“Protecting public health, community well-being and the environment as a leader and advocate for the improvement and maintenance of air quality in Lane County, Oregon.”
LRAPA
Lane Regional Air Protection Agency

Rules And Regulations:
Title 38 - Major New Source Review

Section 38-0010 Applicability and General Prohibitions

  1. Within designated nonattainment and maintenance areas, this title applies to owners and
    operators of proposed major sources and major modifications for the regulated pollutants
    for which the area is designated nonattainment or maintenance.
  2. Within attainment and unclassifiable areas, this title applies to owners and operators of proposed federal major and major modifications at federal major sources for the regulated pollutants for which the area is designated attainment or unclassified.
  3. Owners and operators of sources that do not meet the applicability criteria of sections 1. or 2. of this rule are subject to other LRAPA rules, including Highest and Best Practicable Treatment and Control Required (Section 32-0005 through 32-0009), Title 42- Plant Site Emission Limits, Notice of Construction and Approval of Plans (Section 34-010 and 34-034through 34-038), ACDPs (LRAPA Title 37, Sections 37-0025-1. and 37-0052), Emission Standards for Hazardous Air Contaminants (LRAPA Title 44), and Standards of Performance for New Stationary Sources (LRAPA Title 46) and Stationary Source Plant Site Emission Limits (LRAPA Title 42).
  4. No owner or operator of a source that meets the applicability criteria of sections 1. or 2. of this rule may begin construction without having received an air contaminant discharge permit (ACDP) from LRAPA and having satisfied the requirements of this title.
  5. Beginning May 1, 2011, the pollutant GHGs is subject to regulation if:
    1. The source is a new federal major source for a regulated pollutant that is not GHGs, and also emits, will emit or will have the potential to emit 75,000 tons per year of CO2e or more; or
    2. The source is or becomes a federal major source subject to Section 38-0070 as a result of a major modification for a regulated pollutant that is not GHGs, and will have an emissions increase of 75,000 tons per year CO2e or more over the netting basis,
  6. Beginning July 1, 2011, in addition to the provisions in section 5 of this rule, the pollutant GHGs shall also be subject to regulation at:
    1. A new federal major source; or
    2. A source that is or becomes a federal major source when such source undertakes a major modification.

Section 38-0020 Definitions

The definitions in LRAPA Title 12 and this rule apply to this title. If the same term is defined in this rule and LRAPA Title 12, the definition in this rule applies to this title.

Section 38-0030 Procedural Requirements

  1. Information Required. The owner or operator of a proposed major source or major modification must submit all information LRAPA needs to perform any analysis or make any determination required under this title and LRAPA Title 40. The information must be in writing on forms supplied by LRAPA and include the information for a standard ACDP as detailed in LRAPA Title 37.
  2. Other Obligations:
    1. Approval to construct becomes invalid if construction is not commenced within 18 months after LRAPA issues such approval, if construction is discontinued for a period of 18 months or more, or if construction is not completed within 18 months of the scheduled time. LRAPA may extend the 18-month period for good cause. This provision does not apply to the time period between construction of the approved phases of a phased construction project; each phase must commence construction within 18 months of the projected and approved commencement date;
    2. Approval to construct does not relieve any owner or operator of the responsibility to comply fully with applicable provisions of the State Implementation Plan and any other requirements under local, state or federal law;
    3. Approval to construct a source under an ACDP issued under paragraph 3.B. of this rule authorizes construction and operation of the source, except as prohibited subsection D. of this rule, until the later of:
      1. One year from the date of initial startup of operation of the major source or major modification; or
      2. If a timely and complete application for an LRAPA Title V Operating Permit is submitted, the date of final action by LRAPA on the LRAPA Title V Operating Permit application.
    4. Where an existing LRAPA Title V Operating Permit would prohibit construction or change in operation, the owner or operator must obtain a permit revision before commencing construction or operation.
  3. Application Processing:
    1. Within 30 days after receiving an application to construct, or any addition to such application, LRAPA will advise the applicant of any deficiency in the application or in the information submitted. For purposes of this section, the date LRAPA received a complete application is the date on which LRAPA received all required information;
    2. Notwithstanding the requirements of Section 37-0040 or OAR 340-218-0040, concerning permit application requirements, LRAPA will make a final determination on the application within six months after receiving a complete application. This involves performing the following actions in a timely manner:
      1. Making a preliminary determination whether construction and/or modification should be approved, approved with conditions, or disapproved;
      2. Making the proposed permit available in accordance with the public participation procedures required by LRAPA Title 31 for Category IV. Extension of Construction Permits beyond the 18-month time period in paragraph 2.A. of this rule are available in accordance with the public participation procedures required by Category II in lieu of Category IV.

Section 38-0040 Review of New Sources and Modifications for Compliance With Regulations

The owner or operator of a proposed major source or major modification must demonstrate the ability of the proposed source or modification to comply with all applicable air quality requirements of LRAPA.

Section 38-0050 Requirements for Sources in Nonattainment Areas

Within a designated nonattainment area, proposed major sources and major modifications of a nonattainment pollutant, including VOC or NOx in a designated ozone nonattainment area or SO2 or NOx in a designated PM2.5 nonattainment area must meet the requirements listed below:

  1. Lowest Achievable Emission Rate (LAER). The owner or operator must apply LAER for each nonattainment pollutant or precursor(s) emitted at or above the significant emission rate (SER). LAER applies separately to the nonattainment pollutant or precursor(s) if emitted at or above a SER over the netting basis.
    1. For a major modification, the requirement for LAER applies to the following:
      1. Each emissions unit that emits the nonattainment pollutant or precursor(s) and is not included in the most recent netting basis established for that pollutant; and
      2. Each emission unit that emits the non attainment pollutant or precursor(s) and is included in the most recent netting basis but has been modified and the modification resulted in an increase in actual emissions above the portion of the most recent netting basis attributable to the emission unit or the nonattainment pollutant precursor(s).
    2. For phased construction projects, the LAER determination must be reviewed at the latest reasonable time before commencing construction of each independent phase.
    3. When determining LAER for a change that was made at a source before the current NSR application, LRAPA will consider technical feasibility of retrofitting required controls provided:
      1. The change was made in compliance with NSR requirements in effect when the change was made, and
      2. No limit will be relaxed that was previously relied on to avoid NSR.
    4. Modifications to individual emission units that increase the potential to emit less than 10 percent of the SER are exempt from this section unless:
      1. They are not constructed yet;
      2. They are part of a discrete, identifiable, larger project that was constructed within the previous 5 years and is equal to or greater than 10 percent of the SER; or
      3. They were constructed without, or in violation of, the LRAPA’s approval.
  2. Offsets and Net Air Quality Benefit. The owner or operator must obtain offsets and demonstrate that a net air quality benefit will be achieved as specified in Section 40- 0090.
  3. Additional Requirements:
    1. The owner or operator of a source that emits or has the potential to emit 100 tons per year or more of any regulated pollutant subject to this title must evaluate alternative sites, sizes, production processes, and environmental control techniques for the proposed source or modification and demonstrate that benefits of the proposed source or modification will significantly outweigh the environmental and social costs imposed as a result of its location, construction or modification.
    2. The owner or operator of a source that emits or has the potential to emit 100 tons per year or more of any regulated pollutant subject to this title must demonstrate that all major sources owned or operated by such person (or by an entity controlling, controlled by, or under common control with such person) in the state are in compliance, or are on a schedule for compliance, with all applicable emission limitations and standards under the Act.
    3. The owner or operator of a federal major source must meet the visibility impact requirements in Section 40-0070.

Section 38-0060 Requirements for Sources in Maintenance Areas

Within a designated nonattainment area, proposed major sources and major modifications of a maintenance pollutant, including VOC or NOx in a designated ozone maintenance area, or SO2 or NOx in a designated PM2.5 maintenance area, must meet the requirements listed below:

  1. Best Available Control Technology (BACT). Except as provided in section 5. of this rule, the owner or operator must apply BACT for each maintenance pollutant or precursor(s) emitted at or above a significant emission rate (SER). BACT applies separately to the maintenance pollutant or precursor(s) if emitted at or above a SER over the netting basis.
    1. A. For a major modification, the requirement for BACT applies to the following:
      1. 1) Each emissions unit that emits the maintenance pollutant or precursor(s) and is not included in the most recent netting basis established for that pollutant; and
      2. Each emissions unit that emits the maintenance pollutant or precursor(s) and is included in the most recent netting basis but has been modified and the modification resulted in an increase in actual emissions above the portion of the most recent netting basis attributable to the emissions unit or the maintenance pollutant or precursor(s).
    2. For phased construction projects, the BACT determination must be reviewed at the latest reasonable time before commencement of construction of each independent phase.
    3. When determining BACT for a change that was made at a source before the current NSR application, the technical and economic feasibility of retrofitting required controls may be considered provided:
      1. The change was made in compliance with NSR requirements in effect at the time the change was made, and
      2. No limit is being relaxed that was previously relied on to avoid NSR.
    4. Modifications to individual emissions units that increase the potential to emit less than 10 percent of the significant emission rate are exempt from this section unless:
      1. They are not constructed yet;
      2. They are part of a discrete, identifiable larger project that was constructed within the previous 5 years and that is equal to or greater than 10 percent of the significant emission rate; or
      3. They were constructed without, or in violation of, LRAPA’s approval.
  2. Air Quality Protection:
    1. Offsets and Net Air Quality Benefit. Except as provided in subsectionsB. of this section, the owner or operator must obtain offsets and demonstrate that a net air quality benefit will be achieved in the area as specified in Section 40-0090.
    2. In a carbon monoxide maintenance area, a proposed carbon monoxide major source or major modification is exempt from subsection A. of this section if the owner or operator can demonstrate that the source or modification will not cause or contribute to an air quality impact equal to or greater than 0.5 mg/m3 (8 hour average) and 2 mg/m3 (1-hour average). The demonstration must comply with the requirements of Section 40-0045.
  3. The owner or operator of a source subject to this rule must provide an air quality analysis in accordance with Section 40-0050-1 and 2, and Section 40-0060.
  4. Additional Requirements for Federal Major Sources: The owner or operator of a federal major source subject to this rule must provide an analysis of the air quality impacts for the proposed source or modification in accordance with Section 40-0050-3 and 40-0070. In addition to the provisions of this section, provisions of Section 38-0070 also apply to federal major sources.
  5. Contingency Plan Requirements. If the contingency plan in an applicable maintenance plan is implemented due to a violation of an ambient air quality standard, this section applies in addition to other requirements of this rule until LRAPA adopts a revised maintenance plan and EPA approves it as a SIP revision.
    1. The requirement for BACT in section 1 of this rule is replaced by the requirement for LAER contained in Section 38-0050-1.
    2. The exemption provided in section 2.B. of this rule for major sources or major modifications within a carbon monoxide maintenance area no longer applies.
  6. Pending Redesignation Requests. This rule does not apply to a proposed major source or major modification for which a complete application to construct was submitted to LRAPA before the maintenance area was redesignated from nonattainment to attainment by EPA. Such a source is subject to Section 38-0050.

Section 38-0070 Prevention of Significant Deterioration Requirements for Sources in Attainment or Unclassified Areas

Within a designated attainment or unclassified area, proposed federal major sources and major modifications at federal major sources for the pollutant(s) for which the area is designated attainment or unclassified, must meet the requirements listed below:

  1. Best Available Control Technology (BACT). The owner or operator must apply BACT for each pollutant or precursor(s) emitted at or above a significant emission rate (SER). BACT applies separately to the pollutant or precursor(s) if emitted at or above a SER over the netting basis.
    1. For a major modification, the requirement for BACT applies to the following:
      1. Each emissions unit that emits the pollutant or precursor(s) and is not included in the most recent netting basis established for that pollutant; and
      2. Each emissions unit that emits the pollutant or precursor (s) and is included in the most recent netting basis but has been modified and the modification resulted in an increase in actual emissions above the portion of the most recent netting basis attributable to the emissions unit or the nonattainment pollutant or precursor(s).
    2. For phased construction projects, the BACT determination must be reviewed at the latest reasonable time before commencement of construction of each independent phase.
    3. When determining BACT for a change that was made at a source before the current NSR application, any additional cost of retrofitting required controls may be considered provided:
      1. The change was made in compliance with NSR requirements in effect at the time the change was made, and
      2. No limit is being relaxed that was previously relied on to avoid NSR.
    4. Modifications to individual emissions units that increase the potential to emit less than 10 percent of the significant emission rate are exempt from this section unless:
      1. They are not constructed yet;
      2. They are part of a discrete, identifiable larger project that was constructed within the previous 5 years and that is equal to or greater than 10 percent of the significant emission rate; or
      3. They were constructed without, or in violation of, LRAPA’s approval.
  2. Air Quality Analysis: The owner or operator of a source subject to this rule must provide an analysis of the air quality impacts of each pollutant for which emissions will exceed the netting basis by the SER or more due to the proposed source or modification in accordance with Section 40-0050 through 40-0070.
    1. For increases of direct PM2.5 or PM2.5 precursors equal to or greater than the significant emission rate, the owner or operator must provide an analysis of PM2.5 air quality impacts based on all increases of direct PM2.5 and PM2.5 precursors.
    2. The owner or operator or any source subject to this rule that significantly impacts air quality in a designated nonattainment or maintenance area must meet the requirements of net air quality benefit in Section 40-0090.
  3. Air Quality Monitoring: The owner or operator of a source subject to this rule must conduct ambient air quality monitoring in accordance with the requirements in Section 40-0050.
  4. The owner or operator of a source subject to this rule and significantly impacting a PM10 maintenance area (significant air quality impact is defined in LRAPA Title 12), must comply with the requirements of Section 38-0060-2.

Section 38-0080 Exemptions

Temporary emission sources that would be in operation at a site for less than two years, such as pilot plants and portable facilities, and emissions resulting from the construction phase of a new source or modification must comply with Section 38-0050-1, 38-0060-1 or 38-0070-1, whichever is applicable, but are exempt from the remaining requirements of Section 38-0050, 38-0060 and 38-0070 provided that the source or modification would not impact a Class I area or an area with a known violation of a National Ambient Air Quality Standard (NAAQS) or an applicable increment as defined in LRAPA Title 50.

Section 38-0100 Fugitive and Secondary Emissions

Fugitive emissions are included in the calculation of emission rates of all air contaminants. Fugitive emissions are subject to the same control requirements and analyses required for emissions from identifiable stacks or vents. Secondary emissions are not included in calculations of potential emissions that are made to determine if a proposed source or modification is major. Once a source or modification is identified as being major, secondary emissions are added to the primary emissions and become subject to the air quality impact analysis requirements in this title and LRAPA Title 40.