View all text of Subpart F [§ 52.220 - § 52.285]
§ 52.285 - Review of new sources and modifications—Mojave Desert Air Quality Management District.
(a) Plan overview—(1) What is the purpose of the Federal Implementation Plan (FIP or “plan”)?
(i) The FIP has the following purposes: It establishes the Federal preconstruction permitting requirements for new major sources and major modifications located in nonattainment areas within the Mojave Desert Air Quality Management District (MDAQMD or “District”) that are major for a nonattainment pollutant.
(ii) The plan serves as the Federal nonattainment new source review (NNSR or “nonattainment major NSR”) plan for the area described in paragraph (a)(1)(i) of this section, which the EPA has determined does not meet all of the Clean Air Act (CAA or “Act”) title I part D requirements for NNSR programs. Sources subject to the plan must comply with the provisions and requirements of 40 CFR part 51, appendix S. The FIP also sets forth the criteria and procedures that the reviewing authority (as defined in paragraph (b)(1)(v) of this section) must use to issue permits under the plan. For the purposes of the plan, the term SIP means any EPA-approved implementation plan for the area administered by the MDAQMD.
(iii) Paragraph (f)(3) of this section sets forth procedures for appealing a permit decision issued under the plan.
(iv) The plan does not apply in Indian country, as defined in 18 U.S.C. 1151 and 40 CFR 49.167, located within the MDAQMD.
(2) Where does the plan apply? (i) The provisions of the plan apply to the proposed construction of any new major stationary source or major modification in the MDAQMD that is major for a nonattainment pollutant, if the stationary source or modification is located anywhere in the designated nonattainment area.
(3) What general provisions apply under the plan? The following general provisions apply to you as an owner or operator of a source:
(i) If you propose to construct a new major source or a major modification in a nonattainment area in the MDAQMD, you must obtain a Federal NNSR permit (“permit”) under the plan before beginning actual construction. You may not begin actual construction after the effective date of the plan without applying for and receiving a Federal NNSR permit that authorizes construction pursuant to the plan.
(ii) You must construct and operate your source or modification in accordance with the terms of your permit issued under the plan.
(iii) Issuance of a permit under the plan does not relieve you of the responsibility to fully comply with applicable provisions of any EPA-approved implementation plan or FIP, and any other requirements under applicable law. This includes obligations to comply with any EPA-approved SIP provisions that satisfy Federal new source review (NSR) requirements.
(b) Definitions. For the purposes of the plan, the definitions in 40 CFR part 51, appendix S, paragraph II.A, and 40 CFR 51.100 apply, except for paragraphs (b)(1) through (6) of this section, which replace the corresponding definitions found in part 51, appendix S:
(1) Actual emissions means the actual rate of emissions of a regulated NSR pollutant from an emissions unit, as determined in accordance with paragraphs (b)(1)(i) and (ii) of this section, except that this paragraph (b)(1) shall not apply for calculating whether a significant emissions increase has occurred, or for establishing a PAL under paragraph IV.K of 40 CFR part 51, appendix S. Instead, 40 CFR part 51, appendix S, paragraphs II.A.24 and 30, shall apply for those purposes.
(i) 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 that precedes the particular date and that 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.
(ii) 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.
(2) Enforceable as a practical matter means that an emission limitation or other standard is both legally and practicably enforceable as follows:
(i) An emission limitation or other standard is legally enforceable if the reviewing authority has the legal power to enforce it.
(ii) Practical enforceability for an emission limitation or for other standards (design standards, equipment standards, work practices, operational standards, pollution prevention techniques) in a permit for a source is achieved if the permit's provisions specify:
(A) A limitation or standard and the emissions units or activities at the source subject to the limitation or standard;
(B) The time period for the limitation or standard (e.g., hourly, daily, monthly and/or annual limits such as rolling annual limits); and
(C) The method to determine compliance, including appropriate monitoring, recordkeeping, reporting, and testing.
(3) Environmental Appeals Board means the Board within the EPA described in 40 CFR 1.25(e).
(4) Nonattainment pollutant means any regulated NSR pollutant for which the MDAQMD, or portion of the MDAQMD, has been designated as nonattainment, as codified in 40 CFR 81.305, as well as any precursor of such regulated NSR pollutant specified in 40 CFR part 51, appendix S, paragraph II.A.31.(ii)(b).
(5) Reviewing authority means the Administrator of EPA Region IX, but it may include the MDAQMD if the Administrator delegates the power to administer the FIP under paragraph (g) of this section.
(6) Significant means, in reference to an emissions increase or a net emissions increase, and notwithstanding the definition of “significant” in 40 CFR part 51, appendix S, paragraph II.A.10, any increase in actual emissions of volatile organic compounds or oxides of nitrogen 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 if such emissions increase of volatile organic compounds or oxides of nitrogen exceeds 25 tons per year when aggregated with all other net emissions increases from the source over any period of 5 consecutive calendar years that includes the calendar year in which such increase occurred.
(c) Does the plan apply to me? (1) In any MDAQMD nonattainment area, the requirements of the plan apply to you under the following circumstances:
(i) If you propose to construct a new major stationary source and your source is a major source of nonattainment pollutant(s).
(ii) If you own or operate a major stationary source and propose to construct a major modification, where your source is a major source of nonattainment pollutant(s) and the proposed modification is a major modification for the nonattainment pollutant.
(2) 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 that 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 the plan shall apply to the source or modification as though construction had not yet commenced on the source or modification.
(d) Permit approval criteria—(1) What are the general criteria for permit approval? The criteria for approval of applications for permits submitted pursuant to the plan are provided in part D of title I of the Act and in 40 CFR 51.160 through 51.165 and 40 CFR part 51, appendix S.
(2) What are the plan-specific criteria for permit approval? Consistent with the requirements in 40 CFR part 51, appendix S, the reviewing authority shall not approve a permit application unless it meets the following criteria:
(i) The lowest achievable emission rate (LAER) requirement for any NSR pollutant subject to the plan and monitoring, recordkeeping, reporting, and testing as necessary to assure compliance with LAER.
(ii) Certification that all existing major sources owned or operated by the applicant in California are in compliance or, on a schedule for compliance, with all applicable emission limitations and standards under the Act.
(iii) Any source or modification subject to the plan must obtain emission reductions (offsets) from existing sources in the area of the proposed source (whether or not under the same ownership) such that there will be reasonable progress toward attainment of the applicable NAAQS. Notwithstanding 40 CFR part 51, appendix S, paragraph IV.G.5, interprecursor offsetting is not permitted between precursors of ozone. A demonstration of reasonable progress toward attainment shall include:
(A) A demonstration that the emission offsets will provide a net air quality benefit in the affected area, as required under 40 CFR part 51, appendix S, paragraph IV.A, Condition 4.
(B) A demonstration that emissions reductions otherwise required by the Act are not credited for purposes of satisfying the offset requirements in this paragraph (d)(2)(iii) and part D of title I of the Act.
(iv) An analysis of alternative sites, sizes, production processes and environmental control techniques for such proposed major source or major modification that demonstrates that the benefits of the proposed major source or major modification significantly outweigh the environmental and social costs imposed as a result of its location, construction, or modification.
(3) What are the application requirements? The owner or operator of any proposed new major stationary source or major modification shall submit a complete application using EPA Region IX's electronic system, which is described in paragraph (d)(3)(ii) of this section. The application must include the information listed in this paragraph (d)(3) as well as the demonstrations to show compliance with paragraphs (d)(2)(i) through (iv) of this section. The reviewing authority's designation that an application is complete for purposes of permit processing does not preclude the reviewing authority from requesting or accepting any additional information.
(i) Application content requirements. (A) Identification of the permit applicant, including contact information.
(B) Address and location of the new or modified source.
(C) Identification and description of all emission points, including information regarding all nonattainment pollutants emitted by all emissions units included in the new source or modification.
(D) A process description of all activities, including design capacity, that may generate emissions of nonattainment pollutants, in sufficient detail to establish the basis for the applicability of standards.
(E) A projected schedule for commencing construction and operation for all emissions units included in the new source or modification.
(F) A projected operating schedule for each emissions unit included in the new source or modification.
(G) A determination as to whether the new source or modification will result in any secondary emissions.
(H) The emission rates of all regulated NSR pollutants, including fugitive and secondary emission rates, if applicable. The emission rates must be described in tons per year (tpy). If necessary, shorter-term rates must be described to allow for compliance using the applicable standard reference test method or other methodology specified (i.e., grams/liter, parts per million volume (ppmv) or parts per million weight (ppmw), lbs/MMBtu).
(I) The calculations on which the emission rate information is based, including fuel specifications, if applicable, and any other assumptions used to determine the emission rates (e.g., higher heating value (HHV), sulfur content of natural gas, VOC content).
(J) The calculations, pursuant to 40 CFR part 51, appendix S, paragraph IV.I and IV.J, that are used to determine applicability of the plan, including the emission calculations (increases or decreases) for each project that occurred during the contemporaneous period, as applicable.
(K) The calculations, pursuant to 40 CFR part 51, appendix S, paragraph IV.A, used to determine the quantity of offsets required for the new source or modification.
(L) Identification of actual emission reductions that meet the offset integrity criteria of being real, surplus, quantifiable, permanent and federally enforceable.
(M) If applicable, a description of how performance testing will be conducted, including test methods and a general description of testing protocols.
(N) Information necessary to determine whether issuance of such permit:
(1) May adversely affect federally-listed threatened or endangered species or the designated critical habitat of such species; or
(2) Has the potential to cause adverse effects on historic properties.
(ii) Application process requirements. To submit an application required under the plan, applicants may submit electronically through the Central Data Exchange (CDX)/Compliance and Emissions Data Reporting Interface (CEDRI) or submit by mail.
(A) CDX/CEDRI is accessed through https://cdx.epa.gov. First-time users will need to register with CDX. The CDX platform will also be used for any permit reporting requirements.
(B) Applicants that do not apply using CDX/CEDRI shall mail a signed application using certified mail (do not request signature) to: Air and Radiation Division, Permits Office (Air-3-1), U.S. EPA, Region 9, 75 Hawthorne Street, San Francisco, CA 94105.
(C) Applicants that apply using certified mail must email a copy of the application and the certified mail tracking number to provide notification of delivery receipt to [email protected].
(4) What are the requirements for monitoring, recordkeeping, and reporting? The reviewing authority shall require in the conditions of a permit such monitoring, recordkeeping, and reporting as necessary to facilitate compliance with the terms of a permit and to make them enforceable as a practical matter.
(e) Public participation requirements—(1) What permit information will be publicly available? With the exception of any confidential information as defined in 40 CFR part 2, subpart B, the reviewing authority must make available for public inspection the documents listed in paragraphs (e)(1)(i) through (iv) of this section. The reviewing authority must make such information available for public inspection at the appropriate EPA Regional Office and in at least one location in the area affected by the source, such as the MDAQMD headquarters location or a local library.
(i) All information submitted as part of your permit application as required under paragraph (d)(3) of this section.
(ii) Any additional information requested by the reviewing authority.
(iii) The reviewing authority's analysis of the application and any additional information submitted by you, including the LAER analysis and, where applicable, the analysis of your emissions reductions (offsets), your demonstration of a net air quality benefit in the affected area and your analysis of alternative sites, sizes, production processes and environmental control techniques.
(iv) A copy of the draft permit or the draft decision to deny the permit with the justification for denial.
(2) How will the public be notified and participate? (i) Before issuing a permit under the plan, the reviewing authority must prepare a draft permit and provide adequate public notice to ensure that the affected community and the general public have reasonable access to the application and draft permit information, as set out in this paragraph (e)(2)(i) and paragraph (e)(2)(ii) of this section. The public notice must provide an opportunity for public comment and notice of a public hearing, if any, on the draft permit.
(A) The reviewing authority must mail a copy of the notice to you (the permit applicant), the MDAQMD (or the EPA if there is a delegation under paragraph (g) of this section), and the California Air Resources Board (CARB).
(B) The reviewing authority must comply with the methods listed in paragraph (e)(2)(i)(B)(1) or (2) of this section:
(1) The reviewing authority must post the notice on its website.
(2) The reviewing authority must publish the notice in a newspaper of general circulation in the area affected by the source.
(3) The reviewing authority may also include other forms of notice as appropriate. This may include posting copies of the notice at one or more locations in the area affected by the source, such as at post offices, libraries, community centers or other gathering places in the community.
(ii) The notices required pursuant to paragraph (c)(2)(i) of this section must include the following information at a minimum:
(A) Identifying information, including the name and address of the permit applicant (and the plant name and address if different);
(B) The name and address of the reviewing authority processing the permit application;
(C) The regulated NSR pollutants to be emitted, and identification of the emissions unit(s) whose emissions of a regulated NSR pollutant could be affected by the project, including any emission limitations for these emissions unit(s);
(D) The emissions change involved in the permit action;
(E) Instructions for requesting a public hearing;
(F) The name, address and telephone number of a contact person in the reviewing authority's office from whom additional information may be obtained;
(G) Locations and times of availability of the information, listed in paragraph (e)(1) of this section, for public inspection; and
(H) A statement that any person may submit written comments, a written request for a public hearing or both, on the draft permit action. The reviewing authority must provide a period of at least 30 days from the date of the public notice for comments and for requests for a public hearing.
(3) How will the public comment and will there be a public hearing? (i) Any person may submit written comments on the draft permit and may request a public hearing. The comments must raise any reasonably ascertainable issue with supporting arguments by the close of the public comment period (including any public hearing). The reviewing authority must consider all comments in making the final decision. The reviewing authority must keep a record of the commenters and of the issues raised during the public participation process, and such records must be available to the public.
(ii) The reviewing authority must extend the public comment period under paragraph (e)(2) of this section to the close of any public hearing under this section. The hearing officer may also extend the comment period by so stating at the hearing.
(iii) A request for a public hearing must be in writing and must state the nature of the issues proposed to be raised at the hearing.
(iv) If requested, the reviewing authority may hold a public hearing at its discretion to give interested persons an opportunity for the oral presentation of data, views, or arguments, in addition to an opportunity to make written statements. The reviewing authority may also hold a public hearing at its discretion, whenever, for instance, such a hearing might clarify one or more issues involved in the permit decision. The reviewing authority must provide notice of any public hearing at least 30 days prior to the date of the hearing. Public notice of the hearing may be concurrent with that of the draft permit, and the two notices may be combined. Reasonable limits may be set upon the time allowed for oral statements at the hearing.
(v) The reviewing authority must make the written transcript of any hearing available to the public.
(f) Final permit issuance and administrative and judicial review—(1) How will final action occur and when will my Federal NNSR permit become effective? After making a decision on a permit application, the reviewing authority must notify you, the permit applicant, of the decision in writing, and, if the permit is denied, provide the reasons for such denial and the procedures for appeal. If the reviewing authority issues a final permit to you, it must make a copy of the permit available at any location where the draft permit was made available. In addition, the reviewing authority must provide adequate public notice of the final permit decision to ensure that the affected community, the general public and any individuals who commented on the draft permit have reasonable access to the decision and supporting materials. A final permit becomes effective 30 days after service of the final permit decision, unless:
(i) A later effective date is specified in the permit;
(ii) Review of the final permit is requested under paragraph (f)(3) of this section; or
(iii) No comments requested a change in the draft permit or a denial of the permit, in which case the reviewing authority may make the permit effective immediately upon issuance.
(2) What is the administrative record for each final permit? (i) The reviewing authority must base final permit decisions on an administrative record consisting of:
(A) All comments received during any public comment period, including any extension or reopening;
(B) The tape or transcript of any hearing(s) held;
(C) Any written material submitted at such a hearing;
(D) Any new materials placed in the record as a result of the reviewing authority's evaluation of public comments;
(E) Other documents in the supporting files for the permit that were relied upon in the decision-making;
(F) The final Federal NNSR permit;
(G) The application and any supporting data furnished by you, the permit applicant;
(H) The draft permit or notice of intent to deny the application or to terminate the permit; and
(I) Other documents in the supporting files for the draft permit that were relied upon in the decision-making.
(ii) The additional documents required under paragraph (f)(2)(i) of this section should be added to the record as soon as possible after their receipt or publication by the reviewing authority. The record must be complete on the date the final permit is issued.
(iii) Material readily available or published materials that are generally available and that are included in the administrative record under the standards of paragraph (f)(2)(i) of this section need not be physically included in the same file as the rest of the record as long as it is specifically referred to in that file.
(3) Can permit decisions be appealed? (i) Permit decisions may be appealed under the permit appeal procedures of 40 CFR 124.19, and the provisions of that section applicable to prevention of significant deterioration (PSD) permits shall apply to permit decisions under the FIP. A petition for review must be filed with the Clerk of the Environmental Appeals Board within 30 days after the reviewing authority serves notice of the issuance of a final permit decision under the plan, in accordance with 40 CFR 124.19.
(ii) An appeal under paragraph (f)(3)(i) of this section is, under section 307(b) of the Act, a prerequisite to seeking judicial review of the final agency action.
(4) Can my permit be reopened? The reviewing authority may reopen an existing, currently-in-effect permit for cause on its own initiative, such as if it contains a material mistake or fails to assure compliance with requirements in this section. However, except for those permit reopenings that do not increase the emission limitations in the permit, such as permit reopenings that correct typographical, calculation and other errors, all other permit reopenings shall be carried out after the opportunity for public notice and comment and in accordance with one or more of the public participation requirements under paragraph (e)(2) of this section.
(5) Can my permit be rescinded? (i) Any permit issued under this section, or a prior version of this section, shall remain in effect until it is rescinded under this paragraph (f)(5).
(ii) An owner or operator of a stationary source or modification who holds a permit issued under this section for the construction of a new source or modification that meets the requirement in paragraph (f)(5)(iii) of this section may request that the reviewing authority rescind the permit or a particular portion of the permit.
(iii) The reviewing authority may grant an application for rescission if the application shows that the provisions of the plan would not apply to the source or modification.
(iv) If the reviewing authority rescinds a permit under this paragraph (f), the public shall be given adequate notice of the rescission determination in accordance with paragraph (e)(2)(i)(B) of this section.
(g) Administration and delegation of the Federal nonattainment major NSR plan in the MDAQMD—(1) Who administers the FIP in the MDAQMD? (i) The Administrator is the reviewing authority and will directly administer all aspects of the FIP in the MDAQMD under Federal authority.
(ii) The Administrator may delegate Federal authority to administer specific portions of the FIP to the MDAQMD upon request, in accordance with the provisions of paragraph (g)(2) of this section. If the MDAQMD has been granted such delegation, it will be the reviewing authority for purposes of the provisions for which it has been granted delegation.
(2) Delegation of administration of the FIP to the MDAQMD. This paragraph (g)(2) establishes the process by which the Administrator may delegate authority to the MDAQMD in accordance with the provisions in paragraphs (g)(2)(i) through (iv) of this section. Any Federal requirements under the plan that are administered by the delegate MDAQMD are enforceable by the EPA under Federal law.
(i) Information to be included in the Administrative Delegation Request. To be delegated authority to administer the FIP or specific portions of it, the MDAQMD must submit a request to the Administrator.
(ii) Delegation Agreement. A Delegation Agreement will set forth the terms and conditions of the delegation, will specify the provisions that the delegate MDAQMD will be authorized to implement on behalf of the EPA and will be entered into by the Administrator and the MDAQMD. The Agreement will become effective upon the date that both the Administrator and the MDAQMD have signed the Agreement or as otherwise stated in the Agreement. Once the delegation becomes effective, the MDAQMD will be responsible, to the extent specified in the Agreement, for administration of the provisions of the FIP that are subject to the Agreement.
(iii) Publication of notice of the Agreement. The Administrator will publish a notice in the
(iv) Revision or revocation of an Agreement. A Delegation Agreement may be modified, amended or revoked, in part or in whole, by the Administrator after consultation with the MDAQMD.