure that is consistent with §§51.160 and 51.161 of this chapter. This includes the requirement that the reviewing authority provide the public with notice of the proposed approval of a PAL permit and at least a 30-day period for submittal of public comment. The reviewing authority must address all material comments before taking final action on the permit.

(6) Setting the 10-year actuals PAL level. (i) Except as provided in paragraph (f)(6)(ii) of this section, the plan shall provide that the actuals PAL level for a major stationary source shall be established as the sum of the baseline actual emissions (as defined in paragraph (a)(1)(xxxv) of this section) of the PAL pollutant for each emissions unit at the source; plus an amount equal to the applicable significant level for the PAL pollutant under paragraph (a)(1)(x) of this section or under the Act, whichever is lower. When establishing the actuals PAL level, for a PAL pollutant, only one consecutive 24-month period must be used to determine the baseline actual emissions for all existing emissions units. However, a different consecutive 24-month period may be used for each different PAL pollutant. Emissions associated with units that were permanently shut down after this 24-month period must be subtracted from the PAL level. The reviewing authority shall specify a reduced PAL level(s) (in tons/yr) in the PAL permit to become effective on the future compliance date(s) of any applicable Federal or State regulatory requirement(s) that the reviewing authority is aware of prior to issuance of the PAL permit. For instance, if the source owner or operator will be required to reduce emissions from industrial boilers in half from baseline emissions of 60 ppm NOX to a new rule limit of 30 ppm, then the permit shall contain a future effective PAL level that is equal to the current PAL level reduced by half of the original baseline emissions of such unit(s).

(ii) For newly constructed units (which do not include modifications to existing units) on which actual construction began after the 24-month period, in lieu of adding the baseline actual emissions as specified in paragraph (f)(6)(i) of this section, the emissions must be added to the PAL level in an amount equal to the potential to emit of the units.

(7) Contents of the PAL permit. The plan shall require that the PAL permit contain, at a minimum, the information in paragraphs (f)(7)(i) through (x) of this section.

(i) The PAL pollutant and the applicable source-wide emission limitation in tons per year.

(ii) The PAL permit effective date and the expiration date of the PAL (PAL effective period).

(iii) Specification in the PAL permit that if a major stationary source owner or operator applies to renew a PAL in accordance with paragraph (f)(10) of this section before the end of the PAL effective period, then the PAL shall not expire at the end of the PAL effective period. It shall remain in effect until a revised PAL permit is issued by the reviewing authority.

(iv) A requirement that emission calculations for compliance purposes include emissions from startups, shutdowns and malfunctions.

(v) A requirement that, once the PAL expires, the major stationary source is subject to the requirements of paragraph (f)(9) of this section.

(vi) The calculation procedures that the major stationary source owner or operator shall use to convert the monitoring system data to monthly emissions and annual emissions based on a 12-month rolling total for each month as required by paragraph (f)(13)(i) of this section.

(vii) A requirement that the major stationary source owner or operator monitor all emissions units in accordance with the provisions under paragraph (f)(12) of this section.

(viii) A requirement to retain the records required under paragraph (f)(13) of this section on site. Such records may be retained in an electronic format.

(ix) A requirement to submit the reports required under paragraph (f)(14) of this section by the required deadlines.

(x) Any other requirements that the reviewing authority deems necessary to implement and enforce the PAL.

(8) PAL effective period and reopening of the PAL permit. The plan shall require the information in paragraphs (f)(8)(i) and (ii) of this section.

(i) PAL effective period. The reviewing authority shall specify a PAL effective period of 10 years.

(ii) Reopening of the PAL permit. (A) During the PAL effective period, the plan shall require the reviewing authority to reopen the PAL permit to:

(1) Correct typographical/calculation errors made in setting the PAL or reflect a more accurate determination of emissions used to establish the PAL.

(2) Reduce the PAL if the owner or operator of the major stationary source creates creditable emissions reductions for use as offsets under paragraph (a)(3)(ii) of this section.

(3) Revise the PAL to reflect an increase in the PAL as provided under paragraph (f)(11) of this section.

(B) The plan shall provide the reviewing authority discretion to reopen the PAL permit for the following:

(1) Reduce the PAL to reflect newly applicable Federal requirements (for example, NSPS) with compliance dates after the PAL effective date.

(2) Reduce the PAL consistent with any other requirement, that is enforceable as a practical matter, and that the State may impose on the major stationary source under the plan.

(3) Reduce the PAL if the reviewing authority determines that a reduction is necessary to avoid causing or contributing to a NAAQS or PSD increment violation, or to an adverse impact on an air quality related value that has been identified for a Federal Class I area by a Federal Land Manager and for which information is available to the general public.

(C) Except for the permit reopening in paragraph (f)(8)(ii)(A)(1) of this section for the correction of typographical/calculation errors that do not increase the PAL level, all other reopenings shall be carried out in accordance with the public participation requirements of paragraph (f)(5) of this section.

(9) Expiration of a PAL. Any PAL which is not renewed in accordance with the procedures in paragraph (f)(10) of this section shall expire at the end of the PAL effective period, and the requirements in paragraphs (f)(9)(i) through (v) of this section shall apply.

(i) Each emissions unit (or each group of emissions units) that existed under the PAL shall comply with an allowable emission limitation under a revised permit established according to the procedures in paragraphs (f)(9)(i)(A) through (B) of this section.

(A) Within the time frame specified for PAL renewals in paragraph (f)(10)(ii) of this section, the major stationary source shall submit a proposed allowable emission limitation for each emissions unit (or each group of emissions units, if such a distribution is more appropriate as decided by the reviewing authority) by distributing the PAL allowable emissions for the major stationary source among each of the emissions units that existed under the PAL. If the PAL had not yet been adjusted for an applicable requirement that became effective during the PAL effective period, as required under paragraph (f)(10)(v) of this section, such distribution shall be made as if the PAL had been adjusted.

(B) The reviewing authority shall decide whether and how the PAL allowable emissions will be distributed and issue a revised permit incorporating allowable limits for each emissions unit, or each group of emissions units, as the reviewing authority determines is appropriate.

(ii) Each emissions unit(s) shall comply with the allowable emission limitation on a 12-month rolling basis. The reviewing authority may approve the use of monitoring systems (source testing, emission factors, etc.) other than CEMS, CERMS, PEMS or CPMS to demonstrate compliance with the allowable emission limitation.

(iii) Until the reviewing authority issues the revised permit incorporating allowable limits for each emissions unit, or each group of emissions units, as required under paragraph (f)(9)(i)(A) of this section, the source shall continue to comply with a source-wide, multi-unit emissions cap equivalent to the level of the PAL emission limitation.

(iv) Any physical change or change in the method of operation at the major stationary source will be subject to the nonattainment major NSR requirements if such change meets the definition of major modification in paragraph (a)(1)(v) of this section.

(v) The major stationary source owner or operator shall continue to comply with any State or Federal applicable requirements (BACT, RACT, NSPS, etc.) that may have applied either during the PAL effective period or prior to the PAL effective period except for those emission limitations that had been established pursuant to paragraph (a)(5)(ii) of this section, but were eliminated by the PAL in accordance with the provisions in paragraph (f)(1)(iii)(C) of this section.

(10) Renewal of a PAL. (i) The reviewing authority shall follow the procedures specified in paragraph (f)(5) of this section in approving any request to renew a PAL for a major stationary source, and shall provide both the proposed PAL level and a written rationale for the proposed PAL level to the public for review and comment. During such public review, any person may propose a PAL level for the source for consideration by the reviewing authority.

(ii) Application deadline. The plan shall require that a major stationary source owner or operator shall submit a timely application to the reviewing authority to request renewal of a PAL. A timely application is one that is submitted at least 6 months prior to, but not earlier than 18 months from, the date of permit expiration. This deadline for application submittal is to ensure that the permit will not expire before the permit is renewed. If the owner or operator of a major stationary source submits a complete application to renew the PAL within this time period, then the PAL shall continue to be effective until the revised permit with the renewed PAL is issued.

(iii) Application requirements. The application to renew a PAL permit shall contain the information required in paragraphs (f)(10)(iii)(A) through (D) of this section.

(A) The information required in paragraphs (f)(3)(i) through (iii) of this section.

(B) A proposed PAL level.

(C) The sum of the potential to emit of all emissions units under the PAL (with supporting documentation).

(D) Any other information the owner or operator wishes the reviewing authority to consider in determining the appropriate level for renewing the PAL.

(iv) PAL adjustment. In determining whether and how to adjust the PAL, the reviewing authority shall consider the options outlined in paragraphs (f)(10)(iv)(A) and (B) of this section. However, in no case may any such adjustment fail to comply with paragraph (f)(10)(iv)(C) of this section.

(A) If the emissions level calculated in accordance with paragraph (f)(6) of this section is equal to or greater than 80 percent of the PAL level, the reviewing authority may renew the PAL at the same level without considering the factors set forth in paragraph (f)(10)(iv)(B) of this section; or

(B) The reviewing authority may set the PAL at a level that it determines to be more representative of the source's baseline actual emissions, or that it determines to be appropriate considering air quality needs, advances in control technology, anticipated economic growth in the area, desire to reward or encourage the source's voluntary emissions reductions, or other factors as specifically identified by the reviewing authority in its written rationale.

(C) Notwithstanding paragraphs (f)(10)(iv)(A) and (B) of this section,

(1) If the potential to emit of the major stationary source is less than the PAL, the reviewing authority shall adjust the PAL to a level no greater than the potential to emit of the source; and

(2) The reviewing authority shall not approve a renewed PAL level higher than the current PAL, unless the major stationary source has complied with the provisions of paragraph (f)(11) of this section (increasing a PAL).

(v) If the compliance date for a State or Federal requirement that applies to the PAL source occurs during the PAL effective period, and if the reviewing authority has not already adjusted for such requirement, the PAL shall be adjusted at the time of PAL permit renewal or title V permit renewal, whichever occurs first.

(11) Increasing a PAL during the PAL effective period. (i) The plan shall require that the reviewing authority may increase a PAL emission limitation only if the major stationary source complies with the provisions in paragraphs (f)(11)(i)(A) through (D) of this section.

(A) The owner or operator of the major stationary source shall submit a complete application to request an increase in the PAL limit for a PAL major modification. Such application shall identify the emissions unit(s) contributing to the increase in emissions so as to cause the major stationary source's emissions to equal or exceed its PAL.

(B) As part of this application, the major stationary source owner or operator shall demonstrate that the sum of the baseline actual emissions of the small emissions units, plus the sum of the baseline actual emissions of the significant and major emissions units assuming application of BACT equivalent controls, plus the sum of the allowable emissions of the new or modified emissions unit(s) exceeds the PAL. The level of control that would result from BACT equivalent controls on each significant or major emissions unit shall be determined by conducting a new BACT analysis at the time the application is submitted, unless the emissions unit is currently required to comply with a BACT or LAER requirement that was established within the preceding 10 years. In such a case, the assumed control level for that emissions unit shall be equal to the level of BACT or LAER with which that emissions unit must currently comply.

(C) The owner or operator obtains a major NSR permit for all emissions unit(s) identified in paragraph (f)(11)(i)(A) of this section, regardless of the magnitude of the emissions increase resulting from them (that is, no significant levels apply). These emissions unit(s) shall comply with any emissions requirements resulting from the nonattainment major NSR program process (for example, LAER), even though they have also become subject to the PAL or continue to be subject to the PAL.

(D) The PAL permit shall require that the increased PAL level shall be effective on the day any emissions unit that is part of the PAL major modification becomes operational and begins to emit the PAL pollutant.

(ii) The reviewing authority shall calculate the new PAL as the sum of the allowable emissions for each modified or new emissions unit, plus the sum of the baseline actual emissions of the significant and major emissions units (assuming application of BACT equivalent controls as determined in accordance with paragraph (f)(11)(i)(B)), plus the sum of the baseline actual emissions of the small emissions units.

(iii) The PAL permit shall be revised to reflect the increased PAL level pursuant to the public notice requirements of paragraph (f)(5) of this section.

(12) Monitoring requirements for PALs—(i) General requirements. (A) Each PAL permit must contain enforceable requirements for the monitoring system that accurately determines plantwide emissions of the PAL pollutant in terms of mass per unit of time. Any monitoring system authorized for use in the PAL permit must be based on sound science and meet generally acceptable scientific procedures for data quality and manipulation. Additionally, the information generated by such system must meet minimum legal requirements for admissibility in a judicial proceeding to enforce the PAL permit.

(B) The PAL monitoring system must employ one or more of the four general monitoring approaches meeting the minimum requirements set forth in paragraphs (f)(12)(ii)(A) through (D) of this section and must be approved by the reviewing authority.

(C) Notwithstanding paragraph (f)(12)(i)(B) of this section, you may also employ an alternative monitoring approach that meets paragraph (f)(12)(i)(A) of this section if approved by the reviewing authority.

(D) Failure to use a monitoring system that meets the requirements of this section renders the PAL invalid.

(ii) Minimum Performance Requirements for Approved Monitoring Approaches. The following are acceptable general monitoring approaches when conducted in accordance with the minimum requirements in paragraphs (f)(12)(iii) through (ix) of this section:

(A) Mass balance calculations for activities using coatings or solvents;

(B) CEMS;

(C) CPMS or PEMS; and

(D) Emission Factors.

(iii) Mass Balance Calculations. An owner or operator using mass balance calculations to monitor PAL pollutant emissions from activities using coating or solvents shall meet the following requirements:

(A) Provide a demonstrated means of validating the published content of the PAL pollutant that is contained in or created by all materials used in or at the emissions unit;

(B) Assume that the emissions unit emits all of the PAL pollutant that is contained in or created by any raw material or fuel used in or at the emissions unit, if it cannot otherwise be accounted for in the process; and

(C) Where the vendor of a material or fuel, which is used in or at the emissions unit, publishes a range of pollutant content from such material, the owner or operator must use the highest value of the range to calculate the PAL pollutant emissions unless the reviewing authority determines there is site-specific data or a site-specific monitoring program to support another content within the range.

(iv) CEMS. An owner or operator using CEMS to monitor PAL pollutant emissions shall meet the following requirements:

(A) CEMS must comply with applicable Performance Specifications found in 40 CFR part 60, appendix B; and

(B) CEMS must sample, analyze and record data at least every 15 minutes while the emissions unit is operating.

(v) CPMS or PEMS. An owner or operator using CPMS or PEMS to monitor PAL pollutant emissions shall meet the following requirements:

(A) The CPMS or the PEMS must be based on current site-specific data demonstrating a correlation between the monitored parameter(s) and the PAL pollutant emissions across the range of operation of the emissions unit; and

(B) Each CPMS or PEMS must sample, analyze, and record data at least every 15 minutes, or at another less frequent interval approved by the reviewing authority, while the emissions unit is operating.

(vi) Emission factors. An owner or operator using emission factors to monitor PAL pollutant emissions shall meet the following requirements:

(A) All emission factors shall be adjusted, if appropriate, to account for the degree of uncertainty or limitations in the factors' development;

(B) The emissions unit shall operate within the designated range of use for the emission factor, if applicable; and

(C) If technically practicable, the owner or operator of a significant emissions unit that relies on an emission factor to calculate PAL pollutant emissions shall conduct validation testing to determine a site-specific emission factor within 6 months of PAL permit issuance, unless the reviewing authority determines that testing is not required.

(vii) A source owner or operator must record and report maximum potential emissions without considering enforceable emission limitations or operational restrictions for an emissions unit during any period of time that there is no monitoring data, unless another method for determining emissions during such periods is specified in the PAL permit.

(viii) Notwithstanding the requirements in paragraphs (f)(12)(iii) through (vii) of this section, where an owner or operator of an emissions unit cannot demonstrate a correlation between the monitored parameter(s) and the PAL pollutant emissions rate at all operating points of the emissions unit, the reviewing authority shall, at the time of permit issuance:

(A) Establish default value(s) for determining compliance with the PAL based on the highest potential emissions reasonably estimated at such operating point(s); or

(B) Determine that operation of the emissions unit during operating conditions when there is no correlation between monitored parameter(s) and the PAL pollutant emissions is a violation of the PAL.

(ix) Re-validation. All data used to establish the PAL pollutant must be re-validated through performance testing or other scientifically valid means approved by the reviewing authority. Such testing must occur at least once every 5 years after issuance of the PAL.

(13) Recordkeeping requirements. (i) The PAL permit shall require an owner or operator to retain a copy of all records necessary to determine compliance with any requirement of paragraph (f) of this section and of the PAL, including a determination of each emissions unit's 12-month rolling total emissions, for 5 years from the date of such record.

(ii) The PAL permit shall require an owner or operator to retain a copy of the following records for the duration of the PAL effective period plus 5 years:

(A) A copy of the PAL permit application and any applications for revisions to the PAL; and

(B) Each annual certification of compliance pursuant to title V and the data relied on in certifying the compliance.

(14) Reporting and notification requirements. The owner or operator shall submit semi-annual monitoring reports and prompt deviation reports to the reviewing authority in accordance with the applicable title V operating permit program. The reports shall meet the requirements in paragraphs (f)(14)(i) through (iii).

(i) Semi-Annual Report. The semi-annual report shall be submitted to the reviewing authority within 30 days of the end of each reporting period. This report shall contain the information required in paragraphs (f)(14)(i)(A) through (G) of this section.

(A) The identification of owner and operator and the permit number.

(B) Total annual emissions (tons/year) based on a 12-month rolling total for each month in the reporting period recorded pursuant to paragraph (f)(13)(i) of this section.

(C) All data relied upon, including, but not limited to, any Quality Assurance or Quality Control data, in calculating the monthly and annual PAL pollutant emissions.

(D) A list of any emissions units modified or added to the major stationary source during the preceding 6-month period.

(E) The number, duration, and cause of any deviations or monitoring malfunctions (other than the time associated with zero and span calibration checks), and any corrective action taken.

(F) A notification of a shutdown of any monitoring system, whether the shutdown was permanent or temporary, the reason for the shutdown, the anticipated date that the monitoring system will be fully operational or replaced with another monitoring system, and whether the emissions unit monitored by the monitoring system continued to operate, and the calculation of the emissions of the pollutant or the number determined by method included in the permit, as provided by paragraph (f)(12)(vii) of this section.

(G) A signed statement by the responsible official (as defined by the applicable title V operating permit program) certifying the truth, accuracy, and completeness of the information provided in the report.

(ii) Deviation report. The major stationary source owner or operator shall promptly submit reports of any deviations or exceedance of the PAL requirements, including periods where no monitoring is available. A report submitted pursuant to §70.6(a)(3)(iii)(B) of this chapter shall satisfy this reporting requirement. The deviation reports shall be submitted within the time limits prescribed by the applicable program implementing §70.6(a)(3)(iii)(B) of this chapter. The reports shall contain the following information:

(A) The identification of owner and operator and the permit number;

(B) The PAL requirement that experienced the deviation or that was exceeded;

(C) Emissions resulting from the deviation or the exceedance; and

(D) A signed statement by the responsible official (as defined by the applicable title V operating permit program) certifying the truth, accuracy, and completeness of the information provided in the report.

(iii) Re-validation results. The owner or operator shall submit to the reviewing authority the results of any re-validation test or method within 3 months after completion of such test or method.

(15) Transition requirements. (i) No reviewing authority may issue a PAL that does not comply with the requirements in paragraphs (f)(1) through (15) of this section after the Administrator has approved regulations incorporating these requirements into a plan.

(ii) The reviewing authority may supersede any PAL which was established prior to the date of approval of the plan by the Administrator with a PAL that complies with the requirements of paragraphs (f)(1) through (15) of this section.

(g) If any provision of this section, or the application of such provision to any person or circumstance, is held invalid, the remainder of this section, or the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby.

(h) Equipment replacement provision. Without regard to other considerations, routine maintenance, repair and replacement includes, but is not limited to, the replacement of any component of a process unit with an identical or functionally equivalent component(s), and maintenance and repair activities that are part of the replacement activity, provided that all of the requirements in paragraphs (h)(1) through (3) of this section are met.

(1) Capital Cost threshold for Equipment Replacement. (i) For an electric utility steam generating unit, as defined in §51.165(a)(1)(xx), the fixed capital cost of the replacement component(s) plus the cost of any associated maintenance and repair activities that are part of the replacement shall not exceed 20 percent of the replacement value of the process unit, at the time the equipment is replaced. For a process unit that is not an electric utility steam generating unit the fixed capital cost of the replacement component(s) plus the cost of any associated maintenance and repair activities that are part of the replacement shall not exceed 20 percent of the replacement value of the process unit, at the time the equipment is replaced.

(ii) In determining the replacement value of the process unit; and, except as otherwise allowed under paragraph (h)(1)(iii) of this section, the owner or operator shall determine the replacement value of the process unit on an estimate of the fixed capital cost of constructing a new process unit, or on the current appraised value of the process unit.

(iii) As an alternative to paragraph (h)(1)(ii) of this section for determining the replacement value of a process unit, an owner or operator may choose to use insurance value (where the insurance value covers only complete replacement), investment value adjusted for inflation, or another accounting procedure if such procedure is based on Generally Accepted Accounting Principles, provided that the owner or operator sends a notice to the reviewing authority. The first time that an owner or operator submits such a notice for a particular process unit, the notice may be submitted at any time, but any subsequent notice for that process unit may be submitted only at the beginning of the process unit's fiscal year. Unless the owner or operator submits a notice to the reviewing authority, then paragraph (h)(1)(ii) of this section will be used to establish the replacement value of the process unit. Once the owner or operator submits a notice to use an alternative accounting procedure, the owner or operator must continue to use that procedure for the entire fiscal year for that process unit. In subsequent fiscal years, the owner or operator must continue to use this selected procedure unless and until the owner or operator sends another notice to the reviewing authority selecting another procedure consistent with this paragraph or paragraph (h)(1)(ii) of this section at the beginning of such fiscal year.

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

Note to paragraph (h): By a court order on December 24, 2003, this paragraph (h) is stayed indefinitely. The stayed provisions will become effective immediately if the court terminates the stay. At that time, EPA will publish a document in the Federal Register advising the public of the termination of the stay.

(i) Except as provided in paragraph (h)(2)(iii) of this section, for a process unit at a steam electric generating facility, the owner or operator may select as its basic design parameters either maximum hourly heat input and maximum hourly fuel consumption rate or maximum hourly electric output rate and maximum steam flow rate. When establishing fuel consumption specifications in terms of weight or volume, the minimum fuel quality based on British Thermal Units content shall be used for determining the basic design parameter(s) for a coal-fired electric utility steam generating unit.

(ii) Except as provided in paragraph (h)(2)(iii) of this section, the basic design parameter(s) for any process unit that is not at a steam electric generating facility are maximum rate of fuel or heat input, maximum rate of material input, or maximum rate of product output. Combustion process units will typically use maximum rate of fuel input. For sources having multiple end products and raw materials, the owner or operator should consider the primary product or primary raw material when selecting a basic design parameter.

(iii) If the owner or operator believes the basic design parameter(s) in paragraphs (h)(2)(i) and (ii) of this section is not appropriate for a specific industry or type of process unit, the owner or operator may propose to the reviewing authority an alternative basic design parameter(s) for the source's process unit(s). If the reviewing authority approves of the use of an alternative basic design parameter(s), the reviewing authority shall issue a permit that is legally enforceable that records such basic design parameter(s) and requires the owner or operator to comply with such parameter(s).

(iv) The owner or operator shall use credible information, such as results of historic maximum capability tests, design information from the manufacturer, or engineering calculations, in establishing the magnitude of the basic design parameter(s) specified in paragraphs (h)(2)(i) and (ii) of this section.

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

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

(3) The replacement activity shall not cause the process unit to exceed any emission limitation, or operational limitation that has the effect of constraining emissions, that applies to the process unit and that is legally enforceable.

[51 FR 40669, Nov. 7, 1986]

Editorial Note: For Federal Register citations affecting §51.165, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.fdsys.gov.

Effective Date Note: At 76 FR 17552, Mar. 30, 2011, §51.165, paragraphs (a)(1)(v)(G) and (v)(1)(vi)(C) (3) are stayed indefinitely.

§51.166   Prevention of significant deterioration of air quality.

(a)(1) Plan requirements. In accordance with the policy of section 101(b)(1) of the Act and the purposes of section 160 of the Act, each applicable State Implementation Plan and each applicable Tribal Implementation Plan shall contain emission limitations and such other measures as may be necessary to prevent significant deterioration of air quality.

(2) Plan revisions. If a State Implementation Plan revision would result in increased air quality deterioration over any baseline concentration, the plan revision shall include a demonstration that it will not cause or contribute to a violation of the applicable increment(s). If a plan revision proposing less restrictive requirements was submitted after August 7, 1977 but on or before any applicable baseline date and was pending action by the Administrator on that date, no such demonstration is necessary with respect to the area for which a baseline date would be established before final action is taken on the plan revision. Instead, the assessment described in paragraph (a)(4) of this section, shall review the expected impact to the applicable increment(s).

(3) Required plan revision. If the State or the Administrator determines that a plan is substantially inadequate to prevent significant deterioration or that an applicable increment is being violated, the plan shall be revised to correct the inadequacy or the violation. The plan shall be revised within 60 days of such a finding by a State or within 60 days following notification by the Administrator, or by such later date as prescribed by the Administrator after consultation with the State.

(4) Plan assessment. The State shall review the adequacy of a plan on a periodic basis and within 60 days of such time as information becomes available that an applicable increment is being violated.

(5) Public participation. Any State action taken under this paragraph shall be subject to the opportunity for public hearing in accordance with procedures equivalent to those established in §51.102.

(6) Amendments. (i) Any State required to revise its implementation plan by reason of an amendment to this section, with the exception of amendments to add new maximum allowable increases or other measures pursuant to section 166(a) of the Act, shall adopt and submit such plan revision to the Administrator for approval no later than 3 years after such amendment is published in the Federal Register. With regard to a revision to an implementation plan by reason of an amendment to paragraph (c) of this section to add maximum allowable increases or other measures, the State shall submit such plan revision to the Administrator for approval within 21 months after such amendment is published in the Federal Register.

(ii) Any revision to an implementation plan that would amend the provisions for the prevention of significant air quality deterioration in the plan shall specify when and as to what sources and modifications the revision is to take effect.

(iii) Any revision to an implementation plan that an amendment to this section required shall take effect no later than the date of its approval and may operate prospectively.

(7) Applicability. Each plan shall contain procedures that incorporate the requirements in paragraphs (a)(7)(i) through (vi) of this section.

(i) The requirements of this section apply to the construction of any new major stationary source (as defined in paragraph (b)(1) of this section) or any project at an existing major stationary source in an area designated as attainment or unclassifiable under sections 107(d)(1)(A)(ii) or (iii) of the Act.

(ii) The requirements of paragraphs (j) through (r) of this section apply to the construction of any new major stationary source or the major modification of any existing major stationary source, except as this section otherwise provides.

(iii) No new major stationary source or major modification to which the requirements of paragraphs (j) through (r)(5) of this section apply shall begin actual construction without a permit that states that the major stationary source or major modification will meet those requirements.

(iv) Each plan shall use the specific provisions of paragraphs (a)(7)(iv)(a) through (f) of this section. Deviations from these provisions will be approved only if the State specifically demonstrates that the submitted provisions are more stringent than or at least as stringent in all respects as the corresponding provisions in paragraphs (a)(7)(iv)(a) through (f) of this section.

(a) Except as otherwise provided in paragraphs (a)(7)(v) and (vi) of this section, and consistent with the definition of major modification contained in paragraph (b)(2) of this section, a project is a major modification for a regulated NSR pollutant if it causes two types of emissions increases—a significant emissions increase (as defined in paragraph (b)(39) of this section), and a significant net emissions increase (as defined in paragraphs (b)(3) and (b)(23) of this section). The project is not a major modification if it does not cause a significant emissions increase. If the project causes a significant emissions increase, then the project is a major modification only if it also results in a significant net emissions increase.

(b) The procedure for calculating (before beginning actual construction) whether a significant emissions increase (i.e., the first step of the process) will occur depends upon the type of emissions units being modified, according to paragraphs (a)(7)(iv)(c) through (f) of this section. The procedure for calculating (before beginning actual construction) whether a significant net emissions increase will occur at the major stationary source (i.e., the second step of the process) is contained in the definition in paragraph (b)(3) of this section. Regardless of any such preconstruction projections, a major modification results if the project causes a significant emissions increase and a significant net emissions increase.

(c) Actual-to-projected-actual applicability test for projects that only involve existing emissions units. A significant emissions increase of a regulated NSR pollutant is projected to occur if the sum of the difference between the projected actual emissions (as defined in paragraph (b)(40) of this section) and the baseline actual emissions (as defined in paragraphs (b)(47)(i) and (ii) of this section) for each existing emissions unit, equals or exceeds the significant amount for that pollutant (as defined in paragraph (b)(23) of this section).

(d) Actual-to-potential test for projects that only involve construction of a new emissions unit(s). A significant emissions increase of a regulated NSR pollutant is projected to occur if the sum of the difference between the potential to emit (as defined in paragraph (b)(4) of this section) from each new emissions unit following completion of the project and the baseline actual emissions (as defined in paragraph (b)(47)(iii) of this section) of these units before the project equals or exceeds the significant amount for that pollutant (as defined in paragraph (b)(23) of this section).

(e) [Reserved]

(f) Hybrid test for projects that involve multiple types of emissions units. A significant emissions increase of a regulated NSR pollutant is projected to occur if the sum of the emissions increases for each emissions unit, using the method specified in paragraphs (a)(7)(iv)(c) through (d) of this section as applicable with respect to each emissions unit, for each type of emissions unit equals or exceeds the significant amount for that pollutant (as defined in paragraph (b)(23) of this section).

(v) The plan shall require that for any major stationary source for a PAL for a regulated NSR pollutant, the major stationary source shall comply with requirements under paragraph (w) of this section.

(b) Definitions. All State plans shall use the following definitions for the purposes of this section. Deviations from the following wording will be approved only if the State specifically demonstrates that the submitted definition is more stringent, or at least as stringent, in all respects as the corresponding definitions below:

(1)(i) Major stationary source means:

(a) Any of the following stationary sources of air pollutants which emits, or has the potential to emit, 100 tons per year or more of any regulated NSR pollutant: Fossil fuel-fired steam electric plants of more than 250 million British thermal units per hour heat input, coal cleaning plants (with thermal dryers), kraft pulp mills, portland cement plants, primary zinc smelters, iron and steel mill plants, primary aluminum ore reduction plants (with thermal dryers), primary copper smelters, municipal incinerators capable of charging more than 250 tons of refuse per day, hydrofluoric, sulfuric, and nitric acid plants, petroleum refineries, lime plants, phosphate rock processing plants, coke oven batteries, sulfur recovery plants, carbon black plants (furnace process), primary lead smelters, fuel conversion plants, sintering plants, secondary metal production plants, chemical process plants (which does not include ethanol production facilities that produce ethanol by natural fermentation included in NAICS codes 325193 or 312140), fossil-fuel boilers (or combinations thereof) totaling more than 250 million British thermal units per hour heat input, petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels, taconite ore processing plants, glass fiber processing plants, and charcoal production plants;

(b) Notwithstanding the stationary source size specified in paragraph (b)(1)(i)(a) of this section, any stationary source which emits, or has the potential to emit, 250 tons per year or more of a regulated NSR pollutant; or

(c) Any physical change that would occur at a stationary source not otherwise qualifying under paragraph (b)(1) of this section, as a major stationary source if the change would constitute a major stationary source by itself.

(ii) A major source that is major for volatile organic compounds or NOX shall be considered major for ozone.

(iii) The fugitive emissions of a stationary source shall not be included in determining for any of the purposes of this section whether it is a major stationary source, unless the source belongs to one of the following categories of stationary sources:

(a) Coal cleaning plants (with thermal dryers);

(b) Kraft pulp mills;

(c) Portland cement plants;

(d) Primary zinc smelters;

(e) Iron and steel mills;

(f) Primary aluminum ore reduction plants;

(g) Primary copper smelters;

(h) Municipal incinerators capable of charging more than 250 tons of refuse per day;

(i) Hydrofluoric, sulfuric, or nitric acid plants;

(j) Petroleum refineries;

(k) Lime plants;

(l) Phosphate rock processing plants;

(m) Coke oven batteries;

(n) Sulfur recovery plants;

(o) Carbon black plants (furnace process);

(p) Primary lead smelters;

(q) Fuel conversion plants;

(r) Sintering plants;

(s) Secondary metal production plants;

(t) Chemical process plants—The term chemical processing plant shall not include ethanol production facilities that produce ethanol by natural fermentation included in NAICS codes 325193 or 312140;

(u) Fossil-fuel boilers (or combination thereof) totaling more than 250 million British thermal units per hour heat input;

(v) Petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels;

(w) Taconite ore processing plants;

(x) Glass fiber processing plants;

(y) Charcoal production plants;

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

(aa) Any other stationary source category which, as of August 7, 1980, is being regulated under section 111 or 112 of the Act.

(2)(i) Major modification means any physical change in or change in the method of operation of a major stationary source that would result in: a significant emissions increase (as defined in paragraph (b)(39) of this section) of a regulated NSR pollutant (as defined in paragraph (b)(49) of this section); and a significant net emissions increase of that pollutant from the major stationary source.

(ii) Any significant emissions increase (as defined at paragraph (b)(39) of this section) from any emissions units or net emissions increase (as defined in paragraph (b)(3) of this section) at a major stationary source that is significant for volatile organic compounds or NOX shall be considered significant for ozone.

(iii) A physical change or change in the method of operation shall not include:

(a) Routine maintenance, repair and replacement. Routine maintenance, repair and replacement shall include, but not be limited to, any activity(s) that meets the requirements of the equipment replacement provisions contained in paragraph (y) of this section;

Note to paragraph (b)(2)(iii)(a): On December 24, 2003, the second sentence of this paragraph (b)(2)(iii)(a) is stayed indefinitely by court order. The stayed provisions will become effective immediately if the court terminates the stay. At that time, EPA will publish a document in the Federal Register advising the public of the termination of the stay.

(b) Use of an alternative fuel or raw material by reason of any order under section 2 (a) and (b) of the Energy Supply and Environmental Coordination Act of 1974 (or any superseding legislation) or by reason of a natural gas curtailment plan pursuant to the Federal Power Act;

(c) Use of an alternative fuel by reason of an order or rule under section 125 of the Act;

(d) Use of an alternative fuel at a steam generating unit to the extent that the fuel is generated from municipal solid waste;

(e) Use of an alternative fuel or raw material by a stationary source which:

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

(2) The source is approved to use under any permit issued under 40 CFR 52.21 or under regulations approved pursuant to 40 CFR 51.166;

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

(g) Any change in ownership at a stationary source.

(h) [Reserved]

(i) The installation, operation, cessation, or removal of a temporary clean coal technology demonstration project, provided that the project complies with:

(1) The State implementation plan for the State in which the project is located; and

(2) Other requirements necessary to attain and maintain the national ambient air quality standards during the project and after it is terminated.

(j) The installation or operation of a permanent clean coal technology demonstration project that constitutes repowering, provided that the project does not result in an increase in the potential to emit of any regulated pollutant emitted by the unit. This exemption shall apply on a pollutant-by-pollutant basis.

(k) The reactivation of a very clean coal-fired electric utility steam generating unit.

(iv) This definition shall not apply with respect to a particular regulated NSR pollutant when the major stationary source is complying with the requirements under paragraph (w) of this section for a PAL for that pollutant. Instead, the definition at paragraph (w)(2)(viii) of this section shall apply.

(v) Fugitive emissions shall not be included in determining for any of the purposes of this section whether a physical change in or change in the method of operation of a major stationary source is a major modification, unless the source belongs to one of the source categories listed in paragraph (b)(1)(iii) of this section.

(3)(i) Net emissions increase means, with respect to any regulated NSR pollutant emitted by a major stationary source, the amount by which the sum of the following exceeds zero:

(a) The increase in emissions from a particular physical change or change in the method of operation at a stationary source as calculated pursuant to paragraph (a)(7)(iv) of this section; and

(b) Any other increases and decreases in actual emissions at the major stationary source that are contemporaneous with the particular change and are otherwise creditable. Baseline actual emissions for calculating increases and decreases under this paragraph (b)(3)(i)(b) shall be determined as provided in paragraph (b)(47), except that paragraphs (b)(47)(i)(c) and (b)(47)(ii)(d) of this section shall not apply.

(ii) An increase or decrease in actual emissions is contemporaneous with the increase from the particular change only if it occurs within a reasonable period (to be specified by the State) before the date that the increase from the particular change occurs.

(iii) An increase or decrease in actual emissions is creditable only if:

(a) It occurs within a reasonable period (to be specified by the reviewing authority); and

(b) The reviewing authority has not relied on it in issuing a permit for the source under regulations approved pursuant to this section, which permit is in effect when the increase in actual emissions from the particular change occurs; and

(c) The increase or decrease in emissions did not occur at a Clean Unit, except as provided in paragraphs (t)(8) and (u)(10) of this section.

(d) As it pertains to an increase or decrease in fugitive emissions (to the extent quantifiable), it occurs at an emissions unit that is part of one of the source categories listed in paragraph (b)(1)(iii) of this section or it occurs at an emission unit that is located at a major stationary source that belongs to one of the listed source categories. Fugitive emission increases or decreases are not included for those emissions units located at a facility whose primary activity is not represented by one of the source categories listed in paragraph (b)(1)(iii) of this section and that are not, by themselves, part of a listed source category.

(iv) An increase or decrease in actual emissions of sulfur dioxide, particulate matter, or nitrogen oxides that occurs before the applicable minor source baseline date is creditable only if it is required to be considered in calculating the amount of maximum allowable increases remaining available.

(v) An increase in actual emissions is creditable only to the extent that the new level of actual emissions exceeds the old level.

(vi) A decrease in actual emissions is creditable only to the extent that:

(a) The old level of actual emissions or the old level of allowable emissions, whichever is lower, exceeds the new level of actual emissions;

(b) It is enforceable as a practical matter at and after the time that actual construction on the particular change begins;

(c) It has approximately the same qualitative significance for public health and welfare as that attributed to the increase from the particular change; and

(vii) An increase that results from a physical change at a source occurs when the emissions unit on which construction occurred becomes operational and begins to emit a particular pollutant. Any replacement unit that requires shakedown becomes operational only after a reasonable shakedown period, not to exceed 180 days.

(viii) Paragraph (b)(21)(ii) of this section shall not apply for determining creditable increases and decreases.

(4) Potential to emit means the maximum capacity of a stationary source to emit a pollutant under its physical and operational design. Any physical or operational limitation on the capacity of the source to emit a pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design if the limitation or the effect it would have on emissions is federally enforceable. Secondary emissions do not count in determining the potential to emit of a stationary source.

(5) Stationary source means any building, structure, facility, or installation which emits or may emit a regulated NSR pollutant.

(6) Building, structure, facility, or installation means all of the pollutant-emitting activities which belong to the same industrial grouping, are located on one or more contiguous or adjacent properties, and are under the control of the same person (or persons under common control) except the activities of any vessel. Pollutant-emitting activities shall be considered as part of the same industrial grouping if they belong to the same Major Group (i.e., which have the same two-digit code) as described in the Standard Industrial Classification Manual, 1972, as amended by the 1977 Supplement (U.S. Government Printing Office stock numbers 4101-0066 and 003-005-00176-0, respectively).

(7) Emissions unit means any part of a stationary source that emits or would have the potential to emit any regulated NSR pollutant and includes an electric utility steam generating unit as defined in paragraph (b)(30) of this section. For purposes of this section, there are two types of emissions units as described in paragraphs (b)(7)(i) and (ii) of this section.

(i) A new emissions unit is any emissions unit that is (or will be) newly constructed and that has existed for less than 2 years from the date such emissions unit first operated.

(ii) An existing emissions unit is any emissions unit that does not meet the requirements in paragraph (b)(7)(i) of this section. A replacement unit, as defined in paragraph (b)(32) of this section, is an existing emissions unit.

(8) Construction means any physical change or change in the method of operation (including fabrication, erection, installation, demolition, or modification of an emissions unit) that would result in a change in emissions.

(9) Commence as applied to construction of a major stationary source or major modification means that the owner or operator has all necessary preconstruction approvals or permits and either has:

(i) Begun, or caused to begin, a continuous program of actual on-site construction of the source, to be completed within a reasonable time; or

(ii) Entered into binding agreements or contractual obligations, which cannot be cancelled or modified without substantial loss to the owner or operator, to undertake a program of actual construction of the source to be completed within a reasonable time.

(10) Necessary preconstruction approvals or permits means those permits or approvals required under Federal air quality control laws and regulations and those air quality control laws and regulations which are part of the applicable State Implementation Plan.

(11) Begin actual construction means, in general, initiation of physical on-site construction activities on an emissions unit which are of a permanent nature. Such activities include, but are not limited to, installation of building supports and foundations, laying of underground pipework, and construction of permanent storage structures. With respect to a change in method of operation this term refers to those on-site activities, other than preparatory activities, which mark the initiation of the change.

(12) Best available control technology means an emissions limitation (including a visible emissions standard) based on the maximum degree of reduction for each a regulated NSR pollutant which would be emitted from any proposed major stationary source or major modification which the reviewing authority, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for such source or modification through application of production processes or available methods, systems, and techniques, including fuel cleaning or treatment or innovative fuel combination techniques for control of such pollutant. In no event shall application of best available control technology result in emissions of any pollutant which would exceed the emissions allowed by any applicable standard under 40 CFR parts 60 and 61. If the reviewing authority determines that technological or economic limitations on the application of measurement methodology to a particular emissions unit would make the imposition of an emissions standard infeasible, a design, equipment, work practice, operational standard or combination thereof, may be prescribed instead to satisfy the requirement for the application of best available control technology. Such standard shall, to the degree possible, set forth the emissions reduction achievable by implementation of such design, equipment, work practice or operation, and shall provide for compliance by means which achieve equivalent results.

(13)(i) Baseline concentration means that ambient concentration level that exists in the baseline area at the time of the applicable minor source baseline date. A baseline concentration is determined for each pollutant for which a minor source baseline date is established and shall include:

(a) The actual emissions, as defined in paragraph (b)(21) of this section, representative of sources in existence on the applicable minor source baseline date, except as provided in paragraph (b)(13)(ii) of this section;

(b) The allowable emissions of major stationary sources that commenced construction before the major source baseline date, but were not in operation by the applicable minor source baseline date.

(ii) The following will not be included in the baseline concentration and will affect the applicable maximum allowable increase(s):

(a) Actual emissions, as defined in paragraph (b)(21) of this section, from any major stationary source on which construction commenced after the major source baseline date; and

(b) Actual emissions increases and decreases, as defined in paragraph (b)(21) of this section, at any stationary source occurring after the minor source baseline date.

(14)(i) Major source baseline date means:

(a) In the case of PM10 and sulfur dioxide, January 6, 1975;

(b) In the case of nitrogen dioxide, February 8, 1988; and

(c) In the case of PM2.5, October 20, 2010.

(ii) Minor source baseline date means the earliest date after the trigger date on which a major stationary source or a major modification subject to 40 CFR 52.21 or to regulations approved pursuant to 40 CFR 51.166 submits a complete application under the relevant regulations. The trigger date is:

(a) In the case of PM10 and sulfur dioxide, August 7, 1977;

(b) In the case of nitrogen dioxide, February 8, 1988; and

(c) In the case of PM2.5, October 20, 2011.

(iii) The baseline date is established for each pollutant for which increments or other equivalent measures have been established if:

(a) The area in which the proposed source or modification would construct is designated as attainment or unclassifiable under section 107(d)(1)(A)(ii) or (iii) of the Act for the pollutant on the date of its complete application under 40 CFR 52.21 or under regulations approved pursuant to 40 CFR 51.166; and

(b) In the case of a major stationary source, the pollutant would be emitted in significant amounts, or, in the case of a major modification, there would be a significant net emissions increase of the pollutant.

(iv) Any minor source baseline date established originally for the TSP increments shall remain in effect and shall apply for purposes of determining the amount of available PM-10 increments, except that the reviewing authority may rescind any such minor source baseline date where it can be shown, to the satisfaction of the reviewing authority, that the emissions increase from the major stationary source, or the net emissions increase from the major modification, responsible for triggering that date did not result in a significant amount of PM-10 emissions.

(15)(i) Baseline area means any intrastate area (and every part thereof) designated as attainment or unclassifiable under section 107(d)(1)(A)(ii) or (iii) of the Act in which the major source or major modification establishing the minor source baseline date would construct or would have an air quality impact for the pollutant for which the baseline date is established, as follows: Equal to or greater than 1 µg/m3 (annual average) for SO2, NO2, or PM10; or equal or greater than 0.3 µg/m3 (annual average) for PM2.5.

(ii) Area redesignations under section 107(d)(1)(A)(ii) or (iii) of the Act cannot intersect or be smaller than the area of impact of any major stationary source or major modification which:

(a) Establishes a minor source baseline date; or

(b) Is subject to 40 CFR 52.21 or under regulations approved pursuant to 40 CFR 51.166, and would be constructed in the same State as the State proposing the redesignation.

(iii) Any baseline area established originally for the TSP increments shall remain in effect and shall apply for purposes of determining the amount of available PM-10 increments, except that such baseline area shall not remain in effect if the permit authority rescinds the corresponding minor source baseline date in accordance with paragraph (b)(14)(iv) of this section.

(16) Allowable emissions means the emissions rate of a stationary source calculated using the maximum rated capacity of the source (unless the source is subject to federally enforceable limits which restrict the operating rate, or hours of operation, or both) and the most stringent of the following:

(i) The applicable standards as set forth in 40 CFR parts 60 and 61;

(ii) The applicable State Implementation Plan emissions limitation, including those with a future compliance date; or

(iii) The emissions rate specified as a federally enforceable permit condition.

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

(18) 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.

(19) Innovative control technology means any system of air pollution control that has not been adequately demonstrated in practice, but would have a substantial likelihood of achieving greater continuous emissions reduction than any control system in current practice or of achieving at least comparable reductions at lower cost in terms of energy, economics, or nonair quality environmental impacts.

(20) Fugitive emissions means those emissions which could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening.

(21)(i) Actual emissions means the actual rate of emissions of a regulated NSR pollutant from an emissions unit, as determined in accordance with paragraphs (b)(21)(ii) through (iv) of this section, except that this definition shall not apply for calculating whether a significant emissions increase has occurred, or for establishing a PAL under paragraph (w) of this section. Instead, paragraphs (b)(40) and (b)(47) of this section shall apply for those purposes.

(ii) In general, actual emissions as of a particular date shall equal the average rate, in tons per year, at which the unit actually emitted the pollutant during a consecutive 24-month period which precedes the particular date and which is representative of normal source operation. The reviewing authority shall allow the use of a different time period upon a determination that it is more representative of normal source operation. Actual emissions shall be calculated using the unit's actual operating hours, production rates, and types of materials processed, stored, or combusted during the selected time period.

(iii) The reviewing authority may presume that source-specific allowable emissions for the unit are equivalent to the actual emissions of the unit.

(iv) For any emissions unit that has not begun normal operations on the particular date, actual emissions shall equal the potential to emit of the unit on that date.

(22) Complete means, in reference to an application for a permit, that the application contains all the information necessary for processing the application. Designating an application complete for purposes of permit processing does not preclude the reviewing authority from requesting or accepting any additional information.

(23)(i) Significant means, in reference to a net emissions increase or the potential of a source to emit any of the following pollutants, a rate of emissions that would equal or exceed any of the following rates:

Pollutant and Emissions Rate

Carbon monoxide: 100 tons per year (tpy)

Nitrogen oxides: 40 tpy

Sulfur dioxide: 40 tpy

Particulate matter: 25 tpy of particulate matter emissions. 15 tpy of PM10 emissions

PM2.5: 10 tpy of direct PM2.5 emissions; 40 tpy of sulfur dioxide emissions; 40 tpy of nitrogen oxide emissions unless demonstrated not to be a PM2.5 precursor under paragraph (b)(49) of this section

Ozone: 40 tpy of volatile organic compounds or nitrogen oxides

Lead: 0.6 tpy

Fluorides: 3 tpy

Sulfuric acid mist: 7 tpy

Hydrogen sulfide (H2S): 10 tpy

Total reduced sulfur (including H2S): 10 tpy

Reduced sulfur compounds (including H2S): 10 tpy

Municipal waste combustor organics (measured as total tetra-through octa-chlorinated dibenzo-p-dioxins and dibenzofurans): 3.2 × 10-−6 megagrams per year (3.5 × 10−6 tons per year)

Municipal waste combustor metals (measured as particulate matter): 14 megagrams per year (15 tons per year)

Municipal waste combustor acid gases (measured as sulfur dioxide and hydrogen chloride): 36 megagrams per year (40 tons per year)

Municipal solid waste landfill emissions (measured as nonmethane organic compounds): 45 megagrams per year (50 tons per year)

(ii) Significant means, in reference to a net emissions increase or the potential of a source to emit a regulated NSR pollutant that paragraph (b)(23)(i) of this section, does not list, any emissions rate.

(iii) Notwithstanding paragraph (b)(23)(i) of this section, significant means any emissions rate or any net emissions increase associated with a major stationary source or major modification, which would construct within 10 kilometers of a Class I area, and have an impact on such area equal to or greater than 1 µg/m3 (24-hour average).

(24) Federal Land Manager means, with respect to any lands in the United States, the Secretary of the department with authority over such lands.

(25) High terrain means any area having an elevation 900 feet or more above the base of the stack of a source.

(26) Low terrain means any area other than high terrain.

(27) Indian Reservation means any federally recognized reservation established by Treaty, Agreement, Executive Order, or Act of Congress.

(28) Indian Governing Body means the governing body of any tribe, band, or group of Indians subject to the jurisdiction of the United States and recognized by the United States as possessing power of self-government.

(29) Volatile organic compounds (VOC) is as defined in §51.100(s) of this part.

(30) Electric utility steam generating unit means any steam electric generating unit that is constructed for the purpose of supplying more than one-third of its potential electric output capacity and more than 25 MW electrical output to any utility power distribution system for sale. Any steam supplied to a steam distribution system for the purpose of providing steam to a steam-electric generator that would produce electrical energy for sale is also considered in determining the electrical energy output capacity of the affected facility.

(31) [Reserved]

(32) Replacement unit means an emissions unit for which all the criteria listed in paragraphs (b)(32)(i) through (iv) of this section are met. No creditable emission reductions shall be generated from shutting down the existing emissions unit that is replaced.

(i) The emissions unit is a reconstructed unit within the meaning of §60.15(b)(1) of this chapter, or the emissions unit completely takes the place of an existing emissions unit.

(ii) The emissions unit is identical to or functionally equivalent to the replaced emissions unit.

(iii) The replacement does not change the basic design parameter(s) (as discussed in paragraph (y)(2) of this section) of the process unit.

(iv) The replaced emissions unit is permanently removed from the major stationary source, otherwise permanently disabled, or permanently barred 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.

(33) Clean coal technology means any technology, including technologies applied at the precombustion, combustion, or post combustion stage, at a new or existing facility which will achieve significant reductions in air emissions of sulfur dioxide or oxides of nitrogen associated with the utilization of coal in the generation of electricity, or process steam which was not in widespread use as of November 15, 1990.

(34) Clean coal technology demonstration project means a project using funds appropriated under the heading “Department of Energy—Clean Coal Technology”, up to a total amount of $2,500,000,000 for commercial demonstration of clean coal technology, or similar projects funded through appropriations for the Environmental Protection Agency. The Federal contribution for a qualifying project shall be at least 20 percent of the total cost of the demonstration project.

(35) Temporary clean coal technology demonstration project means a clean coal technology demonstration project that is operated for a period of 5 years or less, and which complies with the State implementation plan for the State in which the project is located and other requirements necessary to attain and maintain the national ambient air quality standards during and after the project is terminated.

(36)(i) Repowering means replacement of an existing coal-fired boiler with one of the following clean coal technologies: atmospheric or pressurized fluidized bed combustion, integrated gasification combined cycle, magnetohydrodynamics, direct and indirect coal-fired turbines, integrated gasification fuel cells, or as determined by the Administrator, in consultation with the Secretary of Energy, a derivative of one or more of these technologies, and any other technology capable of controlling multiple combustion emissions simultaneously with improved boiler or generation efficiency and with significantly greater waste reduction relative to the performance of technology in widespread commercial use as of November 15, 1990.

(ii) Repowering shall also include any oil and/or gas-fired unit which has been awarded clean coal technology demonstration funding as of January 1, 1991, by the Department of Energy.

(iii) The reviewing authority shall give expedited consideration to permit applications for any source that satisfies the requirements of this subsection and is granted an extension under section 409 of the Clean Air Act.

(37) Reactivation of a very clean coal-fired electric utility steam generating unit means any physical change or change in the method of operation associated with the commencement of commercial operations by a coal-fired utility unit after a period of discontinued operation where the unit:

(i) Has not been in operation for the two-year period prior to the enactment of the Clean Air Act Amendments of 1990, and the emissions from such unit continue to be carried in the permitting authority's emissions inventory at the time of enactment;

(ii) Was equipped prior to shutdown with a continuous system of emissions control that achieves a removal efficiency for sulfur dioxide of no less than 85 percent and a removal efficiency for particulates of no less than 98 percent;

(iii) Is equipped with low-NOX burners prior to the time of commencement of operations following reactivation; and

(iv) Is otherwise in compliance with the requirements of the Clean Air Act.

(38) Pollution prevention means any activity that through process changes, product reformulation or redesign, or substitution of less polluting raw materials, eliminates or reduces the release of air pollutants (including fugitive emissions) and other pollutants to the environment prior to recycling, treatment, or disposal; it does not mean recycling (other than certain “in-process recycling” practices), energy recovery, treatment, or disposal.

(39) Significant emissions increase means, for a regulated NSR pollutant, an increase in emissions that is significant (as defined in paragraph (b)(23) of this section) for that pollutant.

(40)(i) Projected actual emissions means the maximum annual rate, in tons per year, at which an existing emissions unit is projected to emit a regulated NSR pollutant in any one of the 5 years (12-month period) following the date the unit resumes regular operation after the project, or in any one of the 10 years following that date, if the project involves increasing the emissions unit's design capacity or its potential to emit that regulated NSR pollutant, and full utilization of the unit would result in a significant emissions increase, or a significant net emissions increase at the major stationary source.

(ii) In determining the projected actual emissions under paragraph (b)(40)(i) of this section (before beginning actual construction), the owner or operator of the major stationary source:

(a) Shall consider all relevant information, including but not limited to, historical operational data, the company's own representations, the company's expected business activity and the company's highest projections of business activity, the company's filings with the State or Federal regulatory authorities, and compliance plans under the approved plan; and

(b) Shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and malfunctions; and

(c) Shall exclude, in calculating any increase in emissions that results from the particular project, that portion of the unit's emissions following the project that an existing unit could have accommodated during the consecutive 24-month period used to establish the baseline actual emissions under paragraph (b)(47) of this section and that are also unrelated to the particular project, including any increased utilization due to product demand growth; or,

(d) In lieu of using the method set out in paragraphs (b)(40)(ii)(a) through (c) of this section, may elect to use the emissions unit's potential to emit, in tons per year, as defined under paragraph (b)(4) of this section.

(41) [Reserved]

(42) Prevention of Significant Deterioration Program (PSD) program means a major source preconstruction permit program that has been approved by the Administrator and incorporated into the plan to implement the requirements of this section, or the program in §52.21 of this chapter. Any permit issued under such a program is a major NSR permit.

(43) Continuous emissions monitoring system (CEMS) means all of the equipment that may be required to meet the data acquisition and availability requirements of this section, to sample, condition (if applicable), analyze, and provide a record of emissions on a continuous basis.

(44) Predictive emissions monitoring system (PEMS) means all of the equipment necessary to monitor process and control device operational parameters (for example, control device secondary voltages and electric currents) and other information (for example, gas flow rate, O2 or CO2 concentrations), and calculate and record the mass emissions rate (for example, lb/hr) on a continuous basis.

(45) Continuous parameter monitoring system (CPMS) means all of the equipment necessary to meet the data acquisition and availability requirements of this section, to monitor process and control device operational parameters (for example, control device secondary voltages and electric currents) and other information (for example, gas flow rate, O2 or CO2 concentrations), and to record average operational parameter value(s) on a continuous basis.

(46) Continuous emissions rate monitoring system (CERMS) means the total equipment required for the determination and recording of the pollutant mass emissions rate (in terms of mass per unit of time).

(47) Baseline actual emissions means the rate of emissions, in tons per year, of a regulated NSR pollutant, as determined in accordance with paragraphs (b)(47)(i) through (iv) of this section.

(i) For any existing electric utility steam generating unit, baseline actual emissions means the average rate, in tons per year, at which the unit actually emitted the pollutant during any consecutive 24-month period selected by the owner or operator within the 5-year period immediately preceding when the owner or operator begins actual construction of the project. The reviewing authority shall allow the use of a different time period upon a determination that it is more representative of normal source operation.

(a) The average rate shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and malfunctions.

(b) The average rate shall be adjusted downward to exclude any non-compliant emissions that occurred while the source was operating above an emission limitation that was legally enforceable during the consecutive 24-month period.

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

(d) The average rate shall not be based on any consecutive 24-month period for which there is inadequate information for determining annual emissions, in tons per year, and for adjusting this amount if required by paragraph (b)(47)(i)(b) of this section.

(ii) For an existing emissions unit (other than an electric utility steam generating unit), baseline actual emissions means the average rate, in tons per year, at which the emissions unit actually emitted the pollutant during any consecutive 24-month period selected by the owner or operator within the 10-year period immediately preceding either the date the owner or operator begins actual construction of the project, or the date a complete permit application is received by the reviewing authority for a permit required either under this section or under a plan approved by the Administrator, whichever is earlier, except that the 10-year period shall not include any period earlier than November 15, 1990.

(a) The average rate shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and malfunctions.

(b) The average rate shall be adjusted downward to exclude any non-compliant emissions that occurred while the source was operating above an emission limitation that was legally enforceable during the consecutive 24-month period.

(c) The average rate shall be adjusted downward to exclude any emissions that would have exceeded an emission limitation with which the major stationary source must currently comply, had such major stationary source been required to comply with such limitations during the consecutive 24-month period. However, if an emission limitation is part of a maximum achievable control technology standard that the Administrator proposed or promulgated under part 63 of this chapter, the baseline actual emissions need only be adjusted if the State has taken credit for such emissions reductions in an attainment demonstration or maintenance plan consistent with the requirements of §51.165(a)(3)(ii)(G).

(d) 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.

(e) The average rate shall not be based on any consecutive 24-month period for which there is inadequate information for determining annual emissions, in tons per year, and for adjusting this amount if required by paragraphs (b)(47)(ii)(b) and (c) of this section.

(iii) For a new emissions unit, the baseline actual emissions for purposes of determining the emissions increase that will result from the initial construction and operation of such unit shall equal zero; and thereafter, for all other purposes, shall equal the unit's potential to emit.

(iv) For a PAL for a stationary source, the baseline actual emissions shall be calculated for existing electric utility steam generating units in accordance with the procedures contained in paragraph (b)(47)(i) of this section, for other existing emissions units in accordance with the procedures contained in paragraph (b)(47)(ii) of this section, and for a new emissions unit in accordance with the procedures contained in paragraph (b)(47)(iii) of this section.

(48) Subject to regulation means, for any air pollutant, that the pollutant is subject to either a provision in the Clean Air Act, or a nationally-applicable regulation codified by the Administrator in subchapter C of this chapter, that requires actual control of the quantity of emissions of that pollutant, and that such a control requirement has taken effect and is operative to control, limit or restrict the quantity of emissions of that pollutant released from the regulated activity. Except that:

(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 paragraphs (b)(48)(iv) through (v) of this section.

(ii) For purposes of paragraphs (b)(48)(iii) through (v) of this section, the term tpy CO2 equivalent emissions (CO2e) shall represent an amount of GHGs emitted, and shall be computed as follows:

(a) Multiplying the mass amount of emissions (tpy), for each of the six greenhouse gases in the pollutant GHGs, by the gas's associated global warming potential published at Table A-1 to subpart A of part 98 of this chapter—Global Warming Potentials. For purposes of this paragraph (b)(48)(ii)(a), prior to July 21, 2014, the mass of the greenhouse gas carbon dioxide shall not include carbon dioxide emissions resulting from the combustion or decomposition of non-fossilized and biodegradable organic material originating from plants, animals, or micro-organisms (including products, by-products, residues and waste from agriculture, forestry and related industries as well as the non-fossilized and biodegradable organic fractions of industrial and municipal wastes, including gases and liquids recovered from the decomposition of non-fossilized and biodegradable organic material).

(b) Sum the resultant value from paragraph (b)(48)(ii)(a) of this section for each gas to compute a tpy CO2e.

(iii) The term emissions increase as used in paragraphs (b)(48)(iv) through (v) of this section shall mean that both a significant emissions increase (as calculated using the procedures in (a)(7)(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 defined as 75,000 tpy CO2e instead of applying the value in paragraph (b)(23)(ii) of this section.

(iv) Beginning January 2, 2011, the pollutant GHGs is subject to regulation if:

(a) The stationary source is a new major stationary source for a regulated NSR pollutant that is not GHGs, and also will emit or will have the potential to emit 75,000 tpy CO2e or more; or

(b) The stationary source is an existing major stationary source for a regulated NSR pollutant that is not GHGs, and also will have an emissions increase of a regulated NSR pollutant, and an emissions increase of 75,000 tpy CO2e or more; and,

(v) Beginning July 1, 2011, in addition to the provisions in paragraph (b)(48)(iv) of this section, the pollutant GHGs shall also be subject to regulation:

(a) At a new stationary source that will emit or have the potential to emit 100,000 tpy CO2e; or

(b) At an existing stationary source that emits or has the potential to emit 100,000 tpy CO2e, when such stationary source undertakes a physical change or change in the method of operation that will result in an emissions increase of 75,000 tpy CO2e or more.

(49) Regulated NSR pollutant, for purposes of this section, means the following:

(i) Any pollutant for which a national ambient air quality standard has been promulgated. This includes, but is not limited to, the following:

(a) PM2.5 emissions and PM10 emissions shall include gaseous emissions from a source or activity which condense to form particulate matter at ambient temperatures. On or after January 1, 2011, such condensable particulate matter shall be accounted for in applicability determinations and in establishing emissions limitations for PM2.5 and PM10 in PSD permits. Compliance with emissions limitations for PM2.5 and PM10 issued prior to this date shall not be based on condensable particulate matter unless required by the terms and conditions of the permit or the applicable implementation plan. Applicability determinations made prior to this date without accounting for condensable particulate matter shall not be considered in violation of this section unless the applicable implementation plan required condensable particulate matter to be included;

(b) Any pollutant identified under this paragraph (b)(49)(i)(b) as a constituent or precursor to a pollutant for which a national ambient air quality standard has been promulgated. Precursors identified by the Administrator for purposes of NSR are the following:

(1) Volatile organic compounds and nitrogen oxides are precursors to ozone in all attainment and unclassifiable areas.

(2) Sulfur dioxide is a precursor to PM2.5 in all attainment and unclassifiable areas.

(3) Nitrogen oxides are presumed to be precursors to PM2.5 in all attainment and unclassifiable areas, unless the State demonstrates to the Administrator's satisfaction or EPA demonstrates that emissions of nitrogen oxides from sources in a specific area are not a significant contributor to that area's ambient PM2.5 concentrations.

(4) Volatile organic compounds are presumed not to be precursors to PM2.5 in any attainment or unclassifiable area, unless the State demonstrates to the Administrator's satisfaction or EPA demonstrates that emissions of volatile organic compounds from sources in a specific area are a significant contributor to that area's ambient PM2.5 concentrations.

(ii) Any pollutant that is subject to any standard promulgated under section 111 of the Act;

(iii) Any Class I or II substance subject to a standard promulgated under or established by title VI of the Act;

(iv) Any pollutant that otherwise is subject to regulation under the Act as defined in paragraph (b)(48) of this section.

(v) Notwithstanding paragraphs (b)(49)(i) through (iv) of this section, the term regulated NSR pollutant shall not include any or all hazardous air pollutants either listed in section 112 of the Act, or added to the list pursuant to section 112(b)(2) of the Act, and which have not been delisted pursuant to section 112(b)(3) of the Act, unless the listed hazardous air pollutant is also regulated as a constituent or precursor of a general pollutant listed under section 108 of the Act.

(50) Reviewing authority means the State air pollution control agency, local agency, other State agency, Indian tribe, or other agency authorized by the Administrator to carry out a permit program under §51.165 and this section, or the Administrator in the case of EPA-implemented permit programs under §52.21 of this chapter.

(51) Project means a physical change in, or change in method of operation of, an existing major stationary source.

(52) Lowest achievable emission rate (LAER) is as defined in §51.165(a)(1)(xiii).

(53)(i) In general, process unit means any collection of structures and/or equipment that processes, assembles, applies, blends, or otherwise uses material inputs to produce or store an intermediate or a completed product. A single stationary source may contain more than one process unit, and a process unit may contain more than one emissions unit.

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

(iii) For replacement cost purposes, components shared between two or more process units are proportionately allocated based on capacity.

(iv) The following list identifies the process units at specific categories of stationary sources.

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

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

(c) For an incinerator, the process unit would consist of components from the feed pit or refuse pit to the stack, including conveyors, combustion devices, heat exchangers and steam generators, quench tanks, and fans.

Note to paragraph (b)(53): By a court order on December 24, 2003, this paragraph (b)(53) is stayed indefinitely. The stayed provisions will become effective immediately if the court terminates the stay. At that time, EPA will publish a document in the Federal Register advising the public of the termination of the stay.

(54) Functionally equivalent component means a component that serves the same purpose as the replaced component.

Note to paragraph (b)(54): By a court order on December 24, 2003, this paragraph (b)(54) is stayed indefinitely. The stayed provisions will become effective immediately if the court terminates the stay. At that time, EPA will publish a document in the Federal Register advising the public of the termination of the stay.

(55) Fixed capital cost means the capital needed to provide all the depreciable components. “Depreciable components” refers to all components of fixed capital cost and is calculated by subtracting land and working capital from the total capital investment, as defined in paragraph (b)(56) of this section.

Note to paragraph (b)(55): By a court order on December 24, 2003, this paragraph (b)(55) is stayed indefinitely. The stayed provisions will become effective immediately if the court terminates the stay. At that time, EPA will publish a document in the Federal Register advising the public of the termination of the stay.

(56) Total capital investment means the sum of the following: all costs required to purchase needed process equipment (purchased equipment costs); the costs of labor and materials for installing that equipment (direct installation costs); the costs of site preparation and buildings; other costs such as engineering, construction and field expenses, fees to contractors, startup and performance tests, and contingencies (indirect installation costs); land for the process equipment; and working capital for the process equipment.

Note to paragraph (b)(56): By a court order on December 24, 2003, this paragraph (b)(56) is stayed indefinitely. The stayed provisions will become effective immediately if the court terminates the stay. At that time, EPA will publish a document in the Federal Register advising the public of the termination of the stay.

(c) Ambient air increments and other measures. (1) The plan shall contain emission limitations and such other measures as may be necessary to assure that in areas designated as Class I, II, or III, increases in pollutant concentrations over the baseline concentration shall be limited to the following:

PollutantMaximum
allowable
increase (micrograms per cubic meter)
Class I Area
PM2.5:
Annual arithmetic mean1
24-hr maximum2
PM10:
Annual arithmetic mean4
24-hr maximum8
Sulfur dioxide:
Annual arithmetic mean2
24-hr maximum5
3-hr maximum25
Nitrogen dioxide:
Annual arithmetic mean2.5
Class II Area
PM2.5:
Annual arithmetic mean4
24-hr maximum9
PM10:
Annual arithmetic mean17
24-hr maximum30
Sulfur dioxide:
Annual arithmetic mean20
24-hr maximum91
3-hr maximum512
Nitrogen dioxide:
Annual arithmetic mean25
Class III Area
PM2.5:
Annual arithmetic mean8
24-hr maximum18
PM10:
Annual arithmetic mean34
24-hr maximum60
Sulfur dioxide:
Annual arithmetic mean40
24-hr maximum182
3-hr maximum700
Nitrogen dioxide:
Annual arithmetic mean50

For any period other than an annual period, the applicable maximum allowable increase may be exceeded during one such period per year at any one location.

(2) Where the State can demonstrate that it has alternative measures in its plan other than maximum allowable increases as defined under paragraph (c)(1) of this section, that satisfy the requirements in sections 166(c) and 166(d) of the Clean Air Act for a regulated NSR pollutant for which the Administrator has established maximum allowable increases pursuant to section 166(a) of the Act, the requirements for maximum allowable increases for that pollutant under paragraph (c)(1) of this section shall not apply upon approval of the plan by the Administrator. The following regulated NSR pollutants are eligible for such treatment:

(i) Nitrogen dioxide.

(ii) PM2.5.

(d) Ambient air ceilings. The plan shall provide that no concentration of a pollutant shall exceed:

(1) The concentration permitted under the national secondary ambient air quality standard, or

(2) The concentration permitted under the national primary ambient air quality standard, whichever concentration is lowest for the pollutant for a period of exposure.

(e) Restrictions on area classifications. The plan shall provide that—

(1) All of the following areas which were in existence on August 7, 1977, shall be Class I areas and may not be redesignated:

(i) International parks,

(ii) National wilderness areas which exceed 5,000 acres in size,

(iii) National memorial parks which exceed 5,000 acres in size, and

(iv) National parks which exceed 6,000 acres in size.

(2) Areas which were redesignated as Class I under regulations promulgated before August 7, 1977, shall remain Class I, but may be redesignated as provided in this section.

(3) Any other area, unless otherwise specified in the legislation creating such an area, is initially designated Class II, but may be redesignated as provided in this section.

(4) The following areas may be redesignated only as Class I or II:

(i) An area which as of August 7, 1977, exceeded 10,000 acres in size and was a national monument, a national primitive area, a national preserve, a national recreational area, a national wild and scenic river, a national wildlife refuge, a national lakeshore or seashore; and

(ii) A national park or national wilderness area established after August 7, 1977, which exceeds 10,000 acres in size.

(f) Exclusions from increment consumption. (1) The plan may provide that the following concentrations shall be excluded in determining compliance with a maximum allowable increase:

(i) Concentrations attributable to the increase in emissions from stationary sources which have converted from the use of petroleum products, natural gas, or both by reason of an order in effect under section 2 (a) and (b) of the Energy Supply and Environmental Coordination Act of 1974 (or any superseding legislation) over the emissions from such sources before the effective date of such an order;

(ii) Concentrations attributable to the increase in emissions from sources which have converted from using natural gas by reason of natural gas curtailment plan in effect pursuant to the Federal Power Act over the emissions from such sources before the effective date of such plan;

(iii) Concentrations of particulate matter attributable to the increase in emissions from construction or other temporary emission-related activities of new or modified sources;

(iv) The increase in concentrations attributable to new sources outside the United States over the concentrations attributable to existing sources which are included in the baseline concentration; and

(v) Concentrations attributable to the temporary increase in emissions of sulfur dioxide, particulate matter, or nitrogen oxides from stationary sources which are affected by plan revisions approved by the Administrator as meeting the criteria specified in paragraph (f)(4) of this section.

(2) If the plan provides that the concentrations to which paragraph (f)(1) (i) or (ii) of this section, refers shall be excluded, it shall also provide that no exclusion of such concentrations shall apply more than five years after the effective date of the order to which paragraph (f)(1)(i) of this section, refers or the plan to which paragraph (f)(1)(ii) of this section, refers, whichever is applicable. If both such order and plan are applicable, no such exclusion shall apply more than five years after the later of such effective dates.

(3) [Reserved]

(4) For purposes of excluding concentrations pursuant to paragraph (f)(1)(v) of this section, the Administrator may approve a plan revision that:

(i) Specifies the time over which the temporary emissions increase of sulfur dioxide, particulate matter, or nitrogen oxides would occur. Such time is not to exceed 2 years in duration unless a longer time is approved by the Administrator.

(ii) Specifies that the time period for excluding certain contributions in accordance with paragraph (f)(4)(i) of this section, is not renewable;

(iii) Allows no emissions increase from a stationary source which would:

(a) Impact a Class I area or an area where an applicable increment is known to be violated; or

(b) Cause or contribute to the violation of a national ambient air quality standard;

(iv) Requires limitations to be in effect the end of the time period specified in accordance with paragraph (f)(4)(i) of this section, which would ensure that the emissions levels from stationary sources affected by the plan revision would not exceed those levels occurring from such sources before the plan revision was approved.

(g) Redesignation. (1) The plan shall provide that all areas of the State (except as otherwise provided under paragraph (e) of this section) shall be designated either Class I, Class II, or Class III. Any designation other than Class II shall be subject to the redesignation procedures of this paragraph. Redesignation (except as otherwise precluded by paragraph (e) of this section) may be proposed by the respective States or Indian Governing Bodies, as provided below, subject to approval by the Administrator as a revision to the applicable State implementation plan.

(2) The plan may provide that the State may submit to the Administrator a proposal to redesignate areas of the State Class I or Class II: Provided, That:

(i) At least one public hearing has been held in accordance with procedures established in §51.102.

(ii) Other States, Indian Governing Bodies, and Federal Land Managers whose lands may be affected by the proposed redesignation were notified at least 30 days prior to the public hearing;

(iii) A discussion of the reasons for the proposed redesignation, including a satisfactory description and analysis of the health, environmental, economic, social, and energy effects of the proposed redesignation, was prepared and made available for public inspection at least 30 days prior to the hearing and the notice announcing the hearing contained appropriate notification of the availability of such discussion;

(iv) Prior to the issuance of notice respecting the redesignation of an area that includes any Federal lands, the State has provided written notice to the appropriate Federal Land Manager and afforded adequate opportunity (not in excess of 60 days) to confer with the State respecting the redesignation and to submit written comments and recommendations. In redesignating any area with respect to which any Federal Land Manager had submitted written comments and recommendations, the State shall have published a list of any inconsistency between such redesignation and such comments and recommendations (together with the reasons for making such redesignation against the recommendation of the Federal Land Manager); and

(v) The State has proposed the redesignation after consultation with the elected leadership of local and other substate general purpose governments in the area covered by the proposed redesignation.

(3) The plan may provide that any area other than an area to which paragraph (e) of this section refers may be redesignated as Class III if—

(i) The redesignation would meet the requirements of provisions established in accordance with paragraph (g)(2) of this section;

(ii) The redesignation, except any established by an Indian Governing Body, has been specifically approved by the Governor of the State, after consultation with the appropriate committees of the legislature, if it is in session, or with the leadership of the legislature, if it is not in session (unless State law provides that such redesignation must be specifically approved by State legislation) and if general purpose units of local government representing a majority of the residents of the area to be redesignated enact legislation (including resolutions where appropriate) concurring in the redesignation;

(iii) The redesignation would not cause, or contribute to, a concentration of any air pollutant which would exceed any maximum allowable increase permitted under the classification of any other area or any national ambient air quality standard; and

(iv) Any permit application for any major stationary source or major modification subject to provisions established in accordance with paragraph (l) of this section which could receive a permit only if the area in question were redesignated as Class III, and any material submitted as part of that application, were available, insofar as was practicable, for public inspection prior to any public hearing on redesignation of any area as Class III.

(4) The plan shall provide that lands within the exterior boundaries of Indian Reservations may be redesignated only by the appropriate Indian Governing Body. The appropriate Indian Governing Body may submit to the Administrator a proposal to redesignate areas Class I, Class II, or Class III: Provided, That:

(i) The Indian Governing Body has followed procedures equivalent to those required of a State under paragraphs (g) (2), (3)(iii), and (3)(iv) of this section; and

(ii) Such redesignation is proposed after consultation with the State(s) in which the Indian Reservation is located and which border the Indian Reservation.

(5) The Administrator shall disapprove, within 90 days of submission, a proposed redesignation of any area only if he finds, after notice and opportunity for public hearing, that such redesignation does not meet the procedural requirements of this section or is inconsistent with paragraph (e) of this section. If any such disapproval occurs, the classification of the area shall be that which was in effect prior to the redesignation which was disapproved.

(6) If the Administrator disapproves any proposed area designation, the State or Indian Governing Body, as appropriate, may resubmit the proposal after correcting the deficiencies noted by the Administrator.

(h) Stack heights. The plan shall provide, as a minimum, that the degree of emission limitation required for control of any air pollutant under the plan shall not be affected in any manner by—

(1) So much of a stack height, not in existence before December 31, 1970, as exceeds good engineering practice, or

(2) Any other dispersion technique not implemented before then.

(i) Exemptions. (1) The plan may provide that requirements equivalent to those contained in paragraphs (j) through (r) of this section do not apply to a particular major stationary source or major modification if:

(i) The major stationary source would be a nonprofit health or nonprofit educational institution or a major modification that would occur at such an institution; or

(ii) The source or modification would be a major stationary source or major modification only if fugitive emissions, to the extent quantifiable, are considered in calculating the potential to emit of the stationary source or modification and such source does not belong to any of the following categories:

(a) Coal cleaning plants (with thermal dryers);

(b) Kraft pulp mills;

(c) Portland cement plants;

(d) Primary zinc smelters;

(e) Iron and steel mills;

(f) Primary aluminum ore reduction plants;

(g) Primary copper smelters;

(h) Municipal incinerators capable of charging more than 250 tons of refuse per day;

(i) Hydrofluoric, sulfuric, or nitric acid plants;

(j) Petroleum refineries;

(k) Lime plants;

(l) Phosphate rock processing plants;

(m) Coke oven batteries;

(n) Sulfur recovery plants;

(o) Carbon black plants (furnace process);

(p) Primary lead smelters;

(q) Fuel conversion plants;

(r) Sintering plants;

(s) Secondary metal production plants;

(t) Chemical process plants—The term chemical processing plant shall not include ethanol production facilities that produce ethanol by natural fermentation included in NAICS codes 325193 or 312140;

(u) Fossil-fuel boilers (or combination thereof) totaling more than 250 million British thermal units per hour heat input;

(v) Petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels;

(w) Taconite ore processing plants;

(x) Glass fiber processing plants;

(y) Charcoal production plants;

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

(aa) Any other stationary source category which, as of August 7, 1980, is being regulated under section 111 or 112 of the Act; or

(iii) The source or modification is a portable stationary source which has previously received a permit under requirements equivalent to those contained in paragraphs (j) through (r) of this section, if:

(a) The source proposes to relocate and emissions of the source at the new location would be temporary; and

(b) The emissions from the source would not exceed its allowable emissions; and

(c) The emissions from the source would impact no Class I area and no area where an applicable increment is known to be violated; and

(d) Reasonable notice is given to the reviewing authority prior to the relocation identifying the proposed new location and the probable duration of operation at the new location. Such notice shall be given to the reviewing authority not less than 10 days in advance of the proposed relocation unless a different time duration is previously approved by the reviewing authority.

(2) The plan may provide that requirements equivalent to those contained in paragraphs (j) through (r) of this section do not apply to a major stationary source or major modification with respect to a particular pollutant if the owner or operator demonstrates that, as to that pollutant, the source or modification is located in an area designated as nonattainment under section 107 of the Act.

(3) The plan may provide that requirements equivalent to those contained in paragraphs (k), (m), and (o) of this section do not apply to a proposed major stationary source or major modification with respect to a particular pollutant, if the allowable emissions of that pollutant from a new source, or the net emissions increase of that pollutant from a modification, would be temporary and impact no Class I area and no area where an applicable increment is known to be violated.

(4) The plan may provide that requirements equivalent to those contained in paragraphs (k), (m), and (o) of this section as they relate to any maximum allowable increase for a Class II area do not apply to a modification of a major stationary source that was in existence on March 1, 1978, if the net increase in allowable emissions of each a regulated NSR pollutant from the modification after the application of best available control technology would be less than 50 tons per year.

(5) The plan may provide that the reviewing authority may exempt a proposed major stationary source or major modification from the requirements of paragraph (m) of this section, with respect to monitoring for a particular pollutant, if:

(i) The emissions increase of the pollutant from a new stationary source or the net emissions increase of the pollutant from a modification would cause, in any area, air quality impacts less than the following amounts:

(a) Carbon monoxide—575 ug/m3, 8-hour average;

(b) Nitrogen dioxide—14 ug/m3, annual average;

(c) PM2.5- 0 µg/m3;

Note to paragraph (i)(5)(i)(c): In accordance with Sierra Club v. EPA, 706 F.3d 428 (D.C. Cir. 2013), no exemption is available with regard to PM2.5.

(d) PM10-10 µg/m3, 24-hour average;

(e) Sulfur dioxide—13 ug/m3, 24-hour average;

(f) Ozone;1

1No de minimis air quality level is provided for ozone. However, any net emissions increase of 100 tons per year or more of volatile organic compounds or nitrogen oxides subject to PSD would be required to perform an ambient impact analysis, including the gathering of air quality data.

(g) Lead—0.1 µg/m3, 3-month average.

(h) Fluorides—0.25 µg/m3, 24-hour average;

(i) Total reduced sulfur—10 µg/m3, 1-hour average

(j) Hydrogen sulfide—0.2 µg/m3, 1-hour average;

(k) Reduced sulfur compounds—10 µg/m3, 1-hour average; or

(ii) The concentrations of the pollutant in the area that the source or modification would affect are less than the concentrations listed in paragraph (i)(5)(i) of this section; or

(iii) The pollutant is not listed in paragraph (i)(5)(i) of this section.

(6) If EPA approves a plan revision under 40 CFR 51.166 as in effect before August 7, 1980, any subsequent revision which meets the requirements of this section may contain transition provisions which parallel the transition provisions of 40 CFR 52.21(i)(9), (i)(10) and (m)(1)(v) as in effect on that date, which provisions relate to requirements for best available control technology and air quality analyses. Any such subsequent revision may not contain any transition provision which in the context of the revision would operate any less stringently than would its counterpart in 40 CFR 52.21.

(7) If EPA approves a plan revision under §51.166 as in effect [before July 31, 1987], any subsequent revision which meets the requirements of this section may contain transition provisions which parallel the transition provisions of §52.21 (i)(11), and (m)(1) (vii) and (viii) of this chapter as in effect on that date, these provisions being related to monitoring requirements for particulate matter. Any such subsequent revision may not contain any transition provision which in the context of the revision would operate any less stringently than would its counterpart in §52.21 of this chapter.

(8) The plan may provide that the permitting requirements equivalent to those contained in paragraph (k)(1)(ii) of this section do not apply to a stationary source or modification with respect to any maximum allowable increase for nitrogen oxides if the owner or operator of the source or modification submitted an application for a permit under the applicable permit program approved or promulgated under the Act before the provisions embodying the maximum allowable increase took effect as part of the plan and the permitting authority subsequently determined that the application as submitted before that date was complete.

(9) The plan may provide that the permitting requirements equivalent to those contained in paragraph (k)(1)(ii) of this section shall not apply to a stationary source or modification with respect to any maximum allowable increase for PM-10 if (i) the owner or operator of the source or modification submitted an application for a permit under the applicable permit program approved under the Act before the provisions embodying the maximum allowable increases for PM-10 took effect as part of the plan, and (ii) the permitting authority subsequently determined that the application as submitted before that date was complete. Instead, the applicable requirements equivalent to paragraph (k)(1)(ii) shall apply with respect to the maximum allowable increases for TSP as in effect on the date the application was submitted.

(10) The plan may provide that the requirements of paragraph (k)(1) of this section shall not apply to a stationary source or modification with respect to the national ambient air quality standards for PM2.5 in effect on March 18, 2013 if:

(i) The reviewing authority has determined a permit application subject to this section to be complete on or before December 14, 2012. Instead, the requirements in paragraph (k)(1) of this section shall apply with respect to the national ambient air quality standards for PM2.5 in effect at the time the reviewing authority determined the permit application to be complete; or

(ii) The reviewing authority has first published before March 18, 2013 a public notice of a preliminary determination for the permit application subject to this section. Instead, the requirements in paragraph (k)(1) of this section shall apply with respect to the national ambient air quality standards for PM2.5 in effect at the time of first publication of a public notice on the preliminary determination.

(j) Control technology review. The plan shall provide that:

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

(2) A new major stationary source shall apply best available control technology for each a regulated NSR pollutant that it would have the potential to emit in significant amounts.

(3) A major modification shall apply best available control technology for each a regulated NSR pollutant for which it would be a significant net emissions increase at the source. This requirement applies to each proposed emissions unit at which a net emissions increase in the pollutant would occur as a result of a physical change or change in the method of operation in the unit.

(4) For phased construction projects, the determination of best available control technology shall be reviewed and modified as appropriate at the least reasonable time which occurs no later than 18 months prior to commencement of construction of each independent phase of the project. At such time, the owner or operator of the applicable stationary source may be required to demonstrate the adequacy of any previous determination of best available control technology for the source.

(k) Source impact analysis—(1) Required demonstration. The plan shall provide that the owner or operator of the proposed source or modification shall demonstrate that allowable emission increases from the proposed source or modification, in conjunction with all other applicable emissions increases or reduction (including secondary emissions), would not cause or contribute to air pollution in violation of:

(i) Any national ambient air quality standard in any air quality control region; or

(ii) Any applicable maximum allowable increase over the baseline concentration in any area.

(2) [Reserved]

(l) Air quality models. The plan shall provide for procedures which specify that—

(1) All applications of air quality modeling involved in this subpart shall be based on the applicable models, data bases, and other requirements specified in appendix W of this part (Guideline on Air Quality Models).

(2) Where an air quality model specified in appendix W of this part (Guideline on Air Quality Models) is inappropriate, the model may be modified or another model substituted. Such a modification or substitution of a model may be made on a case-by-case basis or, where appropriate, on a generic basis for a specific State program. Written approval of the Administrator must be obtained for any modification or substitution. In addition, use of a modified or substituted model must be subject to notice and opportunity for public comment under procedures set forth in §51.102.

(m) Air quality analysis—(1) Preapplication analysis. (i) The plan shall provide that any application for a permit under regulations approved pursuant to this section shall contain an analysis of ambient air quality in the area that the major stationary source or major modification would affect for each of the following pollutants:

(a) For the source, each pollutant that it would have the potential to emit in a significant amount;

(b) For the modification, each pollutant for which it would result in a significant net emissions increase.

(ii) The plan shall provide that, with respect to any such pollutant for which no National Ambient Air Quality Standard exists, the analysis shall contain such air quality monitoring data as the reviewing authority determines is necessary to assess ambient air quality for that pollutant in any area that the emissions of that pollutant would affect.

(iii) The plan shall provide that with respect to any such pollutant (other than nonmethane hydrocarbons) for which such a standard does exist, the analysis shall contain continuous air quality monitoring data gathered for purposes of determining whether emissions of that pollutant would cause or contribute to a violation of the standard or any maxiumum allowable increase.

(iv) The plan shall provide that, in general, the continuous air monitoring data that is required shall have been gathered over a period of one year and shall represent the year preceding receipt of the application, except that, if the reviewing authority determines that a complete and adequate analysis can be accomplished with monitoring data gathered over a period shorter than one year (but not to be less than four months), the data that is required shall have been gathered over at least that shorter period.

(v) The plan may provide that the owner or operator of a proposed major stationary source or major modification of volatile organic compounds who satisfies all conditions of 40 CFR part 51 appendix S, section IV may provide postapproval monitoring data for ozone in lieu of providing preconstruction data as required under paragraph (m)(1) of this section.

(2) Post-construction monitoring. The plan shall provide that the owner or operator of a major stationary source or major modification shall, after construction of the stationary source or modification, conduct such ambient monitoring as the reviewing authority determines is necessary to determine the effect emissions from the stationary source or modification may have, or are having, on air quality in any area.

(3) Operation of monitoring stations. The plan shall provide that the owner or operator of a major stationary source or major modification shall meet the requirements of appendix B to part 58 of this chapter during the operation of monitoring stations for purposes of satisfying paragraph (m) of this section.

(n) Source information. (1) The plan shall provide that the owner or operator of a proposed source or modification shall submit all information necessary to perform any analysis or make any determination required under procedures established in accordance with this section.

(2) The plan may provide that such information shall include:

(i) A description of the nature, location, design capacity, and typical operating schedule of the source or modification, including specifications and drawings showing its design and plant layout;

(ii) A detailed schedule for construction of the source or modification;

(iii) A detailed description as to what system of continuous emission reduction is planned by the source or modification, emission estimates, and any other information as necessary to determine that best available control technology as applicable would be applied;

(3) The plan shall provide that upon request of the State, the owner or operator shall also provide information on:

(i) The air quality impact of the source or modification, including meteorological and topographical data necessary to estimate such impact; and

(ii) The air quality impacts and the nature and extent of any or all general commercial, residential, industrial, and other growth which has occurred since August 7, 1977, in the area the source or modification would affect.

(o) Additional impact analyses. The plan shall provide that—

(1) The owner or operator shall provide an analysis of the impairment to visibility, soils, and vegetation that would occur as a result of the source or modification and general commercial, residential, industrial, and other growth associated with the source or modification. The owner or operator need not provide an analysis of the impact on vegetation having no significant commercial or recreational value.

(2) The owner or operator shall provide an analysis of the air quality impact projected for the area as a result of general commercial, residential, industrial, and other growth associated with the source or modification.

(p) Sources impacting Federal Class I areas—additional requirements—(1) Notice to EPA. The plan shall provide that the reviewing authority shall transmit to the Administrator a copy of each permit application relating to a major stationary source or major modification and provide notice to the Administrator of every action related to the consideration of such permit.

(2) Federal Land Manager. The Federal Land Manager and the Federal official charged with direct responsibility for management of Class I lands have an affirmative responsibility to protect the air quality related values (including visibility) of any such lands and to consider, in consultation with the Administrator, whether a proposed source or modification would have an adverse impact on such values.

(3) Denial—impact on air quality related values. The plan shall provide a mechanism whereby a Federal Land Manager of any such lands may present to the State, after the reviewing authority's preliminary determination required under procedures developed in accordance with paragraph (r) of this section, a demonstration that the emissions from the proposed source or modification would have an adverse impact on the air quality-related values (including visibility) of any Federal mandatory Class I lands, notwithstanding that the change in air quality resulting from emissions from such source or modification would not cause or contribute to concentrations which would exceed the maximum allowable increases for a Class I area. If the State concurs with such demonstration, the reviewing authority shall not issue the permit.

(4) Class I Variances. The plan may provide that the owner or operator of a proposed source or modification may demonstrate to the Federal Land Manager that the emissions from such source would have no adverse impact on the air quality related values of such lands (including visibility), notwithstanding that the change in air quality resulting from emissions from such source or modification would cause or contribute to concentrations which would exceed the maximum allowable increases for a Class I area. If the Federal land manager concurs with such demonstration and so certifies to the State, the reviewing authority may: Provided, That applicable requirements are otherwise met, issue the permit with such emission limitations as may be necessary to assure that emissions of sulfur dioxide, PM2.5, PM10, and nitrogen oxides would not exceed the following maximum allowable increases over minor source baseline concentration for such pollutants:

PollutantMaximum
allowable
increase
(micrograms per cubic meter)
PM2.5:
Annual arithmetic mean4
24-hr maximum9
PM10:
Annual arithmetic mean17
24-hr maximum30
Sulfur dioxide:
Annual arithmetic mean20
24-hr maximum91
3-hr maximum325
Nitrogen dioxide:
Annual arithmetic mean25

(5) Sulfur dioxide variance by Governor with Federal Land Manager's concurrence. The plan may provide that—

(i) The owner or operator of a proposed source or modification which cannot be approved under procedures developed pursuant to paragraph (q)(4) of this section may demonstrate to the Governor that the source or modification cannot be constructed by reason of any maximum allowable increase for sulfur dioxide for periods of twenty-four hours or less applicable to any Class I area and, in the case of Federal mandatory Class I areas, that a variance under this clause would not adversely affect the air quality related values of the area (including visibility);

(ii) The Governor, after consideration of the Federal Land Manager's recommendation (if any) and subject to his concurrence, may grant, after notice and an opportunity for a public hearing, a variance from such maximum allowable increase; and

(iii) If such variance is granted, the reviewing authority may issue a permit to such source or modification in accordance with provisions developed pursuant to paragraph (q)(7) of this section: Provided, That the applicable requirements of the plan are otherwise met.

(6) Variance by the Governor with the President's concurrence. The plan may provide that—

(i) The recommendations of the Governor and the Federal Land Manager shall be transferred to the President in any case where the Governor recommends a variance in which the Federal Land Manager does not concur;

(ii) The President may approve the Governor's recommendation if he finds that such variance is in the national interest; and

(iii) If such a variance is approved, the reviewing authority may issue a permit in accordance with provisions developed pursuant to the requirements of paragraph (q)(7) of this section: Provided, That the applicable requirements of the plan are otherwise met.

(7) Emission limitations for Presidential or gubernatorial variance. The plan shall provide that in the case of a permit issued under procedures developed pursuant to paragraph (q) (5) or (6) of this section, the source or modification shall comply with emission limitations as may be necessary to assure that emissions of sulfur dioxide from the source or modification would not (during any day on which the otherwise applicable maximum allowable increases are exceeded) cause or contribute to concentrations which would exceed the following maximum allowable increases over the baseline concentration and to assure that such emissions would not cause or contribute to concentrations which exceed the otherwise applicable maximum allowable increases for periods of exposure of 24 hours or less for more than 18 days, not necessarily consecutive, during any annual period:

Maximum Allowable Increase

[Micrograms per cubic meter]

Period of exposureTerrain areas
LowHigh
24-hr maximum3662
3-hr maximum130221

(q) Public participation. The plan shall provide that—

(1) The reviewing authority shall notify all applicants within a specified time period as to the completeness of the application or any deficiency in the application or information submitted. In the event of such a deficiency, the date of receipt of the application shall be the date on which the reviewing authority received all required information.

(2) Within one year after receipt of a complete application, the reviewing authority shall:

(i) Make a preliminary determination whether construction should be approved, approved with conditions, or disapproved.

(ii) Make available in at least one location in each region in which the proposed source would be constructed a copy of all materials the applicant submitted, a copy of the preliminary determination, and a copy or summary of other materials, if any, considered in making the preliminary determination.

(iii) Notify the public, by advertisement in a newspaper of general circulation in each region in which the proposed source would be constructed, of the application, the preliminary determination, the degree of increment consumption that is expected from the source or modification, and of the opportunity for comment at a public hearing as well as written public comment.

(iv) Send a copy of the notice of public comment to the applicant, the Administrator and to officials and agencies having cognizance over the location where the proposed construction would occur as follows: Any other State or local air pollution control agencies, the chief executives of the city and county where the source would be located; any comprehensive regional land use planning agency, and any State, Federal Land Manager, or Indian Governing body whose lands may be affected by emissions from the source or modification.

(v) Provide opportunity for a public hearing for interested persons to appear and submit written or oral comments on the air quality impact of the source, alternatives to it, the control technology required, and other appropriate considerations.

(vi) Consider all written comments submitted within a time specified in the notice of public comment and all comments received at any public hearing(s) in making a final decision on the approvability of the application. The reviewing authority shall make all comments available for public inspection in the same locations where the reviewing authority made available preconstruction information relating to the proposed source or modification.

(vii) Make a final determination whether construction should be approved, approved with conditions, or disapproved.

(viii) Notify the applicant in writing of the final determination and make such notification available for public inspection at the same location where the reviewing authority made available preconstruction information and public comments relating to the source.

(r) Source obligation. (1) The plan shall include enforceable procedures to provide that approval to construct shall not relieve any owner or operator of the responsibility to comply fully with applicable provisions of the plan and any other requirements under local, State or Federal law.

(2) The plan shall provide that at such time that a particular source or modification becomes a major stationary source or major modification solely by virtue of a relaxation in any enforceable limitation which was established after August 7, 1980, on the capacity of the source or modification otherwise to emit a pollutant, such as a restriction on hours of operation, then the requirements 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.

(3)-(5) [Reserved]

(6) Each plan shall provide that, except as otherwise provided in paragraph (r)(6)(vi) of this section, the following specific provisions apply with respect to any regulated NSR pollutant emitted from projects at existing emissions units at a major stationary source (other than projects at a source with a PAL) in circumstances where there is a reasonable possibility, within the meaning of paragraph (r)(6)(vi) of this section, that a project that is not a part of a major modification may result in a significant emissions increase of such pollutant, and the owner or operator elects to use the method specified in paragraphs (b)(40)(ii)(a) through (c) of this section for calculating projected actual emissions. Deviations from these provisions will be approved only if the State specifically demonstrates that the submitted provisions are more stringent than or at least as stringent in all respects as the corresponding provisions in paragraphs (r)(6)(i) through (vi) of this section.

(i) Before beginning actual construction of the project, the owner or operator shall document and maintain a record of the following information:

(a) A description of the project;

(b) Identification of the emissions unit(s) whose emissions of a regulated NSR pollutant could be affected by the project; and

(c) A description of the applicability test used to determine that the project is not a major modification for any regulated NSR pollutant, including the baseline actual emissions, the projected actual emissions, the amount of emissions excluded under paragraph (b)(40)(ii)(c) of this section and an explanation for why such amount was excluded, and any netting calculations, if applicable.

(ii) If the emissions unit is an existing electric utility steam generating unit, before beginning actual construction, the owner or operator shall provide a copy of the information set out in paragraph (r)(6)(i) of this section to the reviewing authority. Nothing in this paragraph (r)(6)(ii) shall be construed to require the owner or operator of such a unit to obtain any determination from the reviewing authority before beginning actual construction.

(iii) The owner or operator shall monitor the emissions of any regulated NSR pollutant that could increase as a result of the project and that is emitted by any emissions unit identified in paragraph (r)(6)(i)(b) of this section; and calculate and maintain a record of the annual emissions, in tons per year on a calendar year basis, for a period of 5 years following resumption of regular operations after the change, or for a period of 10 years following resumption of regular operations after the change if the project increases the design capacity or potential to emit of that regulated NSR pollutant at such emissions unit.

(iv) If the unit is an existing electric utility steam generating unit, the owner or operator shall submit a report to the reviewing authority within 60 days after the end of each year during which records must be generated under paragraph (r)(6)(iii) of this section setting out the unit's annual emissions during the calendar year that preceded submission of the report.

(v) If the unit is an existing unit other than an electric utility steam generating unit, the owner or operator shall submit a report to the reviewing authority if the annual emissions, in tons per year, from the project identified in paragraph (r)(6)(i) of this section, exceed the baseline actual emissions (as documented and maintained pursuant to paragraph (r)(6)(i)(c) of this section) by a significant amount (as defined in paragraph (b)(23) of this section) for that regulated NSR pollutant, and if such emissions differ from the preconstruction projection as documented and maintained pursuant to paragraph (r)(6)(i)(c) of this section. Such report shall be submitted to the reviewing authority within 60 days after the end of such year. The report shall contain the following:

(a) The name, address and telephone number of the major stationary source;

(b) The annual emissions as calculated pursuant to paragraph (r)(6)(iii) of this section; and

(c) Any other information that the owner or operator wishes to include in the report (e.g., an explanation as to why the emissions differ from the preconstruction projection).

(vi) A “reasonable possibility” under paragraph (r)(6) of this section occurs when the owner or operator calculates the project to result in either:

(a) A projected actual emissions increase of at least 50 percent of the amount that is a “significant emissions increase,” as defined under paragraph (b)(39) of this section (without reference to the amount that is a significant net emissions increase), for the regulated NSR pollutant; or

(b) A projected actual emissions increase that, added to the amount of emissions excluded under paragraph (b)(40)(ii)(c), sums to at least 50 percent of the amount that is a “significant emissions increase,” as defined under paragraph (b)(39) of this section (without reference to the amount that is a significant net emissions increase), for the regulated NSR pollutant. For a project for which a reasonable possibility occurs only within the meaning of paragraph (r)(6)(vi)(b) of this section, and not also within the meaning of paragraph (a)(6)(vi)(a) of this section, then provisions (a)(6)(ii) through (v) do not apply to the project.

(7) Each plan shall provide that the owner or operator of the source shall make the information required to be documented and maintained pursuant to paragraph (r)(6) of this section available for review upon request for inspection by the reviewing authority or the general public pursuant to the requirements contained in §70.4(b)(3)(viii) of this chapter.

(s) Innovative control technology. (1) The plan may provide that an owner or operator of a proposed major stationary source or major modification may request the reviewing authority to approve a system of innovative control technology.

(2) The plan may provide that the reviewing authority may, with the consent of the Governor(s) of other affected State(s), determine that the source or modification may employ a system of innovative control technology, if:

(i) The proposed control system would not cause or contribute to an unreasonable risk to public health, welfare, or safety in its operation or function;

(ii) The owner or operator agrees to achieve a level of continuous emissions reduction equivalent to that which would have been required under paragraph (j)(2) of this section, by a date specified by the reviewing authority. Such date shall not be later than 4 years from the time of startup or 7 years from permit issuance;

(iii) The source or modification would meet the requirements equivalent to those in paragraphs (j) and (k) of this section, based on the emissions rate that the stationary source employing the system of innovative control technology would be required to meet on the date specified by the reviewing authority;

(iv) The source or modification would not before the date specified by the reviewing authority:

(a) Cause or contribute to any violation of an applicable national ambient air quality standard; or

(b) Impact any area where an applicable increment is known to be violated;

(v) All other applicable requirements including those for public participation have been met.

(vi) The provisions of paragraph (p) of this section (relating to Class I areas) have been satisfied with respect to all periods during the life of the source or modification.

(3) The plan shall provide that the reviewing authority shall withdraw any approval to employ a system of innovative control technology made under this section, if:

(i) The proposed system fails by the specified date to achieve the required continuous emissions reduction rate; or

(ii) The proposed system fails before the specified date so as to contribute to an unreasonable risk to public health, welfare, or safety; or

(iii) The reviewing authority decides at any time that the proposed system is unlikely to achieve the required level of control or to protect the public health, welfare, or safety.

(4) The plan may provide that if a source or modification fails to meet the required level of continuous emissions reduction within the specified time period, or if the approval is withdrawn in accordance with paragraph (s)(3) of this section, the reviewing authority may allow the source or modification up to an additional 3 years to meet the requirement for the application of best available control technology through use of a demonstrated system of control.

(t)-(v) [Reserved]

(w) Actuals PALs. The plan shall provide for PALs according to the provisions in paragraphs (w)(1) through (15) of this section.

(1) Applicability. (i) The reviewing authority may approve the use of an actuals PAL for any existing major stationary source if the PAL meets the requirements in paragraphs (w)(1) through (15) of this section. The term “PAL” shall mean “actuals PAL” throughout paragraph (w) of this section.

(ii) Any physical change in or change in the method of operation of a major stationary source that maintains its total source-wide emissions below the PAL level, meets the requirements in paragraphs (w)(1) through (15) of this section, and complies with the PAL permit:

(a) Is not a major modification for the PAL pollutant;

(b) Does not have to be approved through the plan's major NSR program; and

(c) Is not subject to the provisions in paragraph (r)(2) of this section (restrictions on relaxing enforceable emission limitations that the major stationary source used to avoid applicability of the major NSR program).

(iii) Except as provided under paragraph (w)(1)(ii)(c) of this section, a major stationary source shall continue to comply with all applicable Federal or State requirements, emission limitations, and work practice requirements that were established prior to the effective date of the PAL.

(2) Definitions. The plan shall use the definitions in paragraphs (w)(2)(i) through (xi) of this section for the purpose of developing and implementing regulations that authorize the use of actuals PALs consistent with paragraphs (w)(1) through (15) of this section. When a term is not defined in these paragraphs, it shall have the meaning given in paragraph (b) of this section or in the Act.

(i) Actuals PAL for a major stationary source means a PAL based on the baseline actual emissions (as defined in paragraph (b)(47) of this section) of all emissions units (as defined in paragraph (b)(7) of this section) at the source, that emit or have the potential to emit the PAL pollutant.

(ii) Allowable emissions means “allowable emissions” as defined in paragraph (b)(16) of this section, except as this definition is modified according to paragraphs (w)(2)(ii)(a) and (b) of this section.

(a) The allowable emissions for any emissions unit shall be calculated considering any emission limitations that are enforceable as a practical matter on the emissions unit's potential to emit.

(b) An emissions unit's potential to emit shall be determined using the definition in paragraph (b)(4) of this section, except that the words “or enforceable as a practical matter” should be added after “federally enforceable.”

(iii) Small emissions unit means an emissions unit that emits or has the potential to emit the PAL pollutant in an amount less than the significant level for that PAL pollutant, as defined in paragraph (b)(23) of this section or in the Act, whichever is lower.

(iv) Major emissions unit means:

(a) Any emissions unit that emits or has the potential to emit 100 tons per year or more of the PAL pollutant in an attainment area; or

(b) Any emissions unit that emits or has the potential to emit the PAL pollutant in an amount that is equal to or greater than the major source threshold for the PAL pollutant as defined by the Act for nonattainment areas. For example, in accordance with the definition of major stationary source in section 182(c) of the Act, an emissions unit would be a major emissions unit for VOC if the emissions unit is located in a serious ozone nonattainment area and it emits or has the potential to emit 50 or more tons of VOC per year.

(v) Plantwide applicability limitation (PAL) means an emission limitation expressed in tons per year, for a pollutant at a major stationary source, that is enforceable as a practical matter and established source-wide in accordance with paragraphs (w)(1) through (15) of this section.

(vi) PAL effective date generally means the date of issuance of the PAL permit. However, the PAL effective date for an increased PAL is the date any emissions unit that is part of the PAL major modification becomes operational and begins to emit the PAL pollutant.

(vii) PAL effective period means the period beginning with the PAL effective date and ending 10 years later.

(viii) PAL major modification means, notwithstanding paragraphs (b)(2) and (b)(3) of this section (the definitions for major modification and net emissions increase), any physical change in or change in the method of operation of the PAL source that causes it to emit the PAL pollutant at a level equal to or greater than the PAL.

(ix) PAL permit means the major NSR permit, the minor NSR permit, or the State operating permit under a program that is approved into the plan, or the title V permit issued by the reviewing authority that establishes a PAL for a major stationary source.

(x) PAL pollutant means the pollutant for which a PAL is established at a major stationary source.

(xi) Significant emissions unit means an emissions unit that emits or has the potential to emit a PAL pollutant in an amount that is equal to or greater than the significant level (as defined in paragraph (b)(23) of this section or in the Act, whichever is lower) for that PAL pollutant, but less than the amount that would qualify the unit as a major emissions unit as defined in paragraph (w)(2)(iv) of this section.

(3) Permit application requirements. As part of a permit application requesting a PAL, the owner or operator of a major stationary source shall submit the following information in paragraphs (w)(3)(i) through (iii) of this section to the reviewing authority for approval.

(i) A list of all emissions units at the source designated as small, significant or major based on their potential to emit. In addition, the owner or operator of the source shall indicate which, if any, Federal or State applicable requirements, emission limitations, or work practices apply to each unit.

(ii) Calculations of the baseline actual emissions (with supporting documentation). Baseline actual emissions are to include emissions associated not only with operation of the unit, but also emissions associated with startup, shutdown, and malfunction.

(iii) The calculation procedures that the major stationary source owner or operator proposes to use to convert the monitoring system data to monthly emissions and annual emissions based on a 12-month rolling total for each month as required by paragraph (w)(13)(i) of this section.

(4) General requirements for establishing PALs. (i) The plan allows the reviewing authority to establish a PAL at a major stationary source, provided that at a minimum, the requirements in paragraphs (w)(4)(i)(a) through (g) of this section are met.

(a) The PAL shall impose an annual emission limitation in tons per year, that is enforceable as a practical matter, for the entire major stationary source. For each month during the PAL effective period after the first 12 months of establishing a PAL, the major stationary source owner or operator shall show that the sum of the monthly emissions from each emissions unit under the PAL for the previous 12 consecutive months is less than the PAL (a 12-month average, rolled monthly). For each month during the first 11 months from the PAL effective date, the major stationary source owner or operator shall show that the sum of the preceding monthly emissions from the PAL effective date for each emissions unit under the PAL is less than the PAL.

(b) The PAL shall be established in a PAL permit that meets the public participation requirements in paragraph (w)(5) of this section.

(c) The PAL permit shall contain all the requirements of paragraph (w)(7) of this section.

(d) The PAL shall include fugitive emissions, to the extent quantifiable, from all emissions units that emit or have the potential to emit the PAL pollutant at the major stationary source.

(e) Each PAL shall regulate emissions of only one pollutant.

(f) Each PAL shall have a PAL effective period of 10 years.

(g) The owner or operator of the major stationary source with a PAL shall comply with the monitoring, recordkeeping, and reporting requirements provided in paragraphs (w)(12) through (14) of this section for each emissions unit under the PAL through the PAL effective period.

(ii) At no time (during or after the PAL effective period) are emissions reductions of a PAL pollutant that occur during the PAL effective period creditable as decreases for purposes of offsets under §51.165(a)(3)(ii) of this chapter unless the level of the PAL is reduced by the amount of such emissions reductions and such reductions would be creditable in the absence of the PAL.

(5) Public participation requirements for PALs. PALs for existing major stationary sources shall be established, renewed, or increased, through a procedure that is consistent with §§51.160 and 51.161 of this chapter. This includes the requirement that the reviewing authority provide the public with notice of the proposed approval of a PAL permit and at least a 30-day period for submittal of public comment. The reviewing authority must address all material comments before taking final action on the permit.

(6) Setting the 10-year actuals PAL level. (i) Except as provided in paragraph (w)(6)(ii) of this section, the plan shall provide that the actuals PAL level for a major stationary source shall be established as the sum of the baseline actual emissions (as defined in paragraph (b)(47) of this section) of the PAL pollutant for each emissions unit at the source; plus an amount equal to the applicable significant level for the PAL pollutant under paragraph (b)(23) of this section or under the Act, whichever is lower. When establishing the actuals PAL level, for a PAL pollutant, only one consecutive 24-month period must be used to determine the baseline actual emissions for all existing emissions units. However, a different consecutive 24-month period may be used for each different PAL pollutant. Emissions associated with units that were permanently shut down after this 24-month period must be subtracted from the PAL level. The reviewing authority shall specify a reduced PAL level(s) (in tons/yr) in the PAL permit to become effective on the future compliance date(s) of any applicable Federal or State regulatory requirement(s) that the reviewing authority is aware of prior to issuance of the PAL permit. For instance, if the source owner or operator will be required to reduce emissions from industrial boilers in half from baseline emissions of 60 ppm NOX to a new rule limit of 30 ppm, then the permit shall contain a future effective PAL level that is equal to the current PAL level reduced by half of the original baseline emissions of such unit(s).

(ii) For newly constructed units (which do not include modifications to existing units) on which actual construction began after the 24-month period, in lieu of adding the baseline actual emissions as specified in paragraph (w)(6)(i) of this section, the emissions must be added to the PAL level in an amount equal to the potential to emit of the units.

(7) Contents of the PAL permit. The plan shall require that the PAL permit contain, at a minimum, the information in paragraphs (w)(7)(i) through (x) of this section.

(i) The PAL pollutant and the applicable source-wide emission limitation in tons per year.

(ii) The PAL permit effective date and the expiration date of the PAL (PAL effective period).

(iii) Specification in the PAL permit that if a major stationary source owner or operator applies to renew a PAL in accordance with paragraph (w)(10) of this section before the end of the PAL effective period, then the PAL shall not expire at the end of the PAL effective period. It shall remain in effect until a revised PAL permit is issued by the reviewing authority.

(iv) A requirement that emission calculations for compliance purposes include emissions from startups, shutdowns and malfunctions.

(v) A requirement that, once the PAL expires, the major stationary source is subject to the requirements of paragraph (w)(9) of this section.

(vi) The calculation procedures that the major stationary source owner or operator shall use to convert the monitoring system data to monthly emissions and annual emissions based on a 12-month rolling total for each month as required by paragraph (w)(3)(i) of this section.

(vii) A requirement that the major stationary source owner or operator monitor all emissions units in accordance with the provisions under paragraph (w)(13) of this section.

(viii) A requirement to retain the records required under paragraph (w)(13) of this section on site. Such records may be retained in an electronic format.

(ix) A requirement to submit the reports required under paragraph (w)(14) of this section by the required deadlines.

(x) Any other requirements that the reviewing authority deems necessary to implement and enforce the PAL.

(8) PAL effective period and reopening of the PAL permit. The plan shall require the information in paragraphs (w)(8)(i) and (ii) of this section.

(i) PAL effective period. The reviewing authority shall specify a PAL effective period of 10 years.

(ii) Reopening of the PAL permit. (a) During the PAL effective period, the plan shall require the reviewing authority to reopen the PAL permit to:

(1) Correct typographical/calculation errors made in setting the PAL or reflect a more accurate determination of emissions used to establish the PAL;

(2) Reduce the PAL if the owner or operator of the major stationary source creates creditable emissions reductions for use as offsets under §51.165(a)(3)(ii) of this chapter; and

(3) Revise the PAL to reflect an increase in the PAL as provided under paragraph (w)(11) of this section.

(b) The plan shall provide the reviewing authority discretion to reopen the PAL permit for the following:

(1) Reduce the PAL to reflect newly applicable Federal requirements (for example, NSPS) with compliance dates after the PAL effective date;

(2) Reduce the PAL consistent with any other requirement, that is enforceable as a practical matter, and that the State may impose on the major stationary source under the plan; and

(3) Reduce the PAL if the reviewing authority determines that a reduction is necessary to avoid causing or contributing to a NAAQS or PSD increment violation, or to an adverse impact on an AQRV that has been identified for a Federal Class I area by a Federal Land Manager and for which information is available to the general public.

(c) Except for the permit reopening in paragraph (w)(8)(ii)(a)(1) of this section for the correction of typographical/calculation errors that do not increase the PAL level, all reopenings shall be carried out in accordance with the public participation requirements of paragraph (w)(5) of this section.

(9) Expiration of a PAL. Any PAL that is not renewed in accordance with the procedures in paragraph (w)(10) of this section shall expire at the end of the PAL effective period, and the requirements in paragraphs (w)(9)(i) through (v) of this section shall apply.

(i) Each emissions unit (or each group of emissions units) that existed under the PAL shall comply with an allowable emission limitation under a revised permit established according to the procedures in paragraphs (w)(9)(i)(a) and (b) of this section.

(a) Within the time frame specified for PAL renewals in paragraph (w)(10)(ii) of this section, the major stationary source shall submit a proposed allowable emission limitation for each emissions unit (or each group of emissions units, if such a distribution is more appropriate as decided by the reviewing authority) by distributing the PAL allowable emissions for the major stationary source among each of the emissions units that existed under the PAL. If the PAL had not yet been adjusted for an applicable requirement that became effective during the PAL effective period, as required under paragraph (w)(10)(v) of this section, such distribution shall be made as if the PAL had been adjusted.

(b) The reviewing authority shall decide whether and how the PAL allowable emissions will be distributed and issue a revised permit incorporating allowable limits for each emissions unit, or each group of emissions units, as the reviewing authority determines is appropriate.

(ii) Each emissions unit(s) shall comply with the allowable emission limitation on a 12-month rolling basis. The reviewing authority may approve the use of monitoring systems (source testing,emission factors, etc.) other than CEMS, CERMS, PEMS or CPMS to demonstrate compliance with the allowable emission limitation.

(iii) Until the reviewing authority issues the revised permit incorporating allowable limits for each emissions unit, or each group of emissions units, as required under paragraph (w)(9)(i)(b) of this section, the source shall continue to comply with a source-wide, multi-unit emissions cap equivalent to the level of the PAL emission limitation.

(iv) Any physical change or change in the method of operation at the major stationary source will be subject to major NSR requirements if such change meets the definition of major modification in paragraph (b)(2) of this section.

(v) The major stationary source owner or operator shall continue to comply with any State or Federal applicable requirements (BACT, RACT, NSPS, etc.) that may have applied either during the PAL effective period or prior to the PAL effective period except for those emission limitations that had been established pursuant to paragraph (r)(2) of this section, but were eliminated by the PAL in accordance with the provisions in paragraph (w)(1)(ii)(c) of this section.

(10) Renewal of a PAL. (i) The reviewing authority shall follow the procedures specified in paragraph (w)(5) of this section in approving any request to renew a PAL for a major stationary source, and shall provide both the proposed PAL level and a written rationale for the proposed PAL level to the public for review and comment. During such public review, any person may propose a PAL level for the source for consideration by the reviewing authority.

(ii) Application deadline. The plan shall require that a major stationary source owner or operator shall submit a timely application to the reviewing authority to request renewal of a PAL. A timely application is one that is submitted at least 6 months prior to, but not earlier than 18 months from, the date of permit expiration. This deadline for application submittal is to ensure that the permit will not expire before the permit is renewed. If the owner or operator of a major stationary source submits a complete application to renew the PAL within this time period, then the PAL shall continue to be effective until the revised permit with the renewed PAL is issued.

(iii) Application requirements. The application to renew a PAL permit shall contain the information required in paragraphs (w)(10)(iii) (a) through (d) of this section.

(a) The information required in paragraphs (w)(3)(i) through (iii) of this section.

(b) A proposed PAL level.

(c) The sum of the potential to emit of all emissions units under the PAL (with supporting documentation).

(d) Any other information the owner or operator wishes the reviewing authority to consider in determining the appropriate level for renewing the PAL.

(iv) PAL adjustment. In determining whether and how to adjust the PAL, the reviewing authority shall consider the options outlined in paragraphs (w)(10)(iv) (a) and (b) of this section. However, in no case may any such adjustment fail to comply with paragraph (w)(10)(iv)(c) of this section.

(a) If the emissions level calculated in accordance with paragraph (w)(6) of this section is equal to or greater than 80 percent of the PAL level, the reviewing authority may renew the PAL at the same level without considering the factors set forth in paragraph (w)(10)(iv)(b) of this section; or

(b) The reviewing authority may set the PAL at a level that it determines to be more representative of the source's baseline actual emissions, or that it determines to be appropriate considering air quality needs, advances in control technology, anticipated economic growth in the area, desire to reward or encourage the source's voluntary emissions reductions, or other factors as specifically identified by the reviewing authority in its written rationale.

(c) Notwithstanding paragraphs (w)(10)(iv) (a) and (b) of this section:

(1) If the potential to emit of the major stationary source is less than the PAL, the reviewing authority shall adjust the PAL to a level no greater than the potential to emit of the source; and

(2) The reviewing authority shall not approve a renewed PAL level higher than the current PAL, unless the major stationary source has complied with the provisions of paragraph (w)(11) of this section (increasing a PAL).

(v) If the compliance date for a State or Federal requirement that applies to the PAL source occurs during the PAL effective period, and if the reviewing authority has not already adjusted for such requirement, the PAL shall be adjusted at the time of PAL permit renewal or title V permit renewal, whichever occurs first.

(11) Increasing a PAL during the PAL effective period. (i) The plan shall require that the reviewing authority may increase a PAL emission limitation only if the major stationary source complies with the provisions in paragraphs (w)(11)(i) (a) through (d) of this section.

(a) The owner or operator of the major stationary source shall submit a complete application to request an increase in the PAL limit for a PAL major modification. Such application shall identify the emissions unit(s) contributing to the increase in emissions so as to cause the major stationary source's emissions to equal or exceed its PAL.

(b) As part of this application, the major stationary source owner or operator shall demonstrate that the sum of the baseline actual emissions of the small emissions units, plus the sum of the baseline actual emissions of the significant and major emissions units assuming application of BACT equivalent controls, plus the sum of the allowable emissions of the new or modified emissions unit(s), exceeds the PAL. The level of control that would result from BACT equivalent controls on each significant or major emissions unit shall be determined by conducting a new BACT analysis at the time the application is submitted, unless the emissions unit is currently required to comply with a BACT or LAER requirement that was established within the preceding 10 years. In such a case, the assumed control level for that emissions unit shall be equal to the level of BACT or LAER with which that emissions unit must currently comply.

(c) The owner or operator obtains a major NSR permit for all emissions unit(s) identified in paragraph (w)(11)(i)(a) of this section, regardless of the magnitude of the emissions increase resulting from them (that is, no significant levels apply). These emissions unit(s) shall comply with any emissions requirements resulting from the major NSR process (for example, BACT), even though they have also become subject to the PAL or continue to be subject to the PAL.

(d) The PAL permit shall require that the increased PAL level shall be effective on the day any emissions unit that is part of the PAL major modification becomes operational and begins to emit the PAL pollutant.

(ii) The reviewing authority shall calculate the new PAL as the sum of the allowable emissions for each modified or new emissions unit, plus the sum of the baseline actual emissions of the significant and major emissions units (assuming application of BACT equivalent controls as determined in accordance with paragraph (w)(11)(i)(b) of this section), plus the sum of the baseline actual emissions of the small emissions units.

(iii) The PAL permit shall be revised to reflect the increased PAL level pursuant to the public notice requirements of paragraph (w)(5) of this section.

(12) Monitoring requirements for PALs—(i) General requirements. (a) Each PAL permit must contain enforceable requirements for the monitoring system that accurately determines plantwide emissions of the PAL pollutant in terms of mass per unit of time. Any monitoring system authorized for use in the PAL permit must be based on sound science and meet generally acceptable scientific procedures for data quality and manipulation. Additionally, the information generated by such system must meet minimum legal requirements for admissibility in a judicial proceeding to enforce the PAL permit.

(b) The PAL monitoring system must employ one or more of the four general monitoring approaches meeting the minimum requirements set forth in paragraphs (w)(12)(ii) (a) through (d) of this section and must be approved by the reviewing authority.

(c) Notwithstanding paragraph (w)(12)(i)(b) of this section, you may also employ an alternative monitoring approach that meets paragraph (w)(12)(i)(a) of this section if approved by the reviewing authority.

(d) Failure to use a monitoring system that meets the requirements of this section renders the PAL invalid.

(ii) Minimum performance requirements for approved monitoring approaches. The following are acceptable general monitoring approaches when conducted in accordance with the minimum requirements in paragraphs (w)(12)(iii) through (ix) of this section:

(a) Mass balance calculations for activities using coatings or solvents;

(b) CEMS;

(c) CPMS or PEMS; and

(d) Emission factors.

(iii) Mass balance calculations. An owner or operator using mass balance calculations to monitor PAL pollutant emissions from activities using coating or solvents shall meet the following requirements:

(a) Provide a demonstrated means of validating the published content of the PAL pollutant that is contained in or created by all materials used in or at the emissions unit;

(b) Assume that the emissions unit emits all of the PAL pollutant that is contained in or created by any raw material or fuel used in or at the emissions unit, if it cannot otherwise be accounted for in the process; and

(c) Where the vendor of a material or fuel, which is used in or at the emissions unit, publishes a range of pollutant content from such material, the owner or operator must use the highest value of the range to calculate the PAL pollutant emissions unless the reviewing authority determines there is site-specific data or a site-specific monitoring program to support another content within the range.

(iv) CEMS. An owner or operator using CEMS to monitor PAL pollutant emissions shall meet the following requirements:

(a) CEMS must comply with applicable Performance Specifications found in 40 CFR part 60, appendix B; and

(b) CEMS must sample, analyze, and record data at least every 15 minutes while the emissions unit is operating.

(v) CPMS or PEMS. An owner or operator using CPMS or PEMS to monitor PAL pollutant emissions shall meet the following requirements:

(a) The CPMS or the PEMS must be based on current site-specific data demonstrating a correlation between the monitored parameter(s) and the PAL pollutant emissions across the range of operation of the emissions unit; and

(b) Each CPMS or PEMS must sample, analyze, and record data at least every 15 minutes, or at another less frequent interval approved by the reviewing authority, while the emissions unit is operating.

(vi) Emission factors. An owner or operator using emission factors to monitor PAL pollutant emissions shall meet the following requirements:

(a) All emission factors shall be adjusted, if appropriate, to account for the degree of uncertainty or limitations in the factors' development;

(b) The emissions unit shall operate within the designated range of use for the emission factor, if applicable; and

(c) If technically practicable, the owner or operator of a significant emissions unit that relies on an emission factor to calculate PAL pollutant emissions shall conduct validation testing to determine a site-specific emission factor within 6 months of PAL permit issuance, unless the reviewing authority determines that testing is not required.

(vii) A source owner or operator must record and report maximum potential emissions without considering enforceable emission limitations or operational restrictions for an emissions unit during any period of time that there is no monitoring data, unless another method for determining emissions during such periods is specified in the PAL permit.

(viii) Notwithstanding the requirements in paragraphs (w)(12)(iii) through (vii) of this section, where an owner or operator of an emissions unit cannot demonstrate a correlation between the monitored parameter(s) and the PAL pollutant emissions rate at all operating points of the emissions unit, the reviewing authority shall, at the time of permit issuance:

(a) Establish default value(s) for determining compliance with the PAL based on the highest potential emissions reasonably estimated at such operating point(s); or

(b) Determine that operation of the emissions unit during operating conditions when there is no correlation between monitored parameter(s) and the PAL pollutant emissions is a violation of the PAL.

(ix) Re-validation. All data used to establish the PAL pollutant must be re-validated through performance testing or other scientifically valid means approved by the reviewing authority. Such testing must occur at least once every 5 years after issuance of the PAL.

(13) Recordkeeping requirements. (i) The PAL permit shall require an owner or operator to retain a copy of all records necessary to determine compliance with any requirement of paragraph (w) of this section and of the PAL, including a determination of each emissions unit's 12-month rolling total emissions, for 5 years from the date of such record.

(ii) The PAL permit shall require an owner or operator to retain a copy of the following records, for the duration of the PAL effective period plus 5 years:

(a) A copy of the PAL permit application and any applications for revisions to the PAL; and

(b) Each annual certification of compliance pursuant to title V and the data relied on in certifying the compliance.

(14) Reporting and notification requirements. The owner or operator shall submit semi-annual monitoring reports and prompt deviation reports to the reviewing authority in accordance with the applicable title V operating permit program. The reports shall meet the requirements in paragraphs (w)(14)(i) through (iii) of this section.

(i) Semi-annual report. The semi-annual report shall be submitted to the reviewing authority within 30 days of the end of each reporting period. This report shall contain the information required in paragraphs (w)(14)(i)(a) through (g) of this section.

(a) The identification of owner and operator and the permit number.

(b) Total annual emissions (tons/year) based on a 12-month rolling total for each month in the reporting period recorded pursuant to paragraph (w)(13)(i) of this section.

(c) All data relied upon, including, but not limited to, any Quality Assurance or Quality Control data, in calculating the monthly and annual PAL pollutant emissions.

(d) A list of any emissions units modified or added to the major stationary source during the preceding 6-month period.

(e) The number, duration, and cause of any deviations or monitoring malfunctions (other than the time associated with zero and span calibration checks), and any corrective action taken.

(f) A notification of a shutdown of any monitoring system, whether the shutdown was permanent or temporary, the reason for the shutdown, the anticipated date that the monitoring system will be fully operational or replaced with another monitoring system, and whether the emissions unit monitored by the monitoring system continued to operate, and the calculation of the emissions of the pollutant or the number determined by method included in the permit, as provided by paragraph (w)(12)(vii) of this section.

(g) A signed statement by the responsible official (as defined by the applicable title V operating permit program) certifying the truth, accuracy, and completeness of the information provided in the report.

(ii) Deviation report. The major stationary source owner or operator shall promptly submit reports of any deviations or exceedance of the PAL requirements, including periods where no monitoring is available. A report submitted pursuant to §70.6(a)(3)(iii)(B) of this chapter shall satisfy this reporting requirement. The deviation reports shall be submitted within the time limits prescribed by the applicable program implementing §70.6(a)(3)(iii)(B) of this chapter. The reports shall contain the following information:

(a) The identification of owner and operator and the permit number;

(b) The PAL requirement that experienced the deviation or that was exceeded;

(c) Emissions resulting from the deviation or the exceedance; and

(d) A signed statement by the responsible official (as defined by the applicable title V operating permit program) certifying the truth, accuracy, and completeness of the information provided in the report.

(iii) Re-validation results. The owner or operator shall submit to the reviewing authority the results of any re-validation test or method within three months after completion of such test or method.

(15) Transition requirements. (i) No reviewing authority may issue a PAL that does not comply with the requirements in paragraphs (w)(1) through (15) of this section after the Administrator has approved regulations incorporating these requirements into a plan.

(ii) The reviewing authority may supersede any PAL which was established prior to the date of approval of the plan by the Administrator with a PAL that complies with the requirements of paragraphs (w)(1) through (15) of this section.

(x) If any provision of this section, or the application of such provision to any person or circumstance, is held invalid, the remainder of this section, or the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby.

(y) Equipment replacement provision. Without regard to other considerations, routine maintenance, repair and replacement includes, but is not limited to, the replacement of any component of a process unit with an identical or functionally equivalent component(s), and maintenance and repair activities that are part of the replacement activity, provided that all of the requirements in paragraphs (y)(1) through (3) of this section are met.

(1) Capital Cost threshold for Equipment Replacement. (i) For an electric utility steam generating unit, as defined in §51.166(b)(30), the fixed capital cost of the replacement component(s) plus the cost of any associated maintenance and repair activities that are part of the replacement shall not exceed 20 percent of the replacement value of the process unit, at the time the equipment is replaced. For a process unit that is not an electric utility steam generating unit the fixed capital cost of the replacement component(s) plus the cost of any associated maintenance and repair activities that are part of the replacement shall not exceed 20 percent of the replacement value of the process unit, at the time the equipment is replaced.

(ii) In determining the replacement value of the process unit; and, except as otherwise allowed under paragraph (y)(1)(iii) of this section, the owner or operator shall determine the replacement value of the process unit on an estimate of the fixed capital cost of constructing a new process unit, or on the current appraised value of the process unit.

(iii) As an alternative to paragraph (y)(1)(ii) of this section for determining the replacement value of a process unit, an owner or operator may choose to use insurance value (where the insurance value covers only complete replacement), investment value adjusted for inflation, or another accounting procedure if such procedure is based on Generally Accepted Accounting Principles, provided that the owner or operator sends a notice to the reviewing authority. The first time that an owner or operator submits such a notice for a particular process unit, the notice may be submitted at any time, but any subsequent notice for that process unit may be submitted only at the beginning of the process unit's fiscal year. Unless the owner or operator submits a notice to the reviewing authority, then paragraph (y)(1)(ii) of this section will be used to establish the replacement value of the process unit. Once the owner or operator submits a notice to use an alternative accounting procedure, the owner or operator must continue to use that procedure for the entire fiscal year for that process unit. In subsequent fiscal years, the owner or operator must continue to use this selected procedure unless and until the owner or operator sends another notice to the reviewing authority selecting another procedure consistent with this paragraph or paragraph (y)(1)(ii) of this section at the beginning of such fiscal year.

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

(i) Except as provided in paragraph (y)(2)(iii) of this section, for a process unit at a steam electric generating facility, the owner or operator may select as its basic design parameters either maximum hourly heat input and maximum hourly fuel consumption rate or maximum hourly electric output rate and maximum steam flow rate. When establishing fuel consumption specifications in terms of weight or volume, the minimum fuel quality based on British Thermal Units content shall be used for determining the basic design parameter(s) for a coal-fired electric utility steam generating unit.

(ii) Except as provided in paragraph (y)(2)(iii) of this section, the basic design parameter(s) for any process unit that is not at a steam electric generating facility are maximum rate of fuel or heat input, maximum rate of material input, or maximum rate of product output. Combustion process units will typically use maximum rate of fuel input. For sources having multiple end products and raw materials, the owner or operator should consider the primary product or primary raw material when selecting a basic design parameter.

(iii) If the owner or operator believes the basic design parameter(s) in paragraphs (y)(2)(i) and (ii) of this section is not appropriate for a specific industry or type of process unit, the owner or operator may propose to the reviewing authority an alternative basic design parameter(s) for the source's process unit(s). If the reviewing authority approves of the use of an alternative basic design parameter(s), the reviewing authority shall issue a permit that is legally enforceable that records such basic design parameter(s) and requires the owner or operator to comply with such parameter(s).

(iv) The owner or operator shall use credible information, such as results of historic maximum capability tests, design information from the manufacturer, or engineering calculations, in establishing the magnitude of the basic design parameter(s) specified in paragraphs (y)(2)(i) and (ii) of this section.

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

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

(3) The replacement activity shall not cause the process unit to exceed any emission limitation, or operational limitation that has the effect of constraining emissions, that applies to the process unit and that is legally enforceable.

Note to paragraph (y): By a court order on December 24, 2003, this paragraph (y) is stayed indefinitely. The stayed provisions will become effective immediately if the court terminates the stay. At that time, EPA will publish a document in the Federal Register advising the public of the termination of the stay.

(Secs. 101(b)(1), 110, 160-169, 171-178, and 301(a), Clean Air Act, as amended (42 U.S.C. 7401(b)(1), 7410, 7470-7479, 7501-7508, and 7601(a)); sec. 129(a), Clean Air Act Amendments of 1977 (Pub. L. 95-95, 91 Stat. 685 (Aug. 7, 1977)))

[43 FR 26382, June 19, 1978]

Editorial Note: For Federal Register citations affecting §51.166, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.fdsys.gov.

Effective Date Note: At 76 FR 17553, Mar. 30, 2011, §51.166 paragraphs (b)(2)(v) and (b)(3)(iii)(d) are stayed indefinitely.

Subpart J—Ambient Air Quality Surveillance

Authority: Secs. 110, 301(a), 313, 319, Clean Air Act (42 U.S.C. 7410, 7601(a), 7613, 7619).

§51.190   Ambient air quality monitoring requirements.

The requirements for monitoring ambient air quality for purposes of the plan are located in subpart C of part 58 of this chapter.

[44 FR 27569, May 10, 1979]

Subpart K—Source Survelliance

Source: 51 FR 40673, Nov. 7, 1986, unless otherwise noted.

§51.210   General.

Each plan must provide for monitoring the status of compliance with any rules and regulations that set forth any portion of the control strategy. Specifically, the plan must meet the requirements of this subpart.

§51.211   Emission reports and recordkeeping.

The plan must provide for legally enforceable procedures for requiring owners or operators of stationary sources to maintain records of and periodically report to the State—

(a) Information on the nature and amount of emissions from the stationary sources; and

(b) Other information as may be necessary to enable the State to determine whether the sources are in compliance with applicable portions of the control strategy.

§51.212   Testing, inspection, enforcement, and complaints.

The plan must provide for—

(a) Periodic testing and inspection of stationary sources; and

(b) Establishment of a system for detecting violations of any rules and regulations through the enforcement of appropriate visible emission limitations and for investigating complaints.

(c) Enforceable test methods for each emission limit specified in the plan. For the purpose of submitting compliance certifications or establishing whether or not a person has violated or is in violation of any standard in this part, the plan must not preclude the use, including the exclusive use, of any credible evidence or information, relevant to whether a source would have been in compliance with applicable requirements if the appropriate performance or compliance test or procedure had been performed. As an enforceable method, States may use:

(1) Any of the appropriate methods in appendix M to this part, Recommended Test Methods for State Implementation Plans; or

(2) An alternative method following review and approval of that method by the Administrator; or

(3) Any appropriate method in appendix A to 40 CFR part 60.

[51 FR 40673, Nov. 7, 1986, as amended at 55 FR 14249, Apr. 17, 1990; 62 FR 8328, Feb. 24, 1997]

§51.213   Transportation control measures.

(a) The plan must contain procedures for obtaining and maintaining data on actual emissions reductions achieved as a result of implementing transportation control measures.

(b) In the case of measures based on traffic flow changes or reductions in vehicle use, the data must include observed changes in vehicle miles traveled and average speeds.

(c) The data must be maintained in such a way as to facilitate comparison of the planned and actual efficacy of the transportation control measures.

[61 FR 30163, June 14, 1996]

§51.214   Continuous emission monitoring.

(a) The plan must contain legally enforceable procedures to—

(1) Require stationary sources subject to emission standards as part of an applicable plan to install, calibrate, maintain, and operate equipment for continuously monitoring and recording emissions; and

(2) Provide other information as specified in appendix P of this part.

(b) The procedures must—

(1) Identify the types of sources, by source category and capacity, that must install the equipment; and

(2) Identify for each source category the pollutants which must be monitored.

(c) The procedures must, as a minimum, require the types of sources set forth in appendix P of this part to meet the applicable requirements set forth therein.

(d)(1) The procedures must contain provisions that require the owner or operator of each source subject to continuous emission monitoring and recording requirements to maintain a file of all pertinent information for at least two years following the date of collection of that information.

(2) The information must include emission measurements, continuous monitoring system performance testing measurements, performance evaluations, calibration checks, and adjustments and maintenance performed on such monitoring systems and other reports and records required by appendix P of this part.

(e) The procedures must require the source owner or operator to submit information relating to emissions and operation of the emission monitors to the State to the extent described in appendix P at least as frequently as described therein.

(f)(1) The procedures must provide that sources subject to the requirements of paragraph (c) of this section must have installed all necessary equipment and shall have begun monitoring and recording within 18 months after either—

(i) The approval of a State plan requiring monitoring for that source; or

(ii) Promulgation by the Agency of monitoring requirements for that source.

(2) The State may grant reasonable extensions of this period to sources that—

(i) Have made good faith efforts to purchases, install, and begin the monitoring and recording of emission data; and

(ii) Have been unable to complete the installation within the period.

Subpart L—Legal Authority

Source: 51 FR 40673, Nov. 7, 1986, unless otherwise noted.

§51.230   Requirements for all plans.

Each plan must show that the State has legal authority to carry out the plan, including authority to:

(a) Adopt emission standards and limitations and any other measures necessary for attainment and maintenance of national standards.

(b) Enforce applicable laws, regulations, and standards, and seek injunctive relief.

(c) Abate pollutant emissions on an emergency basis to prevent substantial endangerment to the health of persons, i.e., authority comparable to that available to the Administrator under section 305 of the Act.

(d) Prevent construction, modification, or operation of a facility, building, structure, or installation, or combination thereof, which directly or indirectly results or may result in emissions of any air pollutant at any location which will prevent the attainment or maintenance of a national standard.

(e) Obtain information necessary to determine whether air pollution sources are in compliance with applicable laws, regulations, and standards, including authority to require recordkeeping and to make inspections and conduct tests of air pollution sources.

(f) Require owners or operators of stationary sources to install, maintain, and use emission monitoring devices and to make periodic reports to the State on the nature and amounts of emissions from such stationary sources; also authority for the State to make such data available to the public as reported and as correlated with any applicable emission standards or limitations.

§51.231   Identification of legal authority.

(a) The provisions of law or regulation which the State determines provide the authorities required under this section must be specifically identified, and copies of such laws or regulations be submitted with the plan.

(b) The plan must show that the legal authorities specified in this subpart are available to the State at the time of submission of the plan.

(c) Legal authority adequate to fulfill the requirements of §51.230 (e) and (f) of this subpart may be delegated to the State under section 114 of the Act.

§51.232   Assignment of legal authority to local agencies.

(a) A State government agency other than the State air pollution control agency may be assigned responsibility for carrying out a portion of a plan if the plan demonstrates to the Administrator's satisfaction that the State governmental agency has the legal authority necessary to carry out the portion of plan.

(b) The State may authorize a local agency to carry out a plan, or portion thereof, within such local agency's jurisdiction if—

(1) The plan demonstrates to the Administrator's satisfaction that the local agency has the legal authority necessary to implement the plan or portion of it; and

(2) This authorization does not relieve the State of responsibility under the Act for carrying out such plan, or portion thereof.

Subpart M—Intergovernmental Consultation

Authority: Secs. 110, 121, 174(a), 301(a), Clean Air Act, as amended (42 U.S.C. 7410, 7421, 7504, and 7601(a)).

Source: 44 FR 35179, June 18, 1979, unless otherwise noted.

Agency Designation

§51.240   General plan requirements.

Each State implementation plan must identify organizations, by official title, that will participate in developing, implementing, and enforcing the plan and the responsibilities of such organizations. The plan shall include any related agreements or memoranda of understanding among the organizations.

§51.241   Nonattainment areas for carbon monoxide and ozone.

(a) For each AQCR or portion of an AQCR in which the national primary standard for carbon monoxide or ozone will not be attained by July 1, 1979, the Governor (or Governors for interstate areas) shall certify, after consultation with local officials, the organization responsible for developing the revised implementation plan or portions thereof for such AQCR.

(b)-(f) [Reserved]

[44 FR 35179, June 18, 1979, as amended at 48 FR 29302, June 24, 1983; 60 FR 33922, June 29, 1995; 61 FR 16060, Apr. 11, 1996]

§51.242   [Reserved]

Subpart N—Compliance Schedules

Source: 51 FR 40673, Nov. 7, 1986, unless otherwise noted.

§51.260   Legally enforceable compliance schedules.

(a) Each plan shall contain legally enforceable compliance schedules setting forth the dates by which all stationary and mobile sources or categories of such sources must be in compliance with any applicable requirement of the plan.

(b) The compliance schedules must contain increments of progress required by §51.262 of this subpart.

§51.261   Final compliance schedules.

(a) Unless EPA grants an extension under subpart R, compliance schedules designed to provide for attainment of a primary standard must—

(1) Provide for compliance with the applicable plan requirements as soon as practicable; or

(2) Provide for compliance no later than the date specified for attainment of the primary standard under;

(b) Unless EPA grants an extension under subpart R, compliance schedules designed to provide for attainment of a secondary standard must—

(1) Provide for compliance with the applicable plan requirements in a reasonable time; or

(2) Provide for compliance no later than the date specified for the attainment of the secondary standard under §51.110(c).

§51.262   Extension beyond one year.

(a) Any compliance schedule or revision of it extending over a period of more than one year from the date of its adoption by the State agency must provide for legally enforceable increments of progress toward compliance by each affected source or category of sources. The increments of progress must include—

(1) Each increment of progress specified in §51.100(q); and

(2) Additional increments of progress as may be necessary to permit close and effective supervision of progress toward timely compliance.

(b) [Reserved]

Subpart O—Miscellaneous Plan Content Requirements

Authority: Secs. 110, 301(a), 313, 319, Clean Air Act (42 U.S.C. 7410, 7601(a), 7613, 7619).

§51.280   Resources.

Each plan must include a description of the resources available to the State and local agencies at the date of submission of the plan and of any additional resources needed to carry out the plan during the 5-year period following its submission. The description must include projections of the extent to which resources will be acquired at 1-, 3-, and 5-year intervals.

[51 FR 40674, Nov. 7, 1986]

§51.281   Copies of rules and regulations.

Emission limitations and other measures necessary for attainment and maintenance of any national standard, including any measures necessary to implement the requirements of subpart L must be adopted as rules and regulations enforceable by the State agency. Copies of all such rules and regulations must be submitted with the plan. Submittal of a plan setting forth proposed rules and regulations will not satisfy the requirements of this section nor will it be considered a timely submittal.

[51 FR 40674, Nov. 7, 1986]

§51.285   Public notification.

By March 1, 1980, the State shall submit a plan revision that contains provisions for:

(a) Notifying the public on a regular basis of instances or areas in which any primary standard was exceeded during any portion of the preceding calendar year,

(b) Advising the public of the health hazards associated with such an exceedance of a primary standard, and

(c) Increasing public awareness of:

(1) Measures which can be taken to prevent a primary standard from being exceeded, and

(2) Ways in which the public can participate in regulatory and other efforts to improve air quality.

[44 FR 27569, May 10, 1979]

§51.286   Electronic reporting.

States that wish to receive electronic documents must revise the State Implementation Plan to satisfy the requirements of 40 CFR Part 3—(Electronic reporting).

[70 FR 59887, Oct. 13, 2005]

Subpart P—Protection of Visibility

Authority: Secs. 110, 114, 121, 160-169, 169A, and 301 of the Clean Air Act, (42 U.S.C. 7410, 7414, 7421, 7470-7479, and 7601).

Source: 45 FR 80089, Dec. 2, 1980, unless otherwise noted.

§51.300   Purpose and applicability.

(a) Purpose. The primary purposes of this subpart are to require States to develop programs to assure reasonable progress toward meeting the national goal of preventing any future, and remedying any existing, impairment of visibility in mandatory Class I Federal areas which impairment results from manmade air pollution; and to establish necessary additional procedures for new source permit applicants, States and Federal Land Managers to use in conducting the visibility impact analysis required for new sources under §51.166. This subpart sets forth requirements addressing visibility impairment in its two principal forms: “reasonably attributable” impairment (i.e., impairment attributable to a single source/small group of sources) and regional haze (i.e., widespread haze from a multitude of sources which impairs visibility in every direction over a large area).

(b) Applicability—(1) General Applicability. The provisions of this subpart pertaining to implementation plan requirements for assuring reasonable progress in preventing any future and remedying any existing visibility impairment are applicable to:

(i) Each State which has a mandatory Class I Federal area identified in part 81, subpart D, of this title, and (ii) each State in which there is any source the emissions from which may reasonably be anticipated to cause or contribute to any impairment of visibility in any such area.

(2) The provisions of this subpart pertaining to implementation plans to address reasonably attributable visibility impairment are applicable to the following States:

Alabama, Alaska, Arizona, Arkansas, California, Colorado, Florida, Georgia, Hawaii, Idaho, Kentucky, Louisiana, Maine, Michigan, Minnesota, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Virgin Islands, Washington, West Virginia, Wyoming.

(3) The provisions of this subpart pertaining to implementation plans to address regional haze visibility impairment are applicable to all States as defined in section 302(d) of the Clean Air Act (CAA) except Guam, Puerto Rico, American Samoa, and the Northern Mariana Islands.

[45 FR 80089, Dec. 2, 1980, as amended at 64 FR 35763, July 1, 1999]

§51.301   Definitions.

For purposes of this subpart:

Adverse impact on visibility means, for purposes of section 307, visibility impairment which interferes with the management, protection, preservation, or enjoyment of the visitor's visual experience of the Federal Class I area. This determination must be made on a case-by-case basis taking into account the geographic extent, intensity, duration, frequency and time of visibility impairments, 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. This term does not include effects on integral vistas.

Agency means the U.S. Environmental Protection Agency.

BART-eligible source means an existing stationary facility as defined in this section.

Best Available Retrofit Technology (BART) means an emission limitation based on the degree of reduction achievable through the application of the best system of continuous emission reduction for each pollutant which is emitted by an existing stationary facility. The emission limitation must be established, on a case-by-case basis, taking into consideration the technology available, the costs of compliance, the energy and nonair quality environmental impacts of compliance, any pollution control equipment in use or in existence at the source, the remaining useful life of the source, and the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology.

Building, structure, or facility means all of the pollutant-emitting activities which belong to the same industrial grouping, are located on one or more contiguous or adjacent properties, and are under the control of the same person (or persons under common control). Pollutant-emitting activities must be considered as part of the same industrial grouping if they belong to the same Major Group (i.e., which have the same two-digit code) as described in the Standard Industrial Classification Manual, 1972 as amended by the 1977 Supplement (U.S. Government Printing Office stock numbers 4101-0066 and 003-005-00176-0 respectively).

Deciview means a measurement of visibility impairment. A deciview is a haze index derived from calculated light extinction, such that uniform changes in haziness correspond to uniform incremental changes in perception across the entire range of conditions, from pristine to highly impaired. The deciview haze index is calculated based on the following equation (for the purposes of calculating deciview, the atmospheric light extinction coefficient must be calculated from aerosol measurements):

Deciview haze index=10 lne (bext/10 Mm−1).

bext=the atmospheric light extinction coefficient, expressed in inverse megameters (Mm−1).

Existing stationary facility means any of the following stationary sources of air pollutants, including any reconstructed source, which was not in operation prior to August 7, 1962, and was in existence on August 7, 1977, and has the potential to emit 250 tons per year or more of any air pollutant. In determining potential to emit, fugitive emissions, to the extent quantifiable, must be counted.

Fossil-fuel fired steam electric plants of more than 250 million British thermal units per hour heat input,

Coal cleaning plants (thermal dryers),

Kraft pulp mills,

Portland cement plants,

Primary zinc smelters,

Iron and steel mill plants,

Primary aluminum ore reduction plants,

Primary copper smelters,

Municipal incinerators capable of charging more than 250 tons of refuse per day,

Hydrofluoric, sulfuric, and nitric acid plants,

Petroleum refineries,

Lime plants,

Phosphate rock processing plants,

Coke oven batteries,

Sulfur recovery plants,

Carbon black plants (furnace process),

Primary lead smelters,

Fuel conversion plants,

Sintering plants,

Secondary metal production facilities,

Chemical process plants,

Fossil-fuel boilers of more than 250 million British thermal units per hour heat input,

Petroleum storage and transfer facilities with a capacity exceeding 300,000 barrels,

Taconite ore processing facilities,

Glass fiber processing plants, and

Charcoal production facilities.

Federal Class I area means any Federal land that is classified or reclassified Class I.

Federal Land Manager means the Secretary of the department with authority over the Federal Class I area (or the Secretary's designee) or, with respect to Roosevelt-Campobello International Park, the Chairman of the Roosevelt-Campobello International Park Commission.

Federally enforceable means all limitations and conditions which are enforceable by the Administrator under the Clean Air Act including those requirements developed pursuant to parts 60 and 61 of this title, requirements within any applicable State Implementation Plan, and any permit requirements established pursuant to §52.21 of this chapter or under regulations approved pursuant to part 51, 52, or 60 of this title.

Fixed capital cost means the capital needed to provide all of the depreciable components.

Fugitive Emissions means those emissions which could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening.

Geographic enhancement for the purpose of §51.308 means a method, procedure, or process to allow a broad regional strategy, such as an emissions trading program designed to achieve greater reasonable progress than BART for regional haze, to accommodate BART for reasonably attributable impairment.

Implementation plan means, for the purposes of this part, any State Implementation Plan, Federal Implementation Plan, or Tribal Implementation Plan.

Indian tribe or tribe means any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village, which is federally recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.

In existence means that the owner or operator has obtained all necessary preconstruction approvals or permits required by Federal, State, or local air pollution emissions and air quality laws or regulations and either has (1) begun, or caused to begin, a continuous program of physical on-site construction of the facility or (2) entered into binding agreements or contractual obligations, which cannot be cancelled or modified without substantial loss to the owner or operator, to undertake a program of construction of the facility to be completed in a reasonable time.

In operation means engaged in activity related to the primary design function of the source.

Installation means an identifiable piece of process equipment.

Integral vista means a view perceived from within the mandatory Class I Federal area of a specific landmark or panorama located outside the boundary of the mandatory Class I Federal area.

Least impaired days means the average visibility impairment (measured in deciviews) for the twenty percent of monitored days in a calendar year with the lowest amount of visibility impairment.

Major stationary source and major modification mean major stationary source and major modification, respectively, as defined in §51.166.

Mandatory Class I Federal Area means any area identified in part 81, subpart D of this title.

Most impaired days means the average visibility impairment (measured in deciviews) for the twenty percent of monitored days in a calendar year with the highest amount of visibility impairment.

Natural conditions includes naturally occurring phenomena that reduce visibility as measured in terms of light extinction, visual range, contrast, or coloration.

Potential to emit means the maximum capacity of a stationary source to emit a pollutant under its physical and operational design. Any physical or operational limitation on the capacity of the source to emit a pollutant including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design if the limitation or the effect it would have on emissions is federally enforceable. Secondary emissions do not count in determining the potential to emit of a stationary source.

Reasonably attributable means attributable by visual observation or any other technique the State deems appropriate.

Reasonably attributable visibility impairment means visibility impairment that is caused by the emission of air pollutants from one, or a small number of sources.

Reconstruction will be presumed to have taken place where the fixed capital cost of the new component exceeds 50 percent of the fixed capital cost of a comparable entirely new source. Any final decision as to whether reconstruction has occurred must be made in accordance with the provisions of §60.15 (f) (1) through (3) of this title.

Regional haze means visibility impairment that is caused by the emission of air pollutants from numerous sources located over a wide geographic area. Such sources include, but are not limited to, major and minor stationary sources, mobile sources, and area sources.

Secondary emissions means emissions which occur as a result of the construction or operation of an existing stationary facility but do not come from the existing stationary facility. Secondary emissions may include, but are not limited to, emissions from ships or trains coming to or from the existing stationary facility.

Significant impairment means, for purposes of §51.303, visibility impairment which, in the judgment of the Administrator, interferes with the management, protection, preservation, or enjoyment of the visitor's visual experience of the mandatory Class I Federal area. This determination must be made on a case-by-case basis taking into account the geographic extent, intensity, duration, frequency and time of the visibility impairment, and how these factors correlate with (1) times of visitor use of the mandatory Class I Federal area, and (2) the frequency and timing of natural conditions that reduce visibility.

State means “State” as defined in section 302(d) of the CAA.

Stationary Source means any building, structure, facility, or installation which emits or may emit any air pollutant.

Visibility impairment means any humanly perceptible change in visibility (light extinction, visual range, contrast, coloration) from that which would have existed under natural conditions.

Visibility in any mandatory Class I Federal area includes any integral vista associated with that area.

[45 FR 80089, Dec. 2, 1980, as amended at 64 FR 35763, 35774, July 1, 1999]

§51.302   Implementation control strategies for reasonably attributable visibility impairment.

(a) Plan Revision Procedures. (1) Each State identified in §51.300(b)(2) must have submitted, not later than September 2, 1981, an implementation plan meeting the requirements of this subpart pertaining to reasonably attributable visibility impairment.

(2)(i) The State, prior to adoption of any implementation plan to address reasonably attributable visibility impairment required by this subpart, must conduct one or more public hearings on such plan in accordance with §51.102.

(ii) In addition to the requirements in §51.102, the State must provide written notification of such hearings to each affected Federal Land Manager, and other affected States, and must state where the public can inspect a summary prepared by the Federal Land Managers of their conclusions and recommendations, if any, on the proposed plan revision.

(3) Submission of plans as required by this subpart must be conducted in accordance with the procedures in §51.103.

(b) State and Federal Land Manager Coordination. (1) The State must identify to the Federal Land Managers, in writing and within 30 days of the date of promulgation of these regulations, the title of the official to which the Federal Land Manager of any mandatory Class I Federal area can submit a recommendation on the implementation of this subpart including, but not limited to:

(i) A list of integral vistas that are to be listed by the State for the purpose of implementing section 304,

(ii) Identification of impairment of visibility in any mandatory Class I Federal area(s), and

(iii) Identification of elements for inclusion in the visibility monitoring strategy required by section 305.

(2) The State must provide opportunity for consultation, in person and at least 60 days prior to holding any public hearing on the plan, with the Federal Land Manager on the proposed SIP revision required by this subpart. This consultation must include the opportunity for the affected Federal Land Managers to discuss their:

(i) Assessment of impairment of visibility in any mandatory Class I Federal area, and

(ii) Recommendations on the development of the long-term strategy.

(3) The plan must provide procedures for continuing consultation between the State and Federal Land Manager on the implementation of the visibility protection program required by this subpart.

(c) General plan requirements for reasonably attributable visibility impairment. (1) The affected Federal Land Manager may certify to the State, at any time, that there exists reasonably attributable impairment of visibility in any mandatory Class I Federal area.

(2) The plan must contain the following to address reasonably attributable impairment:

(i) A long-term (10-15 years) strategy, as specified in §51.305 and §51.306, including such emission limitations, schedules of compliance, and such other measures including schedules for the implementation of the elements of the long-term strategy as may be necessary to make reasonable progress toward the national goal specified in §51.300(a).

(ii) An assessment of visibility impairment and a discussion of how each element of the plan relates to the preventing of future or remedying of existing impairment of visibility in any mandatory Class I Federal area within the State.

(iii) Emission limitations representing BART and schedules for compliance with BART for each existing stationary facility identified according to paragraph (c)(4) of this section.

(3) The plan must require each source to maintain control equipment required by this subpart and establish procedures to ensure such control equipment is properly operated and maintained.

(4) For any existing reasonably attributable visibility impairment the Federal Land Manager certifies to the State under paragraph (c)(1) of this section, at least 6 months prior to plan submission or revision:

(i) The State must identify and analyze for BART each existing stationary facility which may reasonably be anticipated to cause or contribute to impairment of visibility in any mandatory Class I Federal area where the impairment in the mandatory Class I Federal area is reasonably attributable to that existing stationary facility. The State need not consider any integral vista the Federal Land Manager did not identify pursuant to §51.304(b) at least 6 months before plan submission.

(ii) If the State determines that technologicial or economic limitations on the applicability of measurement methodology to a particular existing stationary facility would make the imposition of an emission standard infeasible it may instead prescribe a design, equipment, work practice, or other operational standard, or combination thereof, to require the application of BART. Such standard, to the degree possible, is to set forth the emission reduction to be achieved by implementation of such design, equipment, work practice or operation, and must provide for compliance by means which achieve equivalent results.

(iii) BART must be determined for fossil-fuel fired generating plants having a total generating capacity in excess of 750 megawatts pursuant to “Guidelines for Determining Best Available Retrofit Technology for Coal-fired Power Plants and Other Existing Stationary Facilities” (1980), which is incorporated by reference, exclusive of appendix E to the Guidelines, except that options more stringent than NSPS must be considered. Establishing a BART emission limitation equivalent to the NSPS level of control is not a sufficient basis to avoid the analysis of control options required by the guidelines. This document is EPA publication No. 450/3-80-009b and has been approved for incorporation by reference by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. It is for sale from the U.S. Department of Commerce, National Technical Information Service, 5285 Port Royal Road, Springfield, Virginia 22161. It is also available for inspection from the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/index.html.

(iv) The plan must require that each existing stationary facility required to install and operate BART do so as expeditiously as practicable but in no case later than five years after plan approval.

(v) The plan must provide for a BART analysis of any existing stationary facility that might cause or contribute to impairment of visibility in any mandatory Class I Federal area identified under this paragraph (c)(4) at such times, as determined by the Administrator, as new technology for control of the pollutant becomes reasonably available if:

(A) The pollutant is emitted by that existing stationary facility,

(B) Controls representing BART for the pollutant have not previously been required under this subpart, and

(C) The impairment of visibility in any mandatory Class I Federal area is reasonably attributable to the emissions of that pollutant.

[45 FR 80089, Dec. 2, 1980, as amended at 57 FR 40042, Sept. 1, 1992; 64 FR 35764, 35774, July 1, 1999; 69 FR 18803, Apr. 9, 2004; 70 FR 39156, July 6, 2005]

§51.303   Exemptions from control.

(a)(1) Any existing stationary facility subject to the requirement under §51.302 to install, operate, and maintain BART may apply to the Administrator for an exemption from that requirement.

(2) An application under this section must include all available documentation relevant to the impact of the source's emissions on visibility in any mandatory Class I Federal area and a demonstration by the existing stationary facility that it does not or will not, by itself or in combination with other sources, emit any air pollutant which may be reasonably anticipated to cause or contribute to a significant impairment of visibility in any mandatory Class I Federal area.

(b) Any fossil-fuel fired power plant with a total generating capacity of 750 megawatts or more may receive an exemption from BART only if the owner or operator of such power plant demonstrates to the satisfaction of the Administrator that such power plant is located at such a distance from all mandatory Class I Federal areas that such power plant does not or will not, by itself or in combination with other sources, emit any air pollutant which may reasonably be anticipated to cause or contribute to significant impairment of visibility in any such mandatory Class I Federal area.

(c) Application under this §51.303 must be accompanied by a written concurrence from the State with regulatory authority over the source.

(d) The existing stationary facility must give prior written notice to all affected Federal Land Managers of any application for exemption under this §51.303.

(e) The Federal Land Manager may provide an initial recommendation or comment on the disposition of such application. Such recommendation, where provided, must be part of the exemption application. This recommendation is not to be construed as the concurrence required under paragraph (h) of this section.

(f) The Administrator, within 90 days of receipt of an application for exemption from control, will provide notice of receipt of an exemption application and notice of opportunity for public hearing on the application.

(g) After notice and opportunity for public hearing, the Administrator may grant or deny the exemption. For purposes of judicial review, final EPA action on an application for an exemption under this §51.303 will not occur until EPA approves or disapproves the State Implementation Plan revision.

(h) An exemption granted by the Administrator under this §51.303 will be effective only upon concurrence by all affected Federal Land Managers with the Administrator's determination.

[45 FR 80089, Dec. 2, 1980, as amended at 64 FR 35774, July 1, 1999]

§51.304   Identification of integral vistas.

(a) On or before December 31, 1985 the Federal Land Manager may identify any integral vista. The integral vista must be identified according to criteria the Federal Land Manager develops. These criteria must include, but are not limited to, whether the integral vista is important to the visitor's visual experience of the mandatory Class I Federal area. Adoption of criteria must be preceded by reasonable notice and opportunity for public comment on the proposed criteria.

(b) The Federal Land Manager must notify the State of any integral vistas identified under paragraph (a) of this section, and the reasons therefor.

(c) The State must list in its implementation plan any integral vista the Federal Land Manager identifies at least six months prior to plan submission, and must list in its implementation plan at its earliest opportunity, and in no case later than at the time of the periodic review of the SIP required by §51.306(c), any integral vista the Federal Land Manager identifies after that time.

(d) The State need not in its implementation plan list any integral vista the indentification of which was not made in accordance with the criteria in paragraph (a) of this section. In making this finding, the State must carefully consider the expertise of the Federal Land Manager in making the judgments called for by the criteria for identification. Where the State and the Federal Land Manager disagree on the identification of any integral vista, the State must give the Federal Land Manager an opportunity to consult with the Governor of the State.

[45 FR 80089, Dec. 2, 1980, as amended at 64 FR 35774, July 1, 1999]

§51.305   Monitoring for reasonably attributable visibility impairment.

(a) For the purposes of addressing reasonably attributable visibility impairment, each State containing a mandatory Class I Federal area must include in the plan a strategy for evaluating reasonably attributable visibility impairment in any mandatory Class I Federal area by visual observation or other appropriate monitoring techniques. Such strategy must take into account current and anticipated visibility monitoring research, the availability of appropriate monitoring techniques, and such guidance as is provided by the Agency.

(b) The plan must provide for the consideration of available visibility data and must provide a mechanism for its use in decisions required by this subpart.

[45 FR 80089, Dec. 2, 1980, as amended at 64 FR 35764, July 1, 1999]

§51.306   Long-term strategy requirements for reasonably attributable visibility impairment.

(a)(1) For the purposes of addressing reasonably attributable visibility impairment, each plan must include a long-term (10-15 years) strategy for making reasonable progress toward the national goal specified in §51.300(a). This strategy must cover any existing impairment the Federal Land Manager certifies to the State at least 6 months prior to plan submission, and any integral vista of which the Federal Land Manager notifies the State at least 6 months prior to plan submission.

(2) A long-term strategy must be developed for each mandatory Class I Federal area located within the State and each mandatory Class I Federal area located outside the State which may be affected by sources within the State. This does not preclude the development of a single comprehensive plan for all such areas.

(3) The plan must set forth with reasonable specificity why the long-term strategy is adequate for making reasonable progress toward the national visibility goal, including remedying existing and preventing future impairment.

(b) The State must coordinate its long-term strategy for an area with existing plans and goals, including those provided by the affected Federal Land Managers, that may affect impairment of visibility in any mandatory Class I Federal area.

(c) The plan must provide for periodic review and revision, as appropriate, of the long-term strategy for addressing reasonably attributable visibility impairment. The plan must provide for such periodic review and revision not less frequently than every 3 years until the date of submission of the State's first plan addressing regional haze visibility impairment in accordance with §51.308(b) and (c). On or before this date, the State must revise its plan to provide for review and revision of a coordinated long-term strategy for addressing reasonably attributable and regional haze visibility impairment, and the State must submit the first such coordinated long-term strategy. Future coordinated long-term strategies must be submitted consistent with the schedule for periodic progress reports set forth in §51.308(g). Until the State revises its plan to meet this requirement, the State must continue to comply with existing requirements for plan review and revision, and with all emission management requirements in the plan to address reasonably attributable impairment. This requirement does not affect any preexisting deadlines for State submittal of a long-term strategy review (or element thereof) between August 30, 1999, and the date required for submission of the State's first regional haze plan. In addition, the plan must provide for review of the long-term strategy as it applies to reasonably attributable impairment, and revision as appropriate, within 3 years of State receipt of any certification of reasonably attributable impairment from a Federal Land Manager. The review process must include consultation with the appropriate Federal Land Managers, and the State must provide a report to the public and the Administrator on progress toward the national goal. This report must include an assessment of:

(1) The progress achieved in remedying existing impairment of visibility in any mandatory Class I Federal area;

(2) The ability of the long-term strategy to prevent future impairment of visibility in any mandatory Class I Federal area;

(3) Any change in visibility since the last such report, or, in the case of the first report, since plan approval;

(4) Additional measures, including the need for SIP revisions, that may be necessary to assure reasonable progress toward the national visibility goal;

(5) The progress achieved in implementing BART and meeting other schedules set forth in the long-term strategy;

(6) The impact of any exemption granted under §51.303;

(7) The need for BART to remedy existing visibility impairment of any integral vista listed in the plan since the last such report, or, in the case of the first report, since plan approval.

(d) The long-term strategy must provide for review of the impacts from any new major stationary source or major modifications on visibility in any mandatory Class I Federal area. This review of major stationary sources or major modifications must be in accordance with §51.307, §51.166, §51.160, and any other binding guidance provided by the Agency insofar as these provisions pertain to protection of visibility in any mandatory Class I Federal areas.

(e) The State must consider, at a minimum, the following factors during the development of its long-term strategy:

(1) Emission reductions due to ongoing air pollution control programs,

(2) Additional emission limitations and schedules for compliance,

(3) Measures to mitigate the impacts of construction activities,

(4) Source retirement and replacement schedules,

(5) Smoke management techniques for agricultural and forestry management purposes including such plans as currently exist within the State for these purposes, and

(6) Enforceability of emission limitations and control measures.

(f) The plan must discuss the reasons why the above and other reasonable measures considered in the development of the long-term strategy were or were not adopted as part of the long-term strategy.

(g) The State, in developing the long-term strategy, must take into account the effect of new sources, and the costs of compliance, the time necessary for compliance, the energy and nonair quality environmental impacts of compliance, and the remaining useful life of any affected existing source and equipment therein.

[45 FR 80089, Dec. 2, 1980, as amended at 64 FR 35764, 35774, July 1, 1999]

§51.307   New source review.

(a) For purposes of new source review of any new major stationary source or major modification that would be constructed in an area that is designated attainment or unclassified under section 107(d)(1)(D) or (E) of the CAA, the State plan must, in any review under §51.166 with respect to visibility protection and analyses, provide for:

(1) Written notification of all affected Federal Land Managers of any proposed new major stationary source or major modification that may affect visibility in any Federal Class I area. Such notification must be made in writing and include a copy of all information relevant to the permit application within 30 days of receipt of and at least 60 days prior to public hearing by the State on the application for permit to construct. Such notification must include an analysis of the anticipated impacts on visibility in any Federal Class I area,

(2) Where the State requires or receives advance notification (e.g. early consultation with the source prior to submission of the application or notification of intent to monitor under §51.166) of a permit application of a source that may affect visibility the State must notify all affected Federal Land Managers within 30 days of such advance notification, and

(3) Consideration of any analysis performed by the Federal Land Manager, provided within 30 days of the notification and analysis required by paragraph (a)(1) of this section, that such proposed new major stationary source or major modification may have an adverse impact on visibility in any Federal Class I area. Where the State finds that such an analysis does not demonstrate to the satisfaction of the State that an adverse impact will result in the Federal Class I area, the State must, in the notice of public hearing, either explain its decision or give notice as to where the explanation can be obtained.

(b) The plan shall also provide for the review of any new major stationary source or major modification:

(1) That may have an impact on any integral vista of a mandatory Class I Federal area, if it is identified in accordance with §51.304 by the Federal Land Manager at least 12 months before submission of a complete permit application, except where the Federal Land Manager has provided notice and opportunity for public comment on the integral vista in which case the review must include impacts on any integral vista identified at least 6 months prior to submission of a complete permit application, unless the State determines under §51.304(d) that the identification was not in accordance with the identification criteria, or

(2) That proposes to locate in an area classified as nonattainment under section 107(d)(1)(A), (B), or (C) of the Clean Air Act that may have an impact on visibility in any mandatory Class I Federal area.

(c) Review of any major stationary source or major modification under paragraph (b) of this section, shall be conducted in accordance with paragraph (a) of this section, and §51.166(o), (p)(1) through (2), and (q). In conducting such reviews the State must ensure that the source's emissions will be consistent with making reasonable progress toward the national visibility goal referred to in §51.300(a). The State may take into account the costs of compliance, the time necessary for compliance, the energy and nonair quality environmental impacts of compliance, and the useful life of the source.

(d) The State may require monitoring of visibility in any Federal Class I area near the proposed new stationary source or major modification for such purposes and by such means as the State deems necessary and appropriate.

[45 FR 80089, Dec. 2, 1980, as amended at 64 FR 35765, 35774, July 1, 1999]

§51.308   Regional haze program requirements.

(a) What is the purpose of this section? This section establishes requirements for implementation plans, plan revisions, and periodic progress reviews to address regional haze.

(b) When are the first implementation plans due under the regional haze program? Except as provided in §51.309(c), each State identified in §51.300(b)(3) must submit, for the entire State, an implementation plan for regional haze meeting the requirements of paragraphs (d) and (e) of this section no later than December 17, 2007.

(c) [Reserved]

(d) What are the core requirements for the implementation plan for regional haze? The State must address regional haze in each mandatory Class I Federal area located within the State and in each mandatory Class I Federal area located outside the State which may be affected by emissions from within the State. To meet the core requirements for regional haze for these areas, the State must submit an implementation plan containing the following plan elements and supporting documentation for all required analyses:

(1) Reasonable progress goals. For each mandatory Class I Federal area located within the State, the State must establish goals (expressed in deciviews) that provide for reasonable progress towards achieving natural visibility conditions. The reasonable progress goals must provide for an improvement in visibility for the most impaired days over the period of the implementation plan and ensure no degradation in visibility for the least impaired days over the same period.

(i) In establishing a reasonable progress goal for any mandatory Class I Federal area within the State, the State must:

(A) Consider the costs of compliance, the time necessary for compliance, the energy and non-air quality environmental impacts of compliance, and the remaining useful life of any potentially affected sources, and include a demonstration showing how these factors were taken into consideration in selecting the goal.

(B) Analyze and determine the rate of progress needed to attain natural visibility conditions by the year 2064. To calculate this rate of progress, the State must compare baseline visibility conditions to natural visibility conditions in the mandatory Federal Class I area and determine the uniform rate of visibility improvement (measured in deciviews) that would need to be maintained during each implementation period in order to attain natural visibility conditions by 2064. In establishing the reasonable progress goal, the State must consider the uniform rate of improvement in visibility and the emission reduction measures needed to achieve it for the period covered by the implementation plan.

(ii) For the period of the implementation plan, if the State establishes a reasonable progress goal that provides for a slower rate of improvement in visibility than the rate that would be needed to attain natural conditions by 2064, the State must demonstrate, based on the factors in paragraph (d)(1)(i)(A) of this section, that the rate of progress for the implementation plan to attain natural conditions by 2064 is not reasonable; and that the progress goal adopted by the State is reasonable. The State must provide to the public for review as part of its implementation plan an assessment of the number of years it would take to attain natural conditions if visibility improvement continues at the rate of progress selected by the State as reasonable.

(iii) In determining whether the State's goal for visibility improvement provides for reasonable progress towards natural visibility conditions, the Administrator will evaluate the demonstrations developed by the State pursuant to paragraphs (d)(1)(i) and (d)(1)(ii) of this section.

(iv) In developing each reasonable progress goal, the State must consult with those States which may reasonably be anticipated to cause or contribute to visibility impairment in the mandatory Class I Federal area. In any situation in which the State cannot agree with another such State or group of States that a goal provides for reasonable progress, the State must describe in its submittal the actions taken to resolve the disagreement. In reviewing the State's implementation plan submittal, the Administrator will take this information into account in determining whether the State's goal for visibility improvement provides for reasonable progress towards natural visibility conditions.

(v) The reasonable progress goals established by the State are not directly enforceable but will be considered by the Administrator in evaluating the adequacy of the measures in the implementation plan to achieve the progress goal adopted by the State.

(vi) The State may not adopt a reasonable progress goal that represents less visibility improvement than is expected to result from implementation of other requirements of the CAA during the applicable planning period.

(2) Calculations of baseline and natural visibility conditions. For each mandatory Class I Federal area located within the State, the State must determine the following visibility conditions (expressed in deciviews):

(i) Baseline visibility conditions for the most impaired and least impaired days. The period for establishing baseline visibility conditions is 2000 to 2004. Baseline visibility conditions must be calculated, using available monitoring data, by establishing the average degree of visibility impairment for the most and least impaired days for each calendar year from 2000 to 2004. The baseline visibility conditions are the average of these annual values. For mandatory Class I Federal areas without onsite monitoring data for 2000-2004, the State must establish baseline values using the most representative available monitoring data for 2000-2004, in consultation with the Administrator or his or her designee;

(ii) For an implementation plan that is submitted by 2003, the period for establishing baseline visibility conditions for the period of the first long-term strategy is the most recent 5-year period for which visibility monitoring data are available for the mandatory Class I Federal areas addressed by the plan. For mandatory Class I Federal areas without onsite monitoring data, the State must establish baseline values using the most representative available monitoring data, in consultation with the Administrator or his or her designee;

(iii) Natural visibility conditions for the most impaired and least impaired days. Natural visibility conditions must be calculated by estimating the degree of visibility impairment existing under natural conditions for the most impaired and least impaired days, based on available monitoring information and appropriate data analysis techniques; and

(iv)(A) For the first implementation plan addressing the requirements of paragraphs (d) and (e) of this section, the number of deciviews by which baseline conditions exceed natural visibility conditions for the most impaired and least impaired days; or

(B) For all future implementation plan revisions, the number of deciviews by which current conditions, as calculated under paragraph (f)(1) of this section, exceed natural visibility conditions for the most impaired and least impaired days.

(3) Long-term strategy for regional haze. Each State listed in §51.300(b)(3) must submit a long-term strategy that addresses regional haze visibility impairment for each mandatory Class I Federal area within the State and for each mandatory Class I Federal area located outside the State which may be affected by emissions from the State. The long-term strategy must include enforceable emissions limitations, compliance schedules, and other measures as necessary to achieve the reasonable progress goals established by States having mandatory Class I Federal areas. In establishing its long-term strategy for regional haze, the State must meet the following requirements:

(i) Where the State has emissions that are reasonably anticipated to contribute to visibility impairment in any mandatory Class I Federal area located in another State or States, the State must consult with the other State(s) in order to develop coordinated emission management strategies. The State must consult with any other State having emissions that are reasonably anticipated to contribute to visibility impairment in any mandatory Class I Federal area within the State.

(ii) Where other States cause or contribute to impairment in a mandatory Class I Federal area, the State must demonstrate that it has included in its implementation plan all measures necessary to obtain its share of the emission reductions needed to meet the progress goal for the area. If the State has participated in a regional planning process, the State must ensure it has included all measures needed to achieve its apportionment of emission reduction obligations agreed upon through that process.

(iii) The State must document the technical basis, including modeling, monitoring and emissions information, on which the State is relying to determine its apportionment of emission reduction obligations necessary for achieving reasonable progress in each mandatory Class I Federal area it affects. The State may meet this requirement by relying on technical analyses developed by the regional planning organization and approved by all State participants. The State must identify the baseline emissions inventory on which its strategies are based. The baseline emissions inventory year is presumed to be the most recent year of the consolidate periodic emissions inventory.

(iv) The State must identify all anthropogenic sources of visibility impairment considered by the State in developing its long-term strategy. The State should consider major and minor stationary sources, mobile sources, and area sources.

(v) The State must consider, at a minimum, the following factors in developing its long-term strategy:

(A) Emission reductions due to ongoing air pollution control programs, including measures to address reasonably attributable visibility impairment;

(B) Measures to mitigate the impacts of construction activities;

(C) Emissions limitations and schedules for compliance to achieve the reasonable progress goal;

(D) Source retirement and replacement schedules;

(E) Smoke management techniques for agricultural and forestry management purposes including plans as currently exist within the State for these purposes;

(F) Enforceability of emissions limitations and control measures; and

(G) The anticipated net effect on visibility due to projected changes in point, area, and mobile source emissions over the period addressed by the long-term strategy.

(4) Monitoring strategy and other implementation plan requirements. The State must submit with the implementation plan a monitoring strategy for measuring, characterizing, and reporting of regional haze visibility impairment that is representative of all mandatory Class I Federal areas within the State. This monitoring strategy must be coordinated with the monitoring strategy required in §51.305 for reasonably attributable visibility impairment. Compliance with this requirement may be met through participation in the Interagency Monitoring of Protected Visual Environments network. The implementation plan must also provide for the following:

(i) The establishment of any additional monitoring sites or equipment needed to assess whether reasonable progress goals to address regional haze for all mandatory Class I Federal areas within the State are being achieved.

(ii) Procedures by which monitoring data and other information are used in determining the contribution of emissions from within the State to regional haze visibility impairment at mandatory Class I Federal areas both within and outside the State.

(iii) For a State with no mandatory Class I Federal areas, procedures by which monitoring data and other information are used in determining the contribution of emissions from within the State to regional haze visibility impairment at mandatory Class I Federal areas in other States.

(iv) The implementation plan must provide for the reporting of all visibility monitoring data to the Administrator at least annually for each mandatory Class I Federal area in the State. To the extent possible, the State should report visibility monitoring data electronically.

(v) A statewide inventory of emissions of pollutants that are reasonably anticipated to cause or contribute to visibility impairment in any mandatory Class I Federal area. The inventory must include emissions for a baseline year, emissions for the most recent year for which data are available, and estimates of future projected emissions. The State must also include a commitment to update the inventory periodically.

(vi) Other elements, including reporting, recordkeeping, and other measures, necessary to assess and report on visibility.

(e) Best Available Retrofit Technology (BART) requirements for regional haze visibility impairment. The State must submit an implementation plan containing emission limitations representing BART and schedules for compliance with BART for each BART-eligible source that may reasonably be anticipated to cause or contribute to any impairment of visibility in any mandatory Class I Federal area, unless the State demonstrates that an emissions trading program or other alternative will achieve greater reasonable progress toward natural visibility conditions.

(1) To address the requirements for BART, the State must submit an implementation plan containing the following plan elements and include documentation for all required analyses:

(i) A list of all BART-eligible sources within the State.

(ii) A determination of BART for each BART-eligible source in the State that emits any air pollutant which may reasonably be anticipated to cause or contribute to any impairment of visibility in any mandatory Class I Federal area. All such sources are subject to BART.

(A) The determination of BART must be based on an analysis of the best system of continuous emission control technology available and associated emission reductions achievable for each BART-eligible source that is subject to BART within the State. In this analysis, the State must take into consideration the technology available, the costs of compliance, the energy and nonair quality environmental impacts of compliance, any pollution control equipment in use at the source, the remaining useful life of the source, and the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology.

(B) The determination of BART for fossil-fuel fired power plants having a total generating capacity greater than 750 megawatts must be made pursuant to the guidelines in appendix Y of this part (Guidelines for BART Determinations Under the Regional Haze Rule).

(C) Exception. A State is not required to make a determination of BART for SO2 or for NOX if a BART-eligible source has the potential to emit less than 40 tons per year of such pollutant(s), or for PM10 if a BART-eligible source has the potential to emit less than 15 tons per year of such pollutant.

(iii) If the State determines in establishing BART that technological or economic limitations on the applicability of measurement methodology to a particular source would make the imposition of an emission standard infeasible, it may instead prescribe a design, equipment, work practice, or other operational standard, or combination thereof, to require the application of BART. Such standard, to the degree possible, is to set forth the emission reduction to be achieved by implementation of such design, equipment, work practice or operation, and must provide for compliance by means which achieve equivalent results.

(iv) A requirement that each source subject to BART be required to install and operate BART as expeditiously as practicable, but in no event later than 5 years after approval of the implementation plan revision.

(v) A requirement that each source subject to BART maintain the control equipment required by this subpart and establish procedures to ensure such equipment is properly operated and maintained.

(2) A State may opt to implement or require participation in an emissions trading program or other alternative measure rather than to require sources subject to BART to install, operate, and maintain BART. Such an emissions trading program or other alternative measure must achieve greater reasonable progress than would be achieved through the installation and operation of BART. For all such emission trading programs or other alternative measures, the State must submit an implementation plan containing the following plan elements and include documentation for all required analyses:

(i) A demonstration that the emissions trading program or other alternative measure will achieve greater reasonable progress than would have resulted from the installation and operation of BART at all sources subject to BART in the State and covered by the alternative program. This demonstration must be based on the following:

(A) A list of all BART-eligible sources within the State.

(B) A list of all BART-eligible sources and all BART source categories covered by the alternative program. The State is not required to include every BART source category or every BART-eligible source within a BART source category in an alternative program, but each BART-eligible source in the State must be subject to the requirements of the alternative program, have a federally enforceable emission limitation determined by the State and approved by EPA as meeting BART in accordance with section 302(c) or paragraph (e)(1) of this section, or otherwise addressed under paragraphs (e)(1) or (e)(4)of this section.

(C) An analysis of the best system of continuous emission control technology available and associated emission reductions achievable for each source within the State subject to BART and covered by the alternative program. This analysis must be conducted by making a determination of BART for each source subject to BART and covered by the alternative program as provided for in paragraph (e)(1) of this section, unless the emissions trading program or other alternative measure has been designed to meet a requirement other than BART (such as the core requirement to have a long-term strategy to achieve the reasonable progress goals established by States). In this case, the State may determine the best system of continuous emission control technology and associated emission reductions for similar types of sources within a source category based on both source-specific and category-wide information, as appropriate.

(D) An analysis of the projected emissions reductions achievable through the trading program or other alternative measure.

(E) A determination under paragraph (e)(3) of this section or otherwise based on the clear weight of evidence that the trading program or other alternative measure achieves greater reasonable progress than would be achieved through the installation and operation of BART at the covered sources.

(ii) [Reserved]

(iii) A requirement that all necessary emission reductions take place during the period of the first long-term strategy for regional haze. To meet this requirement, the State must provide a detailed description of the emissions trading program or other alternative measure, including schedules for implementation, the emission reductions required by the program, all necessary administrative and technical procedures for implementing the program, rules for accounting and monitoring emissions, and procedures for enforcement.

(iv) A demonstration that the emission reductions resulting from the emissions trading program or other alternative measure will be surplus to those reductions resulting from measures adopted to meet requirements of the CAA as of the baseline date of the SIP.

(v) At the State's option, a provision that the emissions trading program or other alternative measure may include a geographic enhancement to the program to address the requirement under §51.302(c) related to BART for reasonably attributable impairment from the pollutants covered under the emissions trading program or other alternative measure.

(vi) For plans that include an emissions trading program that establishes a cap on total annual emissions of SO2 or NOX from sources subject to the program, requires the owners and operators of sources to hold allowances or authorizations to emit equal to emissions, and allows the owners and operators of sources and other entities to purchase, sell, and transfer allowances, the following elements are required concerning the emissions covered by the cap:

(A) Applicability provisions defining the sources subject to the program. The State must demonstrate that the applicability provisions (including the size criteria for including sources in the program) are designed to prevent any significant potential shifting within the State of production and emissions from sources in the program to sources outside the program. In the case of a program covering sources in multiple States, the States must demonstrate that the applicability provisions in each State cover essentially the same size facilities and, if source categories are specified, cover the same source categories and prevent any significant, potential shifting within such States of production and emissions to sources outside the program.

(B) Allowance provisions ensuring that the total value of allowances (in tons) issued each year under the program will not exceed the emissions cap (in tons) on total annual emissions from the sources in the program.

(C) Monitoring provisions providing for consistent and accurate measurements of emissions from sources in the program to ensure that each allowance actually represents the same specified tonnage of emissions and that emissions are measured with similar accuracy at all sources in the program. The monitoring provisions must require that boilers, combustion turbines, and cement kilns in the program allowed to sell or transfer allowances must comply with the requirements of part 75 of this chapter. The monitoring provisions must require that other sources in the program allowed to sell or transfer allowances must provide emissions information with the same precision, reliability, accessibility, and timeliness as information provided under part 75 of this chapter.

(D) Recordkeeping provisions that ensure the enforceability of the emissions monitoring provisions and other program requirements. The recordkeeping provisions must require that boilers, combustion turbines, and cement kilns in the program allowed to sell or transfer allowances must comply with the recordkeeping provisions of part 75 of this chapter. The recordkeeping provisions must require that other sources in the program allowed to sell or transfer allowances must comply with recordkeeping requirements that, as compared with the recordkeeping provisions under part 75 of this chapter, are of comparable stringency and require recording of comparable types of information and retention of the records for comparable periods of time.

(E) Reporting provisions requiring timely reporting of monitoring data with sufficient frequency to ensure the enforceability of the emissions monitoring provisions and other program requirements and the ability to audit the program. The reporting provisions must require that boilers, combustion turbines, and cement kilns in the program allowed to sell or transfer allowances must comply with the reporting provisions of part 75 of this chapter, except that, if the Administrator is not the tracking system administrator for the program, emissions may be reported to the tracking system administrator, rather than to the Administrator. The reporting provisions must require that other sources in the program allowed to sell or transfer allowances must comply with reporting requirements that, as compared with the reporting provisions under part 75 of this chapter, are of comparable stringency and require reporting of comparable types of information and require comparable timeliness and frequency of reporting.

(F) Tracking system provisions which provide for a tracking system that is publicly available in a secure, centralized database to track in a consistent manner all allowances and emissions in the program.

(G) Authorized account representative provisions ensuring that the owners and operators of a source designate one individual who is authorized to represent the owners and operators in all matters pertaining to the trading program.

(H) Allowance transfer provisions providing procedures that allow timely transfer and recording of allowances, minimize administrative barriers to the operation of the allowance market, and ensure that such procedures apply uniformly to all sources and other potential participants in the allowance market.

(I) Compliance provisions prohibiting a source from emitting a total tonnage of a pollutant that exceeds the tonnage value of its allowance holdings, including the methods and procedures for determining whether emissions exceed allowance holdings. Such method and procedures shall apply consistently from source to source.

(J) Penalty provisions providing for mandatory allowance deductions for excess emissions that apply consistently from source to source. The tonnage value of the allowances deducted shall equal at least three times the tonnage of the excess emissions.

(K) For a trading program that allows banking of allowances, provisions clarifying any restrictions on the use of these banked allowances.

(L) Program assessment provisions providing for periodic program evaluation to assess whether the program is accomplishing its goals and whether modifications to the program are needed to enhance performance of the program.

(3) A State which opts under 40 CFR 51.308(e)(2) to implement an emissions trading program or other alternative measure rather than to require sources subject to BART to install, operate, and maintain BART may satisfy the final step of the demonstration required by that section as follows: If the distribution of emissions is not substantially different than under BART, and the alternative measure results in greater emission reductions, then the alternative measure may be deemed to achieve greater reasonable progress. If the distribution of emissions is significantly different, the State must conduct dispersion modeling to determine differences in visibility between BART and the trading program for each impacted Class I area, for the worst and best 20 percent of days. The modeling would demonstrate “greater reasonable progress” if both of the following two criteria are met:

(i) Visibility does not decline in any Class I area, and

(ii) There is an overall improvement in visibility, determined by comparing the average differences between BART and the alternative over all affected Class I areas.

(4) A State subject to a trading program established in accordance with §52.38 or §52.39 under a Transport Rule Federal Implementation Plan need not require BART-eligible fossil fuel-fired steam electric plants in the State to install, operate, and maintain BART for the pollutant covered by such trading program in the State. A State that chooses to meet the emission reduction requirements of the Transport Rule by submitting a SIP revision that establishes a trading program and is approved as meeting the requirements of §52.38 or §52.39 also need not require BART-eligible fossil fuel-fired steam electric plants in the State to install, operate, and maintain BART for the pollutant covered by such trading program in the State. A State may adopt provisions, consistent with the requirements applicable to the State for a trading program established in accordance with §52.38 or §52.39 under the Transport Rule Federal Implementation Plan or established under a SIP revision that is approved as meeting the requirements of §52.38 or §52.39, for a geographic enhancement to the program to address the requirement under §51.302(c) related to BART for reasonably attributable impairment from the pollutant covered by such trading program in that State.

(5) After a State has met the requirements for BART or implemented emissions trading program or other alternative measure that achieves more reasonable progress than the installation and operation of BART, BART-eligible sources will be subject to the requirements of paragraph (d) of this section in the same manner as other sources.

(6) Any BART-eligible facility subject to the requirement under paragraph (e) of this section to install, operate, and maintain BART may apply to the Administrator for an exemption from that requirement. An application for an exemption will be subject to the requirements of §51.303(a)(2)-(h).

(f) Requirements for comprehensive periodic revisions of implementation plans for regional haze. Each State identified in §51.300(b)(3) must revise and submit its regional haze implementation plan revision to EPA by July 31, 2018 and every ten years thereafter. In each plan revision, the State must evaluate and reassess all of the elements required in paragraph (d) of this section, taking into account improvements in monitoring data collection and analysis techniques, control technologies, and other relevant factors. In evaluating and reassessing these elements, the State must address the following:

(1) Current visibility conditions for the most impaired and least impaired days, and actual progress made towards natural conditions during the previous implementation period. The period for calculating current visibility conditions is the most recent five year period preceding the required date of the implementation plan submittal for which data are available. Current visibility conditions must be calculated based on the annual average level of visibility impairment for the most and least impaired days for each of these five years. Current visibility conditions are the average of these annual values.

(2) The effectiveness of the long-term strategy for achieving reasonable progress goals over the prior implementation period(s); and

(3) Affirmation of, or revision to, the reasonable progress goal in accordance with the procedures set forth in paragraph (d)(1) of this section. If the State established a reasonable progress goal for the prior period which provided a slower rate of progress than that needed to attain natural conditions by the year 2064, the State must evaluate and determine the reasonableness, based on the factors in paragraph (d)(1)(i)(A) of this section, of additional measures that could be adopted to achieve the degree of visibility improvement projected by the analysis contained in the first implementation plan described in paragraph (d)(1)(i)(B) of this section.

(g) Requirements for periodic reports describing progress towards the reasonable progress goals. Each State identified in §51.300(b)(3) must submit a report to the Administrator every 5 years evaluating progress towards the reasonable progress goal for each mandatory Class I Federal area located within the State and in each mandatory Class I Federal area located outside the State which may be affected by emissions from within the State. The first progress report is due 5 years from submittal of the initial implementation plan addressing paragraphs (d) and (e) of this section. The progress reports must be in the form of implementation plan revisions that comply with the procedural requirements of §51.102 and §51.103. Periodic progress reports must contain at a minimum the following elements:

(1) A description of the status of implementation of all measures included in the implementation plan for achieving reasonable progress goals for mandatory Class I Federal areas both within and outside the State.

(2) A summary of the emissions reductions achieved throughout the State through implementation of the measures described in paragraph (g)(1) of this section.

(3) For each mandatory Class I Federal area within the State, the State must assess the following visibility conditions and changes, with values for most impaired and least impaired days expressed in terms of 5-year averages of these annual values.

(i) The current visibility conditions for the most impaired and least impaired days;

(ii) The difference between current visibility conditions for the most impaired and least impaired days and baseline visibility conditions;

(iii) The change in visibility impairment for the most impaired and least impaired days over the past 5 years;

(4) An analysis tracking the change over the past 5 years in emissions of pollutants contributing to visibility impairment from all sources and activities within the State. Emissions changes should be identified by type of source or activity. The analysis must be based on the most recent updated emissions inventory, with estimates projected forward as necessary and appropriate, to account for emissions changes during the applicable 5-year period.

(5) An assessment of any significant changes in anthropogenic emissions within or outside the State that have occurred over the past 5 years that have limited or impeded progress in reducing pollutant emissions and improving visibility.

(6) An assessment of whether the current implementation plan elements and strategies are sufficient to enable the State, or other States with mandatory Federal Class I areas affected by emissions from the State, to meet all established reasonable progress goals.

(7) A review of the State's visibility monitoring strategy and any modifications to the strategy as necessary.

(h) Determination of the adequacy of existing implementation plan. At the same time the State is required to submit any 5-year progress report to EPA in accordance with paragraph (g) of this section, the State must also take one of the following actions based upon the information presented in the progress report:

(1) If the State determines that the existing implementation plan requires no further substantive revision at this time in order to achieve established goals for visibility improvement and emissions reductions, the State must provide to the Administrator a negative declaration that further revision of the existing implementation plan is not needed at this time.

(2) If the State determines that the implementation plan is or may be inadequate to ensure reasonable progress due to emissions from sources in another State(s) which participated in a regional planning process, the State must provide notification to the Administrator and to the other State(s) which participated in the regional planning process with the States. The State must also collaborate with the other State(s) through the regional planning process for the purpose of developing additional strategies to address the plan's deficiencies.

(3) Where the State determines that the implementation plan is or may be inadequate to ensure reasonable progress due to emissions from sources in another country, the State shall provide notification, along with available information, to the Administrator.

(4) Where the State determines that the implementation plan is or may be inadequate to ensure reasonable progress due to emissions from sources within the State, the State shall revise its implementation plan to address the plan's deficiencies within one year.

(i) What are the requirements for State and Federal Land Manager coordination? (1) By November 29, 1999, the State must identify in writing to the Federal Land Managers the title of the official to which the Federal Land Manager of any mandatory Class I Federal area can submit any recommendations on the implementation of this subpart including, but not limited to:

(i) Identification of impairment of visibility in any mandatory Class I Federal area(s); and

(ii) Identification of elements for inclusion in the visibility monitoring strategy required by §51.305 and this section.

(2) The State must provide the Federal Land Manager with an opportunity for consultation, in person and at least 60 days prior to holding any public hearing on an implementation plan (or plan revision) for regional haze required by this subpart. This consultation must include the opportunity for the affected Federal Land Managers to discuss their:

(i) Assessment of impairment of visibility in any mandatory Class I Federal area; and

(ii) Recommendations on the development of the reasonable progress goal and on the development and implementation of strategies to address visibility impairment.

(3) In developing any implementation plan (or plan revision), the State must include a description of how it addressed any comments provided by the Federal Land Managers.

(4) The plan (or plan revision) must provide procedures for continuing consultation between the State and Federal Land Manager on the implementation of the visibility protection program required by this subpart, including development and review of implementation plan revisions and 5-year progress reports, and on the implementation of other programs having the potential to contribute to impairment of visibility in mandatory Class I Federal areas.

[64 FR 35765, July 1, 1999, as amended at 70 FR 39156, July 6, 2005; 71 FR 60631, Oct. 13, 2006; 77 FR 33656, June 7, 2012]

§51.309   Requirements related to the Grand Canyon Visibility Transport Commission.

(a) What is the purpose of this section? This section establishes the requirements for the first regional haze implementation plan to address regional haze visibility impairment in the 16 Class I areas covered by the Grand Canyon Visibility Transport Commission Report. For the period through 2018, certain States (defined in paragraph (b) of this section as Transport Region States) may choose to implement the Commission's recommendations within the framework of the national regional haze program and applicable requirements of the Act by complying with the provisions of this section. If a Transport Region State submits an implementation plan which is approved by EPA as meeting the requirements of this section, it will be deemed to comply with the requirements for reasonable progress with respect to the 16 Class I areas for the period from approval of the plan through 2018. Any Transport Region State electing not to submit an implementation plan under this section is subject to the requirements of §51.308 in the same manner and to the same extent as any State not included within the Transport Region. Except as provided in paragraph (g) of this section, each Transport Region State is also subject to the requirements of §51.308 with respect to any other Federal mandatory Class I areas within the State or affected by emissions from the State.

(b) Definitions. For the purposes of this section:

(1) 16 Class I areas means the following mandatory Class I Federal areas on the Colorado Plateau: Grand Canyon National Park, Sycamore Canyon Wilderness, Petrified Forest National Park, Mount Baldy Wilderness, San Pedro Parks Wilderness, Mesa Verde National Park, Weminuche Wilderness, Black Canyon of the Gunnison Wilderness, West Elk Wilderness, Maroon Bells Wilderness, Flat Tops Wilderness, Arches National Park, Canyonlands National Park, Capital Reef National Park, Bryce Canyon National Park, and Zion National Park.

(2) Transport Region State means one of the States that is included within the Transport Region addressed by the Grand Canyon Visibility Transport Commission (Arizona, California, Colorado, Idaho, Nevada, New Mexico, Oregon, Utah, and Wyoming).

(3) Commission Report means the report of the Grand Canyon Visibility Transport Commission entitled “Recommendations for Improving Western Vistas,” dated June 10, 1996.

(4) Fire means wildfire, wildland fire (including prescribed natural fire), prescribed fire, and agricultural burning conducted and occurring on Federal, State, and private wildlands and farmlands.

(5) Milestone means the maximum level of annual regional SO2 emissions, in tons per year, for a given year, assessed annually, through the year 2018, consistent with paragraph (d)(4) of this section.

(6) Continuous decline in total mobile source emissions means that the projected level of emissions from mobile sources of each listed pollutant in 2008, 2013, and 2018, are less than the projected level of emissions from mobile sources of each listed pollutant for the previous period (i.e., 2008 less than 2003; 2013 less than 2008; and 2018 less than 2013).

(7) Base year means the year for which data for a source included within the program were used by the WRAP to calculate emissions as a starting point for development of the milestone required by paragraph (d)(4)(i) of this section.

(8) Base year means the year, generally a year between 1996 and 1998, for which data for a source included within the program were used by the WRAP to calculate base year emissions as a starting point for development of the Annex required by paragraph (f) of this section.

(9)-(12) [Reserved]

(13) Eligible renewable energy resource, for purposes of 40 CFR 51.309, means electricity generated by non-nuclear and non-fossil low or no air emission technologies.

(c) Implementation Plan Schedule. Each Transport Region State electing to submit an implementation plan under this section must submit such a plan no later than December 17, 2007. Indian Tribes may submit implementation plans after this deadline.

(d) Requirements of the first implementation plan for States electing to adopt all of the recommendations of the Commission Report. Except as provided for in paragraph (e) of this section, each Transport Region State must submit an implementation plan that meets the following requirements:

(1) Time period covered. The implementation plan must be effective through December 31, 2018 and continue in effect until an implementation plan revision is approved by EPA in accordance with §51.308(f).

(2) Projection of visibility improvement. For each of the 16 mandatory Class I areas located within the Transport Region State, the plan must include a projection of the improvement in visibility conditions (expressed in deciviews, and in any additional ambient visibility metrics deemed appropriate by the State) expected through the year 2018 for the most impaired and least impaired days, based on the implementation of all measures as required in the Commission report and the provisions in this section. The projection must be made in consultation with other Transport Region States with sources which may be reasonably anticipated to contribute to visibility impairment in the relevant Class I area. The projection may be based on a satisfactory regional analysis.

(3) Treatment of clean-air corridors. The plan must describe and provide for implementation of comprehensive emission tracking strategies for clean-air corridors to ensure that the visibility does not degrade on the least-impaired days at any of the 16 Class I areas. The strategy must include:

(i) An identification of clean-air corridors. The EPA will evaluate the State's identification of such corridors based upon the reports of the Commission's Meteorology Subcommittee and any future updates by a successor organization;

(ii) Within areas that are clean-air corridors, an identification of patterns of growth or specific sites of growth that could cause, or are causing, significant emissions increases that could have, or are having, visibility impairment at one or more of the 16 Class I areas.

(iii) In areas outside of clean-air corridors, an identification of significant emissions growth that could begin, or is beginning, to impair the quality of air in the corridor and thereby lead to visibility degradation for the least-impaired days in one or more of the 16 Class I areas.

(iv) If impairment of air quality in clean air corridors is identified pursuant to paragraphs (d)(3)(ii) and (iii) of this section, an analysis of the effects of increased emissions, including provisions for the identification of the need for additional emission reductions measures, and implementation of the additional measures where necessary.

(v) A determination of whether other clean air corridors exist for any of the 16 Class I areas. For any such clean air corridors, an identification of the necessary measures to protect against future degradation of air quality in any of the 16 Class I areas.

(4) Implementation of stationary source reductions. The first implementation plan submission must include:

(i) Provisions for stationary source emissions of SO2. The plan submission must include a SO2 program that contains quantitative emissions milestones for stationary source SO2 emissions for each year through 2018. After the first two years of the program, compliance with the annual milestones may be measured by comparing a three-year rolling average of actual emissions with a rolling average of the emissions milestones for the same three years. During the first two years of the program, compliance with the milestones may be measured by a methodology of the States' choosing, so long as all States in the program use the same methodology. Compliance with the 2018 milestone shall be measured by comparing actual emissions from the year 2018 with the 2018 milestone. The milestones must provide for steady and continuing emissions reductions through 2018 consistent with the Commission's definition of reasonable progress, its goal of 50 to 70 percent reduction in SO2 emissions from 1990 actual emission levels by 2040, applicable requirements under the CAA, and the timing of implementation plan assessments of progress and identification of any deficiencies which will be due in the years 2013 and 2018. The milestones must be shown to provide for greater reasonable progress than would be achieved by application of BART pursuant to §51.308(e)(2).

(ii) Documentation of emissions calculation methods for SO2. The plan submission must include documentation of the specific methodology used to calculate SO2 emissions during the base year for each emitting unit included in the program. The implementation plan must also provide for documentation of any change to the specific methodology used to calculate emissions at any emitting unit for any year after the base year.

(iii) Monitoring, recordkeeping, and reporting of SO2 emissions. The plan submission must include provisions requiring the monitoring, recordkeeping, and annual reporting of actual stationary source SO2 emissions within the State. The monitoring, recordkeeping, and reporting data must be sufficient to determine annually whether the milestone for each year through 2018 is achieved. The plan submission must provide for reporting of these data by the State to the Administrator and to the regional planning organization. The plan must provide for retention of records for at least 10 years from the establishment of the record.

(iv) Criteria and Procedures for a Market Trading Program. The plan must include the criteria and procedures for conducting an annual evaluation of whether the milestone is achieved and, in accordance with paragraph (d)(4)(v) of this section, for activating a market trading program in the event the milestone is not achieved. A draft of the annual report evaluating whether the milestone for each year is achieved shall be completed no later than 12 months from the end of each milestone year. The plan must also provide for assessments of the program in the years 2013 and 2018.

(v) Market Trading Program. The implementation plan must include requirements for a market trading program to be implemented in the event that a milestone is not achieved. The plan shall require that the market trading program be activated beginning no later than 15 months after the end of the first year in which the milestone is not achieved. The plan shall also require that sources comply, as soon as practicable, with the requirement to hold allowances covering their emissions. Such market trading program must be sufficient to achieve the milestones in paragraph (d)(4)(i) of this section, and must be consistent with the elements for such programs outlined in §51.308(e)(2)(vi). Such a program may include a geographic enhancement to the program to address the requirement under §51.302(c) related to BART for reasonably attributable impairment from the pollutants covered under the program.

(vi) Provision for the 2018 milestone.

(A) Unless and until a revised implementation plan is submitted in accordance with §51.308(f) and approved by EPA, the implementation plan shall prohibit emissions from covered stationary sources in any year beginning in 2018 that exceed the year 2018 milestone. In no event shall a market-based program approved under §51.308(f) allow an emissions cap for SO2 that is less stringent than the 2018 milestone, unless the milestones are replaced by a different program approved by EPA as meeting the BART and reasonable progress requirements established in §51.308.

(B) The implementation plan must provide a framework, including financial penalties for excess emissions based on the 2018 milestone, sufficient to ensure that the 2018 milestone will be met even if the implementation of the market trading program in paragraph (d)(4)(v) of this section has not yet been triggered, or the source allowance compliance provision of the trading program is not yet in effect.

(vii) Provisions for stationary source emissions of NOX and PM. The implementation plan must contain any necessary long term strategies and BART requirements for stationary source PM and NOX emissions. Any such BART provisions may be submitted pursuant to either §51.308(e)(1) or '51.308(e)(2).

(5) Mobile sources. The plan submission must provide for:

(i) Statewide inventories of onroad and nonroad mobile source emissions of VOC, NOX, SO2, PM2.5, elemental carbon, and organic carbon for the years 2003, 2008, 2013, and 2018.

(A) The inventories must demonstrate a continuous decline in total mobile source emissions (onroad plus nonroad; tailpipe and evaporative) of VOC, NOX, PM2.5, elemental carbon, and organic carbon, evaluated separately. If the inventories show a continuous decline in total mobile source emissions of each of these pollutants over the period 2003-2018, no further action is required as part of this plan to address mobile source emissions of these pollutants. If the inventories do not show a continuous decline in mobile source emissions of one or more of these pollutants over the period 2003-2018, the plan submission must provide for an implementation plan revision by no later than December 31, 2008 containing any necessary long-term strategies to achieve a continuous decline in total mobile source emissions of the pollutant(s), to the extent practicable, considering economic and technological reasonableness and federal preemption of vehicle standards and fuel standards under title II of the CAA.

(B) The plan submission must also provide for an implementation plan revision by no later than December 31, 2008 containing any long-term strategies necessary to reduce emissions of SO2 from nonroad mobile sources, consistent with the goal of reasonable progress. In assessing the need for such long-term strategies, the State may consider emissions reductions achieved or anticipated from any new Federal standards for sulfur in nonroad diesel fuel.

(ii) Interim reports to EPA and the public in years 2003, 2008, 2013, and 2018 on the implementation status of the regional and local strategies recommended by the Commission Report to address mobile source emissions.

(6) Programs related to fire. The plan must provide for:

(i) Documentation that all Federal, State, and private prescribed fire programs within the State evaluate and address the degree visibility impairment from smoke in their planning and application. In addition the plan must include smoke management programs that include all necessary components including, but not limited to, actions to minimize emissions, evaluation of smoke dispersion, alternatives to fire, public notification, air quality monitoring, surveillance and enforcement, and program evaluation.

(ii) A statewide inventory and emissions tracking system (spatial and temporal) of VOC, NOX, elemental and organic carbon, and fine particle emissions from fire. In reporting and tracking emissions from fire from within the State, States may use information from regional data-gathering and tracking initiatives.

(iii) Identification and removal wherever feasible of any administrative barriers to the use of alternatives to burning in Federal, State, and private prescribed fire programs within the State.

(iv) Enhanced smoke management programs for fire that consider visibility effects, not only health and nuisance objectives, and that are based on the criteria of efficiency, economics, law, emission reduction opportunities, land management objectives, and reduction of visibility impact.

(v) Establishment of annual emission goals for fire, excluding wildfire, that will minimize emission increases from fire to the maximum extent feasible and that are established in cooperation with States, tribes, Federal land management agencies, and private entities.

(7) Area sources of dust emissions from paved and unpaved roads. The plan must include an assessment of the impact of dust emissions from paved and unpaved roads on visibility conditions in the 16 Class I Areas. If such dust emissions are determined to be a significant contributor to visibility impairment in the 16 Class I areas, the State must implement emissions management strategies to address the impact as necessary and appropriate.

(8) Pollution prevention. The plan must provide for:

(i) An initial summary of all pollution prevention programs currently in place, an inventory of all renewable energy generation capacity and production in use, or planned as of the year 2002 (expressed in megawatts and megawatt-hours), the total energy generation capacity and production for the State, the percent of the total that is renewable energy, and the State's anticipated contribution toward the renewable energy goals for 2005 and 2015, as provided in paragraph (d)(8)(vi) of this section.

(ii) Programs to provide incentives that reward efforts that go beyond compliance and/or achieve early compliance with air-pollution related requirements.

(iii) Programs to preserve and expand energy conservation efforts.

(iv) The identification of specific areas where renewable energy has the potential to supply power where it is now lacking and where renewable energy is most cost-effective.

(v) Projections of the short- and long-term emissions reductions, visibility improvements, cost savings, and secondary benefits associated with the renewable energy goals, energy efficiency and pollution prevention activities.

(vi) A description of the programs relied on to achieve the State's contribution toward the Commission's goal that renewable energy will comprise 10 percent of the regional power needs by 2005 and 20 percent by 2015, and a demonstration of the progress toward achievement of the renewable energy goals in the years 2003, 2008, 2013, and 2018. This description must include documentation of the potential for renewable energy resources, the percentage of renewable energy associated with new power generation projects implemented or planned, and the renewable energy generation capacity and production in use and planned in the State. To the extent that it is not feasible for a State to meet its contribution to the regional renewable energy goals, the State must identify in the progress reports the measures implemented to achieve its contribution and explain why meeting the State's contribution was not feasible.

(9) Implementation of additional recommendations. The plan must provide for implementation of all other recommendations in the Commission report that can be practicably included as enforceable emission limits, schedules of compliance, or other enforceable measures (including economic incentives) to make reasonable progress toward remedying existing and preventing future regional haze in the 16 Class I areas. The State must provide a report to EPA and the public in 2003, 2008, 2013, and 2018 on the progress toward developing and implementing policy or strategy options recommended in the Commission Report.

(10) Periodic implementation plan revisions. Each Transport Region State must submit to the Administrator periodic reports in the years 2013 and 2018. The progress reports must be in the form of implementation plan revisions that comply with the procedural requirements of §§51.102 and 51.103.

(i) The report will assess the area for reasonable progress as provided in this section for mandatory Class I Federal area(s) located within the State and for mandatory Class I Federal area(s) located outside the State which may be affected by emissions from within the State. This demonstration may be based on assessments conducted by the States and/or a regional planning body. The progress reports must contain at a minimum the following elements:

(A) A description of the status of implementation of all measures included in the implementation plan for achieving reasonable progress goals for mandatory Class I Federal areas both within and outside the State.

(B) A summary of the emissions reductions achieved throughout the State through implementation of the measures described in paragraph (d)(10)(i)(A) of this section.

(C) For each mandatory Class I Federal area within the State, an assessment of the following: the current visibility conditions for the most impaired and least impaired days; the difference between current visibility conditions for the most impaired and least impaired days and baseline visibility conditions; the change in visibility impairment for the most impaired and least impaired days over the past 5 years.

(D) An analysis tracking the change over the past 5 years in emissions of pollutants contributing to visibility impairment from all sources and activities within the State. Emissions changes should be identified by type of source or activity. The analysis must be based on the most recent updated emissions inventory, with estimates projected forward as necessary and appropriate, to account for emissions changes during the applicable 5-year period.

(E) An assessment of any significant changes in anthropogenic emissions within or outside the State that have occurred over the past 5 years that have limited or impeded progress in reducing pollutant emissions and improving visibility.

(F) An assessment of whether the current implementation plan elements and strategies are sufficient to enable the State, or other States with mandatory Federal Class I areas affected by emissions from the State, to meet all established reasonable progress goals.

(G) A review of the State's visibility monitoring strategy and any modifications to the strategy as necessary.

(ii) At the same time the State is required to submit any 5-year progress report to EPA in accordance with paragaph (d)(10)(i) of this section, the State must also take one of the following actions based upon the information presented in the progress report:

(A) If the State determines that the existing implementation plan requires no further substantive revision at this time in order to achieve established goals for visibility improvement and emissions reductions, the State must provide to the Administrator a negative declaration that further revision of the existing implementation plan is not needed at this time.

(B) If the State determines that the implementation plan is or may be inadequate to ensure reasonable progress due to emissions from sources in another State(s) which participated in a regional planning process, the State must provide notification to the Administrator and to the other State(s) which participated in the regional planning process with the States. The State must also collaborate with the other State(s) through the regional planning process for the purpose of developing additional strategies to address the plan's deficiencies.

(C) Where the State determines that the implementation plan is or may be inadequate to ensure reasonable progress due to emissions from sources in another country, the State shall provide notification, along with available information, to the Administrator.

(D) Where the State determines that the implementation plan is or may be inadequate to ensure reasonable progress due to emissions from within the State, the State shall develop additional strategies to address the plan deficiencies and revise the implementation plan no later than one year from the date that the progress report was due.

(11) State planning and interstate coordination. In complying with the requirements of this section, States may include emission reductions strategies that are based on coordinated implementation with other States. Examples of these strategies include economic incentive programs and transboundary emissions trading programs. The implementation plan must include documentation of the technical and policy basis for the individual State apportionment (or the procedures for apportionment throughout the trans-boundary region), the contribution addressed by the State's plan, how it coordinates with other State plans, and compliance with any other appropriate implementation plan approvability criteria. States may rely on the relevant technical, policy and other analyses developed by a regional entity (such as the Western Regional Air Partnership) in providing such documentation. Conversely, States may elect to develop their own programs without relying on work products from a regional entity.

(12) Tribal implementation. Consistent with 40 CFR Part 49, tribes within the Transport Region may implement the required visibility programs for the 16 Class I areas, in the same manner as States, regardless of whether such tribes have participated as members of a visibility transport commission.

(e) States electing not to implement the commission recommendations. Any Transport Region State may elect not to implement the Commission recommendations set forth in paragraph (d) of this section. Such States are required to comply with the timelines and requirements of §51.308. Any Transport Region State electing not to implement the Commission recommendations must advise the other States in the Transport Region of the nature of the program and the effect of the program on visibility-impairing emissions, so that other States can take this information into account in developing programs under this section.

(f) [Reserved]

(g) Additional Class I areas. Each Transport Region State implementing the provisions of this section as the basis for demonstrating reasonable progress for mandatory Class I Federal areas other than the 16 Class I areas must include the following provisions in its implementation plan. If a Transport Region State submits an implementation plan which is approved by EPA as meeting the requirements of this section, it will be deemed to comply with the requirements for reasonable progress for the period from approval of the plan to 2018.

(1) A demonstration of expected visibility conditions for the most impaired and least impaired days at the additional mandatory Class I Federal area(s) based on emissions projections from the long-term strategies in the implementation plan. This demonstration may be based on assessments conducted by the States and/or a regional planning body.

(2) Provisions establishing reasonable progress goals and implementing any additional measures necessary to demonstrate reasonable progress for the additional mandatory Federal Class I areas. These provisions must comply with the provisions of §51.308(d)(1) through (4).

(i) In developing long-term strategies pursuant to §51.308(d)(3), the State may build upon the strategies implemented under paragraph (d) of this section, and take full credit for the visibility improvement achieved through these strategies.

(ii) The requirement under §51.308(e) related to Best Available Retrofit Technology for regional haze is deemed to be satisfied for pollutants addressed by the milestones and backstop trading program if, in establishing the emission reductions milestones under paragraph (d)(4) of this section, it is shown that greater reasonable progress will be achieved for these additional Class I areas than would be achieved through the application of source-specific BART emission limitations under §51.308(e)(1).

(iii) The Transport Region State may consider whether any strategies necessary to achieve the reasonable progress goals required by paragraph (g)(2) of this section are incompatible with the strategies implemented under paragraph (d) of this section to the extent the State adequately demonstrates that the incompatibility is related to the costs of the compliance, the time necessary for compliance, the energy and no air quality environmental impacts of compliance, or the remaining useful life of any existing source subject to such requirements.

[64 FR 35769, July 1, 1999, as amended at 68 FR 33784, June 5, 2003; 68 FR 39846, July 3, 2003; 68 FR 61369, Oct. 28, 2003; 68 FR 71014, Dec. 22, 2003; 71 FR 60632, Oct. 13, 2006]

Subpart Q—Reports

Authority: Secs. 110, 301(a), 313, 319, Clean Air Act (42 U.S.C. 7410, 7601(a), 7613, 7619).

Source: 44 FR 27569, May 10, 1979, unless otherwise noted.

Air Quality Data Reporting

§51.320   Annual air quality data report.

The requirements for reporting air quality data collected for purposes of the plan are located in subpart C of part 58 of this chapter.

Source Emissions and State Action Reporting

§51.321   Annual source emissions and State action report.

The State agency shall report to the Administrator (through the appropriate Regional Office) information as specified in §§51.322 through 51.326.

[67 FR 39615, June 10, 2002]

§51.322   Sources subject to emissions reporting.

The requirements for reporting emissions data under the plan are in subpart A of this part 51.

[67 FR 39615, June 10, 2002]

§51.323   Reportable emissions data and information.

The requirements for reportable emissions data and information under the plan are in subpart A of this part 51.

[67 FR 39615, June 10, 2002]

§51.324   Progress in plan enforcement.

(a) For each point source, the State shall report any achievement made during the reporting period of any increment of progress of compliance schedules required by:

(1) The applicable plan, or

(2) Any enforcement order or other State action required to be submitted pursuant to §51.327.

(b) For each point source, the State shall report any enforcement action taken during the reporting period and not submitted under §51.327 which results in civil or criminal penalties.

§51.326   Reportable revisions.

The State shall identify and describe all substantive plan revisions during the reporting period of the applicable plan other than revisions to rules and regulations or compliance schedules submitted in accordance with §51.6(d). Substantive revisions shall include but are not limited to changes in stack-test procedures for determining compliance with applicable regulations, modifications in the projected total manpower needs to carry out the approved plan, and all changes in responsibilities given to local agencies to carry out various portions of the plan.

§51.327   Enforcement orders and other State actions.

(a) Any State enforcement order, including any State court order, must be submitted to the Administrator within 60 days of its issuance or adoption by the State.

(b) A State enforcement order or other State action must be submitted as a revision to the applicable implementation plan pursuant to §51.104 and approved by the Administrator in order to be considered a revision to such plan.

[36 FR 22398, Nov. 25, 1971, as amended at 51 FR 40675, Nov. 7, 1986]

§51.328   [Reserved]

Subpart R—Extensions

§51.341   Request for 18-month extension.

(a) Upon request of the State made in accordance with this section, the Administrator may, whenever he determines necessary, extend, for a period not to exceed 18 months, the deadline for submitting that portion of a plan that implements a secondary standard.

(b) Any such request must show that attainment of the secondary standards will require emission reductions exceeding those which can be achieved through the application of reasonably available control technology.

(c) Any such request for extension of the deadline with respect to any State's portion of an interstate region must be submitted jointly with requests for such extensions from all other States within the region or must show that all such States have been notified of such request.

(d) Any such request must be submitted sufficiently early to permit development of a plan prior to the deadline in the event that such request is denied.

[51 FR 40675, Nov. 7, 1986]

Subpart S—Inspection/Maintenance Program Requirements

Source: 57 FR 52987, Nov. 5, 1992, unless otherwise noted.

§51.350   Applicability.

Inspection/maintenance (I/M) programs are required in both ozone and carbon monoxide (CO) nonattainment areas, depending upon population and nonattainment classification or design value.

(a) Nonattainment area classification and population criteria. (1) States or areas within an ozone transport region shall implement enhanced I/M programs in any metropolitan statistical area (MSA), or portion of an MSA, within the State or area with a 1990 population of 100,000 or more as defined by the Office of Management and Budget (OMB) regardless of the area's attainment classification. In the case of a multi-state MSA, enhanced I/M shall be implemented in all ozone transport region portions if the sum of these portions has a population of 100,000 or more, irrespective of the population of the portion in the individual ozone transport region State or area.

(2) Apart from those areas described in paragraph (a)(1) of this section, any area classified as serious or worse ozone nonattainment, or as moderate or serious CO nonattainment with a design value greater than 12.7 ppm, and having a 1980 Bureau of Census-defined (Census-defined) urbanized area population of 200,000 or more, shall implement enhanced I/M in the 1990 Census-defined urbanized area.

(3) Any area classified, as of November 5, 1992, as marginal ozone nonattainment or moderate CO nonattainment with a design value of 12.7 ppm or less shall continue operating I/M programs that were part of an approved State Implementation Plan (SIP) as of November 15, 1990, and shall update those programs as necessary to meet the basic I/M program requirements of this subpart. Any such area required by the Clean Air Act, as in effect prior to November 15, 1990, as interpreted in EPA guidance, to have an I/M program shall also implement a basic I/M program. Serious, severe and extreme ozone areas and CO areas over 12.7 ppm shall also continue operating existing I/M programs and shall upgrade such programs, as appropriate, pursuant to this subpart.

(4) Any area classified as moderate ozone nonattainment, and not required to implement enhanced I/M under paragraph (a)(1) of this section, shall implement basic I/M in any 1990 Census-defined urbanized area with a population of 200,000 or more.

(5) [Reserved]

(6) If the boundaries of a moderate ozone nonattainment area are changed pursuant to section 107(d)(4)(A)(i)-(ii) of the Clean Air Act, such that the area includes additional urbanized areas with a population of 200,000 or more, then a basic I/M program shall be implemented in these additional urbanized areas.

(7) If the boundaries of a serious or worse ozone nonattainment area or of a moderate or serious CO nonattainment area with a design value greater than 12.7 ppm are changed any time after enactment pursuant to section 107(d)(4)(A) such that the area includes additional urbanized areas, then an enhanced I/M program shall be implemented in the newly included 1990 Census-defined urbanized areas, if the 1980 Census-defined urban area population is 200,000 or more.

(8) If a marginal ozone nonattainment area, not required to implement enhanced I/M under paragraph (a)(1) of this section, is reclassified to moderate, a basic I/M program shall be implemented in the 1990 Census-defined urbanized area(s) with a population of 200,000 or more. If the area is reclassified to serious or worse, an enhanced I/M program shall be implemented in the 1990 Census-defined urbanized area, if the 1980 Census-defined urban area population is 200,000 or more.

(9) If a moderate ozone or CO nonattainment area is reclassified to serious or worse, an enhanced I/M program shall be implemented in the 1990 Census-defined urbanized area, if the 1980 Census-defined population is 200,000 or more.

(b) Extent of area coverage. (1) In an ozone transport region, the program shall cover all counties within subject MSAs or subject portions of MSAs, as defined by OMB in 1990, except largely rural counties having a population density of less than 200 persons per square mile based on the 1990 Census and counties with less than 1% of the population in the MSA may be excluded provided that at least 50% of the MSA population is included in the program. This provision does not preclude the voluntary inclusion of portions of an excluded county. Non-urbanized islands not connected to the mainland by roads, bridges, or tunnels may be excluded without regard to population.

(2) Outside of ozone transport regions, programs shall nominally cover at least the entire urbanized area, based on the 1990 census. Exclusion of some urban population is allowed as long as an equal number of non-urban residents of the MSA containing the subject urbanized area are included to compensate for the exclusion.

(3) Emission reduction benefits from expanding coverage beyond the minimum required urban area boundaries can be applied toward the reasonable further progress requirements or can be used for offsets, provided the covered vehicles are operated in the nonattainment area, but not toward the enhanced I/M performance standard requirement.

(4) In a multi-state urbanized area with a population of 200,000 or more that is required under paragraph (a) of this section to implement I/M, any State with a portion of the area having a 1990 Census-defined population of 50,000 or more shall implement an I/M program. The other coverage requirements in paragraph (b) of this section shall apply in multi-state areas as well.

(5) Notwithstanding the limitation in paragraph (b)(3) of this section, in an ozone transport region, States which opt for a program which meets the performance standard described in §51.351(h) and claim in their SIP less emission reduction credit than the basic performance standard for one or more pollutants, may apply a geographic bubble covering areas in the State not otherwise subject to an I/M requirement to achieve emission reductions from other measures equal to or greater than what would have been achieved if the low enhanced performance standard were met in the subject I/M areas. Emissions reductions from non-I/M measures shall not be counted towards the OTR low enhanced performance standard.

(c) Requirements after attainment. All I/M programs shall provide that the program will remain effective, even if the area is redesignated to attainment status or the standard is otherwise rendered no longer applicable, until the State submits and EPA approves a SIP revision which convincingly demonstrates that the area can maintain the relevant standard(s) without benefit of the emission reductions attributable to the I/M program. The State shall commit to fully implement and enforce the program until such a demonstration can be made and approved by EPA. At a minimum, for the purposes of SIP approval, legislation authorizing the program shall not sunset prior to the attainment deadline for the applicable National Ambient Air Quality Standards (NAAQS).

(d) SIP requirements. The SIP shall describe the applicable areas in detail and, consistent with §51.372 of this subpart, shall include the legal authority or rules necessary to establish program boundaries.

[57 FR 52987, Nov. 5, 1992, as amended at 60 FR 48034, Sept. 18, 1995; 61 FR 39036, July 25, 1996; 65 FR 45532, July 24, 2000]

§51.351   Enhanced I/M performance standard.

(a) [Reserved]

(b) On-road testing. The performance standard shall include on-road testing (including out-of-cycle repairs in the case of confirmed failures) of at least 0.5% of the subject vehicle population, or 20,000 vehicles whichever is less, as a supplement to the periodic inspection required in paragraphs (f), (g), and (h) of this section. Specific requirements are listed in §51.371 of this subpart.

(c) On-board diagnostics (OBD). For those areas required to implement an enhanced I/M program prior to the effective date of designation and classifications under the 8-hour ozone standard, the performance standard shall include inspection of all model year 1996 and later light-duty vehicles and light-duty trucks equipped with certified on-board diagnostic systems, and repair of malfunctions or system deterioration identified by or affecting OBD systems as specified in §51.357, and assuming a start date of 2002 for such testing. For areas required to implement enhanced I/M as a result of designation and classification under the 8-hour ozone standard, the performance standard defined in paragraph (i) of this section shall include inspection of all model year 2001 and later light-duty vehicles and light-duty trucks equipped with certified on-board diagnostic systems, and repair of malfunctions or system deterioration identified by or affecting OBD systems as specified in §51.357, and assuming a start date of 4 years after the effective date of designation and classification under the 8-hour ozone standard.

(d) Modeling requirements. Equivalency of the emission levels which will be achieved by the I/M program design in the SIP to those of the model program described in this section shall be demonstrated using the most current version of EPA's mobile source emission model, or an alternative approved by the Administrator, using EPA guidance to aid in the estimation of input parameters. States may adopt alternative approaches that meet this performance standard. States may do so through program design changes that affect normal I/M input parameters to the mobile source emission factor model, or through program changes (such as the accelerated retirement of high emitting vehicles) that reduce in-use mobile source emissions. If the Administrator finds, under section 182(b)(1)(A)(i) of the Act pertaining to reasonable further progress demonstrations or section 182(f)(1) of the Act pertaining to provisions for major stationary sources, that NOX emission reductions are not beneficial in a given ozone nonattainment area, then NOX emission reductions are not required of the enhanced I/M program, but the program shall be designed to offset NOX increases resulting from the repair of HC and CO failures.

(e) [Reserved]

(f) High Enhanced Performance Standard. Enhanced I/M programs shall be designed and implemented to meet or exceed a minimum performance standard, which is expressed as emission levels in area-wide average grams per mile (gpm), achieved from highway mobile sources as a result of the program. The emission levels achieved by the State's program design shall be calculated using the most current version, at the time of submittal, of the EPA mobile source emission factor model or an alternative model approved by the Administrator, and shall meet the minimum performance standard both in operation and for SIP approval. Areas shall meet the performance standard for the pollutants which cause them to be subject to enhanced I/M requirements. In the case of ozone nonattainment areas subject to enhanced I/M and subject areas in the Ozone Transport Region, the performance standard must be met for both oxides of nitrogen (NOx) and volatile organic compounds (VOCs), except as provided in paragraph (d) of this section. Except as provided in paragraphs (g) and (h) of this section, the model program elements for the enhanced I/M performance standard shall be as follows:

(1) Network type. Centralized testing.

(2) Start date. For areas with existing I/M programs, 1983. For areas newly subject, 1995.

(3) Test frequency. Annual testing.

(4) Model year coverage. Testing of 1968 and later vehicles.

(5) Vehicle type coverage. Light duty vehicles, and light duty trucks, rated up to 8,500 pounds Gross Vehicle Weight Rating (GVWR).

(6) Exhaust emission test type. Transient mass-emission testing on 1986 and later model year vehicles using the IM240 driving cycle, two-speed testing (as described in appendix B of this subpart S) of 1981-1985 vehicles, and idle testing (as described in appendix B of this subpart S) of pre-1981 vehicles is assumed.

(7) Emission standards. (i) Emission standards for 1986 through 1993 model year light duty vehicles, and 1994 and 1995 light-duty vehicles not meeting Tier 1 emission standards, of 0.80 gpm hydrocarbons (HC), 20 gpm CO, and 2.0 gpm NOX;

(ii) Emission standards for 1986 through 1993 light duty trucks less than 6000 pounds gross vehicle weight rating (GVWR), and 1994 and 1995 trucks not meeting Tier 1 emission standards, of 1.2 gpm HC, 20 gpm CO, and 3.5 gpm NOX;

(iii) Emission standards for 1986 through 1993 light duty trucks greater than 6000 pounds GVWR, and 1994 and 1995 trucks not meeting the Tier 1 emission standards, of 1.2 gpm HC, 20 gpm CO, and 3.5 gpm NOX;

(iv) Emission standards for 1994 and later light duty vehicles meeting Tier 1 emission standards of 0.70 gpm HC, 15 gpm CO, and 1.4 gpm NOX;

(v) Emission standards for 1994 and later light duty trucks under 6000 pounds GVWR and meeting Tier 1 emission standards of 0.70 gpm HC, 15 gpm CO, and 2.0 gpm NOX;

(vi) Emission standards for 1994 and later light duty trucks greater than 6000 pounds GVWR and meeting Tier 1 emission standards of 0.80 gpm HC, 15 gpm CO and 2.5 gpm NOX;

(vii) Emission standards for 1981-1985 model year vehicles of 1.2% CO, and 220 gpm HC for the idle, two-speed tests and loaded steady-state tests (as described in appendix B of this subpart S); and

(viii) Maximum exhaust dilution measured as no less than 6% CO plus carbon dioxide (CO2) on vehicles subject to a steady-state test (as described in appendix B of this subpart S); and

(viii) Maximum exhaust dilution measured as no less than 6% CO plus carbon dioxide (CO2) on vehicles subject to a steady-state test (as described in appendix B of this subpart S).

(8) Emission control device inspections. (i) Visual inspection of the catalyst and fuel inlet restrictor on all 1984 and later model year vehicles.

(ii) Visual inspection of the positive crankcase ventilation valve on 1968 through 1971 model years, inclusive, and of the exhaust gas recirculation valve on 1972 through 1983 model year vehicles, inclusive.

(9) Evaporative system function checks. Evaporative system integrity (pressure) test on 1983 and later model year vehicles and an evaporative system transient purge test on 1986 and later model year vehicles.

(10) Stringency. A 20% emission test failure rate among pre-1981 model year vehicles.

(11) Waiver rate. A 3% waiver rate, as a percentage of failed vehicles.

(12) Compliance rate. A 96% compliance rate.

(13) Evaluation date. Enhanced I/M program areas subject to the provisions of this paragraph shall be shown to obtain the same or lower emission levels as the model program described in this paragraph by January 1, 2002 to within ±0.02 gpm. Subject programs shall demonstrate through modeling the ability to maintain this level of emission reduction (or better) through their attainment deadline for the applicable NAAQS standard(s).

(g) Alternate Low Enhanced I/M Performance Standard. An enhanced I/M area which is either not subject to or has an approved State Implementation Plan pursuant to the requirements of the Clean Air Act Amendments of 1990 for Reasonable Further Progress in 1996, and does not have a disapproved plan for Reasonable Further Progress for the period after 1996 or a disapproved plan for attainment of the air quality standards for ozone or CO, may select the alternate low enhanced I/M performance standard described below in lieu of the standard described in paragraph (f) of this section. The model program elements for this alternate low enhanced I/M performance standard are:

(1) Network type. Centralized testing.

(2) Start date. For areas with existing I/M programs, 1983. For areas newly subject, 1995.

(3) Test frequency. Annual testing.

(4) Model year coverage. Testing of 1968 and newer vehicles.

(5) Vehicle type coverage. Light duty vehicles, and light duty trucks, rated up to 8,500 pounds GVWR.

(6) Exhaust emission test type. Idle testing of all covered vehicles (as described in appendix B of subpart S).

(7) Emission standards. Those specified in 40 CFR part 85, subpart W.

(8) Emission control device inspections. Visual inspection of the positive crankcase ventilation valve on all 1968 through 1971 model year vehicles, inclusive, and of the exhaust gas recirculation valve on all 1972 and newer model year vehicles.

(9) Evaporative system function checks. None.

(10) Stringency. A 20% emission test failure rate among pre-1981 model year vehicles.

(11) Waiver rate. A 3% waiver rate, as a percentage of failed vehicles.

(12) Compliance rate. A 96% compliance rate.

(13) Evaluation date. Enhanced I/M program areas subject to the provisions of this paragraph (g) shall be shown to obtain the same or lower emission levels as the model program described in this paragraph by January 1, 2002 to within ±0.02 gpm. Subject programs shall demonstrate through modeling the ability to maintain this level of emission reduction (or better) through their attainment deadline for the applicable NAAQS standard(s).

(h) Ozone Transport Region Low-Enhanced Performance Standard. An attainment area, marginal ozone area, or moderate ozone area with a 1980 Census population of less than 200,000 in the urbanized area, in an ozone transport region, that is required to implement enhanced I/M under section 184(b)(1)(A) of the Clean Air Act, but was not previously required to or did not in fact implement basic I/M under the Clean Air Act as enacted prior to 1990 and is not subject to the requirements for basic I/M programs in this subpart, may select the performance standard described below in lieu of the standard described in paragraph (f) or (g) of this section as long as the difference in emission reductions between the program described in paragraph (g) and this paragraph are made up with other measures, as provided in §51.350(b)(5). Offsetting measures shall not include those otherwise required by the Clean Air Act in the areas from which credit is bubbled. The program elements for this alternate OTR enhanced I/M performance standard are:

(1) Network type. Centralized testing.

(2) Start date. January 1, 1999.

(3) Test frequency. Annual testing.

(4) Model year coverage. Testing of 1968 and newer vehicles.

(5) Vehicle type coverage. Light duty vehicles, and light duty trucks, rated up to 8,500 pounds GVWR.

(6) Exhaust emission test type. Remote sensing measurements on 1968-1995 vehicles; on-board diagnostic system checks on 1996 and newer vehicles.

(7) Emission standards. For remote sensing measurements, a carbon monoxide standard of 7.5% (with at least two separate readings above this level to establish a failure).

(8) Emission control device inspections. Visual inspection of the catalytic converter on 1975 and newer vehicles and visual inspection of the positive crankcase ventilation valve on 1968-1974 vehicles.

(9) Waiver rate. A 3% waiver rate, as a percentage of failed vehicles.

(10) Compliance rate. A 96% compliance rate.

(11) Evaluation date. Enhanced I/M program areas subject to the provisions of this paragraph shall be shown to obtain the same or lower VOC and NOx emission levels as the model program described in this paragraph (h) by January 1, 2002 to within ±0.02 gpm. Subject programs shall demonstrate through modeling the ability to maintain this level of emission reduction (or better) through their attainment deadline for the applicable NAAQS standard(s). Equality of substituted emission reductions to the benefits of the low enhanced performance standard must be demonstrated for the same evaluation date.

(i) Enhanced performance standard for areas designated and classified under the 8-hour ozone standard. Areas required to implement an enhanced I/M program as a result of being designated and classified under the 8-hour ozone standard, must meet or exceed the HC and NOX emission reductions achieved by the model program defined as follows:

(1) Network type. Centralized testing.

(2) Start date. 4 years after the effective date of designation and classification under the 8-hour ozone standard.

(3) Test frequency. Annual testing.

(4) Model year coverage. Testing of 1968 and newer vehicles.

(5) Vehicle type coverage. Light duty vehicles, and light duty trucks, rated up to 8,500 pounds GVWR.

(6) Emission test type. Idle testing (as described in appendix B of this subpart) for 1968-2000 vehicles; onboard diagnostic checks on 2001 and newer vehicles.

(7) Emission standards. Those specified in 40 CFR part 85, subpart W.

(8) Emission control device inspections. Visual inspection of the positive crankcase ventilation valve on all 1968 through 1971 model year vehicles, inclusive, and of the exhaust gas recirculation valve on all 1972 and newer model year vehicles.

(9) Evaporative system function checks. None, with the exception of those performed by the OBD system on vehicles so-equipped and only for model year 2001 and newer vehicles.

(10) Stringency. A 20% emission test failure rate among pre-1981 model year vehicles.

(11) Waiver rate. A 3% waiver rate, as a percentage of failed vehicles.

(12) Compliance rate. A 96% compliance rate.

(13) Evaluation date. Enhanced I/M program areas subject to the provisions of this paragraph (i) shall be shown to obtain the same or lower emission levels for HC and NOX as the model program described in this paragraph assuming an evaluation date set 6 years after the effective date of designation and classification under the 8-hour ozone standard (rounded to the nearest July) to within ±0.02 gpm. Subject programs shall demonstrate through modeling the ability to maintain this percent level of emission reduction (or better) through their applicable attainment date for the 8-hour ozone standard, also rounded to the nearest July.

[57 FR 52987, Nov. 5, 1992, as amended at 58 FR 59367, Nov. 9, 1993; 59 FR 32343, June 23, 1994; 60 FR 48035, Sept. 18, 1995; 61 FR 39036, July 25, 1996; 61 FR 40945, Aug. 6, 1996; 63 FR 24433, May 4, 1998; 65 FR 45532, July 24, 2000; 66 FR 18176, Apr. 5, 2001; 71 FR 17710, Apr. 7, 2006]

§51.352   Basic I/M performance standard.

(a) Basic I/M programs shall be designed and implemented to meet or exceed a minimum performance standard, which is expressed as emission levels achieved from highway mobile sources as a result of the program. The performance standard shall be established using the following model I/M program inputs and local characteristics, such as vehicle mix and local fuel controls. Similarly, the emission reduction benefits of the State's program design shall be estimated using the most current version of the EPA mobile source emission model, and shall meet the minimum performance standard both in operation and for SIP approval.

(1) Network type. Centralized testing.

(2) Start date. For areas with existing I/M programs, 1983. For areas newly subject, 1994.

(3) Test frequency. Annual testing.

(4) Model year coverage. Testing of 1968 and later model year vehicles.

(5) Vehicle type coverage. Light duty vehicles.

(6) Exhaust emission test type. Idle test.

(7) Emission standards. No weaker than specified in 40 CFR part 85, subpart W.

(8) Emission control device inspections. None.

(9) Stringency. A 20% emission test failure rate among pre-1981 model year vehicles.

(10) Waiver rate. A 0% waiver rate.

(11) Compliance rate. A 100% compliance rate.

(12) Evaluation date. Basic I/M programs shall be shown to obtain the same or lower emission levels as the model inputs by 1997 for ozone nonattainment areas and 1996 for CO nonattainment areas; and, for serious or worse ozone nonattainment areas, on each applicable milestone and attainment deadline, thereafter.

(b) Oxides of nitrogen. Basic I/M testing in ozone nonattainment areas shall be designed such that no increase in NOX emissions occurs as a result of the program. If the Administrator finds, under section 182(b)(1)(A)(i) of the Act pertaining to reasonable further progress demonstrations or section 182(f)(1) of the Act pertaining to provisions for major stationary sources, that NOX emission reductions are not beneficial in a given ozone nonattainment area, then the basic I/M NOX requirement may be omitted. States shall implement any required NOX controls within 12 months of implementation of the program deadlines required in §51.373 of this subpart, except that newly implemented I/M programs shall include NOX controls from the start.

(c) On-board diagnostics (OBD). For those areas required to implement a basic I/M program prior to the effective date of designation and classification under the 8-hour ozone standard, the performance standard shall include inspection of all model year 1996 and later light-duty vehicles equipped with certified on-board diagnostic systems, and repair of malfunctions or system deterioration identified by or affecting OBD systems as specified in §51.357, and assuming a start date of 2002 for such testing. For areas required to implement basic I/M as a result of designation and classification under the 8-hour ozone standard, the performance standard defined in paragraph (e) of this section shall include inspection of all model year 2001 and later light-duty vehicles equipped with certified on-board diagnostic systems, and repair of malfunctions or system deterioration identified by or affecting OBD systems as specified in §51.357, and assuming a start date of 4 years after the effective date of designation and classification under the 8-hour ozone standard.

(d) Modeling requirements. Equivalency of emission levels which will be achieved by the I/M program design in the SIP to those of the model program described in this section shall be demonstrated using the most current version of EPA's mobile source emission model and EPA guidance on the estimation of input parameters. Areas required to implement basic I/M programs shall meet the performance standard for the pollutants which cause them to be subject to basic requirements. Areas subject as a result of ozone nonattainment shall meet the standard for VOCs and shall demonstrate no NOX increase, as required in paragraph (b) of this section.

(e) Basic performance standard for areas designated non-attainment for the 8-hour ozone standard. Areas required to implement a basic I/M program as a result of being designated and classified under the 8-hour ozone standard, must meet or exceed the emission reductions achieved by the model program defined for the applicable ozone precursor(s):

(1) Network type. Centralized testing.

(2) Start date. 4 years after the effective date of designation and classification under the 8-hour ozone standard.

(3) Test frequency. Annual testing.

(4) Model year coverage. Testing of 1968 and newer vehicles.

(5) Vehicle type coverage. Light duty vehicles.

(6) Emission test type. Idle testing (as described in appendix B of this subpart) for 1968-2000 vehicles; onboard diagnostic checks on 2001 and newer vehicles.

(7) Emission standards. Those specified in 40 CFR part 85, subpart W.

(8) Emission control device inspections. None.

(9) Evaporative system function checks. None, with the exception of those performed by the OBD system on vehicles so-equipped and only for model year 2001 and newer vehicles.

(10) Stringency. A 20% emission test failure rate among pre-1981 model year vehicles.

(11) Waiver rate. A 0% waiver rate, as a percentage of failed vehicles.

(12) Compliance rate. A 100% compliance rate.

(13) Evaluation date. Basic I/M program areas subject to the provisions of this paragraph (e) shall be shown to obtain the same or lower emission levels as the model program described in this paragraph by an evaluation date set 6 years after the effective date of designation and classification under the 8-hour ozone standard (rounded to the nearest July) for the applicable ozone precursor(s).

[57 FR 52987, Nov. 5, 1992, as amended at 61 FR 40945, Aug. 6, 1996; 63 FR 24433, May 4, 1998; 66 FR 18177, Apr. 5, 2001; 71 FR 17711, Apr. 7, 2006]

§51.353   Network type and program evaluation.

Basic and enhanced I/M programs can be centralized, decentralized, or a hybrid of the two at the State's discretion, but shall be demonstrated to achieve the same (or better) level of emission reduction as the applicable performance standard described in either §51.351 or 51.352 of this subpart. For decentralized programs other than those meeting the design characteristics described in paragraph (a) of this section, the State must demonstrate that the program is achieving the level of effectiveness claimed in the plan within 12 months of the plan's final conditional approval before EPA can convert that approval to a final full approval. The adequacy of these demonstrations will be judged by the Administrator on a case-by-case basis through notice-and-comment rulemaking.

(a) Presumptive equivalency. A decentralized network consisting of stations that only perform official I/M testing (which may include safety-related inspections) and in which owners and employees of those stations, or companies owning those stations, are contractually or legally barred from engaging in motor vehicle repair or service, motor vehicle parts sales, and motor vehicle sale and leasing, either directly or indirectly, and are barred from referring vehicle owners to particular providers of motor vehicle repair services (except as provided in §51.369(b)(1) of this subpart) shall be considered presumptively equivalent to a centralized, test-only system including comparable test elements. States may allow such stations to engage in the full range of sales not covered by the above prohibition, including self-serve gasoline, pre-packaged oil, or other, non-automotive, convenience store items. At the State's discretion, such stations may also fulfill other functions typically carried out by the State such as renewal of vehicle registration and driver's licenses, or tax and fee collections.

(b) [Reserved]

(c) Program evaluation. Enhanced I/M programs shall include an ongoing evaluation to quantify the emission reduction benefits of the program, and to determine if the program is meeting the requirements of the Clean Air Act and this subpart.

(1) The State shall report the results of the program evaluation on a biennial basis, starting two years after the initial start date of mandatory testing as required in §51.373 of this subpart.

(2) The evaluation shall be considered in establishing actual emission reductions achieved from I/M for the purposes of satisfying the requirements of sections 182(g)(1) and 182(g)(2) of the Clean Air Act, relating to reductions in emissions and compliance demonstration.

(3) The evaluation program shall consist, at a minimum, of those items described in paragraph (b)(1) of this section and program evaluation data using a sound evaluation methodology, as approved by EPA, and evaporative system checks, specified in §51.357(a) (9) and (10) of this subpart, for model years subject to those evaporative system test procedures. The test data shall be obtained from a representative, random sample, taken at the time of initial inspection (before repair) on a minimum of 0.1 percent of the vehicles subject to inspection in a given year. Such vehicles shall receive a State administered or monitored test, as specified in this paragraph (c)(3), prior to the performance of I/M-triggered repairs during the inspection cycle under consideration.

(4) The program evaluation test data shall be submitted to EPA and shall be capable of providing accurate information about the overall effectiveness of an I/M program, such evaluation to begin no later than 1 year after program start-up.

(5) Areas that qualify for and choose to implement an OTR low enhanced I/M program, as established in §51.351(h), and that claim in their SIP less emission reduction credit than the basic performance standard for one or more pollutants, are exempt from the requirements of paragraphs (c)(1) through (c)(4) of this section. The reports required under §51.366 of this part shall be sufficient in these areas to satisfy the requirements of Clean Air Act for program reporting.

(d) SIP requirements. (1) The SIP shall include a description of the network to be employed, the required legal authority, and, in the case of areas making claims under paragraph (b) of this section, the required demonstration.

(2) The SIP shall include a description of the evaluation schedule and protocol, the sampling methodology, the data collection and analysis system, the resources and personnel for evaluation, and related details of the evaluation program, and the legal authority enabling the evaluation program.

[57 FR 52987, Nov. 5, 1992, as amended at 58 FR 59367, Nov. 9, 1993; 61 FR 39037, July 25, 1996; 63 FR 1368, Jan. 9, 1998; 65 FR 45532, July 24, 2000; 71 FR 17711, Apr. 7, 2006]

§51.354   Adequate tools and resources.

(a) Administrative resources. The program shall maintain the administrative resources necessary to perform all of the program functions including quality assurance, data analysis and reporting, and the holding of hearings and adjudication of cases. A portion of the test fee or a separately assessed per vehicle fee shall be collected, placed in a dedicated fund and retained, to be used to finance program oversight, management, and capital expenditures. Alternatives to this approach shall be acceptable if the State can demonstrate that adequate funding of the program can be maintained in some other fashion (e.g., through contractual obligation along with demonstrated past performance). Reliance on future uncommitted annual or biennial appropriations from the State or local General Fund is not acceptable, unless doing otherwise would be a violation of the State's constitution. This section shall in no way require the establishment of a test fee if the State chooses to fund the program in some other manner.

(b) Personnel. The program shall employ sufficient personnel to effectively carry out the duties related to the program, including but not limited to administrative audits, inspector audits, data analysis, program oversight, program evaluation, public education and assistance, and enforcement against stations and inspectors as well as against motorists who are out of compliance with program regulations and requirements.

(c) Equipment. The program shall possess equipment necessary to achieve the objectives of the program and meet program requirements, including but not limited to a steady supply of vehicles for covert auditing, test equipment and facilities for program evaluation, and computers capable of data processing, analysis, and reporting. Equipment or equivalent services may be contractor supplied or owned by the State or local authority.

(d) SIP requirements. The SIP shall include a description of the resources that will be used for program operation, and discuss how the performance standard will be met.

(1) The SIP shall include a detailed budget plan which describes the source of funds for personnel, program administration, program enforcement, purchase of necessary equipment (such as vehicles for undercover audits), and any other requirements discussed throughout, for the period prior to the next biennial self-evaluation required in §51.366 of this subpart.

(2) The SIP shall include a description of personnel resources. The plan shall include the number of personnel dedicated to overt and covert auditing, data analysis, program administration, enforcement, and other necessary functions and the training attendant to each function.

§51.355   Test frequency and convenience.

(a) The performance standards for I/M programs assume an annual test frequency; other schedules may be approved if the required emission targets are achieved. The SIP shall describe the test schedule in detail, including the test year selection scheme if testing is other than annual. The SIP shall include the legal authority necessary to implement and enforce the test frequency requirement and explain how the test frequency will be integrated with the enforcement process.

(b) In enhanced I/M programs, test systems shall be designed in such a way as to provide convenient service to motorists required to get their vehicles tested. The SIP shall demonstrate that the network of stations providing test services is sufficient to insure short waiting times to get a test and short driving distances. Stations shall be required to adhere to regular testing hours and to test any subject vehicle presented for a test during its test period.

§51.356   Vehicle coverage.

The performance standard for enhanced I/M programs assumes coverage of all 1968 and later model year light duty vehicles and light duty trucks up to 8,500 pounds GVWR, and includes vehicles operating on all fuel types. The standard for basic I/M programs does not include light duty trucks. Other levels of coverage may be approved if the necessary emission reductions are achieved. Vehicles registered or required to be registered within the I/M program area boundaries and fleets primarily operated within the I/M program area boundaries and belonging to the covered model years and vehicle classes comprise the subject vehicles.

(a) Subject vehicles. (1) All vehicles of a covered model year and vehicle type shall be tested according to the applicable test schedule, including leased vehicles whose registration or titling is in the name of an equity owner other than the lessee or user.

(2) All subject fleet vehicles shall be inspected. Fleets may be officially inspected outside of the normal I/M program test facilities, if such alternatives are approved by the program administration, but shall be subject to the same test requirements using the same quality control standards as non-fleet vehicles. If all vehicles in a particular fleet are tested during one part of the cycle, then the quality control requirements shall be met during the time of testing only. Any vehicle available for rent in the I/M area or for use in the I/M area shall be subject. Fleet vehicles not being tested in normal I/M test facilities in enhanced I/M programs, however, shall be inspected in independent, test-only facilities, according to the requirements of §51.353(a) of this subpart.

(3) Subject vehicles which are registered in the program area but are primarily operated in another I/M area shall be tested, either in the area of primary operation, or in the area of registration. Alternate schedules may be established to permit convenient testing of these vehicles (e.g., vehicles belonging to students away at college should be rescheduled for testing during a visit home). I/M programs shall make provisions for providing official testing to vehicles registered elsewhere.

(4) Vehicles which are operated on Federal installations located within an I/M program area shall be tested, regardless of whether the vehicles are registered in the State or local I/M area. This requirement applies to all employee-owned or leased vehicles (including vehicles owned, leased, or operated by civilian and military personnel on Federal installations) as well as agency-owned or operated vehicles, except tactical military vehicles, operated on the installation. This requirement shall not apply to visiting agency, employee, or military personnel vehicles as long as such visits do not exceed 60 calendar days per year. In areas without test fees collected in the lane, arrangements shall be made by the installation with the I/M program for reimbursement of the costs of tests provided for agency vehicles, at the discretion of the I/M agency. The installation shall provide documentation of proof of compliance to the I/M agency. The documentation shall include a list of subject vehicles and shall be updated periodically, as determined by the I/M program administrator, but no less frequently than each inspection cycle. The installation shall use one of the following methods to establish proof of compliance:

(i) Presentation of a valid certificate of compliance from the local I/M program, from any other I/M program at least as stringent as the local program, or from any program deemed acceptable by the I/M program administrator.

(ii) Presentation of proof of vehicle registration within the geographic area covered by the I/M program, except for any program whose enforcement is not through registration denial.

(iii) Another method approved by the State or local I/M program administrator.

(5) Special exemptions may be permitted for certain subject vehicles provided a demonstration is made that the performance standard will be met.

(6) States may also exempt MY 1996 and newer OBD-equipped vehicles that receive an OBD-I/M inspection from the tailpipe, purge, and fill-neck pressure tests (where applicable) without any loss of emission reduction credit.

(b) SIP requirements. (1) The SIP shall include a detailed description of the number and types of vehicles to be covered by the program, and a plan for how those vehicles are to be identified, including vehicles that are routinely operated in the area but may not be registered in the area.

(2) The SIP shall include a description of any special exemptions which will be granted by the program, and an estimate of the percentage and number of subject vehicles which will be impacted. Such exemptions shall be accounted for in the emission reduction analysis.

(3) The SIP shall include the legal authority or rule necessary to implement and enforce the vehicle coverage requirement.

[57 FR 52987, Nov. 5, 1992, as amended at 66 FR 18177, Apr. 5, 2001]

§51.357   Test procedures and standards.

Written test procedures and pass/fail standards shall be established and followed for each model year and vehicle type included in the program.

(a) Test procedure requirements. Emission tests and functional tests shall be conducted according to good engineering practices to assure test accuracy.

(1) Initial tests (i.e., those occurring for the first time in a test cycle) shall be performed without repair or adjustment at the inspection facility, prior to the test, except as provided in paragraph (a)(10)(i) of this section.

(2) The vehicle owner or driver shall have access to the test area such that observation of the entire official inspection process on the vehicle is permitted. Such access may be limited but shall in no way prevent full observation.

(3) An official test, once initiated, shall be performed in its entirety regardless of intermediate outcomes except in the case of invalid test condition, unsafe conditions, fast pass/fail algorithms, or, in the case of the on-board diagnostic (OBD) system check, unset readiness codes.

(4) Tests involving measurement shall be performed with program-approved equipment that has been calibrated according to the quality procedures contained in appendix A to this subpart.

(5) Vehicles shall be rejected from testing if the exhaust system is missing or leaking, or if the vehicle is in an unsafe condition for testing. Coincident with mandatory OBD-I/M testing and repair of vehicles so equipped, MY 1996 and newer vehicles shall be rejected from testing if a scan of the OBD system reveals a “not ready” code for any component of the OBD system. At a state's option it may choose alternatively to reject MY 1996-2000 vehicles only if three or more “not ready” codes are present and to reject MY 2001 and later model years only if two or more “not ready” codes are present. This provision does not release manufacturers from the obligations regarding readiness status set forth in 40 CFR 86.094-17(e)(1): “Control of Air Pollution From New Motor Vehicles and New Motor Vehicle Engines: Regulations RequiringOn-Board Diagnostic Systems on 1994 and Later Model Year Light-Duty Vehicles and Light-Duty Trucks.” Once the cause for rejection has been corrected, the vehicle must return for testing to continue the testing process. Failure to return for testing in a timely manner after rejection shall be considered non-compliance with the program, unless the motorist can prove that the vehicle has been sold, scrapped, or is otherwise no longer in operation within the program area.

(6) Vehicles shall be retested after repair for any portion of the inspection that is failed on the previous test to determine if repairs were effective. To the extent that repair to correct a previous failure could lead to failure of another portion of the test, that portion shall also be retested. Evaporative system repairs shall trigger an exhaust emissions retest (in programs which conduct an exhaust emission test as part of the initial inspection).

(7) Steady-state testing. Steady-state tests shall be performed in accordance with the procedures contained in appendix B to this subpart.

(8) Emission control device inspection. Visual emission control device checks shall be performed through direct observation or through indirect observation using a mirror, video camera or other visual aid. These inspections shall include a determination as to whether each subject device is present and appears to be properly connected and appears to be the correct type for the certified vehicle configuration.

(9) Evaporative system purge test procedure. The purge test procedure shall consist of measuring the total purge flow (in standard liters) occurring in the vehicle's evaporative system during the transient dynamometer emission test specified in paragraph (a)(11) of this section. The purge flow measurement system shall be connected to the purge portion of the evaporative system in series between the canister and the engine, preferably near the canister. The inspector shall be responsible for ensuring that all items that are disconnected in the conduct of the test procedure are properly re-connected at the conclusion of the test procedure. Alternative procedures may be used if they are shown to be equivalent or better to the satisfaction of the Administrator. Except in the case of government-run test facilities claiming sovereign immunity, any damage done to the evaporative emission control system during this test shall be repaired at the expense of the inspection facility.

(10) Evaporative system integrity test procedure. The test sequence shall consist of the following steps:

(i) Test equipment shall be connected to the fuel tank canister hose at the canister end. The gas cap shall be checked to ensure that it is properly, but not excessively tightened, and shall be tightened if necessary.

(ii) The system shall be pressurized to 14 ±0.5 inches of water without exceeding 26 inches of water system pressure.

(iii) Close off the pressure source, seal the evaporative system and monitor pressure decay for up to two minutes.

(iv) Loosen the gas cap after a maximum of two minutes and monitor for a sudden pressure drop, indicating that the fuel tank was pressurized.

(v) The inspector shall be responsible for ensuring that all items that are disconnected in the conduct of the test procedure are properly re-connected at the conclusion of the test procedure.

(vi) Alternative procedures may be used if they are shown to be equivalent or better to the satisfaction of the Administrator. Except in the case of government-run test facilities claiming sovereign immunity, any damage done to the evaporative emission control system during this test shall be repaired at the expense of the inspection facility.

(11) Transient emission test. The transient emission test shall consist of mass emission measurement using a constant volume sampler (or an Administrator-approved alternative methodology for accounting for exhaust volume) while the vehicle is driven through a computer-monitored driving cycle on a dynamometer. The driving cycle shall include acceleration, deceleration, and idle operating modes as specified in appendix E to this subpart (or an approved alternative). The driving cycle may be ended earlier using approved fast pass or fast fail algorithms and multiple pass/fail algorithms may be used during the test cycle to eliminate false failures. The transient test procedure, including algorithms and other procedural details, shall be approved by the Administrator prior to use in an I/M program.

(12) On-board diagnostic checks. Beginning January 1, 2002, inspection of the on-board diagnostic (OBD) system on MY 1996 and newer light-duty vehicles and light-duty trucks shall be conducted according to the procedure described in 40 CFR 85.2222, at a minimum. This inspection may be used in lieu of tailpipe, purge, and fill-neck pressure testing. Alternatively, states may elect to phase-in OBD-I/M testing for one test cycle by using the OBD-I/M check to screen clean vehicles from tailpipe testing and require repair and retest for only those vehicles which proceed to fail the tailpipe test. An additional alternative is also available to states with regard to the deadline for mandatory testing, repair, and retesting of vehicles based upon the OBD-I/M check. Under this third option, if a state can show good cause (and the Administrator takes notice-and-comment action to approve this good cause showing as a revision to the State's Implementation Plan), up to an additional 12 months' extensionmay be granted, establishing an alternative start date for such states of no later than January 1, 2003. States choosing to make this showing will also have available to them the phase-in approach described in this section, with the one-cycle time limit to begin coincident with the alternative start date established by Administrator approval of the showing, but no later than January 1, 2003. The showing of good cause (and its approval or disapproval) will be addressed on a case-by-case basis by the Administrator.

(13) Approval of alternative tests. Alternative test procedures may be approved if the Administrator finds that such procedures show a reasonable correlation with the Federal Test Procedure and are capable of identifying comparable emission reductions from the I/M program as a whole, in combination with other program elements, as would be identified by the test(s) which they are intended to replace.

(b) Test standards—(1) Emissions standards. HC, CO, and CO+CO2 (or CO2 alone) emission standards shall be applicable to all vehicles subject to the program with the exception of MY 1996 and newer OBD-equipped light-duty vehicles and light-duty trucks, which will be held to the requirements of 40 CFR 85.2207, at a minimum. Repairs shall be required for failure of any standard regardless of the attainment status of the area. NOX emission standards shall be applied to vehicles subject to a loaded mode test in ozone nonattainment areas and in an ozone transport region, unless a waiver of NOX controls is provided to the State under §51.351(d).

(2) Visual equipment inspection standards. (i) Vehicles shall fail visual inspections of subject emission control devices if such devices are part of the original certified configuration and are found to be missing, modified, disconnected, or improperly connected.

(ii) Vehicles shall fail visual inspections of subject emission control devices if such devices are found to be incorrect for the certified vehicle configuration under inspection. Aftermarket parts, as well as original equipment manufacture parts, may be considered correct if they are proper for the certified vehicle configuration. Where an EPA aftermarket approval or self-certification program exists for a particular class of subject parts, vehicles shall fail visual equipment inspections if the part is neither original equipment manufacture nor from an approved or self-certified aftermarket manufacturer.

(3) Functional test standards—(i) Evaporative system integrity test. Vehicles shall fail the evaporative system pressure test if the system cannot maintain a system pressure above eight inches of water for up to two minutes after being pressurized to 14 ±0.5 inches of water or if no pressure drop is detected when the gas cap is loosened as described in paragraph (a)(10)(iv) of this section. Additionally, vehicles shall fail the evaporative test if the canister is missing or obviously damaged, if hoses are missing or obviously disconnected, or if the gas cap is missing.

(ii) Evaporative canister purge test. Vehicles with a total purge system flow measuring less than one liter, over the course of the transient test required in paragraph (a)(9) of this section, shall fail the evaporative purge test.

(4) On-board diagnostic test standards. Vehicles shall fail the on-board diagnostic test if they fail to meet the requirements of 40 CFR 85.2207, at a minimum. Failure of the on-board diagnostic test need not result in failure of the vehicle inspection/maintenance test until January 1, 2002. Alternatively, states may elect to phase-in OBD-I/M testing for one test cycle by using the OBD- I/M check to screen clean vehicles from tailpipe testing and require repair and retest for only those vehicles which proceed to fail the tailpipe test. An additional alternative is also available to states with regard to the deadline for mandatory testing, repair, and retesting of vehicles based upon the OBD-I/M check. Under this third option, if a state can show good cause (and the Administrator takes notice-and-comment action to approve this good cause showing), up to an additional 12 months' extension may be granted, establishing an alternative start date for such states of no later than January 1, 2003. States choosing to make this showing will also have available to them the phase-in approach described in this section, with the one-cycle time limit to begin coincident with the alternative start date established by Administrator approval of the showing, but no later than January 1, 2003. The showing of good cause (and its approval or disapproval) will be addressed on a case-by-case basis.

(c) Fast test algorithms and standards. Special test algorithms and pass/fail algorithms may be employed to reduce test time when the test outcome is predictable with near certainty, if the Administrator approves by letter the equivalency to full procedure testing.

(d) Applicability. In general, section 203(a)(3)(A) of the Clean Air Act prohibits altering a vehicle's configuration such that it changes from a certified to a non-certified configuration. In the inspection process, vehicles that have been altered from their original certified configuration are to be tested in the same manner as other subject vehicles with the exception of MY 1996 and newer, OBD-equipped vehicles on which the data link connector is missing, has been tampered with or which has been altered in such a way as to make OBD system testing impossible. Such vehicles shall be failed for the on-board diagnostics portion of the test and are expected to be repaired so that the vehicle is testable. Failure to return for retesting in a timely manner after failure and repair shall be considered non-compliance with the program, unless the motorist can prove that the vehicle has been sold, scrapped, or is otherwise no longer in operation within the program area.

(1) Vehicles with engines other than the engine originally installed by the manufacturer or an identical replacement of such engine shall be subject to the test procedures and standards for the chassis type and model year including visual equipment inspections for all parts that are part of the original or now-applicable certified configuration and part of the normal inspection. States may choose to require vehicles with such engines to be subject to the test procedures and standards for the engine model year if it is newer than the chassis model year.

(2) Vehicles that have been switched from an engine of one fuel type to another fuel type that is subject to the program (e.g., from a diesel engine to a gasoline engine) shall be subject to the test procedures and standards for the current fuel type, and to the requirements of paragraph (d)(1) of this section.

(3) Vehicles that are switched to a fuel type for which there is no certified configuration shall be tested according to the most stringent emission standards established for that vehicle type and model year. Emission control device requirements may be waived if the program determines that the alternatively fueled vehicle configuration would meet the new vehicle standards for that model year without such devices.

(4) Mixing vehicle classes (e.g., light-duty with heavy-duty) and certification types (e.g., California with Federal) within a single vehicle configuration shall be considered tampering.

(e) SIP requirements. The SIP shall include a description of each test procedure used. The SIP shall include the rule, ordinance or law describing and establishing the test procedures.

[57 FR 52987, Nov. 5, 1992, as amended at 61 FR 40945, Aug. 6, 1996; 63 FR 24433, May 4, 1998; 65 FR 45533, July 24, 2000; 66 FR 18178, Apr. 5, 2001]

§51.358   Test equipment.

Computerized emission test systems are required for performing an official emissions test on subject vehicles.

(a) Performance features of computerized emission test systems. The emission test equipment shall be certified by the program, and newly acquired emission test systems shall be subjected to acceptance test procedures to ensure compliance with program specifications.

(1) Emission test equipment shall be capable of testing all subject vehicles and shall be updated from time to time to accommodate new technology vehicles as well as changes to the program. In the case of OBD-based testing, the equipment used to access the onboard computer shall be capable of testing all MY 1996 and newer, OBD-equipped light-duty vehicles and light-duty trucks.

(2) At a minimum, emission test equipment:

(i) Shall make automatic pass/fail decisions;

(ii) Shall be secured from tampering and/or abuse;

(iii) Shall be based upon written specifications; and

(iv) Shall be capable of simultaneously sampling dual exhaust vehicles in the case of tailpipe-based emission test equipment.

(3) The vehicle owner or driver shall be provided with a record of test results, including all of the items listed in 40 CFR part 85, subpart W as being required on the test record (as applicable). The test report shall include:

(i) A vehicle description, including license plate number, vehicle identification number, and odometer reading;

(ii) The date and time of test;

(iii) The name or identification number of the individual(s) performing the tests and the location of the test station and lane;

(iv) The type(s) of test(s) performed;

(v) The applicable test standards;

(vi) The test results, by test, and, where applicable, by pollutant;

(vii) A statement indicating the availability of warranty coverage as required in section 207 of the Clean Air Act;

(viii) Certification that tests were performed in accordance with the regulations and, in the case of decentralized programs, the signature of the individual who performed the test; and

(ix) For vehicles that fail the emission test, information on the possible cause(s) of the failure.

(b) Functional characteristics of computerized emission test systems. The test system is composed of motor vehicle test equipment controlled by a computerized processor and shall make automatic pass/fail decisions.

(1) [Reserved]

(2) Test systems in enhanced I/M programs shall include a real-time data link to a host computer that prevents unauthorized multiple initial tests on the same vehicle in a test cycle and to insure test record accuracy. For areas which have demonstrated the ability to meet their other, non-I/M Clean Air Act requirements without relying on emission reductions from the I/M program (and which have also elected to employ stand-alone test equipment as part of the I/M program), such areas may adopt alternative methods for preventing multiple initial tests, subject to approval by the Administrator.

(3) [Reserved]

(4) On-board diagnostic test equipment requirements. The test equipment used to perform on-board diagnostic inspections shall function as specified in 40 CFR 85.2231.

(c) SIP requirements. The SIP shall include written technical specifications for all test equipment used in the program and shall address each of the above requirements (as applicable). The specifications shall describe the testing process, the necessary test equipment, the required features, and written acceptance testing criteria and procedures.

[57 FR 52987, Nov. 5, 1992, as amended at 61 FR 40945, Aug. 6, 1996; 65 FR 45533, July 24, 2000; 66 FR 18178, Apr. 5, 2001]

§51.359   Quality control.

Quality control measures shall insure that emission testing equipment is calibrated and maintained properly, and that inspection, calibration records, and control charts are accurately created, recorded and maintained (where applicable).

(a) General requirements. (1) The practices described in this section and in appendix A to this subpart shall be followed for those tests (or portions of tests) which fall into the testing categories identified. Alternatives or exceptions to these procedures or frequencies may be approved by the Administrator based on a demonstration of comparable performance.

(2) Preventive maintenance on all inspection equipment necessary to insure accurate and repeatable operation shall be performed on a periodic basis.

(3) [Reserved]

(b) Requirements for steady-state emissions testing equipment. (1) Equipment shall be maintained according to demonstrated good engineering practices to assure test accuracy. The calibration and adjustment requirements in appendix A to this subpart shall apply to all steady-state test equipment. States may adjust calibration schedules and other quality control frequencies by using statistical process control to monitor equipment performance on an ongoing basis.

(2) For analyzers that use ambient air as zero air, provision shall be made to draw the air from outside the inspection bay or lane in which the analyzer is situated.

(3) The analyzer housing shall be constructed to protect the analyzer bench and electrical components from ambient temperature and humidity fluctuations that exceed the range of the analyzer's design specifications.

(4) Analyzers shall automatically purge the analytical system after each test.

(c) Requirements for transient exhaust emission test equipment. Equipment shall be maintained according to demonstrated good engineering practices to assure test accuracy. Computer control of quality assurance checks and quality control charts shall be used whenever possible. Exceptions to the procedures and the frequency of the checks described in appendix A of this subpart may be approved by the Administrator based on a demonstration of comparable performance.

(d) Requirements for evaporative system functional test equipment. Equipment shall be maintained according to demonstrated good engineering practices to assure test accuracy. Computer control of quality assurance checks and quality control charts shall be used whenever possible. Exceptions to the procedures and the frequency of the checks described in appendix A of this subpart may be approved by the Administrator based on a demonstration of comparable performance.

(e) Document security. Measures shall be taken to maintain the security of all documents by which compliance with the inspection requirement is established including, but not limited to inspection certificates, waiver certificates, license plates, license tabs, and stickers. This section shall in no way require the use of paper documents but shall apply if they are used by the program for these purposes.

(1) Compliance documents shall be counterfeit resistant. Such measures as the use of special fonts, water marks, ultra-violet inks, encoded magnetic strips, unique bar-coded identifiers, and difficult to acquire materials may be used to accomplish this requirement.

(2) All inspection certificates, waiver certificates, and stickers shall be printed with a unique serial number and an official program seal.

(3) Measures shall be taken to ensure that compliance documents cannot be stolen or removed without being damaged.

(f) SIP requirements. The SIP shall include a description of quality control and record keeping procedures. The SIP shall include the procedure manual, rule, ordinance or law describing and establishing the quality control procedures and requirements.

[57 FR 52987, Nov. 5, 1992, as amended at 58 FR 59367, Nov. 9, 1993; 65 FR 45533, July 24, 2000]

§51.360   Waivers and compliance via diagnostic inspection.

The program may allow the issuance of a waiver, which is a form of compliance with the program requirements that allows a motorist to comply without meeting the applicable test standards, as long as the prescribed criteria described below are met.

(a) Waiver issuance criteria. The waiver criteria shall include the following at a minimum.

(1) Waivers shall be issued only after a vehicle has failed a retest performed after all qualifying repairs have been completed. Qualifying repairs include repairs of the emission control components, listed in paragraph (a)(5) of this section, performed within 60 days of the test date.

(2) Any available warranty coverage shall be used to obtain needed repairs before expenditures can be counted towards the cost limits in paragraphs (a)(5) and (a)(6) of this section. The operator of a vehicle within the statutory age and mileage coverage under section 207(b) of the Clean Air Act shall present a written denial of warranty coverage from the manufacturer or authorized dealer for this provision to be waived for approved tests applicable to the vehicle.

(3) Waivers shall not be issued to vehicles for tampering-related repairs. The cost of tampering-related repairs shall not be applicable to the minimum expenditure in paragraphs (a)(5) and (a)(6) of this section. States may issue exemptions for tampering-related repairs if it can be verified that the part in question or one similar to it is no longer available for sale.

(4) Repairs shall be appropriate to the cause of the test failure, and a visual check shall be made to determine if repairs were actually made if, given the nature of the repair, it can be visually confirmed. Receipts shall be submitted for review to further verify that qualifying repairs were performed.

(5) General repairs shall be performed by a recognized repair technician (i.e., one professionally engaged in vehicle repair, employed by a going concern whose purpose is vehicle repair, or possessing nationally recognized certification for emission-related diagnosis and repair) in order to qualify for a waiver. I/M programs may allow the cost of parts (not labor) utilized by non-technicians (e.g., owners) to apply toward the waiver limit. The waiver would apply to the cost of parts for the repair or replacement of the following list of emission control components: oxygen sensor, catalytic converter, thermal reactor, EGR valve, fuel filler cap, evaporative canister, PCV valve, air pump, distributor, ignition wires, coil, and spark plugs. The cost of any hoses, gaskets, belts, clamps, brackets or other accessories directly associated with these components may also be applied to the waiver limit.

(6) In basic programs, a minimum of $75 for pre-81 vehicles and $200 for 1981 and newer vehicles shall be spent in order to qualify for a waiver. These model year cutoffs and the associated dollar limits shall be in full effect by January 1, 1998, or coincident with program start-up, whichever is later. Prior to January 1, 1998, States may adopt any minimum expenditure commensurate with the waiver rate committed to for the purposes of modeling compliance with the basic I/M performance standard.

(7) Beginning on January 1, 1998, enhanced I/M programs shall require the motorist to make an expenditure of at least $450 in repairs to qualify for a waiver. The I/M program shall provide that the $450 minimum expenditure shall be adjusted in January of each year by the percentage, if any, by which the Consumer Price Index for the preceding calendar year differs from the Consumer Price Index of 1989. Prior to January 1, 1998, States may adopt any minimum expenditure commensurate with the waiver rate committed to for the purposes of modeling compliance with the relevant enhanced I/M performance standard.

(i) The Consumer Price Index for any calendar year is the average of the Consumer Price Index for all-urban consumers published by the Department of Labor, as of the close of the 12-month period ending on August 31 of each calendar year. A copy of the current Consumer Price Index may be obtained from the Emission Planning and Strategies Division, U.S. Environmental Protection Agency, 2565 Plymouth Road, Ann Arbor, Michigan 48105.

(ii) The revision of the Consumer Price Index which is most consistent with the Consumer Price Index for calendar year 1989 shall be used.

(8) States may establish lower minimum expenditures if a program is established to scrap vehicles that do not meet standards after the lower expe nditure is made.

(9) A time extension, not to exceed the period of the inspection frequency, may be granted to obtain needed repairs on a vehicle in the case of economic hardship when waiver requirements have not been met. After having received a time extension, a vehicle must fully pass the applicable test standards before becoming eligible for another time extension. The extension for a vehicle shall be tracked and reported by the program.

(b) Compliance via diagnostic inspection. Vehicles subject to a transient IM240 emission test at the cutpoints established in §§51.351 (f)(7) and (g)(7) of this subpart may be issued a certificate of compliance without meeting the prescribed emission cutpoints, if, after failing a retest on emissions, a complete, documented physical and functional diagnosis and inspection performed by the I/M agency or a contractor to the I/M agency show that no additional emission-related repairs are needed. Any such exemption policy and procedures shall be subject to approval by the Administrator.

(c) Quality control of waiver issuance. (1) Enhanced programs shall control waiver issuance and processing by establishing a system of agency-issued waivers. The State may delegate this authority to a single contractor but inspectors in stations and lanes shall not issue waivers. Basic programs may permit inspector-issued waivers as long as quality assurance efforts include a comprehensive review of waiver issuance.

(2) The program shall include methods of informing vehicle owners or lessors of potential warranty coverage, and ways to obtain warranty repairs.

(3) The program shall insure that repair receipts are authentic and cannot be revised or reused.

(4) The program shall insure that waivers are only valid for one test cycle.

(5) The program shall track, manage, and account for time extensions or exemptions so that owners or lessors cannot receive or retain a waiver improperly.

(d) SIP requirements. (1) The SIP shall include a maximum waiver rate expressed as a percentage of initially failed vehicles. This waiver rate shall be used for estimating emission reduction benefits in the modeling analysis.

(2) The State shall take corrective action if the waiver rate exceeds that committed to in the SIP or revise the SIP and the emission reductions claimed.

(3) The SIP shall describe the waiver criteria and procedures, including cost limits, quality assurance methods and measures, and administration.

(4) The SIP shall include the necessary legal authority, ordinance, or rules to issue waivers, set and adjust cost limits as required in paragraph (a)(5) of this section, and carry out any other functions necessary to administer the waiver system, including enforcement of the waiver provisions.

[57 FR 52987, Nov. 5, 1992, as amended at 58 FR 59367, Nov. 9, 1993; 60 FR 48036, Sept. 18, 1995; 71 FR 17711, Apr. 7, 2006]

§51.361   Motorist compliance enforcement.

Compliance shall be ensured through the denial of motor vehicle registration in enhanced I/M programs unless an exception for use of an existing alternative is approved. An enhanced I/M area may use an existing alternative if it demonstrates that the alternative has been more effective than registration denial. An enforcement mechanism may be considered an “existing alternative” only in States that, for some area in the State, had an I/M program with that mechanism in operation prior to passage of the 1990 Amendments to the Act. A basic I/M area may use an alternative enforcement mechanism if it demonstrates that the alternative will be as effective as registration denial. Two other types of enforcement programs may qualify for enhanced I/M programs if demonstrated to have been more effective than enforcement of the registration requirement in the past: Sticker-based enforcement programs and computer-matching programs. States that did not adopt an I/M program for any area of the State before November 15, 1990, may not use an enforcement alternative in connection with an enhanced I/M program required to be adopted after that date.

(a) Registration denial. Registration denial enforcement is defined as rejecting an application for initial registration or reregistration of a used vehicle (i.e., a vehicle being registered after the initial retail sale and associated registration) unless the vehicle has complied with the I/M requirement prior to granting the application. Pursuant to section 207(g)(3) of the Act, nothing in this subpart shall be construed to require that new vehicles shall receive emission testing prior to initial retail sale. In designing its enforcement program, the State shall:

(1) Provide an external, readily visible means of determining vehicle compliance with the registration requirement to facilitate enforcement of the program;

(2) Adopt a schedule of testing (either annual or biennial) that clearly determines when a vehicle shall comply prior to registration;

(3) Design a testing certification mechanism (either paper-based or electronic) that shall be used for registration purposes and clearly indicates whether the certification is valid for purposes of registration, including:

(i) Expiration date of the certificate;

(ii) Unambiguous vehicle identification information; and

(iii) Whether the vehicle passed or received a waiver;

(4) Routinely issue citations to motorists with expired or missing license plates, with either no registration or an expired registration, and with no license plate decals or expired decals, and provide for enforcement officials other than police to issue citations (e.g., parking meter attendants) to parked vehicles in noncompliance;

(5) Structure the penalty system to deter non-compliance with the registration requirement through the use of mandatory minimum fines (meaning civil, monetary penalties, in this subpart) constituting a meaningful deterrent and through a requirement that compliance be demonstrated before a case can be closed;

(6) Ensure that evidence of testing is available and checked for validity at the time of a new registration of a used vehicle or registration renewal;

(7) Prevent owners or lessors from avoiding testing through manipulation of the title or registration system; title transfers may re-start the clock on the inspection cycle only if proof of current compliance is required at title transfer;

(8) Prevent the fraudulent initial classification or reclassification of a vehicle from subject to non-subject or exempt by requiring proof of address changes prior to registration record modification, and documentation from the testing program (or delegate) certifying based on a physical inspection that the vehicle is exempt;

(9) Limit and track the use of time extensions of the registration requirement to prevent repeated extensions;

(10) Provide for meaningful penalties for cases of registration fraud;

(11) Limit and track exemptions to prevent abuse of the exemption policy for vehicles claimed to be out-of-state; and

(12) Encourage enforcement of vehicle registration transfer requirements when vehicle owners move into the I/M area by coordinating with local and State enforcement agencies and structuring other activities (e.g., drivers license issuance) to effect registration transfers.

(b) Alternative enforcement mechanisms—(1) General requirements. The program shall demonstrate that a non-registration-based enforcement program is currently more effective than registration-denial enforcement in enhanced I/M programs or, prospectively, as effective as registration denial in basic programs. The following general requirements shall apply:

(i) For enhanced I/M programs, the area in question shall have had an operating I/M program using the alternative mechanism prior to enactment of the Clean Air Act Amendments of 1990. While modifications to improve compliance may be made to the program that was in effect at the time of enactment, the expected change in effectiveness cannot be considered in determining acceptability;

(ii) The State shall assess the alternative program's effectiveness, as well as the current effectiveness of the registration system, including the following:

(A) Determine the number and percentage of vehicles subject to the I/M program that were in compliance with the program over the course of at least one test cycle; and

(B) Determine the number and fraction of the same group of vehicles as in paragraph (b)(1)(ii)(A) of this section that were in compliance with the registration requirement over the same period. Late registration shall not be considered non-compliance for the purposes of this determination. The precise definition of late registration versus a non-complying vehicle shall be explained and justified in the SIP;

(iii) An alternative mechanism shall be considered more effective if the fraction of vehicles complying with the existing program, as determined according to the requirements of this section, is greater than the fraction of vehicles complying with the registration requirement. An alternative mechanism is as effective if the fraction complying with the program is at least equal to the fraction complying with the registration requirement.

(2) Sticker-based enforcement. In addition to the general requirements, a sticker-based enforcement program shall demonstrate that the enforcement mechanism will swiftly and effectively prevent operation of subject vehicles that fail to comply. Such demonstration shall include the following:

(i) An assessment of the current extent of the following forms of non-compliance and demonstration that mechanisms exist to keep such non-compliance within acceptable limits:

(A) Use of stolen, counterfeit, or fraudulently obtained stickers;

(B) In States with safety inspections, the use of “Safety Inspection Only” stickers on vehicles that should be subject to the I/M requirement as well; and

(C) Operation of vehicles with expired stickers, including a stratification of non-compliance by length of noncompliance and model year.

(ii) The program as currently implemented or as proposed to be improved shall also:

(A) Require an easily observed external identifier such as the county name on the license plate, an obviously unique license plate tab, or other means that shows whether or not a vehicle is subject to the I/M requirement;

(B) Require an easily observed external identifier, such as a windshield sticker or license plate tab that shows whether a subject vehicle is in compliance with the inspection requirement;

(C) Impose monetary fines at least as great as the estimated cost of compliance with I/M requirements (e.g., test fee plus minimum waiver expenditure) for the absence of such identifiers;

(D) Require that such identifiers be of a quality that makes them difficult to counterfeit, difficult to remove without destroying once installed, and durable enough to last until the next inspection without fading, peeling, or other deterioration;

(E) Perform surveys in a variety of locations and at different times for the presence of the required identifiers such that at least 10% of the vehicles or 10,000 vehicles (whichever is less) in the subject vehicle population are sampled each year;

(F) Track missing identifiers for all inspections performed at each station, with stations being held accountable for all such identifiers they are issued; and

(G) Assess and collect significant fines for each identifier that is unaccounted for by a station.

(3) Computer matching. In addition to the general requirements, computer-matching programs shall demonstrate that the enforcement mechanism will swiftly and effectively prevent operation of subject vehicles that fail to comply. Such demonstration shall:

(i) Require an expeditious system that results in at least 90% of the subject vehicles in compliance within 4 months of the compliance deadline;

(ii) Require that subject vehicles be given compliance deadlines based on the regularly scheduled test date, not the date of previous compliance;

(iii) Require that motorists pay monetary fines at least as great as the estimated cost of compliance with I/M requirements (e.g., test fee plus minimum waiver expenditure) for the continued operation of a noncomplying vehicle beyond 4 months of the deadline;

(iv) Require that continued non-compliance will eventually result in preventing operation of the non-complying vehicle (no later than the date of the next test cycle) through, at a minimum, suspension of vehicle registration and subsequent denial of reregistration;

(v) Demonstrate that the computer system currently in use is adequate to store and manipulate the I/M vehicle database, generate computerized notices, and provide regular backup to said system while maintaining auxiliary storage devices to insure ongoing operation of the system and prevent data losses;

(vi) Track each vehicle through the steps taken to ensure compliance, including:

(A) The compliance deadline;

(B) The date of initial notification;

(C) The dates warning letters are sent to non-complying vehicle owners;

(D) The dates notices of violation or other penalty notices are sent; and

(E) The dates and outcomes of other steps in the process, including the final compliance date;

(vii) Compile and report monthly summaries including statistics on the percentage of vehicles at each stage in the enforcement process; and

(viii) Track the number and percentage of vehicles initially identified as requiring testing but which are never tested as a result of being junked, sold to a motorist in a non-I/M program area, or for some other reason.

(c) SIP requirements. (1) The SIP shall provide information concerning the enforcement process, including:

(i) A description of the existing compliance mechanism if it is to be used in the future and the demonstration that it is as effective or more effective than registration-denial enforcement;

(ii) An identification of the agencies responsible for performing each of the applicable activities in this section;

(iii) A description of and accounting for all classes of exempt vehicles; and

(iv) A description of the plan for testing fleet vehicles, rental car fleets, leased vehicles, and any other subject vehicles, e.g., those operated in (but not necessarily registered in) the program area.

(2) The SIP shall include a determination of the current compliance rate based on a study of the system that includes an estimate of compliance losses due to loopholes, counterfeiting, and unregistered vehicles. Estimates of the effect of closing such loopholes and otherwise improving the enforcement mechanism shall be supported with detailed analyses.

(3) The SIP shall include the legal authority to implement and enforce the program.

(4) The SIP shall include a commitment to an enforcement level to be used for modeling purposes and to be maintained, at a minimum, in practice.

[57 FR 52987, Nov. 5, 1992, as amended at 61 FR 49682, Sept. 23, 1996]

§51.362   Motorist compliance enforcement program oversight.

The enforcement program shall be audited regularly and shall follow effective program management practices, including adjustments to improve operation when necessary.

(a) Quality assurance and quality control. A quality assurance program shall be implemented to insure effective overall performance of the enforcement system. Quality control procedures are required to instruct individuals in the enforcement process regarding how to properly conduct their activities. At a minimum, the quality control and quality assurance program shall include:

(1) Verification of exempt vehicle status by inspecting and confirming such vehicles by the program or its delegate;

(2) Facilitation of accurate critical test data and vehicle identifier collection through the use of automatic data capture systems such as bar-code scanners or optical character readers, or through redundant data entry (where applicable);

(3) Maintenance of an audit trail to allow for the assessment of enforcement effectiveness;

(4) Establishment of written procedures for personnel directly engaged in I/M enforcement activities;

(5) Establishment of written procedures for personnel engaged in I/M document handling and processing, such as registration clerks or personnel involved in sticker dispensing and waiver processing, as well as written procedures for the auditing of their performance;

(6) Follow-up validity checks on out-of-area or exemption-triggering registration changes;

(7) Analysis of registration-change applications to target potential violators;

(8) A determination of enforcement program effectiveness through periodic audits of test records and program compliance documentation;

(9) Enforcement procedures for disciplining, retraining, or removing enforcement personnel who deviate from established requirements, or in the case of non-government entities that process registrations, for defranchising, revoking or otherwise discontinuing the activity of the entity issuing registrations; and

(10) The prevention of fraudulent procurement or use of inspection documents by controlling and tracking document distribution and handling, and making stations financially liable for missing or unaccounted for documents by assessing monetary fines reflecting the “street value” of these documents (i.e., the test fee plus the minimum waiver expenditure).

(b) Information management. In establishing an information base to be used in characterizing, evaluating, and enforcing the program, the State shall:

(1) Determine the subject vehicle population;

(2) Permit EPA audits of the enforcement process;

(3) Assure the accuracy of registration and other program document files;

(4) Maintain and ensure the accuracy of the testing database through periodic internal and/or third-party review;

(5) Compare the testing database to the registration database to determine program effectiveness, establish compliance rates, and to trigger potential enforcement action against non-complying motorists; and

(6) Sample the fleet as a determination of compliance through parking lot surveys, road-side pull-overs, or other in-use vehicle measurements.

(c) SIP requirements. The SIP shall include a description of enforcement program oversight and information management activities.

[57 FR 52987, Nov. 5, 1992, as amended at 65 FR 45534, July 24, 2000]

§51.363   Quality assurance.

An ongoing quality assurance program shall be implemented to discover, correct and prevent fraud, waste, and abuse and to determine whether procedures are being followed, are adequate, whether equipment is measuring accurately, and whether other problems might exist which would impede program performance. The quality assurance and quality control procedures shall be periodically evaluated to assess their effectiveness and relevance in achieving program goals.

(a) Performance audits. Performance audits shall be conducted on a regular basis to determine whether inspectors are correctly performing all tests and other required functions. Performance audits shall be of two types: overt and covert, and shall include:

(1) Performance audits based upon written procedures and results shall be reported using either electronic or written forms to be retained in the inspector and station history files, with sufficient detail to support either an administrative or civil hearing;

(2) Performance audits in addition to regularly programmed audits for stations employing inspectors suspected of violating regulations as a result of audits, data analysis, or consumer complaints;

(3) Overt performance audits shall be performed at least twice per year for each lane or test bay and shall include:

(i) A check for the observance of appropriate document security;

(ii) A check to see that required record keeping practices are being followed;

(iii) A check for licenses or certificates and other required display information; and

(iv) Observation and written evaluation of each inspector's ability to properly perform an inspection;

(4) Covert performance audits shall include:

(i) Remote visual observation of inspector performance, which may include the use of aids such as binoculars or video cameras, at least once per year per inspector in high-volume stations (i.e., those performing more than 4000 tests per year);

(ii) Site visits at least once per year per number of inspectors using covert vehicles set to fail (this requirement sets a minimum level of activity, not a requirement that each inspector be involved in a covert audit);

(iii) For stations that conduct both testing and repairs, at least one covert vehicle visit per station per year including the purchase of repairs and subsequent retesting if the vehicle is initially failed for tailpipe emissions (this activity may be accomplished in conjunction with paragraph (a)(4)(ii) of this section but must involve each station at least once per year);

(iv) Documentation of the audit, including vehicle condition and preparation, sufficient for building a legal case and establishing a performance record;

(v) Covert vehicles covering the range of vehicle technology groups (e.g., carbureted and fuel-injected vehicles) included in the program, including a full range of introduced malfunctions covering the emission test, the evaporative system tests, and emission control component checks (as applicable);

(vi) Sufficient numbers of covert vehicles and auditors to allow for frequent rotation of both to prevent detection by station personnel; and

(vii) Where applicable, access to on-line inspection databases by State personnel to permit the creation and maintenance of covert vehicle records.

(b) Record audits. Station and inspector records shall be reviewed or screened at least monthly to assess station performance and identify problems that may indicate potential fraud or incompetence. Such review shall include:

(1) Automated record analysis to identify statistical inconsistencies, unusual patterns, and other discrepancies;

(2) Visits to inspection stations to review records not already covered in the electronic analysis (if any); and

(3) Comprehensive accounting for all official forms that can be used to demonstrate compliance with the program.

(c) Equipment audits. During overt site visits, auditors shall conduct quality control evaluations of the required test equipment, including (where applicable):

(1) A gas audit using gases of known concentrations at least as accurate as those required for regular equipment quality control and comparing these concentrations to actual readings;

(2) A check for tampering, worn instrumentation, blocked filters, and other conditions that would impede accurate sampling;

(3) A check for critical flow in critical flow CVS units;

(4) A check of the Constant Volume Sampler flow calibration;

(5) A check for the optimization of the Flame Ionization Detection fuel-air ratio using methane;

(6) A leak check;

(7) A check to determine that station gas bottles used for calibration purposes are properly labelled and within the relevant tolerances;

(8) Functional dynamometer checks addressing coast-down, roll speed and roll distance, inertia weight selection, and power absorption;

(9) A check of the system's ability to accurately detect background pollutant concentrations;

(10) A check of the pressure monitoring devices used to perform the evaporative canister pressure test(s); and

(11) A check of the purge flow metering system.

(d) Auditor training and proficiency. (1) Auditors shall be formally trained and knowledgeable in:

(i) The use of test equipment and/or procedures;

(ii) Program rules and regulations;

(iii) The basics of air pollution control;

(iv) Basic principles of motor vehicle engine repair, related to emission performance;

(v) Emission control systems;

(vi) Evidence gathering;

(vii) State administrative procedures laws;

(viii) Quality assurance practices; and

(ix) Covert audit procedures.

(2) Auditors shall themselves be audited at least once annually.

(3) The training and knowledge requirements in paragraph (d)(1) of this section may be waived for temporary auditors engaged solely for the purpose of conducting covert vehicle runs.

(e) SIP requirements. The SIP shall include a description of the quality assurance program, and written procedures manuals covering both overt and covert performance audits, record audits, and equipment audits. This requirement does not include materials or discussion of details of enforcement strategies that would ultimately hamper the enforcement process.

[57 FR 52987, Nov. 5, 1992, as amended at 65 FR 45534, July 24, 2000]

§51.364   Enforcement against contractors, stations and inspectors.

Enforcement against licensed stations or contractors, and inspectors shall include swift, sure, effective, and consistent penalties for violation of program requirements.

(a) Imposition of penalties. A penalty schedule shall be developed that establishes minimum penalties for violations of program rules and procedures.

(1) The schedule shall categorize and list violations and the minimum penalties to be imposed for first, second, and subsequent violations and for multiple violation of different requirements. In the case of contracted systems, the State may use compensation retainage in lieu of penalties.

(2) Substantial penalties or retainage shall be imposed on the first offense for violations that directly affect emission reduction benefits. At a minimum, in test-and-repair programs inspector and station license suspension shall be imposed for at least 6 months whenever a vehicle is intentionally improperly passed for any required portion of the test. In test-only programs, inspectors shall be removed from inspector duty for at least 6 months (or a retainage penalty equivalent to the inspector's salary for that period shall be imposed).

(3) All findings of serious violations of rules or procedural requirements shall result in mandatory fines or retainage. In the case of gross neglect, a first offense shall result in a fine or retainage of no less than $100 or 5 times the inspection fee, whichever is greater, for the contractor or the licensed station, and the inspector if involved.

(4) Any finding of inspector incompetence shall result in mandatory training before inspection privileges are restored.

(5) License or certificate suspension or revocation shall mean the individual is barred from direct or indirect involvement in any inspection operation during the term of the suspension or revocation.

(b) Legal authority. (1) The quality assurance officer shall have the authority to temporarily suspend station and inspector licenses or certificates (after approval of a superior) immediately upon finding a violation or equipment failure that directly affects emission reduction benefits, pending a hearing when requested. In the case of immediate suspension, a hearing shall be held within fourteen calendar days of a written request by the station licensee or the inspector. Failure to hold a hearing within 14 days when requested shall cause the suspension to lapse. In the event that a State's constitution precludes such a temporary license suspension, the enforcement system shall be designed with adequate resources and mechanisms to hold a hearing to suspend or revoke the station or inspector license within three station business days of the finding.

(2) The oversight agency shall have the authority to impose penalties against the licensed station or contractor, as well as the inspector, even if the licensee or contractor had no direct knowledge of the violation but was found to be careless in oversight of inspectors or has a history of violations. Contractors and licensees shall be held fully responsible for inspector performance in the course of duty.

(c) Recordkeeping. The oversight agency shall maintain records of all warnings, civil fines, suspensions, revocations, and violations and shall compile statistics on violations and penalties on an annual basis.

(d) SIP requirements. (1) The SIP shall include the penalty schedule and the legal authority for establishing and imposing penalties, civil fines, license suspension, and revocations.

(2) In the case of State constitutional impediments to immediate suspension authority, the State Attorney General shall furnish an official opinion for the SIP explaining the constitutional impediment as well as relevant case law.

(3) The SIP shall describe the administrative and judicial procedures and responsibilities relevant to the enforcement process, including which agencies, courts, and jurisdictions are involved; who will prosecute and adjudicate cases; and other aspects of the enforcement of the program requirements, the resources to be allocated to this function, and the source of those funds. In States without immediate suspension authority, the SIP shall demonstrate that sufficient resources, personnel, and systems are in place to meet the three day case management requirement for violations that directly affect emission reductions.

(e) Alternative quality assurance procedures or frequencies that achieve equivalent or better results may be approved by the Administrator. Statistical process control shall be used whenever possible to demonstrate the efficacy of alternatives.

(f) Areas that qualify for and choose to implement an OTR low enhanced I/M program, as established in §51.351(h), and that claim in their SIP less emission reduction credit than the basic performance standard for one or more pollutants, are not required to meet the oversight specifications of this section.

[57 FR 52987, Nov. 5, 1992, as amended at 61 FR 39037, July 25, 1996]

§51.365   Data collection.

Accurate data collection is essential to the management, evaluation, and enforcement of an I/M program. The program shall gather test data on individual vehicles, as well as quality control data on test equipment (with the exception of test procedures for which either no testing equipment is required or those test procedures relying upon a vehicle's OBD system).

(a) Test data. The goal of gathering test data is to unambiguously link specific test results to a specific vehicle, I/M program registrant, test site, and inspector, and to determine whether or not the correct testing parameters were observed for the specific vehicle in question. In turn, these data can be used to distinguish complying and noncomplying vehicles as a result of analyzing the data collected and comparing it to the registration database, to screen inspection stations and inspectors for investigation as to possible irregularities, and to help establish the overall effectiveness of the program. At a minimum, the program shall collect the following with respect to each test conducted:

(1) Test record number;

(2) Inspection station and inspector numbers;

(3) Test system number (where applicable);

(4) Date of the test;

(5) Emission test start time and the time final emission scores are determined;

(6) Vehicle Identification Number;

(7) License plate number;

(8) Test certificate number;

(9) Gross Vehicle Weight Rating (GVWR);

(10) Vehicle model year, make, and type;

(11) Number of cylinders or engine displacement;

(12) Transmission type;

(13) Odometer reading;

(14) Category of test performed (i.e., initial test, first retest, or subsequent retest);

(15) Fuel type of the vehicle (i.e., gas, diesel, or other fuel);

(16) Type of vehicle preconditioning performed (if any);

(17) Emission test sequence(s) used;

(18) Hydrocarbon emission scores and standards for each applicable test mode;

(19) Carbon monoxide emission scores and standards for each applicable test mode;

(20) Carbon dioxide emission scores (CO+CO2) and standards for each applicable test mode;

(21) Nitrogen oxides emission scores and standards for each applicable test mode;

(22) Results (Pass/Fail/Not Applicable) of the applicable visual inspections for the catalytic converter, air system, gas cap, evaporative system, positive crankcase ventilation (PCV) valve, fuel inlet restrictor, and any other visual inspection for which emission reduction credit is claimed;

(23) Results of the evaporative system pressure test(s) expressed as a pass or fail;

(24) Results of the evaporative system purge test expressed as a pass or fail along with the total purge flow in liters achieved during the test (where applicable); and

(25) Results of the on-board diagnostic check expressed as a pass or fail along with the diagnostic trouble codes revealed (where applicable).

(b) Quality control data. At a minimum, the program shall gather and report the results of the quality control checks required under §51.359 of this subpart, identifying each check by station number, system number, date, and start time. The data report shall also contain the concentration values of the calibration gases used to perform the gas characterization portion of the quality control checks (where applicable).

[57 FR 52987, Nov. 5, 1992, as amended at 61 FR 40945, Aug. 6, 1996; 65 FR 45534, July 24, 2000]

§51.366   Data analysis and reporting.

Data analysis and reporting are required to allow for monitoring and evaluation of the program by program management and EPA, and shall provide information regarding the types of program activities performed and their final outcomes, including summary statistics and effectiveness evaluations of the enforcement mechanism, the quality assurance system, the quality control program, and the testing element. Initial submission of the following annual reports shall commence within 18 months of initial implementation of the program as required by §51.373 of this subpart. The biennial report shall commence within 30 months of initial implementation of the program as required by §51.373 of this subpart.

(a) Test data report. The program shall submit to EPA by July of each year a report providing basic statistics on the testing program for January through December of the previous year, including:

(1) The number of vehicles tested by model year and vehicle type;

(2) By model year and vehicle type, the number and percentage of vehicles:

(i) Failing initially, per test type;

(ii) Failing the first retest per test type;

(iii) Passing the first retest per test type;

(iv) Initially failed vehicles passing the second or subsequent retest per test type;

(v) Initially failed vehicles receiving a waiver; and

(vi) Vehicles with no known final outcome (regardless of reason).

(vii)-(x) [Reserved]

(xi) Passing the on-board diagnostic check;

(xii) Failing the on-board diagnostic check;

(xiii) Failing the on-board diagnostic check and passing the tailpipe test (if applicable);

(xiv) Failing the on-board diagnostic check and failing the tailpipe test (if applicable);

(xv) Passing the on-board diagnostic check and failing the I/M gas cap evaporative system test (if applicable);

(xvi) Failing the on-board diagnostic check and passing the I/M gas cap evaporative system test (if applicable);

(xvii) Passing both the on-board diagnostic check and I/M gas cap evaporative system test (if applicable);

(xviii) Failing both the on-board diagnostic check and I/M gas cap evaporative system test (if applicable);

(xix) MIL is commanded on and no codes are stored;

(xx) MIL is not commanded on and codes are stored;

(xxi) MIL is commanded on and codes are stored;

(xxii) MIL is not commanded on and codes are not stored;

(xxiii) Readiness status indicates that the evaluation is not complete for any module supported by on-board diagnostic systems;

(3) The initial test volume by model year and test station;

(4) The initial test failure rate by model year and test station; and

(5) The average increase or decrease in tailpipe emission levels for HC, CO, and NOX (if applicable) after repairs by model year and vehicle type for vehicles receiving a mass emissions test.

(b) Quality assurance report. The program shall submit to EPA by July of each year a report providing basic statistics on the quality assurance program for January through December of the previous year, including:

(1) The number of inspection stations and lanes:

(i) Operating throughout the year; and

(ii) Operating for only part of the year;

(2) The number of inspection stations and lanes operating throughout the year:

(i) Receiving overt performance audits in the year;

(ii) Not receiving overt performance audits in the year;

(iii) Receiving covert performance audits in the year;

(iv) Not receiving covert performance audits in the year; and

(v) That have been shut down as a result of overt performance audits;

(3) The number of covert audits:

(i) Conducted with the vehicle set to fail per test type;

(ii) Conducted with the vehicle set to fail any combination of two or more test types;

(iii) Resulting in a false pass per test type;

(iv) Resulting in a false pass for any combination of two or more test types;

(v)-(viii) [Reserved]

(4) The number of inspectors and stations:

(i) That were suspended, fired, or otherwise prohibited from testing as a result of covert audits;

(ii) That were suspended, fired, or otherwise prohibited from testing for other causes; and

(iii) That received fines;

(5) The number of inspectors licensed or certified to conduct testing;

(6) The number of hearings:

(i) Held to consider adverse actions against inspectors and stations; and

(ii) Resulting in adverse actions against inspectors and stations;

(7) The total amount collected in fines from inspectors and stations by type of violation;

(8) The total number of covert vehicles available for undercover audits over the year; and

(9) The number of covert auditors available for undercover audits.

(c) Quality control report. The program shall submit to EPA by July of each year a report providing basic statistics on the quality control program for January through December of the previous year, including:

(1) The number of emission testing sites and lanes in use in the program;

(2) The number of equipment audits by station and lane;

(3) The number and percentage of stations that have failed equipment audits; and

(4) Number and percentage of stations and lanes shut down as a result of equipment audits.

(d) Enforcement report. (1) All varieties of enforcement programs shall, at a minimum, submit to EPA by July of each year a report providing basic statistics on the enforcement program for January through December of the previous year, including:

(i) An estimate of the number of vehicles subject to the inspection program, including the results of an analysis of the registration data base;

(ii) The percentage of motorist compliance based upon a comparison of the number of valid final tests with the number of subject vehicles;

(iii) The total number of compliance documents issued to inspection stations;

(iv) The number of missing compliance documents;

(v) The number of time extensions and other exemptions granted to motorists; and

(vi) The number of compliance surveys conducted, number of vehicles surveyed in each, and the compliance rates found.

(2) Registration denial based enforcement programs shall provide the following additional information:

(i) A report of the program's efforts and actions to prevent motorists from falsely registering vehicles out of the program area or falsely changing fuel type or weight class on the vehicle registration, and the results of special studies to investigate the frequency of such activity; and

(ii) The number of registration file audits, number of registrations reviewed, and compliance rates found in such audits.

(3) Computer-matching based enforcement programs shall provide the following additional information:

(i) The number and percentage of subject vehicles that were tested by the initial deadline, and by other milestones in the cycle;

(ii) A report on the program's efforts to detect and enforce against motorists falsely changing vehicle classifications to circumvent program requirements, and the frequency of this type of activity; and

(iii) The number of enforcement system audits, and the error rate found during those audits.

(4) Sticker-based enforcement systems shall provide the following additional information:

(i) A report on the program's efforts to prevent, detect, and enforce against sticker theft and counterfeiting, and the frequency of this type of activity;

(ii) A report on the program's efforts to detect and enforce against motorists falsely changing vehicle classifications to circumvent program requirements, and the frequency of this type of activity; and

(iii) The number of parking lot sticker audits conducted, the number of vehicles surveyed in each, and the noncompliance rate found during those audits.

(e) Additional reporting requirements. In addition to the annual reports in paragraphs (a) through (d) of this section, programs shall submit to EPA by July of every other year, biennial reports addressing:

(1) Any changes made in program design, funding, personnel levels, procedures, regulations, and legal authority, with detailed discussion and evaluation of the impact on the program of all such changes; and

(2) Any weaknesses or problems identified in the program within the two-year reporting period, what steps have already been taken to correct those problems, the results of those steps, and any future efforts planned.

(f) SIP requirements. The SIP shall describe the types of data to be collected.

[57 FR 52987, Nov. 5, 1992, as amended at 61 FR 40945, Aug. 6, 1996; 65 FR 45534, July 24, 2000; 66 FR 18178, Apr. 5, 2001]

§51.367   Inspector training and licensing or certification.

All inspectors shall receive formal training and be licensed or certified to perform inspections.

(a) Training. (1) Inspector training shall impart knowledge of the following:

(i) The air pollution problem, its causes and effects;

(ii) The purpose, function, and goal of the inspection program;

(iii) Inspection regulations and procedures;

(iv) Technical details of the test procedures and the rationale for their design;

(v) Emission control device function, configuration, and inspection;

(vi) Test equipment operation, calibration, and maintenance (with the exception of test procedures which either do not require the use of special equipment or which rely upon a vehicle's OBD system);

(vii) Quality control procedures and their purpose;

(viii) Public relations; and

(ix) Safety and health issues related to the inspection process.

(2) If inspector training is not administered by the program, the responsible State agency shall monitor and evaluate the training program delivery.

(3) In order to complete the training requirement, a trainee shall pass (i.e., a minimum of 80% of correct responses or lower if an occupational analysis justifies it) a written test covering all aspects of the training. In addition, a hands-on test shall be administered in which the trainee demonstrates without assistance the ability to conduct a proper inspection and to follow other required procedures. Inability to properly conduct all test procedures shall constitute failure of the test. The program shall take appropriate steps to insure the security and integrity of the testing process.

(b) Licensing and certification. (1) All inspectors shall be either licensed by the program (in the case of test-and-repair systems that do not use contracts with stations) or certified by an organization other than the employer (in test-only programs and test-and-repair programs that require station owners to enter into contracts with the State) in order to perform official inspections.

(2) Completion of inspector training and passing required tests shall be a condition of licensing or certification.

(3) Inspector licenses and certificates shall be valid for no more than 2 years, at which point refresher training and testing shall be required prior to renewal. Alternative approaches based on more comprehensive skill examination and determination of inspector competency may be used.

(4) Licenses or certificates shall not be considered a legal right but rather a privilege bestowed by the program conditional upon adherence to program requirements.

(c) SIP requirements. The SIP shall include a description of the training program, the written and hands-on tests, and the licensing or certification process.

[57 FR 52987, Nov. 5, 1992, as amended at 65 FR 45534, July 24, 2000]

§51.368   Public information and consumer protection.

(a) Public awareness. The SIP shall include a plan for informing the public on an ongoing basis throughout the life of the I/M program of the air quality problem, the requirements of Federal and State law, the role of motor vehicles in the air quality problem, the need for and benefits of an inspection program, how to maintain a vehicle in a low-emission condition, how to find a qualified repair technician, and the requirements of the I/M program. Motorists that fail the I/M test in enhanced I/M areas shall be offered a list of repair facilities in the area and information on the results of repairs performed by repair facilities in the area, as described in §51.369(b)(1) of this subpart. Motorists that fail the I/M test shall also be provided with information concerning the possible cause(s) for failing the particular portions of the test that were failed.

(b) Consumer protection. The oversight agency shall institute procedures and mechanisms to protect the public from fraud and abuse by inspectors, mechanics, and others involved in the I/M program. This shall include a challenge mechanism by which a vehicle owner can contest the results of an inspection. It shall include mechanisms for protecting whistle blowers and following up on complaints by the public or others involved in the process. It shall include a program to assist owners in obtaining warranty covered repairs for eligible vehicles that fail a test. The SIP shall include a detailed consumer protection plan.

[57 FR 52987, Nov. 5, 1992, as amended at 65 FR 45534, July 24, 2000]

§51.369   Improving repair effectiveness.

Effective repairs are the key to achieving program goals and the State shall take steps to ensure the capability exists in the repair industry to repair vehicles that fail I/M tests.

(a) Technical assistance. The oversight agency shall provide the repair industry with information and assistance related to vehicle inspection diagnosis and repair.

(1) The agency shall regularly inform repair facilities of changes in the inspection program, training course schedules, common problems being found with particular engine families, diagnostic tips and the like.

(2) The agency shall provide a hot line service to assist repair technicians with specific repair problems, answer technical questions that arise in the repair process, and answer questions related to the legal requirements of State and Federal law with regard to emission control device tampering, engine switching, or similar issues.

(b) Performance monitoring. (1) In enhanced I/M program areas, the oversight agency shall monitor the performance of individual motor vehicle repair facilities, and provide to the public at the time of initial failure, a summary of the performance of local repair facilities that have repaired vehicles for retest. Performance monitoring shall include statistics on the number of vehicles submitted for a retest after repair by the repair facility, the percentage passing on first retest, the percentage requiring more than one repair/retest trip before passing, and the percentage receiving a waiver. Programs may provide motorists with alternative statistics that convey similar information on the relative ability of repair facilities in providing effective and convenient repair, in light of the age and other characteristics of vehicles presented for repair at each facility.

(2) Programs shall provide feedback, including statistical and qualitative information to individual repair facilities on a regular basis (at least annually) regarding their success in repairing failed vehicles.

(3) A prerequisite for a retest shall be a completed repair form that indicates which repairs were performed, as well as any technician recommended repairs that were not performed, and identification of the facility that performed the repairs.

(c) Repair technician training. The State shall assess the availability of adequate repair technician training in the I/M area and, if the types of training described in paragraphs (c)(1) through (4) of this section are not currently available, shall insure that training is made available to all interested individuals in the community either through private or public facilities. This may involve working with local community colleges or vocational schools to add curricula to existing programs or start new programs or it might involve attracting private training providers to offer classes in the area. The training available shall include:

(1) Diagnosis and repair of malfunctions in computer controlled, close-loop vehicles;

(2) The application of emission control theory and diagnostic data to the diagnosis and repair of failures on the transient emission test and the evaporative system functional checks (where applicable);

(3) Utilization of diagnostic information on systematic or repeated failures observed in the transient emission test and the evaporative system functional checks (where applicable); and

(4) General training on the various subsystems related to engine emission control.

(d) SIP requirements. The SIP shall include a description of the technical assistance program to be implemented, a description of the procedures and criteria to be used in meeting the performance monitoring requirements of this section, and a description of the repair technician training resources available in the community.

[57 FR 52987, Nov. 5, 1992, as amended at 65 FR 45535, July 24, 2000]

§51.370   Compliance with recall notices.

States shall establish methods to ensure that vehicles subject to enhanced I/M and that are included in either a “Voluntary Emissions Recall” as defined at 40 CFR 85.1902(d), or in a remedial plan determination made pursuant to section 207(c) of the Act, receive the required repairs. States shall require that owners of recalled vehicles have the necessary recall repairs completed, either in order to complete an annual or biennial inspection process or to obtain vehicle registration renewal. All recalls for which owner notification occurs after January 1, 1995 shall be included in the enhanced I/M recall requirement.

(a) General requirements. (1) The State shall have an electronic means to identify recalled vehicles based on lists of VINs with unresolved recalls made available by EPA, the vehicle manufacturers, or a third party supplier approved by the Administrator. The State shall update its list of unresolved recalls on a quarterly basis at a minimum.

(2) The State shall require owners or lessees of vehicles with unresolved recalls to show proof of compliance with recall notices in order to complete either the inspection or registration cycle.

(3) Compliance shall be required on the next registration or inspection date, allowing a reasonable period to comply, after notification of recall was received by the State.

(b) Enforcement. (1) A vehicle shall either fail inspection or be denied vehicle registration if the required recall repairs have not been completed.

(2) In the case of vehicles obtaining recall repairs but remaining on the updated list provided in paragraph (a)(1) of this section, the State shall have a means of verifying completion of the required repairs; electronic records or paper receipts provided by the authorized repair facility shall be required. The vehicle inspection or registration record shall be modified to include (or be supplemented with other VIN-linked records which include) the recall campaign number(s) and the date(s) repairs were performed. Documentation verifying required repairs shall include the following:

(i) The VIN, make, and model year of the vehicle; and

(ii) The recall campaign number and the date repairs were completed.

(c) Reporting requirements. The State shall submit to EPA, by July of each year for the previous calendar year, an annual report providing the following information:

(1) The number of vehicles in the I/M area initially listed as having unresolved recalls, segregated by recall campaign number;

(2) The number of recalled vehicles brought into compliance by owners;

(3) The number of listed vehicles with unresolved recalls that, as of the end of the calendar year, were not yet due for inspection or registration;

(4) The number of recalled vehicles still in non-compliance that have either failed inspection or been denied registration on the basis of non-compliance with recall; and

(5) The number of recalled vehicles that are otherwise not in compliance.

(d) SIP submittals. The SIP shall describe the procedures used to incorporate the vehicle lists provided in paragraph (a)(1) of this section into the inspection or registration database, the quality control methods used to insure that recall repairs are properly documented and tracked, and the method (inspection failure or registration denial) used to enforce the recall requirements.

§51.371   On-road testing.

On-road testing is defined as testing of vehicles for conditions impacting the emission of HC, CO, NOX and/or CO2 emissions on any road or roadside in the nonattainment area or the I/M program area. On-road testing is required in enhanced I/M areas and is an option for basic I/M areas.

(a) General requirements. (1) On-road testing is to be part of the emission testing system, but is to be a complement to testing otherwise required.

(2) On-road testing is not required in every season or on every vehicle but shall evaluate the emission performance of 0.5% of the subject fleet statewide or 20,000 vehicles, whichever is less, per inspection cycle.

(3) The on-road testing program shall provide information about the performance of in-use vehicles, by measuring on-road emissions through the use of remote sensing devices or by assessing vehicle emission performance through roadside pullovers including tailpipe or evaporative emission testing or a check of the onboard diagnostic (OBD) system for vehicles so equipped. The program shall collect, analyze and report on-road testing data.

(4) Owners of vehicles that have previously been through the normal periodic inspection and passed the final retest and found to be high emitters shall be notified that the vehicles are required to pass an out-of-cycle follow-up inspection; notification may be by mailing in the case of remote sensing on-road testing or through immediate notification if roadside pullovers are used.

(b) SIP requirements. (1) The SIP shall include a detailed description of the on-road testing program, including the types of testing, test limits and criteria, the number of vehicles (the percentage of the fleet) to be tested, the number of employees to be dedicated to the on-road testing effort, the methods for collecting, analyzing, utilizing, and reporting the results of on-road testing and, the portion of the program budget to be dedicated to on-road testing.

(2) The SIP shall include the legal authority necessary to implement the on-road testing program, including the authority to enforce off-cycle inspection and repair requirements (where applicable).

(3) Emission reduction credit for on-road testing programs shall be granted for a program designed to obtain measurable emission reductions over and above those already predicted to be achieved by other aspects of the I/M program. Emission reduction credit will only be granted to those programs which require out-of-cycle repairs for confirmed high-emitting vehicles identified under the on-road testing program. The SIP shall include technical support for the claimed additional emission reductions.

[57 FR 52987, Nov. 5, 1992, as amended at 65 FR 45535, July 24, 2000]

§51.372   State Implementation Plan submissions.

(a) SIP submittals. The SIP shall address each of the elements covered in this subpart, including, but not limited to:

(1) A schedule of implementation of the program including interim milestones leading to mandatory testing. The milestones shall include, at a minimum:

(i) Passage of enabling statutory or other legal authority;

(ii) Proposal of draft regulations and promulgation of final regulations;

(iii) Issuance of final specifications and procedures;

(iv) Issuance of final Request for Proposals (if applicable);

(v) Licensing or certifications of stations and inspectors;

(vi) The date mandatory testing will begin for each model year to be covered by the program;

(vii) The date full-stringency cutpoints will take effect;

(viii) All other relevant dates;

(2) An analysis of emission level targets for the program using the most current EPA mobile source emission model or an alternative approved by the Administrator showing that the program meets the performance standard described in §51.351 or §51.352 of this subpart, as applicable;

(3) A description of the geographic coverage of the program, including ZIP codes if the program is not county-wide;

(4) A detailed discussion of each of the required design elements, including provisions for Federal facility compliance;

(5) Legal authority requiring or allowing implementation of the I/M program and providing either broad or specific authority to perform all required elements of the program;

(6) Legal authority for I/M program operation until such time as it is no longer necessary (i.e., until a Section 175 maintenance plan without an I/M program is approved by EPA);

(7) Implementing regulations, interagency agreements, and memoranda of understanding; and

(8) Evidence of adequate funding and resources to implement all aspects of the program.

(b) Submittal schedule. The SIP shall be submitted to EPA according to the following schedule—

(1) [Reserved]

(2) A SIP revision required as a result of designation for a National Ambient Air Quality Standard in place prior to implementation of the 8-hour ozone standard and including all necessary legal authority and the items specified in paragraphs (a)(1) through (a)(8) of this section, shall be submitted no later than November 15, 1993. For non-attainment areas designated and classified under the 8-hour ozone standard, a SIP revision including all necessary legal authority and the items specified in paragraphs (a)(1) through (a)(8) of this section, shall be submitted by May 8, 2007 or 1 year after the effective date of designation and classification under the 8-hour ozone National Ambient Air Quality Standard, whichever is later.

(3) [Reserved]

(c) Redesignation requests. Any nonattainment area that EPA determines would otherwise qualify for redesignation from nonattainment to attainment shall receive full approval of a State Implementation Plan (SIP) submittal under Sections 182(a)(2)(B) or 182(b)(4) if the submittal contains the following elements:

(1) Legal authority to implement a basic I/M program (or enhanced if the State chooses to opt up) as required by this subpart. The legislative authority for an I/M program shall allow the adoption of implementing regulations without requiring further legislation.

(2) A request to place the I/M plan (if no I/M program is currently in place or if an I/M program has been terminated,) or the I/M upgrade (if the existing I/M program is to continue without being upgraded) into the contingency measures portion of the maintenance plan upon redesignation.

(3) A contingency measure consisting of a commitment by the Governor or the Governor's designee to adopt or consider adopting regulations to implement an I/M program to correct a violation of the ozone or CO standard or other air quality problem, in accordance with the provisions of the maintenance plan.

(4) A contingency commitment that includes an enforceable schedule for adoption and implementation of the I/M program, and appropriate milestones. The schedule shall include the date for submission of a SIP meeting all of the requirements of this subpart. Schedule milestones shall be listed in months from the date EPA notifies the State that it is in violation of the ozone or CO standard or any earlier date specified in the State plan. Unless the State, in accordance with the provisions of the maintenance plan, chooses not to implement I/M, it must submit a SIP revision containing an I/M program no more than 18 months after notification by EPA.

(d) Basic areas continuing operation of I/M programs as part of their maintenance plan without implemented upgrades shall be assumed to be 80% as effective as an implemented, upgraded version of the same I/M program design, unless a State can demonstrate using operating information that the I/M program is more effective than the 80% level.

(e) SIP submittals to correct violations. SIP submissions required pursuant to a violation of the ambient ozone or CO standard (as discussed in paragraph (c) of this section) shall address all of the requirements of this subpart. The SIP shall demonstrate that performance standards in either §51.351 or §51.352 shall be met using an evaluation date (rounded to the nearest January for carbon monoxide and July for hydrocarbons) seven years after the date EPA notifies the State that it is in violation of the ozone or CO standard or any earlier date specified in the State plan. Emission standards for vehicles subject to an IM240 test may be phased in during the program but full standards must be in effect for at least one complete test cycle before the end of the 5-year period. All other requirements shall take effect within 24 months of the date EPA notifies the State that it is in violation of the ozone or CO standard or any earlier date specified in the State plan. The phase-in allowances of §51.373(c) of this subpart shall not apply.

[57 FR 52987, Nov. 5, 1992, as amended at 60 FR 1738, Jan. 5, 1995; 60 FR 48036, Sept. 18, 1995; 61 FR 40946, Aug. 6, 1996; 61 FR 44119, Aug. 27, 1996; 71 FR 17711, Apr. 7, 2006]

§51.373   Implementation deadlines.

I/M programs shall be implemented as expeditiously as practicable.

(a) Decentralized basic programs shall be fully implemented by January 1, 1994, and centralized basic programs shall be fully implemented by July 1, 1994. More implementation time may be approved by the Administrator if an enhanced I/M program is implemented.

(b) For areas newly required to implement basic I/M as a result of designation under the 8-hour ozone standard, the required program shall be fully implemented no later than 4 years after the effective date of designation and classification under the 8-hour ozone standard.

(c) All requirements related to enhanced I/M programs shall be implemented by January 1, 1995, with the following exceptions.

(1) Areas switching from an existing test-and-repair network to a test-only network may phase in the change between January of 1995 and January of 1996. Starting in January of 1995 at least 30% of the subject vehicles shall participate in the test-only system (in States with multiple I/M areas, implementation is not required in every area by January 1995 as long as statewide, 30% of the subject vehicles are involved in testing) and shall be subject to the new test procedures (including the evaporative system checks, visual inspections, and tailpipe emission tests). By January 1, 1996, all applicable vehicle model years and types shall be included in the test-only system. During the phase-in period, all requirements of this subpart shall be applied to the test-only portion of the program; existing requirements may continue to apply for the test-and-repair portion of the program until it is phased out by January 1, 1996.

(2) Areas starting new test-only programs and those with existing test-only programs may also phase in the new test procedures between January 1, 1995 and January 1, 1996. Other program requirements shall be fully implemented by January 1, 1995.

(d) For areas newly required to implement enhanced I/M as a result of designation under the 8-hour ozone standard, the required program shall be fully implemented no later than 4 years after the effective date of designation and classification under the 8-hour ozone standard.

(e) [Reserved]

(f) Areas that choose to implement an enhanced I/M program only meeting the requirements of §51.351(h) shall fully implement the program no later than July 1, 1999. The availability and use of this late start date does not relieve the area of the obligation to meet the requirements of §51.351(h)(11) by the end of 1999.

(g) On-Board Diagnostic checks shall be implemented in all basic, low enhanced and high enhanced areas as part of the I/M program by January 1, 2002. Alternatively, states may elect to phase-in OBD-I/M testing for one test cycle by using the OBD-I/M check to screen clean vehicles from tailpipe testing and require repair and retest for only those vehicles which proceed to fail the tailpipe test. An additional alternative is also available to states with regard to the deadline for mandatory testing, repair, and retesting of vehicles based upon the OBD-I/M check. Under this third option, if a state can show good cause (and the Administrator takes notice-and-comment action to approve this good cause showing), up to an additional 12 months' extension may be granted, establishing an alternative start date for such states of no later than January 1, 2003. States choosing to make this showing will also have available to them the phase-in approach described in this section, with the one-cycle time limit to begin coincident with the alternative start date established by Administrator approval of the showing, but no later than January 1, 2003. The showing of good cause (and its approval or disapproval) will be addressed on a case-by-case basis.

(h) For areas newly required to implement either a basic or enhanced I/M program as a result of being designated and classified under the 8-hour ozone standard, such programs shall begin OBD testing on subject OBD-equipped vehicles coincident with program start-up.

[57 FR 52987, Nov. 5, 1992, as amended at 58 FR 59367, Nov. 9, 1993; 61 FR 39037, July 25, 1996; 61 FR 40946, Aug. 6, 1996; 63 FR 24433, May 4, 1998; 66 FR 18178, Apr. 5, 2001; 71 FR 17711, Apr. 7, 2006]

Appendix A to Subpart S of Part 51—Calibrations, Adjustments and Quality Control

(I) Steady-State Test Equipment

States may opt to use transient emission test equipment for steady-state tests and follow the quality control requirements in paragraph (II) of this appendix instead of the following requirements.

(a) Equipment shall be calibrated in accordance with the manufacturers' instructions.

(b) Prior to each test—(1) Hydrocarbon hang-up check. Immediately prior to each test the analyzer shall automatically perform a hydrocarbon hang-up check. If the HC reading, when the probe is sampling ambient air, exceeds 20 ppm, the system shall be purged with clean air or zero gas. The analyzer shall be inhibited from continuing the test until HC levels drop below 20 ppm.

(2) Automatic zero and span. The analyzer shall conduct an automatic zero and span check prior to each test. The span check shall include the HC, CO, and CO2 channels, and the NO and O2 channels, if present. If zero and/or span drift cause the signal levels to move beyond the adjustment range of the analyzer, it shall lock out from testing.

(3) Low flow. The system shall lock out from testing if sample flow is below the acceptable level as defined in paragraph (I)(b)(6) of appendix D to this subpart.

(c) Leak check. A system leak check shall be performed within twenty-four hours before the test in low volume stations (those performing less than the 4,000 inspections per year) and within four hours in high-volume stations (4,000 or more inspections per year) and may be performed in conjunction with the gas calibration described in paragraph (I)(d)(1) of this appendix. If a leak check is not performed within the preceding twenty-four hours in low volume stations and within four hours in high-volume stations or if the analyzer fails the leak check, the analyzer shall lock out from testing. The leak check shall be a procedure demonstrated to effectively check the sample hose and probe for leaks and shall be performed in accordance with good engineering practices. An error of more than ±2% of the reading using low range span gas shall cause the analyzer to lock out from testing and shall require repair of leaks.

(d) Gas calibration. (1) On each operating day in high-volume stations, analyzers shall automatically require and successfully pass a two-point gas calibration for HC, CO, and CO2 and shall continually compensate for changes in barometric pressure. Calibration shall be checked within four hours before the test and the analyzer adjusted if the reading is more than 2% different from the span gas value. In low-volume stations, analyzers shall undergo a two-point calibration within seventy-two hours before each test, unless changes in barometric pressure are compensated for automatically and statistical process control demonstrates equal or better quality control using different frequencies. Gas calibration shall be accomplished by introducing span gas that meets the requirements of paragraph (I)(d)(3) of this appendix into the analyzer through the calibration port. If the analyzer reads the span gas within the allowable tolerance range (i.e., the square root of sum of the squares of the span gas tolerance described in paragraph (I)(d)(3) of this appendix and the calibration tolerance, which shall be equal to 2%), no adjustment of the analyzer is necessary. The gas calibration procedure shall correct readings that exceed the allowable tolerance range to the center of the allowable tolerance range. The pressure in the sample cell shall be the same with the calibration gas flowing during calibration as with the sample gas flowing during sampling. If the system is not calibrated, or the system fails the calibration check, the analyzer shall lock out from testing.

(2) Span points. A two point gas calibration procedure shall be followed. The span shall be accomplished at one of the following pairs of span points:

(A) 300—ppm propane (HC)

1.0—% carbon monoxide (CO)

6.0—% carbon dioxide (CO2)

1000—ppm nitric oxide (if equipped with NO)

1200—ppm propane (HC)

4.0—% carbon monoxide (CO)

12.0—% carbon dioxide (CO2)

3000—ppm nitric oxide (if equipped with NO)

(B) —ppm propane

0.0—% carbon monoxide

0.0—% carbon dioxide

0—ppm nitric oxide (if equipped with NO)

600—ppm propane (HC)

1.6—% carbon monoxide (CO)

11.0—% carbon dioxide (CO2)

1200—ppm nitric oxide (if equipped with NO)

(3) Span gases. The span gases used for the gas calibration shall be traceable to National Institute of Standards and Technology (NIST) standards ±2%, and shall be within two percent of the span points specified in paragraph (d)(2) of this appendix. Zero gases shall conform to the specifications given in §86.114-79(a)(5) of this chapter.

(e) Dynamometer checks—(1) Monthly check. Within one month preceding each loaded test, the accuracy of the roll speed indicator shall be verified and the dynamometer shall be checked for proper power absorber settings.

(2) Semi-annual check. Within six months preceding each loaded test, the road-load response of the variable-curve dynamometer or the frictional power absorption of the dynamometer shall be checked by a coast down procedure similar to that described in §86.118-78 of this chapter. The check shall be done at 30 mph, and a power absorption load setting to generate a total horsepower (hp) of 4.1 hp. The actual coast down time from 45 mph to 15 mph shall be within ±1 second of the time calculated by the following equation:

eCFR graphic ec08no91.014.gif

View or download PDF

where W is the total inertia weight as represented by the weight of the rollers (excluding free rollers), and any inertia flywheels used, measured in pounds. If the coast down time is not within the specified tolerance the dynamometer shall be taken out of service and corrective action shall be taken.

(f) Other checks. In addition to the above periodic checks, these shall also be used to verify system performance under the following special circumstances.

(1) Gas Calibration. (A) Each time the analyzer electronic or optical systems are repaired or replaced, a gas calibration shall be performed prior to returning the unit to service.

(B) In high-volume stations, monthly multi-point calibrations shall be performed. Low-volume stations shall perform multi-point calibrations every six months. The calibration curve shall be checked at 20%, 40%, 60%, and 80% of full scale and adjusted or repaired if the specifications in appendix D(I)(b)(1) to this subpart are not met.

(2) Leak checks. Each time the sample line integrity is broken, a leak check shall be performed prior to testing.

(II) Transient Test Equipment

(a) Dynamometer. Once per week, the calibration of each dynamometer and each fly wheel shall be checked by a dynamometer coast-down procedure comparable to that in §86.118-78 of this chapter between the speeds of 55 to 45 mph, and between 30 to 20 mph. All rotating dynamometer components shall be included in the coast-down check for the inertia weight selected. For dynamometers with uncoupled rolls, the uncoupled rollers may undergo a separate coast-down check. If a vehicle is used to motor the dynamometer to the beginning coast-down speed, the vehicle shall be lifted off the dynamometer rolls before the coast-down test begins. If the difference between the measured coast-down time and the theoretical coast-down time is greater than +1 second, the system shall lock out, until corrective action brings the dynamometer into calibration.

(b) Constant volume sampler. (1) The constant volume sampler (CVS) flow calibration shall be checked daily by a procedure that identifies deviations in flow from the true value. Deviations greater than ±4% shall be corrected.

(2) The sample probe shall be cleaned and checked at least once per month. The main CVS venturi shall be cleaned and checked at least once per year.

(3) Verification that flow through the sample probe is adequate for the design shall be done daily. Deviations greater than the design tolerances shall be corrected.

(c) Analyzer system—(1) Calibration checks. (A) Upon initial operation, calibration curves shall be generated for each analyzer. The calibration curve shall consider the entire range of the analyzer as one curve. At least 6 calibration points plus zero shall be used in the lower portion of the range corresponding to an average concentration of approximately 2 gpm for HC, 30 gpm for CO, 3 gpm for NOX, and 400 gpm for CO2. For the case where a low and a high range analyzer is used, the high range analyzer shall use at least 6 calibration points plus zero in the lower portion of the high range scale corresponding to approximately 100% of the full-scale value of the low range analyzer. For all analyzers, at least 6 calibration points shall also be used to define the calibration curve in the region above the 6 lower calibration points. Gas dividers may be used to obtain the intermediate points for the general range classifications specified. The calibration curves generated shall be a polynomial of no greater order than 4th order, and shall fit the date within 0.5% at each calibration point.

(B) For all calibration curves, curve checks, span adjustments, and span checks, the zero gas shall be considered a down-scale reference gas, and the analyzer zero shall be set at the trace concentration value of the specific zero gas used.

(2) The basic curve shall be checked monthly by the same procedure used to generate the curve, and to the same tolerances.

(3) On a daily basis prior to vehicle testing—

(A) The curve for each analyzer shall be checked by adjusting the analyzer to correctly read a zero gas and an up-scale span gas, and then by correctly reading a mid-scale span gas within 2% of point. If the analyzer does not read the mid-scale span point within 2% of point, the system shall lock out. The up-scale span gas concentration for each analyzer shall correspond to approximately 80 percent of full scale, and the mid-point concentration shall correspond to approximately 15 percent of full scale; and

(B) After the up-scale span check, each analyzer in a given facility shall analyze a sample of a random concentration corresponding to approximately 0.5 to 3 times the cut point (in gpm) for the constituent. The value of the random sample may be determined by a gas blender. The deviation in analysis from the sample concentration for each analyzer shall be recorded and compared to the historical mean and standard deviation for the analyzers at the facility and at all facilities. Any reading exceeding 3 sigma shall cause the analyzer to lock out.

(4) Flame ionization detector check. Upon initial operation, and after maintenance to the detector, each Flame Ionization Detector (FID) shall be checked, and adjusted if necessary, for proper peaking and characterization. Procedures described in SAE Paper No. 770141 are recommended for this purpose. A copy of this paper may be obtained from the Society of Automotive Engineers, Inc. (SAE), 400 Commonwealth Drive, Warrendale, Pennsylvania, 15096-0001. Additionally, every month the response of each FID to a methane concentration of approximately 50 ppm CH4 shall be checked. If the response is outside of the range of 1.10 to 1.20, corrective action shall be taken to bring the FID response within this range. The response shall be computed by the following formula:

eCFR graphic ec08no91.015.gif

View or download PDF

(5) Spanning frequency. The zero and up-scale span point shall be checked, and adjusted if necessary, at 2 hour intervals following the daily mid-scale curve check. If the zero or the up-scale span point drifts by more than 2% for the previous check (except for the first check of the day), the system shall lock out, and corrective action shall be taken to bring the system into compliance.

(6) Spanning limit checks. The tolerance on the adjustment of the up-scale span point is 0.4% of point. A software algorithm to perform the span adjustment and subsequent calibration curve adjustment shall be used. However, software up-scale span adjustments greater than ±10% shall cause the system to lock out, requiring system maintenance.

(7) Integrator checks. Upon initial operation, and every three months thereafter, emissions from a randomly selected vehicle with official test value greater than 60% of the standard (determined retrospectively) shall be simultaneously sampled by the normal integration method and by the bag method in each lane. The data from each method shall be put into a historical data base for determining normal and deviant performance for each test lane, facility, and all facilities combined. Specific deviations exceeding ±5% shall require corrective action.

(8) Interference. CO and CO2 analyzers shall be checked prior to initial service, and on a yearly basis thereafter, for water interference. The specifications and procedures used shall generally comply with either §86.122-78 or §86.321-79 of this chapter.

(9) NOX converter check. The converter efficiency of the NO2 to NO converter shall be checked on a weekly basis. The check shall generally conform to §86.123-78 of this chapter, or EPA MVEL Form 305-01. Equivalent methods may be approved by the Administrator.

(10) NO/NOX flow balance. The flow balance between the NO and NOX test modes shall be checked weekly. The check may be combined with the NOX convertor check as illustrated in EPA MVEL Form 305-01.

(11) Additional checks. Additional checks shall be performed on the HC, CO, CO2, and NOX analyzers according to best engineering practices for the measurement technology used to ensure that measurements meet specified accuracy requirements.

(12) System artifacts (hang-up). Prior to each test a comparison shall be made between the background HC reading, the HC reading measured through the sample probe (if different), and the zero gas. Deviations from the zero gas greater than 10 parts per million carbon (ppmC) shall cause the analyzer to lock out.

(13) Ambient background. The average of the pre-test and post-test ambient background levels shall be compared to the permissible levels of 10 ppmC HC, 20 ppm CO, and 1 ppm NOX. If the permissible levels are exceeded, the test shall be voided and corrective action taken to lower the ambient background concentrations.

(14) Analytical gases. Zero gases shall meet the requirements of §86.114-79(a)(5) of this chapter. NOX calibration gas shall be a single blend using nitrogen as the diluent. Calibration gas for the flame ionization detector shall be a single blend of propane with a diluent of air. Calibration gases for CO and CO2 shall be single blends using nitrogen or air as a diluent. Multiple blends of HC, CO, and CO2 in air may be used if shown to be stable and accurate.

(III) Purge Analysis System

On a daily basis each purge flow meter shall be checked with a simulated purge flow against a reference flow measuring device with performance specifications equal to or better than those specified for the purge meter. The check shall include a mid-scale rate check, and a total flow check between 10 and 20 liters. Deviations greater than ±5% shall be corrected. On a monthly basis, the calibration of purge meters shall be checked for proper rate and total flow with three equally spaced points across the flow rate and the totalized flow range. Deviations exceeding the specified accuracy shall be corrected. The dynamometer quality assurance checks required under paragraph (II) of this appendix shall also apply to the dynamometer used for purge tests.

(IV) Evaporative System Integrity Test Equipment

(a) On a weekly basis pressure measurement devices shall be checked against a reference device with performance specifications equal to or better than those specified for the measurement device. Deviations exceeding the performance specifications shall be corrected. Flow measurement devices, if any, shall be checked according to paragraph III of this appendix.

(b) Systems that monitor evaporative system leaks shall be checked for integrity on a daily basis by sealing and pressurizing.

[57 FR 52987, Nov. 5, 1992, as amended at 58 FR 59367, Nov. 9, 1993]

Appendix B to Subpart S of Part 51—Test Procedures

(I) Idle test

(a) General requirements—(1) Exhaust gas sampling algorithm. The analysis of exhaust gas concentrations shall begin 10 seconds after the applicable test mode begins. Exhaust gas concentrations shall be analyzed at a minimum rate of two times per second. The measured value for pass/fail determinations shall be a simple running average of the measurements taken over five seconds.

(2) Pass/fail determination. A pass or fail determination shall be made for each applicable test mode based on a comparison of the short test standards contained in appendix C to this subpart, and the measured value for HC and CO as described in paragraph (I)(a)(1) of this appendix. A vehicle shall pass the test mode if any pair of simultaneous measured values for HC and CO are below or equal to the applicable short test standards. A vehicle shall fail the test mode if the values for either HC or CO, or both, in all simultaneous pairs of values are above the applicable standards.

(3) Void test conditions. The test shall immediately end and any exhaust gas measurements shall be voided if the measured concentration of CO plus CO2 falls below six percent or the vehicle's engine stalls at any time during the test sequence.

(4) Multiple exhaust pipes. Exhaust gas concentrations from vehicle engines equipped with multiple exhaust pipes shall be sampled simultaneously.

(5) This test shall be immediately terminated upon reaching the overall maximum test time.

(b) Test sequence. (1) The test sequence shall consist of a first-chance test and a second-chance test as follows:

(i) The first-chance test, as described under paragraph (c) of this section, shall consist of an idle mode.

(ii) The second-chance test as described under paragraph (I)(d) of this appendix shall be performed only if the vehicle fails the first-chance test.

(2) The test sequence shall begin only after the following requirements are met:

(i) The vehicle shall be tested in as-received condition with the transmission in neutral or park and all accessories turned off. The engine shall be at normal operating temperature (as indicated by a temperature gauge, temperature lamp, touch test on the radiator hose, or other visual observation for overheating).

(ii) For all pre-1996 model year vehicles, a tachometer shall be attached to the vehicle in accordance with the analyzer manufacturer's instructions. For 1996 and newer model year vehicles the OBD data link connector will be used to monitor RPM. In the event that an OBD data link connector is not available or that an RPM signal is not available over the data link connector, a tachometer shall be used instead.

(iii) The sample probe shall be inserted into the vehicle's tailpipe to a minimum depth of 10 inches. If the vehicle's exhaust system prevents insertion to this depth, a tailpipe extension shall be used.

(iv) The measured concentration of CO plus CO2 shall be greater than or equal to six percent.

(c) First-chance test. The test timer shall start (tt=0) when the conditions specified in paragraph (I)(b)(2) of this appendix are met. The first-chance test shall have an overall maximum test time of 145 seconds (tt=145). The first-chance test shall consist of an idle mode only.

(1) The mode timer shall start (mt=0) when the vehicle engine speed is between 350 and 1100 rpm. If engine speed exceeds 1100 rpm or falls below 350 rpm, the mode timer shall reset zero and resume timing. The minimum mode length shall be determined as described under paragraph (I)(c)(2) of this appendix. The maximum mode length shall be 90 seconds elapsed time (mt=90).

(2) The pass/fail analysis shall begin after an elapsed time of 10 seconds (mt=10). A pass or fail determination shall be made for the vehicle and the mode shall be terminated as follows:

(i) The vehicle shall pass the idle mode and the test shall be immediately terminated if, prior to an elapsed time of 30 seconds (mt=30), measured values are less than or equal to 100 ppm HC and 0.5 percent CO.

(ii) The vehicle shall pass the idle mode and the test shall be terminated at the end of an elapsed time of 30 seconds (mt=30), if prior to that time the criteria of paragraph (I)(c)(2)(i) of this appendix are not satisfied and the measured values are less than or equal to the applicable short test standards as described in paragraph (I)(a)(2) of this appendix.

(iii) The vehicle shall pass the idle mode and the test shall be immediately terminated if, at any point between an elapsed time of 30 seconds (mt=30) and 90 seconds (mt=90), the measured values are less than or equal to the applicable short test standards as described in paragraph (I)(a)(2) of this appendix.

(iv) The vehicle shall fail the idle mode and the test shall be terminated if none of the provisions of paragraphs (I)(c)(2)(i), (ii) and (iii) of this appendix is satisfied by an elapsed time of 90 seconds (mt=90). Alternatively, the vehicle may be failed if the provisions of paragraphs (I)(c)(2)(i) and (ii) of this appendix are not met within an elapsed time of 30 seconds.

(v) Optional. The vehicle may fail the first-chance test and the second-chance test shall be omitted if no exhaust gas concentration lower than 1800 ppm HC is found by an elapsed time of 30 seconds (mt=30).

(d) Second-chance test. If the vehicle fails the first-chance test, the test timer shall reset to zero (tt=0) and a second-chance test shall be performed. The second-chance test shall have an overall maximum test time of 425 seconds (tt=425). The test shall consist of a preconditioning mode followed immediately by an idle mode.

(1) Preconditioning mode. The mode timer shall start (mt=0) when the engine speed is between 2200 and 2800 rpm. The mode shall continue for an elapsed time of 180 seconds (mt=180). If engine speed falls below 2200 rpm or exceeds 2800 rmp for more than five seconds in any one excursion, or 15 seconds over all excursions, the mode timer shall reset to zero and resume timing.

(2) Idle mode—(i) Ford Motor Company and Honda vehicles. The engines of 1981-1987 Ford Motor Company vehicles and 1984-1985 Honda Preludes shall be shut off for not more than 10 seconds and restarted. This procedure may also be used for 1988-1989 Ford Motor Company vehicles but should not be used for other vehicles. The probe may be removed from the tailpipe or the sample pump turned off if necessary to reduce analyzer fouling during the restart procedure.

(ii) The mode timer shall start (mt=0) when the vehicle engine speed is between 350 and 1100 rpm. If engine speed exceeds 1100 rpm or falls below 350 rpm, the mode timer shall reset to zero and resume timing. The minimum idle mode length shall be determined as described in paragraph (I)(d)(2)(iii) of this appendix. The maximum idle mode length shall be 90 seconds elapsed time (mt=90).

(iii) The pass/fail analysis shall begin after an elapsed time of 10 seconds (mt=10). A pass or fail determination shall be made for the vehicle and the idle mode shall be terminated as follows:

(A) The vehicle shall pass the idle mode and the test shall be immediately terminated if, prior to an elapsed time of 30 seconds (mt=30), measured values are less than or equal to 100 ppm HC and 0.5 percent CO.

(B) The vehicle shall pass the idle mode and the test shall be terminated at the end of an elapsed time of 30 seconds (mt=30), if prior to that time the criteria of paragraph (I)(d)(2)(iii)(A) of this appendix are not satisfied and the measured values are less than or equal to the applicable short test standards as described in paragraph (I)(a)(2) of this appendix.

(C) The vehicle shall pass the idle mode and the test shall be immediately terminated if, at any point between an elapsed time of 30 seconds (mt=30) and 90 seconds (mt=90), measured values are less than or equal to the applicable short test standards described in paragraph (I)(a)(2) of this appendix.

(D) The vehicle shall fail the idle mode and the test shall be terminated if none of the provisions of paragraphs (I)(d)(2)(iii)(A), (d)(2)(iii)(B), and (d)(2)(iii)(C) of this appendix are satisfied by an elapsed time of 90 seconds (mt=90).

(II) Two Speed Idle Test

(a) General requirements—(1) Exhaust gas sampling algorithm. The analysis of exhaust gas concentrations shall begin 10 seconds after the applicable test mode begins. Exhaust gas concentrations shall be analyzed at a rate of two times per second. The measured value for pass/fail determinations shall be a simple running average of the measurements taken over five seconds.

(2) Pass/fail determination. A pass or fail determination shall be made for each applicable test mode based on a comparison of the short test standards contained in appendix C to this subpart, and the measured value for HC and CO as described in paragraph (II)(a)(1) of this appendix. A vehicle shall pass the test mode if any pair of simultaneous values for HC and CO are below or equal to the applicable short test standards. A vehicle shall fail the test mode if the values for either HC or CO, or both, in all simultaneous pairs of values are above the applicable standards.

(3) Void test conditions. The test shall immediately end and any exhaust gas measurements shall be voided if the measured concentration of CO plus CO2 falls below six percent or the vehicle's engine stalls at any time during the test sequence.

(4) Multiple exhaust pipes. Exhaust gas concentrations from vehicle engines equipped with multiple exhaust pipes shall be sampled simultaneously.

(5) The test shall be immediately terminated upon reaching the overall maximum test time.

(b) Test sequence. (1) The test sequence shall consist of a first-chance test and a second-chance test as follows:

(i) The first-chance test, as described under paragraph (II)(c) of this appendix, shall consist of an idle mode followed by a high-speed mode.

(ii) The second-chance high-speed mode, as described under paragraph (II)(c) of this appendix, shall immediately follow the first-chance high-speed mode. It shall be performed only if the vehicle fails the first-chance test. The second-chance idle mode, as described under paragraph (II)(d) of this appendix, shall follow the second-chance high-speed mode and be performed only if the vehicle fails the idle mode of the first-chance test.

(2) The test sequence shall begin only after the following requirements are met:

(i) The vehicle shall be tested in as-received condition with the transmission in neutral or park and all accessories turned off. The engine shall be at normal operating temperature (as indicated by a temperature gauge, temperature lamp, touch test on the radiator hose, or other visual observation for overheating).

(ii) For all pre-1996 model year vehicles, a tachometer shall be attached to the vehicle in accordance with the analyzer manufacturer's instructions. For 1996 and newer model year vehicles the OBD data link connector will be used to monitor RPM. In the event that an OBD data link connector is not available or that an RPM signal is not available over the data link connector, a tachometer shall be used instead.

(iii) The sample probe shall be inserted into the vehicle's tailpipe to a minimum depth of 10 inches. If the vehicle's exhaust system prevents insertion to this depth, a tailpipe extension shall be used.

(iv) The measured concentration of CO plus CO2 shall be greater than or equal to six percent.

(c) First-chance test and second-chance high-speed mode. The test timer shall start (tt=0) when the conditions specified in paragraph (b)(2) of this section are met. The first-chance test and second-chance high-speed mode shall have an overall maximum test time of 425 seconds (tt=425). The first-chance test shall consist of an idle mode followed immediately by a high-speed mode. This is followed immediately by an additional second-chance high-speed mode, if necessary.

(1) First-chance idle mode. (i) The mode timer shall start (mt=0) when the vehicle engine speed is between 350 and 1100 rpm. If engine speed exceeds 1100 rpm or falls below 350 rpm, the mode timer shall reset to zero and resume timing. The minimum idle mode length shall be determined as described in paragraph (II)(c)(1)(ii) of this appendix. The maximum idle mode length shall be 90 seconds elapsed time (mt=90).

(ii) The pass/fail analysis shall begin after an elapsed time of 10 seconds (mt=10). A pass or fail determination shall be made for the vehicle and the mode terminated as follows:

(A) The vehicle shall pass the idle mode and the mode shall be immediately terminated if, prior to an elapsed time of 30 seconds (mt=30), measured values are less than or equal to 100 ppm HC and 0.5 percent CO.

(B) The vehicle shall pass the idle mode and the mode shall be terminated at the end of an elapsed time of 30 seconds (mt=30) if, prior to that time, the criteria of paragraph (II)(c)(1)(ii)(A) of this appendix are not satisfied, and the measured values are less than or equal to the applicable short test standards as described in paragraph (II)(a)(2) of this appendix.

(C) The vehicle shall pass the idle mode and the mode shall be immediately terminated if, at any point between an elapsed time of 30 seconds (mt=30) and 90 seconds (mt=90), the measured values are less than or equal to the applicable short test standards as described in paragraph (II)(a)(2) of this appendix.

(D) The vehicle shall fail the idle mode and the mode shall be terminated if none of the provisions of paragraphs (II)(c)(1)(ii)(A), (B), and (C) of this appendix is satisfied by an elapsed time of 90 seconds (mt=90). Alternatively, the vehicle may be failed if the provisions of paragraphs (II)(c)(2)(i) and (ii) of this appendix are not met within an elapsed time of 30 seconds.

(E) Optional. The vehicle may fail the first-chance test and the second-chance test shall be omitted if no exhaust gas concentration less than 1800 ppm HC is found by an elapsed time of 30 seconds (mt=30).

(2) First-chance and second-chance high-speed modes. This mode includes both the first-chance and second-chance high-speed modes, and follows immediately upon termination of the first-chance idle mode.

(i) The mode timer shall reset (mt=0) when the vehicle engine speed is between 2200 and 2800 rpm. If engine speed falls below 2200 rpm or exceeds 2800 rpm for more than two seconds in one excursion, or more than six seconds over all excursions within 30 seconds of the final measured value used in the pass/fail determination, the measured value shall be invalidated and the mode continued. If any excursion lasts for more than ten seconds, the mode timer shall reset to zero (mt=0) and timing resumed. The minimum high-speed mode length shall be determined as described under p