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Federal Land Manager Notification of New Source Review (NSR) Permit Applications

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Notification Requirements

Map of Region 9 Federal Class 1 AreasClick map to enlarge | Download a PDF version of Region 9 Federal Class 1 Areas(1 pp, 175 K, About PDF)Permitting agencies are required to notify Federal Land Managers (FLMs) of New Source Review (NSR) permit applications for new and modified major sources that may affect Federal Class I areas. Class 1 federal lands include areas such as national parks, national wilderness areas, and national monuments. These areas are granted special air quality protections under Section 162(a) of the federal Clean Air Act. In Region 9, the Class 1 areas are designated as depicted in the map on this page. For more information, please visit the Region 9 Federal Class 1 Areas page.

Summary of Key Requirements

A summary of the key requirements for the FLM notification process is summarized in the January 11, 2017 letter from Anna Marie Wood, Director of the EPA’s Air Quality Policy Division, to Carol McCoy, Chief of the Air Resources Division of the National Park Service (NPS). These key elements are represented below:
  • Provide written notice of the permit application to the FLM of any lands within a Class I area whose visibility may be affected (40 CFR 51.307(a)(1), 40 CFR 52.21(p)(1)) by emissions from a proposed new facility or major modification in either attainment (40 CFR 52.27(d)(1)) or nonattainment (40 CFR 51.307(b)(2); 40 CFR 52.28(e)(2)) areas.
  • Provide the FLM with written notification within 30 days of receipt of New Source Review (NSR)/Prevention of Significant Deterioration (PSD) permit applications and at least 60 days before public hearing on the application. Include in the written notification to the FLM all information relevant to the permit application, and an analysis of the anticipated impacts on visibility in any Federal Class I area, or other visibility protected area. See 40 CFR 51.307(a)(1), 40 CFR 52.27(d)(1), 40 CFR 52.28(e)(2), 40 CFR 52.21(p)(1).
  • Consider any FLM analysis of the facility’s adverse impact on visibility in any Federal Class I area provided within 30 days of the written notification and receipt of all information relevant to the permit application. If the state finds that the FLM’s analysis does not demonstrate that an adverse impact will result in the Federal Class I area, the state’s notice of public hearing must either explain its decision or provide notice as to where such explanation can be obtained. See 40 CFR 51.307(a)(3), 40 CFR 52.21(p)(3).
  • Notify the FLM of permit applications of not only facilities that will be located within 100 km of a Class I area, but also large sources located at distances greater than 100 km if there is reason to believe that such sources could affect the air quality in the Class I area. See EPA memorandum dated October 19, 1992: “Clarification of Prevention of Significant Deterioration (PSD) Guidance for Modeling Class I Area Impacts”.
  • Where the state requires or receives advance notification (e.g., early consultation with the source prior to submission 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 (40 CFR 51.307(a)(2)).  In some areas, depending on the size of the facility and its proximity to a Class I area, it may also be appropriate to notify the FLMs of the pre-application meeting with the owner of a proposed facility. See EPA memorandum dated March 19, 1979: “Notification to Federal Land Managers Under Section 165(d) of the Clean Air Act”.
  • Send a copy of the notice of opportunity for public comment to the FLM whose lands may be affected by emissions from the facility. See 40 CFR 51.166(q).

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Table Summary of FLM Review Requirements

Region 9 has summarized these requirements and best practices in the table below.

Regulatory Obligation CFR Requirements Where Reiterated Reiterated Language
Summary of FLM Review Requirements

FLM consultation under the Regional Haze Program §307 for NSR/PSD

40 CFR 51.307(a)(1)

State plan must provide for 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.

EPA Memorandum
March 19, 1979

 

"Visibility" is not specified for PSD.
See below for 40 CFR 52.27(d)(1)

EPA Memorandum
February 26, 1981

EPA Memorandum
October 19, 1992

EPA Letter from Region IV
March 9, 2011

"EPA expects NC DENR to interpret the phrase "may affect" as it appears in NC's SIP (and in NC DENR's recently promulgated revisions… consistent with the interpretation provided in EPA's NSR Workshop Manual (draft, Oct 1990). Specifically, a proposed new or modified source "may affect" visibility in a Class I area if it would be located within 100 km of a Class I area, or if the source would be located further than 100 km from a Class I area but other factors (such as the proposed source's size) raise concerns about potential visiblity impacts."

FLM notification…must "include an analysis of the anticipated impacts on visibility in any Federal Class I area." This analysis unambiguously involves an assessment of how a proposed new or modified source's emissions would affect visibility as compared against what visibility would be in a Class I area under natural conditions. This  also includes the modeling results demonstrating the project's impacts.

Definition of "visibility impairment": any humanly perceptible change in visibility (light extinction, visual range, contrast, coloration) from that which would have existed under natural conditions
Definition of "natural conditions": naturally occurring phenomena that reduce visibility...

Notification 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

EPA Memorandum
March 19, 1979

"Visibility" is not specified for PSD.
See below for 40 CFR 52.27(d)(1)

EPA Memorandum
April 8, 1981

EPA Letter from Region IV
March 9, 2011

"Under such circumstances, EPA expects NC DENR to provide the FLM with written notification of the proposed new or modified source 'within 30 days of receipt of and at least 60 days prior to public hearing by the State on the application for a permit to construct.' See 30 CFR 51.307(a)(1). "

Procedural steps in visibility review for protection of visibility from sources in attainment areas

40 CFR 52.27(d)(1)

Same language as 40 CFR 51.307(a)(1) for attainment areas: State plan must provide for 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.

EPA Memorandum
March 19, 1979
Notification to FLM

Administrator is required to "provide notice of the permit application to the Federal Land Manager and the Federal official charged with direct responsibility for management of any lands within a Class I area which may be affected from a proposed new facility"

"Until we have prepared guidance on determining the impacts a source may have on "air quality related values", notice should be provided for any facility which will be located within 100 kilometers of a Class I area. Very large sources, however, may be expected to affect "air quality related values" at distances greater than 100 kilometers. The appropriate Federal Land Manager should be notified if such impacts are expected on a case-by-case basis."

"In order to ensure adequate notification, you should notify not only the Federal Land Manager and the Federal official directly responsible for the Class I area but also certain other Federal officials who will be involved in implementing the Federal Land Managers responsibilities under the Act."

EPA Memorandum
February 26, 1981
EPA, FWS, NPS Coordination Procedures for Determining Air quality impact in Region IV Class I areas

Air Programs Branch will notify, in writing, the appropriate responsible officials and provide review material when 1) SIPs and SIP revisions and 2) PSD and permit applications and SO2 variance requests may affect any Class I areas

Notification procedure for FWS and NPS: Notification letter to 3 addresses and Copy of notification letter and all material related to determining the air quality on Class I area forwarded to NPS/FWS Air Quality Team

EPA Memorandum
October 19, 1992
Clarification of PSD Guidance for Modeling Class I Area Impacts

Reiterates March 19 1979 memo and says that Agency's position is that generally a 100 km range is an acceptable modeling domain, but impacts from large sources located at distances greater than 100 km need to be considered when such impacts reasonably could affect the outcome of the Class I analysis (case by case basis)

Same language as 40 CFR 51.307(a)(1) for attainment areas: Notification 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

EPA Memorandum
March 19, 1979
Notification to FLM

"EPA should make every effort to provide the FLM with as much time as possible to evaluate effects of proposed facility's emissions on the AQ related values of nearby Class I areas"

Accordingly, each Regional Office should establish a mechanism to ensure that notice is provided to the Federal Land Manager immediately upon receipt of a permit application.

"I would first like to reaffirm the existing policy for timely EPA transmittal of PSD permits affecting Class I areas as identified in the Hawkins' memo of March 19, 1979."

EPA Memorandum
April 8, 1981
OAR Response Letter to NPS to concerns over limited time NPS has to review PSD permit applications for facilities which may impact Class I areas

"Normally the EPA Region should transmit the permit application within 10 days of receipt of such applications."

For protection of visibility from sources in nonattainment areas

40 CFR 52.28(e)(2)

Same language as 40 CFR 51.307(a)(1) for nonattainment areas

40 CFR 51.307(a)(2)

Where the State requires or receives advance notification of a permit application that may affect visibility, the State must notify all affected Federal Land Managers within 30 days of such advance notification

EPA Memorandum
March 19, 1979

"In some areas however, depending on the size of the facility and its proximity to a Class I area, it may also be appropriate to notify the Federal Land Manager of the pre-application conference with the owner of a proposed facility"

40 CFR 51.307(a)(3)

State plan must provide for consideration of FLM analysis provided within 30 days of FLM notification (i.e., FLM 30 day review period)

40 CFR 51.307(b)

State plan must provide for review of any new major stationary source or major modification 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

Approval and promulgation of implementation plan: Prevention of significant deterioration of air quality

40 CFR 52.21(p)(1)

The Administrator shall provide written notice of any permit application for a proposed major stationary source or major modification, the emissions from which may affect a Class I area, to the Federal land manager and the Federal official charged with direct responsibility for management of any lands within any such area

EPA Memorandum
March 19, 1979

 

for PSD, see above for 40 CFR 52.27(d)(1)

EPA Memorandum
February 26, 1981

EPA Memorandum
October 19, 1992

FLM Notification 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. The Administrator shall also notify all affected Federal land managers within 30 days of receipt of any advance notification of any such permit application.

EPA Memorandum
March 19, 1979

for PSD, see above for 40 CFR 52.27(d)(1)

EPA Memorandum
April 8, 1981

Visibility analysis

40 CFR 52.21(p)(3)

The Administrator shall consider any analysis performed by the Federal land manager, provided within 30 days of the notification (i.e., FLM 30 day review period)

Public participation

40 CFR 51.166(q)

The reviewing authority shall notify the public 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. The notice should be sent 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.

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