Clean Air Act Prevention of Significant Deterioration (PSD) Construction Permit Program; Interpretation of Regulations That Determine Pollutants Covered by the Federal PSD Permit Program

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of issuance of the Administrator's interpretation.

SUMMARY:

On December 18, 2008, the Administrator issued an interpretive memorandum entitled “EPA's Interpretation of Regulations That Determine Pollutants Covered by Federal Prevention of Significant Deterioration (PSD) Permit Program.” This memorandum clarifies the scope of the EPA regulation that determines the pollutants subject to the Federal PSD program under the Clean Air Act (Act). Under Title I, Part C of the Act, the PSD program preconstruction permit requirement applies to any new major stationary source or modified existing major stationary source of regulated air pollutants located in an area that is either attaining the National Ambient Air Quality Standards (NAAQS) or unclassifiable. Under the Federal PSD permitting regulations, only new or modified major sources that emit one or more “regulated NSR pollutants,” as that term is defined in the regulations, are subject to the requirements of the PSD program, including the requirement to install the best available control technology (BACT) for those regulated NSR pollutants that the facility has the potential to emit in significant amounts. This memorandum contains EPA's definitive interpretation of “regulated NSR pollutant” and is intended to resolve any ambiguity in the definition, which includes “any pollutant that otherwise is subject to regulation under the Act.” As of the date of the memorandum, EPA interprets this definition of “regulated NSR pollutant” to exclude pollutants for which EPA regulations only require monitoring or reporting but include all pollutants subject to a provision in the Act or regulation adopted by EPA under the Act that requires actual control of emissions of that pollutant.

FOR FURTHER INFORMATION CONTACT:

Mike Sewell, Office of Air Quality Planning and Standards, Air Quality Policy Division (C 504-03), Environmental Protection Agency, 109 TW Alexander Drive, Research Triangle Park, NC 27709; telephone number: (919) 541-0873; fax number: (919) 541-5509; e-mail address: sewell.mike@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. How Can I Get Copies of This Document and Other Related Information?

1. Electronic Access. You may access this Federal Register document electronically through the EPA Internet under the “Federal Register” listings at http://www.epa.gov/fedrgstr/. You may access the memorandum at http://www.epa.gov/nsr.

Statutory and Executive Orders

This action is not a rule as defined by Executive Order 12866. Therefore, it is exempt from review by the Office of Management and Budget as required for rules and regulations under Executive Order 12866.

In addition, this is not a rule as defined by the Regulatory Flexibility Act, 5 U.S.C. section (601)(2). Therefore, EPA has not prepared a regulatory flexibility analysis addressing the impact of this action on small business activities.

Judicial Review

Because we have designated this interpretation as nationally significant under section 307(b) of the Act, challenges must be brought to the United States Court of Appeals for the District of Columbia Circuit by March 2, 2009.