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August 20, 1979 Permitting Multi-Phase Construction Under Prevention of Significant Deterioration Regulations 10.13
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10.13
MEMORANDUM: SUBJECT: Permitting Multi-Phase Construction Under Prevention of Significant Deterioration Regulations FROM: Director Division of Stationary Source Enforcement TO: Diana Dutton, Director Enforcement Division - Region VI I have received your memo of July 2, 1979, in which you specified three conditions which, as a matter of Region VI policy, must be met before a multi-phase source can be PSD permitted. The conditions specified in your memo were the following:
While requiring multi-phase sources to meet, each of these requirements might be effective in preventing sources from reserving increment, the PSD regulations would not support Conditions 1 and 2. The preamble to the June 19, 1978 regulations, is clear in its application of the phased permitting provisions to sources consisting of mutually independent facilities. In fact, the inclusion of phased permitting provisions was in large part prompted by the need to address phased construction of boilers in the electric utility industry. The U.S. Court of Appeals for the D.C. Circuit, in their June 18, 1979 summary decision, upheld EPA's phased permitting program and specifically mentioned the utility industry as an example of the program's application. As footnote 6 in the PSD preamble states, the boilers at a power plant are considered to be mutually independent facilities. Condition 2 subjects multi-phase sources to a more stringent requirement than that which applies to single-phase sources and, like condition 1, has no basis in the regulations. Section 52.21(b)(8) of the regulations requires that sources obtain State permits (and meet certain other requirements) within 18 months of PSD permit issuance. There is no indication in the regulations or the preamble that phased projects should obtain State permits for each phase prior to receiving a PSD permit. The preamble discussion on page 26396 recognizes the need to limit the conditions under which phased permits may be issued and details the criteria which must be met. Primarily, the plans for each phase of the project must be certain and well defined -- a criterion which was specified in your memo. In addition, the Administrator should specify at the time the permit is issued that BACT for the later phases may be reassessed prior to commencement of construction. Construction of each phase must commence within 18 months of the date specified in the permit. In this way, the Administrator would issue permits only to sources with well planned phases and would invalidate permits if construction of the later phases was delayed beyond a reasonable time period. I believe the policy you have proposed for issuing phased permits goes beyond the scope of the regulations as they are now written. To implement such a policy would certainly require a regulatory change. Should you wish to discuss this issue with my staff, please contact Libby Scopino at 755-2564.
Peter Wyckoff Richard Rhoads, OAQPS Enforcement Division Directors Regions 1-5 & 7-10
DATE: July 2, 1979 SUBJECT: Permitting Multi-Phase Construction Under Prevention of Significant Deterioration Regulations FROM: Diana Dutton Director, Enforcement Division (6AE) TO: Ed Reich Director, Division of Stationary Source Enforcement (EN-341) Current regulations for the Prevention of Significant Deterioration (PSD) of air quality do not clearly address how to process applications for PSD permits for multi-phase projects. In some areas of this Region we have received PSD permit applications from sources for large, multi-phased projects which can have the net effect of consuming nearly all the ambient air quality increment. Unfortunately, future phases though often well defined, may never be built. By permitting such sources we are in effect reserving air quality increment and limiting other industrial growth in the area. This also eliminates any opportunity for State or local officials to participate in a decision which can impact on areas potential for economic development. This Regional Office recently conducting a public hearing on a proposed PSD permit for just such a multi-phase project involving a petrochemical complex. The comments received at that hearing have caused us to more clearly define the procedure we will go through in order to issue a PSD permit for a multi-phase project. We have decided to issue permits for two or more phases of a multi-phase project whenever the following two conditions are met:
We feel that by meeting these two conditions we will be able to issue a permit in those cases where it is actually required and yet avoid receiving a large number of applications submitted simply to reserve portions of the PSD increment. We think this policy will ensure that independent facilities are forced to compete for the air quality increment fairly. We also feel that by requiring the state permit process to be fulfilled, we are not foreclosing any options the State may have to partition the remaining increment in some other manner should they have any regulations addressing this. There has been some concern over legal defense of this policy should it be challenged by a permittee. However we feel this approach, while admittedly a conservative policy, is the proper programmatic decision for EPA while it is in the "caretaker" role prior to delegation of PSD to the States. We recommend this policy be adopted nationwide.
cc: Walter Barber, OAQPS TO: Ed Reich, Director, DSSE
cc John Rasnic (same Division)
[READERS NOTE: The following sentence was handwritten at bottom of this
memo] I. Obtain PSD permit A. Commence construction within 18 months including State permit issuance. If obtaining a PSD permit required first getting a State permit, then "commence construction" would not have to include obtaining a State permit. B. If all sources were meant to get State permits prior to PSD permits, the preamble would not have discussed offset sources and their req. to obtain State permit first.
1. Sources that are subject under current regs. but not under proposed -- they want to construct 2. Section 105 criteria
October 3: Public hearing on refineries |