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Title 40: Protection of Environment
§52.28 Protection of visibility from sources in nonattainment areas.
(a) Plan disapproval. The provisions of this section are applicable to any State implementation plan which has been disapproved with respect to protection of visibility, in mandatory Class I Federal areas where visibility is considered an important value, from sources emitting pollutants in any portion of any State where the existing air quality is not in compliance with the national ambient air quality standards for such pollutants. Specific disapprovals are listed where applicable in Subparts B through DDD of this part. The provisions of this section have been incorporated into the applicable implementation plans for various States, as provided in Subparts B through DDD of this part.
(b) Definitions. For the purposes of this section:
(1) Visibility protection area means any area listed in 40 CFR 81.401-81.436 (1984).
(2) All other terms shall have the meaning ascribed to them in the protection of visibility program (40 CFR 51.301) or the prevention of significant deterioration (PSD) program either approved as part of the applicable SIP pursuant to 40 CFR 51.24 or in effect for the applicable SIP pursuant to 40 CFR 52.21, all as in effect on July 12, 1985.
(c) Review of major stationary sources and major modifications—source applicability and exemptions. (1) No stationary source or modification to which the requirements of this section apply shall begin actual construction without a permit which states that the stationary source or modification would meet those requirements. The Administrator has sole authority to issue any such permit unless the authority has been delegated pursuant to paragraph (i) of this section.
(2) The requirements of this section shall apply to construction of any new major stationary source or major modification that would both be constructed in an area classified as nonattainment under section 107(d)(1)(A), (B) or (C) of the Clean Air Act and potentially have an impact on visibility in any visibility protection area.
(3) The requirements of this section shall apply to any such major stationary source and any such major modification with respect to each pollutant subject to regulation under the Clean Air Act that it would emit, except as this section otherwise provides.
(4) The requirements of this section shall not apply to a particular major stationary source or major modification, if:
(i) The source or modification would be a nonprofit health or nonprofit educational institution, or a major modification would occur at such an institution, and the governor of the State in which the source or modification would be located requests that it be exempt from those requirements; 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 the 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;
(U) Fossil-fuel boiler (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 is a portable stationary source which has previously received a permit under this section, and
(A) The owner or operator proposes to relocate the source 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 Administrator, 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 Administrator not less than 10 days in advance of the proposed relocation, unless a different time duration is previously approved by the Administrator.
(5) The requirements 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 attainment under section 107 of the Clean Air Act.
(6) The requirements of this section shall not apply to a major stationary source or major modification with respect to a particular pollutant, if the allowable emissions of that pollutant from the source, or the net emissions increase of that pollutant from the modification:
(i) Would impact no Class I area and no area where an applicable increment is known to be violated, and
(ii) Would be temporary.
(d) Visibility Impact Analyses. The owner or operator of a source shall provide an analysis of the impairment to visibility 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.
(e) Federal land manager notification. (1) The Federal land manager and the Federal official charged with direct responsibility for management of Federal Class I areas have an affirmative responsibility to protect the air quality related values (including visibility) of such lands and to consider, in consultation with the Administrator, whether a proposed source or modification will have an adverse impact on such values.
(2) The Administrator shall provide written notification to all affected Federal land managers of any permit application for any proposed new major stationary source or major modification that may affect visibility in any visibility protection area. The Administrator shall also provide for such notification to the Federal official charged with direct responsibility for management of any lands within any such area. Such notification shall include a copy of all information relevant to the permit application and shall be given within 30 days of receipt and at least 60 days prior to any public hearing on the application for a permit to construct. Such notification shall include an analysis of the proposed source's anticipated impacts on visibility in any visibility protection area. The Administrator shall also notify all affected FLM's within 30 days of receipt of any advance notification of any such permit application.
(3) The Administrator shall consider any analysis performed by the Federal land manager, provided within 30 days of the notification required by paragraph (e)(2) of this section, that such proposed new major stationary source or major modification may have an adverse impact on visibility in any visibility protection area. Where the Administrator finds that such an analysis does not demonstrate to the satisfaction of the Administrator that an adverse impact on visibility will result in the visibility protection area, the Administrator must, in the notice of public hearing, either explain his decision or give notice as to where the explanation can be obtained.
(f) Public participation. The Administrator shall follow the applicable procedures of 40 CFR part 124 in processing applications under this section. The Administrator shall follow the procedures at 40 CFR 52.21(q) as in effect on August 7, 1980, to the extent that the procedures of 40 CFR part 124 do not apply.
(g) National visibility goal. The Administrator shall only issue permits to those sources whose emissions will be consistent with making reasonable progress toward the national goal of preventing any future, and remedying any existing, impairment of visibility in visibility protection areas which impairment results from man-made air pollution. In making the decision to issue a permit, the Administrator 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.
(h) Monitoring. The Administrator may require monitoring of visibility in any visibility protection area near the proposed new stationary source or major modification for such purposes and by such means as the Administrator deems necessary and appropriate.
(i) Delegation of authority. (1) The Administrator shall have the authority to delegate the responsibility for conducting source review pursuant to this section to any agency in accordance with paragraphs (i)(2) and (3) of this section.
(2) Where the Administrator delegates the responsibility for conducting source review under this section to any agency other than a Regional Office of the Environmental Protection Agency, the following provisions shall apply:
(i) Where the delegate agency is not an air pollution control agency it shall consult with the appropriate State and local air pollution control agency prior to making any determination under this section. Similarly, where the delegate agency does not have continuing responsibility for managing land use, it shall consult with the appropriate State and local agency primarily responsible for managing land use prior to making any determination under this section.
(ii) The delegate agency shall submit a copy of any public comment notice required under paragraph (f) of this section to the Administrator through the appropriate Regional Office.
(3) The Administrator's authority for reviewing a source or modification located on an Indian Reservation shall not be redelegated other than to a Regional Office of the Environmental Protection Agency, except where the State has assumed jurisdiction over such land under other laws. Where the State has assumed such jurisdiction, the Administrator may delegate his authority to the States in accordance with paragraph (i)(2) of this section.
[50 FR 28551, July 12, 1985]