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Federal Register/Vol. 74, No. 10/Thursday, January 15, 2009/Rules and Regulations
time frames. In fact, activities that are
substantially related are often so heavily
aligned or interconnected that
constructing only one of the activities at
a time is technically unsound or
illogical.7 Therefore, even though
activities that occur simultaneously are
not to be presumed "substantially
related," it makes sense to look closer at
these activities since close timing may
be one-but should not be the only-
indicator of whether a technical or
economic relationship exists and is
substantial.
b. Time-Based Presumption for
Nonaggregation
In our proposal, we also solicited
comment on whether we should change
our aggregation approach and include a
time-based presumption against
aggregation. We specifically solicited
comments on whether we should create
a presumption in the final rule that
changes separated by a certain number
of years, e.g., three, four, or five years,
are independent and not aggregated for
NSR purposes. We also solicited
comments on whether we should create
a rebuttable or irrebuttable presumption.
Some commenters thought that
creating a timing presumption for
nonaggregation would be beneficial, if
properly bounded, since it would
streamline the decision making process
and add regulatory certainty. Others felt
that it was unwarranted and would lead
to incorrect results, particularly if it was
made to be irrebuttable. Some
commenters stated that if we set a
timing upper bound for nonaggregation,
we should also establish a timing lower
bound for automatic aggregation.
In making aggregation decisions, we
acknowledge that the determining
factor-i.e. , whether the activities are
"substantially related"-is not always a
straightforward analysis. On the other
hand, the passage of time provides a
fairly objective indicator of
nonrelatedness between physical or
operational changes. Specifically, the
greater the time period between
activities, the less likely that a
deliberate decision was made by the
source to split an otherwise
"significant" activity into two or more
smaller, non-major activities. If there is
a large timeframe between the
construction and operation of the
activities, it is reasonable to conclude
that they should be treated individually
and that the CAA did not expect
activities separated by large periods of
7 At the same time, the construction of some
projects that are substantially related may occur at
entirely different times, simply because of fundingor other reasons which dictates the projects be
phased.time to constitute a single event when
evaluating NSR applicability and
control levels.
We believe that if a previous physical
or operational change has operated for
a period of three or more years,
permitting authorities may presume that
a newly constructed change is not
substantially related to the earlier
change. When activities are undertaken
three or more years apart, there is less
of a basis that they have a substantial
technical or economic relationship
because the activities are typically part
of entirely different planning and
capital funding cycles. The fact that the
earlier activities were constructed and
operated independently for such a long
a period of time tends to support a
determination that the latter activities
are technically and economically
unrelated and independent from the
other earlier constructed activities. Even
if activities are related, once three years
have passed, it is difficult to argue that
they are substantially related and
constitute a single project. We note that
the selection of a 3-year timeframe is
long enough to ensure a reasonable
likelihood that the presumption of
independence will be valid, but is short
enough to maintain a useful separation
between relevant construction cycles,
consistent with industry practice. For
example, in the case of electric utilities,
a commenter explained that companies
plan and schedule major turbine outages
every four to five years.8
Nevertheless, we understand that
there may be exceptions to the more
typical set of circumstances. Therefore,
for our 3-year presumptive timeframe
that we are adopting, we are making it
rebuttable, such that an alternative
decision can be made if conditions
warrant and if the changes are, in fact,
substantially related. In order to rebut
the presumption of nonaggregation,
there should be evidence that
demonstrates a substantial relationship
between the activities. For example,
evidence that a company intends to
undertake a phased capital
improvement project, consisting of
enhancements to major plant
components scheduled for 2009 and
2013 that have a substantial economic
relationship would likely be sufficient
to rebut the presumption of
nonaggregation.
Although some commenters requested
that our presumption for nonaggregation
be irrebuttable, we have concerns that
making it irrebuttable does not fully
recognize the fact that sources often
implement significant modifications in8 Bridgett K. Ellis, Tennessee Valley Authority,
EPA-HQ-OAR-2003-0064-0088.1.a series of phased construction projects
over a period of years. Setting an
irrebuttable presumption would
therefore hamper permitting authorities
of the ability to monitor compliance
with the rules in these instances. A
rebuttable presumption, on the other
hand, enables the permitting agencies to
retain the authority to ensure that
facility owners and operators do not
engage in a pattern of development
including phasing, staging, and delaying
or engaging in incremental construction
at a facility which, except for such
pattern of development, would
otherwise require a permit.
While having a timeframe-based
presumption for nonaggregation may
appear at odds with the previous section
of this notice, in which we reject the use
of timing alone in making aggregation
decisions, the two positions are
consistent because they both stem from
the same principle that aggregation is
based on a technical or economic
relationship. Our primary concern with
the use of timing in making aggregation
decisions has been the interpretation of
the 3M-Maplewood memo that
aggregates activities occurring within 12
to 18 months of each other without also
determining whether a substantial
relationship exists between the
activities. Thus, we disagree with the
commenters who asserted that an upper
bound timeframe for nonaggregation
should be coupled with a lower bound
presumption for aggregation.
Establishing an upper bound for timing,
particularly one which can be refuted,
serves to define a reasonable threshold
for what is considered not to be a
substantial relationship. Furthermore,
by making the presumption rebuttable,
we are assuring that the decision is not
based on timing alone but must also
consider the technical and economic
relationship that could overturn the
presumption.
While we are establishing this 3-year
rebuttable presumption for
nonaggregation, we are setting forth our
view that activities separated by less
than three years have no presumption.
If activities within this time period are
presumed aggregated, there could be
numerous physical or operational
changes across a plant that are
aggregated without any substantial
relationship among them. We believe
that, even without a presumption,
permitting authorities will continue to
be able to aggregate activities when it
determines that there is a substantial
technical or economic relationship
among them. We believe that
establishing this presumption will help
to streamline and provide some addedcertainty to the permit decision-making
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United States. Office of the Federal Register. Federal Register, Volume 74, Number 10, January 15, 2009, Pages 2293-2756, periodical, January 15, 2009; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc132872/m1/97/: accessed April 24, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.