Friday, March 23, 2001 Part II Environmental Protection Agency 40 CFR Part 63 National Emission Standards for Hazardous Air Pollutants for Source Categories: General Provisions and Requirements for Control Technology Determinations for Major Sources in Accordance With Clean Air Act Sections, Sections 112(g) and 112(j); Proposed Rule VerDate 11<MAY>2000 17:24 Mar 22, 2001 Jkt 194001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\23MRP2.SGM pfrm10 PsN: 23MRP2
Transcript
Friday,
March 23, 2001
Part II
EnvironmentalProtection Agency40 CFR Part 63National Emission Standards forHazardous Air Pollutants for SourceCategories: General Provisions andRequirements for Control TechnologyDeterminations for Major Sources inAccordance With Clean Air Act Sections,Sections 112(g) and 112(j); Proposed Rule
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16318 Federal Register / Vol. 66, No. 57 / Friday, March 23, 2001 / Proposed Rules
ENVIRONMENTAL PROTECTIONAGENCY
40 CFR Part 63
[FRL–6949–7]
RIN 2060–AF31
National Emission Standards forHazardous Air Pollutants for SourceCategories: General Provisions; andRequirements for Control TechnologyDeterminations for Major Sources inAccordance With Clean Air ActSections, Sections 112(g) and 112(j)
SUMMARY: General Provisions (SubpartA). On March 16, 1994, the EPApromulgated General Provisions fornational emission standards forhazardous air pollutants (NESHAP) andother regulatory requirements that areestablished under section 112 of theClean Air Act as amended in 1990 (CAAor Act) (59 FR 12408). In today’s action,we are proposing amendments to theGeneral Provisions that would reviseand clarify several of the currentprovisions.
We are proposing these amendments,in part, as a result of decisions reachedin settlement negotiations conductedbetween petitioners, who filed forreview of the General Provisions, andthe EPA. The proposed amendmentsalso reflect internal EPA discussions onissues regarding implementation of theGeneral Provisions.
Section 112(j) Provisions (Subpart B).In addition, in today’s action, we areproposing amendments to rules thatestablish equivalent emissionlimitations by permit under section112(j) of the Act. The ‘‘section 112(j)’’rule establishes requirements andprocedures for owners or operators ofmajor sources of hazardous airpollutants (HAP), and permittingauthorities, to comply with section112(j). The section 112(j) rule waspromulgated on May 20, 1994 (59 FR26429).
These proposed amendments havebeen developed in response tosettlement negotiations conductedbetween petitioners, who filed forreview of the section 112(j) rule, and theEPA. The proposed amendments alsoreflect internal EPA discussionsregarding implementation of the section112(j) rule.DATES: Comments. Submit comments onor before May 22, 2001.
Public Hearing. If anyone contacts usrequesting to speak at a public hearing
by April 2, 2001, a public hearing willbe held on April 23, 2001.ADDRESSES: Comments. Writtencomments should be submitted (induplicate if possible) to: Air andRadiation Docket and InformationCenter (6102), Attention Docket NumberA–2001–02, Part 63 General Provisions(Subpart A) and Section 112(j)Regulations (Subpart B) LitigationSettlement Amendments, U.S.Environmental Protection Agency, 1200Pennsylvania Ave., NW, Washington,DC 20460. We request a separate copyalso be sent to the appropriate contactperson listed below in the FOR FURTHERINFORMATION CONTACT section.
Public Hearing. If a public hearing isheld, it will be held at 10:00 a.m. onApril 23, 2001 in our Office ofAdministration Auditorium, ResearchTriangle Park, North Carolina, or at analternate site nearby.
Docket. Docket No. A–2001–02, Part63 General Provisions (Subpart A) andSection 112(j) Regulations (Subpart B)Litigation Settlement Amendments,contains information relevant to today’sproposed rulemaking. This docket islocated at the U.S. EnvironmentalProtection Agency, 401 M Street, SW,Washington, DC 20460 in room M–1500,Waterside Mall (ground floor), and isavailable for public inspection andcopying from 8:30 a.m. and 5:30 p.m.,Monday through Friday, excluding legalholidays. A reasonable fee may becharged for copying.FOR FURTHER INFORMATION CONTACT: Forfurther information about the proposedrule amendments, contact Mr. JamesSzykman, Emission Standards Division(MD–13), U.S. Environmental ProtectionAgency, Research Triangle Park, NorthCarolina 27711, telephone (919) 541–5469, E-mail [email protected]; orMr. Rick Colyer, Emission StandardsDivision (MD–13), U.S. EnvironmentalProtection Agency, Research TrianglePark, North Carolina 27711, telephone(919) 541–5262, [email protected].
For questions about the publichearing, contact Ms. Dorothy Apple,Policy, Planning and Standards Group,Emission Standards Division (MD–13),U.S. Environmental Protection Agency,Research Triangle Park, North Carolina27711, telephone (919) 541–4487, E-mail [email protected] INFORMATION:Comments. Comments and data may besubmitted by electronic mail (e-mail) to:[email protected]. Electroniccomments must be submitted as anASCII file to avoid the use of specialcharacters and encryption problems andwill also be accepted on disks in
WordPerfect version 5.1, 6.1 or Corel 8file format. All comments and datasubmitted in electronic form must notethe docket number A–2001–02, Part 63General Provisions (Subpart A) andsection 112(j) Regulations (Subpart B)Litigation Settlement Amendments. Noconfidential business information (CBI)should be submitted by e-mail.Electronic comments may be filedonline at many Federal DepositoryLibraries.
Commenters wishing to submitproprietary information forconsideration must clearly distinguishsuch information from other commentsand clearly label it as CBI. Sendsubmissions containing suchproprietary information directly to thefollowing address, and not to the publicdocket, to ensure that proprietaryinformation is not inadvertently placedin the docket: Attention: Mr. RickColyer, c/o OAQPS Document ControlOfficer (Room 740B), U.S.Environmental Protection Agency, 411W. Chapel Hill Street, Durham, NC27701. We will disclose informationidentified as CBI only to the extentallowed by the procedures set forth in40 CFR part 2. If no claim ofconfidentiality accompanies asubmission when we receive it, theinformation may be made available tothe public without further notice to thecommenter.
Public Hearing. Persons interested inpresenting oral testimony or inquiringas to whether a hearing is to be heldshould contact Ms. Dorothy Apple atleast 2 days in advance of the publichearing. Persons interested in attendingsuch a public hearing must also contactMs. Apple to verify the time, date, andlocation of the hearing. The address,telephone number, and e-mail addressfor Ms. Apple are listed in the precedingFOR FURTHER INFORMATION CONTACTSECTION. If a public hearing is held, itwill provide interested parties theopportunity to present data, views, orarguments concerning these proposedamendments.
Docket. The docket is an organizedand complete file of all the informationconsidered by us in the development ofthis rulemaking. The docket is adynamic file because material is addedthroughout the rulemaking process. Thedocketing system is intended to allowmembers of the public and industriesinvolved to readily identify and locatedocuments so that they can effectivelyparticipate in the rulemaking process.Along with the proposed andpromulgated standards and theirpreambles, the contents of the docketwill serve as the record in the case ofjudicial review. (See section
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307(d)(7)(A) of the CAA.) The regulatorytext and other materials related to thisrulemaking are available for review inthe docket or copies may be mailed onrequest from the Air Docket by calling(202) 260–7548. A reasonable fee maybe charged for copying docket materials.
Worldwide Web (WWW). In additionto being available in the docket, anelectronic copy of today’s proposed ruleamendments will also be available onthe WWW through the TechnologyTransfer Network (TTN). Following theAdministrator’s signature, a copy of therule will be posted on the TTN’s policyand guidance page for newly proposedor promulgated rules http://www.epa.gov/ttn/oarpg. The TTNprovides information and technologyexchange in various areas of airpollution control. If more informationregarding the TTN is needed, call theTTN HELP line at (919) 541–5384.
Regulated Entities. Categories andentities potentially regulated by thisaction include all section 112 sourcecategories listed under section 112(c) ofthe CAA.
Oil and Natural Gas ProductionNatural Gas Transmission and StoragePetroleum Refineries—Catalytic Cracking
(Fluid and other) Units, CatalyticReforming Units, and Sulfur Plant UnitsPetroleum Refineries—Other Sources Not
Distinctly ListedLiquids Distribution:
Gasoline Distribution (Stage 1)Marine Vessel Loading OperationsOrganic Liquids Distribution (Non-
Gasoline)Surface Coating Processes:
Aerospace IndustriesAuto and Light Duty TruckLarge ApplianceMagnetic TapesManufacture of Paints, Coatings, and
AdhesivesMetal CanMetal CoilMetal FurnitureMiscellaneous Metal Parts and ProductsPaper and Other WebsPlastic Parts and ProductsPrinting, Coating, and Dyeing of FabricsPrinting/PublishingShipbuilding and ShipWood Building ProductsWood Furniture
Waste Treatment and Disposal:Hazardous Waste IncinerationMunicipal LandfillsOff-Site Waste and Recovery OperationsPublicly Owned TreatmentWorks (POTW) EmissionsSewage Sludge IncinerationSite RemediationSolid Waste Treatment, Storage and
This list is not intended to beexhaustive, but rather provides a guidefor readers regarding entities likely to beregulated by this action. To determinewhether you are regulated by thisaction, you should examine your sourcecategory specific section 112 regulation.If you have any questions regarding theapplicability of this action to aparticular entity, consult the personlisted in the preceding FOR FURTHERINFORMATION CONTACT SECTION.
Outline. The information presented inthis preamble is organized as follows:I. Background
A. General ProvisionsB. Section 112(j) Provisions
II. Proposed Amendments to the GeneralProvisions
A. Presumptive Applicability of theGeneral Provisions
B. Definition of Affected SourceC. Other DefinitionsD. Prohibited Activities and CircumventionE. Preconstruction ReviewF. Startup, Shutdown and Malfunction
PlansG. Compliance ProvisionsH. Test MethodsI. Monitoring RequirementsJ. Notification RequirementsK. Recordkeeping and Reporting
RequirementsL. Lesser QuantityM. Clarification and Consistency
III. Proposed Amendments to the Section112(j) Provisions
A. ApplicabilityB. DefinitionsC. Approval ProcessD. Application ContentE. Preconstruction ReviewF. Enforcement LiabilityG. MACT DeterminationsH. Case-by-Case MACT Requirements after
Promulgation of a Subsequent MACTStandard
I. Section 112(j) Guidelines DocumentIV. Additional Issues
A. Discussion of the Relationship AmongRequirements Under Section 112(d), (g),and (j)
B. Potential to EmitV. Administrative Requirements
A. Executive Order 12866, RegulatoryPlanning and Review
B. Executive Order 13132, FederalismC. Executive Order 13084, Consultation
and Coordination with Indian TribalGovernments
D. Executive Order 13045, Protection ofChildren from Environmental HealthRisks and Safety Risks
E. Unfunded Mandates Reform Act of 1995F. Regulatory Flexibility Act (RFA) as
Amended by Small Business RegulatoryEnforcement Fairness Act of 1996(SBREFA), 5 U.S.C. 601 et seq.
G. Paperwork Reduction ActH. National Technology Transfer and
Advancement Act of 1995
I. Background
A. General ProvisionsSection 112 of the CAA requires us to
list categories and subcategories ofmajor sources and area sources of HAPand to establish NESHAP for the listedsource categories and subcategories.Major sources of HAP are those thathave the potential to emit greater than10 tons/yr of any one HAP or 25 tons/yr of any combination of HAP. Areasources of HAP are those sources that donot have potential to emit greater than10 tons/yr of any one HAP and 25 tons/yr of any combination of HAP. TheGeneral Provisions to 40 CFR part 63establish the framework for emissionstandards and other requirementsdeveloped pursuant to section 112 ofthe Act. The General Provisionseliminate the repetition of generalinformation and requirements inindividual NESHAP by consolidating allgenerally applicable information in onelocation. They include sections onapplicability, definitions, compliancedates and requirements, monitoring,recordkeeping and reporting, amongothers. In addition, they includeadministrative sections concerningactions that the EPA (or delegatedauthorities) must take, such as makingdeterminations of applicability,reviewing applications for approval ofnew construction, responding torequests for extensions or waivers ofapplicable requirements, and generallyenforcing national air toxics standards.The General Provisions becomeapplicable to a section 112(d) sourcecategory rule when the source categoryrule is promulgated and becomeseffective.
The General Provisions to part 63were developed in a collaborativeprocess that included input fromindustry and other interested parties.On August 11, 1993, we proposed theGeneral Provisions in the FederalRegister (58 FR 42760). We receivednumerous comments on that proposalfrom industry groups, environmentalgroups, and State and local agencies,and those comments addressed a wide
range of issues and requirements in theproposed rulemaking. We published ourfinal decisions regarding the GeneralProvisions in the Federal Register onMarch 16, 1994 (59 FR 12408). In thepreamble to the promulgated rule, wediscussed major comments on theproposal and our responses to thosecomments. We addressed othercomments in the BackgroundInformation Document (BID) for thepromulgated rulemaking (EPA–450/3–91–019b). In responding to comments,we made some changes and someclarifications to the final package andretained other provisions where theAgency believed it was appropriate todo so. On May 16, 1994, six petitionersfiled for review of the GeneralProvisions. They cited a variety ofissues raised in comments on theproposed rule whose resolution theybelieved to be inappropriate. Inaddition, we have identified otherchanges that would clarify the EPA’soriginal intent. The amendments to theGeneral Provisions being proposedtoday constitute the outcome ofsettlement negotiations between theEPA and the petitioners and internalAgency discussions.
The amendments proposed in today’saction would have the effect ofclarifying certain sections of the GeneralProvisions and of altering othersections.
B. Section 112(j) ProvisionsThe 1990 Amendments to section 112
of the CAA include a new section 112(j),which is entitled ‘‘Equivalent EmissionLimitation by Permit.’’ Section 112(j)(2)provides that the provisions of section112(j) apply if the EPA misses adeadline for promulgation of a standardunder section 112(d) established in thesource category schedule for standards.After the effective date of a title Vpermit program in a State, section112(j)(3) requires the owner or operatorof a major source in a source category,for which the EPA failed to promulgatea section 112(d) standard, to submit apermit application 18 months after themissed promulgation deadline. Section112(j)(5) also specifies that if theapplicable criteria for voluntary earlyreductions established under section112(i)(5) are met, then this alternativeemission limit satisfies the requirementsof section 112(j), provided that theemission reductions are achieved by themissed promulgation date.
The proposed rule implementingsection 112(j) of the CAA was publishedon July 13, 1993 (58 FR 37778). Thepublic comments were considered, andchanges we deemed appropriate weremade in developing a final rule.
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On May 20, 1994 (59 FR 26429), weissued a final rule for implementingsection 112(j). That rule requires majorsource owners or operators to submit apermit application by the date 18months after a missed date on theregulatory schedule. As required undersection 112(j) of the Act, the section112(j) rule establishes requirements forthe content of permit applications,contains provisions governing theestablishment of the maximumachievable control technology (MACT)-equivalent emission limitations by thepermitting authority, includes thecriteria for the reviewing authority todetermine completeness, and allows theapplicant up to 6 months to revise andresubmit the application. As required insubsection 112(j)(5) of the Act, the rulealso establishes compliance dates:
No such pollutant may be emitted inamounts exceeding an emission limitationcontained in a permit immediately for newsources and, as expeditiously as practicable,but not later than the date 3 years after thepermit is issued for existing sources or suchother compliance date as would apply undersubsection (i).
Several petitioners filed for review ofseveral provisions of the section 112(j)rule that they believed needed to beclarified or streamlined. Theamendments to the section 112(j) rulebeing proposed today constitute theoutcome of settlement negotiationsbetween the EPA and the litigants. Inaddition, we have made other clarifyingchanges we consider to be appropriate.
II. Proposed Amendments to theGeneral Provisions
A. Presumptive Applicability of theGeneral Provisions
We are proposing to amend thepresumptive applicability of 40 CFRpart 63, subpart A (General Provisions).The promulgated rule applies, in itsentirety (§§ 63.1 through 63.15), toowners or operators of an affectedsource subject to a relevant subpartestablished under 40 CFR part 63,unless otherwise indicated in thesubpart. This presumption was intendedto eliminate the repetition ofrequirements that would be applicableto all owners or operators affected bythe General Provisions. To date, relevantsubparts typically include a GeneralProvisions applicability table thatdelineates the provisions that apply anddo not apply.
We recognized concern that potentialconfusion could result by applying theGeneral Provisions presumptively whenthey are not tailored to thecircumstances of each relevant subpart.For example, a relevant subpart could
indicate that all of the monitoringrequirements of § 63.8 of the GeneralProvisions apply. Some of therequirements in § 63.8 are inappropriatefor some sources and may confuse anowner or operator (e.g., requirements forcontinuous opacity monitoring systems(COMS) in § 63.8 are not appropriate forall sources).
The objective of the GeneralProvisions, i.e., to avoid repetitiveredrafting of common provisions in eachsubpart of the part, is valid and shouldbe preserved. Therefore, today we areproposing a revised applicability of theGeneral Provisions that would retain thebenefits and reduce or eliminate thepotential for confusion. This proposedaction would not reduce or narrow thescope of applicable requirements.Instead, it would reduce the confusionas to the actual requirements of eachapplicable subpart.
We have determined that the dualobjectives of efficiency and clarity canbest be met by including in each part 63subpart a table that specifies preciselywhich subpart A General Provisions areand are not included in such subpart.Many existing part 63 subparts alreadyinclude such a table, and this has beenvery helpful for both the regulatoryauthorities and the regulatedcommunity. These tables specifyapplicability down to the subparagraphlevel of detail so that there is no doubtas to the total universe of applicableGeneral Provisions. In some instances,we have determined that a generalprovision should apply but that a veryminor change to that provision isappropriate for a specific standard. Insuch cases, we may indicate in the tablethat the general provision does applybut with that minor change, or we mayindicate in the table that the generalprovision does not apply. In the lattercase, the appropriate requirement wouldbe set out in its entirety in the subpart.Either approach is acceptable providedthere is no compromise to clarity.
To streamline part 63 subparts and toavoid imposing conflicting requirementson sources subject to more than one part63 subpart or to subparts under otherparts, we have often allowedcompliance with one subpart(sometimes with some changes) toconstitute compliance with the other(s).We recognize that each subpartincorporates some or all of the GeneralProvisions of the part under which it ispromulgated. Therefore, if a part 63subpart incorporates portions of othersubparts, we will clarify the preciseextent to which the General Provisionsthat are incorporated in other subpartsbecome incorporated in the part 63subpart in a table of General Provision
applicability for each part, and we willexplicitly state the resolution of anyconflicts between applicable GeneralProvisions of the various parts. It isimportant to note that, in addition to thechanges to the presumptiveapplicability of the General Provisions,today’s proposal includes changes to anumber of other sections of the GeneralProvisions (e.g., definitions). The effectof the proposed changes on relevantsubparts that have already beenpromulgated depends on the manner inwhich the General Provisions wereincorporated into the relevant subparts.If a relevant subpart specifically set outGeneral Provisions that are subject totoday’s proposal (i.e., wrote the relevantGeneral Provision in the relevantsubpart itself), then that subpart is notaffected since today’s proposal pertainsonly to the General Provisions and doesnot include a proposal to change thespecific provisions of promulgatedsubparts.
However, if a relevant subpartincorporates by reference GeneralProvisions that are subject to today’sproposal or if the General Provisionspresumptively applied to a relevantsubpart, then the changes to the GeneralProvisions being proposed today wouldapply to the extent that the changedprovisions are incorporated by referenceinto, or presumptively apply to, theexisting relevant subpart. Based on ananalysis of the potential impact of theseproposed changes on promulgatedsubparts, we do not believe they havedisrupted the integrity of thepromulgated subparts. We have notidentified any conflicts that wouldresult in contradictory or incompatibleeffects from the promulgation of today’sproposed amendments. Also, weidentified no cross-reference conflictsdue to adding or deleting paragraphs orsubparagraphs that were cross-referenced by previously promulgatedpart 63 subparts. However, we arerequesting comment on any conflictsidentified by others that result solelyfrom applying these proposedamendments to the General Provisionsto promulgated part 63 subparts.
B. Definition of Affected Source
1. Background on the Term ‘‘AffectedSource’’
The General Provisions define theterm ‘‘affected source’’ to be ‘‘* * * thestationary source, the group ofstationary sources, or the portion of astationary source that is regulated by arelevant standard or other requirementestablished pursuant to section 112 ofthe Act.’’ (40 CFR 63.2). We havedefined and used this term primarily as
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a means of specifying for each part 63subpart what equipment or activities areaffected. In practice, each source-category-specific section 112(d) or (h)standard (MACT standard) promulgatedto date has either directly or implicitlydefined affected source to be thecollection of processes, activities, orequipment to which a specific MACTstandard applies. Thus, the term‘‘affected source’’ has been principallyused to define the applicability ofMACT standards.
The term ‘‘affected source’’ also servesa second purpose in conjunction withother terms and provisions contained inthe General Provisions; it defines wherenew source MACT applies under arelevant standard. Specifically, theGeneral Provisions define the terms‘‘construction’’ and ‘‘reconstruction’’with reference to the term ‘‘affectedsource’’ (40 CFR 63.2) and provide thatnew source MACT applies whenconstruction and reconstruction occur(40 CFR 63.5). For example, if anaffected source is defined in a relevantstandard to be an integrated processunit, then new source MACT would betriggered under that relevant standardby constructing a new integratedprocess unit or reconstructing anexisting integrated process unit, unlessthat relevant standard providesotherwise.
It is important to note that, while theterm ‘‘affected source’’ currentlyfunctions both to define theapplicability of relevant standards andto specify where new source MACTapplies, it has not had a significantbearing on the process of determiningthe MACT floor or establishing MACTemission limitations. Specifically, ourpractice in developing MACT standardsfor source categories or subcategories isto organize, as appropriate, the availableinformation for the HAP-emittingequipment and activities within thecategory or subcategory and to performthe analyses to determine MACT for thecategory or subcategory. Availableinformation leads us to organizeequipment and activities within sourcecategories into related groups (i.e.,tanks, process vents, equipment leaks)and to determine the MACT floor andMACT for each group. In othersituations, we are able to use availableinformation collectively for all the HAP-emitting equipment and activitieswithin the source category orsubcategory in determining the MACTfloor and MACT. In either situation, weensure that MACT is at least as stringentas the MACT floor for the HAP-emittingequipment and activities fulfilling therequirements of CAA section 112(d)(2)and (3).
2. Questions Raised by the Petitioners
The principal concerns of thepetitioners regarding the definition anduse of the term ‘‘affected source’’ relateto its role in defining the scope of asection 112(c) source category orsubcategory covered by a MACTstandard, determining where newsource MACT applies, and certainreporting obligations (e.g., notificationsand approvals under § 63.5). Forexample, the petitioners contend thatnew source MACT should only betriggered by constructing orreconstructing significant collections ofequipment. In other words, they believethat new source MACT should not betriggered by the installation of smallsources, such as a single valve or asingle reactor that is part of a larger,integrated process. Instead, they believethat the applicability of new sourceMACT should be guided byconsideration of size, functionalrelationship, and other factors thatwould prescribe a measure ofsignificance in the new source MACTapplicability analysis.
The petitioners’ specific concernsrelate to the fact that the existingdefinition of ‘‘affected source’’ provides,without limitation, that the affectedsource may be defined to be any size,even as small as a piece of a stationarysource (e.g., a single pump or valve).Since ‘‘construction’’ and‘‘reconstruction’’ are defined withreference to ‘‘affected source,’’ thepossible result is that new source MACTmay be prescribed inappropriately forsmall activities, a result that is contraryto the petitioners’ legal and practicalview as to where new source MACTshould apply.
Moreover, the petitioners areconcerned that the dual roles of the term‘‘affected source’’ (i.e., defining theapplicability of relevant standards andprescribing where new source MACTapplies) are confusing and potentiallyinconsistent. For example, whenconsidering the role of ‘‘affected source’’in defining the applicability of relevantstandards, it may be useful to define theterm broadly so that all the equipmentin the section 112(c) source category orsubcategory can be accommodatedwithin a single unified subpart.However, when considering the role of‘‘affected source’’ in determining wherenew and existing source MACT apply,circumstances may dictate that newsource MACT should apply to acollection of equipment that is smallerthan the entire collection subject to thesubpart. In such a case, the use of theone term ‘‘affected source’’ for two rolesis potentially irreconcilable.
3. Discussion of Affected Source
Although our interpretation of thestatute differs from the petitioners’interpretation, we agree that new sourceMACT should be applied to units forwhich new source MACT is reasonable.We believe that using tools availableunder the statute, such as applicabilitycutoffs, subcategorization, and emissionaveraging, achieves this result.However, as a first step towardaddressing the petitioners’ concerns, weand the petitioners reviewedpromulgated subparts to determine how‘‘affected source’’ was defined and toassess whether new source MACT hasbeen applied reasonably to theseaffected sources.
We found that our decisions onaffected sources have appropriatelyconsidered the application of MACT tonew sources. We believe we havereasonably determined whenconstruction of a collection ofequipment should be subject to newsource MACT. Specifically, where wehave determined that new source MACTshould apply to less than the entirecollection of regulated equipment, theresults have not produced the kind ofunreasonable outcomes that wereexpressed by the petitioners.
As noted above, in selecting theaffected source(s) for particular MACTstandards, our primary task is to ensurethat MACT is applied to all the HAP-emitting equipment within the sourcecategory being regulated and, therefore,affected by the MACT standards for thatsource category. The collection ofequipment evaluated in determiningMACT (including the MACT floor) isusually the collection of equipmentused in defining the affected source.Because of the data structures forestimating the MACT floor and theinteractions of equipment types withinthe source category, we haveoccasionally performed the MACT flooranalysis on subsets of all the equipmentin the category. While available datarequires us to evaluate such subsets ofequipment, the overall result of thisevaluation is that MACT can bedetermined. Accordingly, the aggregatedcollection of equipment wouldconstitute the affected source for theMACT standards. For example, MACTfor equipment leaks of organicchemicals is based on an overallprogram of leak detection and repairthat is not practicable for single piecesof equipment. Similarly, many processvents are controlled after they arebrought together by a collection system.Such engineering solutions are commonthroughout the source categories forwhich MACT standards have been or
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are being developed. For suchsituations, it is necessary to define theaffected source broadly to address thesepractical considerations in determiningand implementing MACT. We haveoccasionally defined the affected sourcedifferently for equipment affected byexisting source MACT and equipmentaffected by new source MACT. This hasresulted from the differences in existingsource MACT and new source MACT, aswell as a desire to provide owners withflexibility through emissions averagingacross a broad array of existingequipment at plant sites. Some sourcecategories are essentially comprised of asmall number of independent HAP-emitting equipment that has nofunctional interactions at the processlevel and is controlled separately. Insuch cases, it may be reasonable from aMACT implementation perspective tohave separate affected sources forpurposes of focusing new source MACTapplicability.
When a MACT standard is based ontotal emissions from all the equipmentin a source category, we select anaffected source based on suchequipment. This approach makes sensefor industries where a categorywideemission standard provides theopportunity and incentive for ownersand operators to utilize controlstrategies that are significantly morecost effective than if standards wereestablished for each emission pointwithin a plant. In selecting such anaffected source, we ensure that theoverall emission reduction is equivalentto that obtained through a MACTstandard established for each emissionpoint within a plant. Examples of wherewe have adopted this approach includethe standards for Wood FurnitureOperations (40 CFR part 63, subpart JJ)and Polymers and Resins II (40 CFR part63, subpart W).
In other situations, we havedesignated all or a portion of thecollection of equipment within thesource category or subcategory as theaffected source. For example, in theNESHAP for Halogenated SolventCleaning (degreasing) (part 63, subpartT), the affected source is defined as eachindividual batch vapor, in-line vapor,in-line cold, and batch cold solventcleaning machine that uses specifiedsolvents. However, in the HazardousOrganic NESHAP (HON) (part 63,subparts F, G, and H), we selected anaggregate of all equipment in thechemical manufacturing process units(CMPU) at a major source in thesynthetic organic chemicalmanufacturing industry as the affectedsource for existing source MACT. In thiscase, we developed MACT after
evaluating equipment in groups (e.g.,tanks, process vents, and equipmentleaks) with the affected source as theaggregated equipment, allowingemissions averaging provisions to beimplemented. At the same time, weselected a major emitting CMPU as thebasis for the affected source for newsource MACT.
We recognize that an implication ofselecting a narrow definition of affectedsource (e.g., a dry cleaning tank andassociated equipment) is that newsource MACT requirements could betriggered more easily than if the affectedsource were defined as a plant or acollection of equipment. We believe thatthis is appropriate where the emissionreduction and cost impacts arereasonable. For example, under theperchloroethylene dry cleaningstandards, a new cleaning machineadded to an existing facility in thesource category would be a new source,subject to new source MACT. Wedetermined that new source MACTcontrols were readily available andeconomically feasible for major sourcedry cleaners.
In most NESHAP promulgated thusfar, existing source MACT and newsource MACT have been determined tobe equivalent or only slightly differentin terms of the emission reduction thatmust be achieved. This is also the casein the degreasing and chromeelectroplating NESHAP. Thus, as apractical matter, the controlrequirements for a new electroplatingtank would have been the same,regardless of whether that tank wasconsidered a separate new affectedsource or an addition to an affectedsource. However, we recognize thatthere is an additional burden on ownersand operators attributable to a narrowerdefinition of affected source, mainlyassociated with reporting requirements.The General Provisions already addressthis burden by requiring only a routinenotification when adding a newnonmajor-emitting affected source andnot the preconstruction review requiredfor major new affected sources.
As indicated in the above discussion,we believe we have followed areasonable decision-making process indeveloping all NESHAP under section112(d) while appropriately exercisingour discretion based on industry-specific circumstances. Furthermore, webelieve that our approach has notresulted in significant inconsistencies inhow new source MACT is applied andthe burden that may be imposed.However, in light of concerns raised bythe petitioners, we agree that thepotential for such inconsistencies toarise in future relevant standards is
greater if the decision-making process isnot more formally defined. Accordingly,we agreed to clarify the basis forselecting affected sources. In addition,we are proposing a minor amendment tothe General Provisions to address thisconcern. We are proposing that for eachfuture relevant standard we develop, wewill explicitly define the terms ‘‘affectedsource’’ and ‘‘new affected source.’’ Theuse of two terms will clarify theapplicability of existing source MACTand determine where new source MACTshould apply. As a general matter, weare proposing that the affected sourcefor a particular relevant standard willconsist of all existing HAP-emittingequipment and activities at a singlecontiguous site which are within aspecific section 112(c) source categoryor subcategory. During the standards-setting process, we may find itappropriate, after gathering sufficientinformation, to combine several listedcategories into one, or to further dividethe category into subcategories. Thisdoes not affect our authority todistinguish among classes, types, andsizes of sources in establishing emissionstandards. The statute and associatedlegislative history afford us substantiallatitude in defining an affected source,but we are electing to adopt this generalapproach to the affected sourcedefinition because it is responsive to theconcerns articulated by the petitioners,and it will foster greater predictabilityand consistency of regulatory outcomes.As noted above, combining disparatetypes of equipment and activities withina single affected source does notpreclude a separate assessment of theemissions from particular types ofequipment or activities. Moreover, astandard for a larger affected source maystill be a composite of sublimits or otherelements expressly directed at particulartypes of equipment or activities.
Although we have decided that it isgenerally sensible to define an affectedsource broadly, our experience indeveloping and promulgating NESHAPindicates that there will be instanceswhere a broad definition will result insignificant administrative, practical, orimplementation problems, and anarrower definition would resolve thoseproblems. Thus, today’s proposal wouldallow us to more narrowly defineaffected source in a particular MACTstandard, but the MACT standard mustbe accompanied by a justification ofwhy defining the affected source as allequipment in the section 112(c) sourcecategory or subcategory would result insignificant administrative, practical, orimplementation problems, and why the
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narrower definition would resolve theproblems.
Defining the ‘‘new affected source’’for each relevant standard will ensure amore formal consideration of theimplications of applying new sourceMACT to affected sources potentiallysubject to new source MACT. The ‘‘newaffected source’’ is a collection ofequipment or activities that, ifconstructed, would be required tocomply with new source MACT. Indeciding what will constitute the newaffected source for MACT applicabilitypurposes, we would consider thefollowing factors: (1) Emissionreduction impacts of controllingindividual sources versus groups ofsources; (2) cost effectiveness ofcontrolling individual equipment; (3)flexibility to accommodate commoncontrol strategies; (4) cost/benefits ofemissions averaging; (5) incentives forpollution prevention; (6) feasibility andcost of controlling processes that sharecommon equipment (e.g. productrecovery devices); (7) feasibility andcost of monitoring; and (8) otherrelevant factors.
When new source MACT canreasonably be applied considering theeight factors in the definition of ‘‘newaffected source,’’ this collection may bedifferent from the affected source.Accordingly, in selecting the newaffected source, we would haveconsidered whether an appropriate basisexists for establishing a definition forthe new affected source that differs fromthe affected source definition. Inselecting the new affected source, wewill explain our basis for this selection.We will also consider the informationand analyses that are offered byinterested persons.
The new affected source definitionwill differ from the affected sourcedefinition in a particular MACTstandard only where a distinction iswarranted based on the foregoingidentified factors. As discussed above,the proposal also affords us discretion todefine affected source as different fromall of the equipment in the sourcecategory or subcategory for a particularMACT standard where warranted basedon special circumstances. Any exerciseof our discretion with regard to theaffected source definition is distinctfrom the question of the new affectedsource definition. Thus, even where wedefine affected source differently, we donot intend thereby to alter in any waythe manner in which the foregoingspecified factors will be applied toselect an appropriate definition for newaffected sources.
We believe that ‘‘new affectedsources’’ defined in previously
promulgated NESHAP are consistentwith this new process. We are proposingthe new process to ensure openness tothe decisions on where to apply newsource MACT. For example, in the HONrule, the affected source definitionbroadly encompasses a number ofdiscrete processes at a facility. In thissituation, it was reasonable to requirenew source MACT when a major-emitting chemical manufacturingprocess unit is constructed. Theopenness and consideration of relevantfactors resulted in the reasonableapplication of new source MACT.
In setting a MACT standard, we willalso consider whether a sufficientreason exists for defining‘‘reconstruction’’ differently from thedefinition currently found in theGeneral Provisions. The genericdefinition looks primarily to whetherreplaced equipment exceeds 50 percentof the fixed capital cost of an affectedsource, but also allows for considerationof technical and economic feasibility.We propose to amend the GeneralProvisions to allow a different definitionof ‘‘reconstruction’’ for specific MACTstandards where warranted by technicaland economic considerations. Forexample, we may find that because ofthe functional interrelationship ofequipment encompassed by the affectedsource, it is reasonable to provide thatnew source MACT will apply onlywhere 75 percent of the fixed capitalcost of the source is replaced. We wouldthen codify this definition of‘‘reconstruction’’ into that specificMACT standard.
An explicit discussion of thisdecision-making process and the factorsconsidered in developing standardsunder section 112(d) will also guideStates in developing section 112(j)MACT determinations. In addition, wewould also like to clarify that, if a Statedefines the new affected source in asection 112(j) determination as adding amajor-emitting process or productionunit (such as in 40 CFR 63.41), wewould not object to such an approach.
C. Other Definitions
1. Construction
We are proposing to clarify in today’samendments the effect of relocating anexisting source subject to MACT. Theissue is whether or not a relocatedsource is ‘‘constructed,’’ and thussubject to new source MACT. In theBackground Information Document forthe Promulgated General ProvisionsRegulations for 40 CFR Part 63 (EPA450/3–91–019b, Feb 94), which containsour response to comments for the part63 General Provisions, we stated our
intended outcome on the issue ofrelocation. In general, we stated thatwhen an existing source relocates andno other changes are made to the source,the source retains its existing sourcestatus. Changes to the source means anychanges to the source’s process orcontrol equipment, method of operation,or emissions. The source would besubject to new source requirements if, inthe process of relocating, the source wasreconstructed, i.e., significantreplacement of components.
However, the definition ofconstruction in the General Provisionsdoes not lead to our intended outcome.The definition states that construction is‘‘* * * the on-site fabrication, erection,or installation of an affected source.’’
We are proposing to amend thedefinition of construction in § 63.2 byadding: ‘‘Construction does not includethe removal of all equipmentcomprising an affected source from anexisting location and reinstallation ofsuch equipment at a new location.However, removal and reinstallation ofan affected source will be construed asreconstruction if it satisfies the criteriafor reconstruction as set forth below.’’Adding this language to the definition ofconstruction will achieve our originalintent.
2. Major SourceWe are proposing to clarify the
definition of a ‘‘major source’’ in theGeneral Provisions, specificallypertaining to the effect of a public rightof way through a major source. If asource would be a major source, exceptfor the fact that it is intersected by apublic right of way, such as a publicroad, it will still be considered a majorsource. However, if the sources wouldbe considered separate plant siteswithout the public right of way, then thepublic right of way in and of itself doesnot create a single (possibly major)source.
The following examples illustrate thisclarification. Suppose a plant site is amajor source and a public road is builtthat intersects the plant site. Eventhough the public road may divide theplant site into two potentially nonmajorsources, the plant site will still beconsidered a major source because thesource was considered a single plantsite before the public right of way wasbuilt.
Suppose a nonmajor source, locatedalong a public road, decides to build anew nonmajor source directly across theroad. Even though the public roaddivides these two potentially nonmajorsources, they will be considered a singlemajor source as long as the two sourcesare under common control and together
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Finally, suppose a nonmajor sourcelocated along a public road decides tobuild a new nonmajor source down theroad from the nonmajor source (the twosources are on tracts of land that areoffset along the public right of way,such that they do not touch). If, withoutthe public road (public right of way),there would be two noncontiguous plantsites and not a single plant site, thepublic right of way in and of itselfwould not create a major source.Therefore, both plant sites areconsidered nonmajor sources.
3. Working DayWe propose to add a definition for
‘‘working day’’ to clarify timelinerequirements expressed in working dayswithin the General Provisions. Forexample, § 63.6(e)(3) (startup, shutdownand malfunction plan requirements)requires that an owner or operatorrecord actions taken during a startup,shutdown, or malfunction that areinconsistent with a startup, shutdownand malfunction plan within 2 workingdays after commencing the inconsistentactions. We are proposing to add adefinition to clarify that a ‘‘workingday’’ is any day on which Federalgovernment offices (or State governmentoffices for a State that has obtaineddelegation under section 112(l)) areopen for normal business. Saturdays,Sundays, and official Federal (or wheredelegated, State) holidays would notconstitute a ‘‘working day.’’
4. Compliance PlanWe are proposing to delete the
‘‘compliance plan’’ definition from theGeneral Provisions. Representatives ofsources have commented thatcompliance plans were required undertitle V and not under section 112 of theCAA. We assessed and agreed that therewould not be an adverse or unintendedeffect from its deletion.
5. Part 70 PermitWe are proposing to delete the
definition of ‘‘part 70 permit’’ becausethe definition of ‘‘title V permit’’ is moregeneric and deletion is consistent withother streamlining efforts in thisproposal to remove unnecessaryreferences to other authorities.
D. Prohibited Activities andCircumvention
We are proposing to delete § 63.4(b)(3)and create a new § 63.4(c) that clarifiesour position on ‘‘fragmentation.’’Section 63.4(b)(3) of the GeneralProvisions prohibits circumvention ofrelevant standards by fragmenting an
operation. Some have suggested thatdividing production between variousmanufacturing facilities to reduce thepotential to emit below regulatorythresholds at one or more facilities and,thus, avoid control requirements orpermitting obligations, should beconsidered a legitimate compliancestrategy. The prohibition againstfragmentation is intended to preventdividing an operation within the samefacility among various owners and, thus,avoid applicability where there is noreal change in control. Merely changingthe name of the owner of a portion ofa facility to a new corporate entitywhich is nonetheless still undercommon control should not be acompliance strategy that wouldlegitimately avoid compliance.
Sources also cannot phasereconstruction activities to avoidapplicable new source requirements.While we do not intend to circumscribelegitimate business or compliancestrategies, we are proposing thatactivities that are fragmented or phasedto stay within the 50 percent of fixedcapital cost criteria in item (1) of thedefinition of ‘‘reconstruction’’ in § 63.2shall be considered together forapplying that criteria. Periodicreplacement of equipment to maintainproduction to meet product demandsshould not be aggregated fordetermining whether reconstruction hasoccurred. To illustrate, if a processmodernization project involves a newreactor, heat exchange system,separation devices and storage vessels,and separate contracts are awarded forvarious portions of the project, limitingeach one to less than 50 percent of thereplacement cost of a comparable newaffected source, these contracts shouldbe considered together in applying that50 percent criteria. However, if the sameprocess unit were expanded,debottlenecked, or upgraded over timeby replacing these various components,the projects should not be consideredtogether to determine whether the 50percent of fixed capital cost iseventually exceeded since the projectswere not phased (or fragmented) toavoid new source MACT.
E. Preconstruction Review
We are also proposing to amend therequirements for preconstructionreview. We are proposing to amend thetitle of § 63.5 to more accurately reflectthe contents of the section. Theproposed title is ‘‘PreconstructionReview and Notification Requirements.’’The following paragraphs discuss themore substantive proposedamendments.
1. Preconstruction Review Applicability
Under the current General Provisions,owners or operators of sources thatcommence construction orreconstruction after the proposal date ofa relevant standard, but do not start upbefore the effective date of suchstandard, are required to undergopreconstruction review. We recognizethat this requirement could cause costlydelays as the owner or operator may beforced to cease construction or delaystartup until a preconstruction review iscompleted.
We have concluded that sourcescommencing construction prior to theeffective date of a relevant standardshould not have to undergopreconstruction review under theGeneral Provisions. We are proposing toamend § 63.5(a) of the GeneralProvisions to exempt these sources fromthe requirement for preconstructionreview. Thus, only sources thatcommence construction orreconstruction after the effective date ofa relevant standard would be required toundergo such preconstruction review.However, regardless of whetherpreconstruction review is required,sources that commence construction orreconstruction after the proposal date ofa relevant standard are subject to newsource MACT requirements, and theymust be in compliance at startup, or bythe promulgation date of the NESHAP,if startup occurs prior to thepromulgation date.
Similarly, we are proposing to amend§ 63.5(a) to require preconstructionnotification only for nonmajor-emittingaffected sources that commenceconstruction or reconstruction after theeffective date (even though all affectedsources commencing construction andreconstruction after proposal must meetnew source MACT). The owners oroperators of these sources, while notsubject to preconstruction review, aresubject to notification requirements. Weare proposing to revise the relatednotification requirements in § 63.9(b)(5)to allow the source to request areduction in the information required inthe application to construct orreconstruct (§ 63.9(b)(5)(iii)). Thisflexibility should reduce the burden onsmaller sources to comply with thenotification requirements. However, inthe event the permitting authority grantsthe source permission to not submitportions or all of the standardinformation, the source would still berequired to keep this information on fileand available for inspection.
We note that some owners andoperators will be otherwise required toapply for and obtain a case-by-case
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MACT determination under section112(g) before commencing constructionor reconstruction of a process orproduction unit. The proposed revisionsof the preconstruction reviewrequirements in the General Provisionsdo not alter in any way the obligationof an owner or operator to meet theseparate requirements established by theEPA under section 112(g).
2. State Preconstruction Review
We evaluated the Statepreconstruction review requirementsand recognized that owners or operatorsmay object to another approval processwhen a source has already gone througha similar State preconstruction reviewprocess. We are proposing to allowStates that have taken delegation of theGeneral Provisions and of a relevantsubpart to use their preconstructionreview procedures to meet thepreconstruction review requirements of§ 63.5 when they are substantiallyequivalent (§ 63.5(f)(1)).
Under this proposal, we would allowowners or operators of affected sourcesto notify the Regional Office of a State’sfinding that their preconstructionreview program requirements aresubstantially equivalent to the GeneralProvision’s preconstruction reviewrequirements.This proposed changewould allow States with existingprograms for review of new sources fortoxics to utilize their programs as longas they are ‘‘substantially equivalent’’ tothose required under § 63.5 of theGeneral Provisions. For an owner oroperator of an affected source, it wouldalso eliminate the burden of having togo through two similar preconstructionreview procedures. This proposedchange provides flexibility and reducesthe potential burden for both thepermitting authority and owners andoperators of affected sources.
F. Startup, Shutdown, and MalfunctionPlans
1. Incorporation in Title V Permit
The current General Provisionsinclude a requirement that an affectedsource’s startup, shutdown, andmalfunction (SSM) plan ‘‘beincorporated by reference into thesource’s title V permit.’’ Some of thelitigants, as well as some others in theregulated community, have expressedconcern that this language could beconstrued to require permit revisionprocedures to be followed each timethat an SSM plan is revised. We believethat it would be unduly burdensomeand inappropriate to require that permitrevision procedures be utilized each
time an affected source revises its SSMplan.
We are proposing to delete the currentlanguage concerning ‘‘incorporation byreference,’’ replacing it with newlanguage stating that the title V permitfor an affected source must require thatthe owner or operator adopt a SSM planand operate and maintain the source inaccordance with the proceduresspecified in the plan. The new languagemakes it clear that, unless thepermitting authority provides otherwise,an affected source may makeappropriate revisions to a SSM planwithout prior approval by theAdministrator or the permittingauthority. Further, because there are norequirements for prior review andapproval of a SSM plan, permit revisionprocedures are not required inconnection with revising the SSM plan,and the permit shield in CAA section504(f) does not apply to the contents ofa SSM plan.
In developing the new language, itbecame apparent that the currentGeneral Provisions do not adequatelydescribe the procedures to be followedwhen an affected source revises its SSMplan. Accordingly, we are proposing toadd new language requiring eachaffected source to report each revision toits SSM plan in the semiannual reportrequired by § 63.10(d)(5). Moreover, theproposed language would require priorwritten notice to the permittingauthority if an affected source intends torevise its SSM plan in a manner whichwould alter the scope of the activitiesthat are deemed to be a startup,shutdown, or malfunction, or wouldotherwise modify the applicability ofMACT requirements to the source.
Petitioners also expressed concernthat the SSM plans must be submittedwith the permit application becausethey are voluminous and may containconfidential information. Extracting theconfidential business information partsof the plan for public submission wouldbe a burdensome and needless exercise.If the permit writer deems itappropriate, then the SSM plan must besubmitted. Additionally, the title Vprogram requires the permit writer tomake publicly available all parts of thepermit, including plans, under 40 CFR70.4(b)(3)(viii), which also limitsconfidential matters to those specifiedin CAA section 114(c). Thus, tominimize the unnecessary production ofthe SSM plan, the permit authority mustrequire that the SSM plan be madepublicly available only if requested byany person. However, if no person seeksa copy of the SSM plan, then there is noneed for a source to submit it.
The source must develop, operate,maintain, and report according to sucha plan. The owner or operator of anaffected source must keep a copy of theSSM plan on record and available forinspection upon request by theAdministrator. The Administrator mayalso request a copy of the SSM planwith confidential business informationremoved to provide to interestedmembers of the public. In addition, theowner or operator is required to reporton a semiannual basis that actions takenin response to SSM events wereconsistent with the SSM plan. If theowner or operator takes actionsinconsistent with the SSM plan and thesource exceeds the relevant emissionstandards, the owner or operator mustreport such actions periodically. Aninitial report is required within 2working days after commencing actionsinconsistent with the plan, and afollowup letter is required within 7working days after the end of thestartup, shutdown, or malfunctionevent. We believe that the reporting andrecordkeeping requirements associatedwith the SSM plan will ensure thatowners and operators comply with theintent of the plan.
2. Enforceability of Operation andMaintenance Requirements
Section 63.6(e) of the GeneralProvisions establishes the requirementfor good operation and maintenance ofair pollution control and monitoringequipment. We do not see thisrequirement as exposing a source toenforcement liability every time asource fails to follow an instruction inan owner’s manual that has a zero ornegligible impact on actuallyminimizing emissions. For example, if acontrol equipment manufacturerrecommends that lubricants be changedon a regular schedule, and the source islate in making the change, we are notsuggesting that this is inconsistent withgood air pollution control practices forminimizing emissions. Vendorspecifications are not necessarily thebest or only indication of good operatingpractices. Where appropriate, sourcesmay alter their operation andmaintenance practices to accommodatetheir actual situation. We expect to usethis section to control bad practiceswhere there is an indication of an actualincrease in emissions or a significantrisk of the same.
We do not intend to seek doublepenalties for situations that involvesimultaneous violations of the goodoperations and maintenancerequirements and any otherwiseapplicable emission standard, includingwork practice requirements. We may
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allege both violations in the alternative,but do not intend to seek doublepenalties. If a source has proof that ithas complied with the emissionsstandard, then there should be noallegation of bad operation andmaintenance during such period.
We are proposing to amend§ 63.6(e)(1)(i) to clarify the ‘‘generalduty’’ of owners or operators to ‘‘operateand maintain any affected source,including associated air pollutioncontrol and monitoring equipment, in amanner consistent with safety and goodair pollution control practices forminimizing emissions to the levelsrequired by the relevant standards.’’However, this general duty does notrequire a source to reduce emissionsbelow the level required by thestandard. Furthermore, when the sourceis in a period such that the SSM planapplies, this general duty would notnecessarily require the source to meetthe standard so long as the source is incompliance with the plan.
We are proposing to amend languagein § 63.6(e)(1)(ii) of the GeneralProvisions by adding language torecognize that there will inevitably besituations at facilities that were notcontemplated when the SSM plan wasdeveloped. Because there is no protocolin the SSM plan for such a situation, itwould be impossible for a source tofollow the plan. During suchcircumstances, a source must do thebest it can, consistent with safety andgood air pollution control practices, tominimize emissions, relying on its bestengineering judgment, expertise andfamiliarity with the equipment, as wellas on the protocols for similarmalfunctions that are in the SSM plan,if any. Conversely, compliance with aninadequate or improperly developedSSM plan is no defense for failing tominimize emissions.
We also acknowledge that there maybe situations that cannot be preventedby owners or operators through betterdesign or preventive maintenance. Somepetitioners commented that there maybe instances that require an owner oroperator to bypass emission controldevices until emissions can be vented toother control equipment to avertpersonal injury, equipment failure, orproperty damages. It was always ourintent to consider safety in addition togood air pollution control practiceswhen operating and maintainingaffected sources. Therefore, whereappropriate, we are proposing to clarifythis intent in the General Provisions.
As noted in the regulatory text, wheresuch unusual situations arise, a reportjustifying the procedure followed mustbe filed. If the Administrator or designee
responds to this report by requiring arevision to the SSM plan, then thesource must do so. The incident may beminor in its consequences or unlikely toarise again, in which case theAdministrator may determine that it isnot necessary to revise the SSM plan.However, sources are not excused fromexerting best efforts to minimizeemissions merely because there is noprotocol listed in the SSM plan for theunique circumstances. Failure tominimize emissions is a violation ofoperation and maintenancerequirements established under section112 of the CAA.
3. Report Submittal RequirementsWe have identified reporting
requirements in the current GeneralProvisions that establish differenttimelines for related reportingrequirements associated with the SSMplans. In order to facilitate reporting forthe owner or operator, we are proposingto amend these timelines to make themconsistent with each other.
Section 63.8(c)(1)(ii) requires that forthose malfunctions (or other events) thataffect the continuous monitoring system(CMS), the owner or operator mustreport actions not consistent with theSSM plans if the relevant standard isexceeded, within 24 hours aftercommencing actions inconsistent withthe plan. A followup report is requiredwithin 2 weeks after commencingactions inconsistent with the plan.Section 63.6(e)(3)(iv) requires that anowner or operator who takes an actioninconsistent with the SSM plan reportsuch actions within 2 days aftercommencing such actions. This must befollowed by a letter within 7 workingdays after the end of the event.
We have considered these provisionsand agree that it is reasonable to requirethese reports on the same schedule. Weare proposing to revise the requirementsin § 63.8(c)(1) to ensure that SSMmonitoring reports are filed consistentlywith the timeframes of reports requiredin § 63.6(e)(3)(iv), which would requirean initial report within 2 working daysand a followup report within 7 workingdays. Consistency in these provisionsshould have the effect of simplifyingreporting requirements for owners andoperators.
4. Applicability of the Startup,Shutdown and Malfunction Plan
We are proposing to clarify that theSSM plan includes procedures foroperating and maintaining both airpollution control devices andmonitoring equipment. Although theintent of coverage of the plan isexplicitly stated at the beginning of
§ 63.6, we recognize that it is unclearthat the provisions also apply tomonitoring equipment in other parts ofthe section. Therefore, we are proposingto clarify where necessary that the SSMplan provisions apply to monitoringequipment, as well as control deviceequipment.
5. Routine Maintenance
We recognize that routinemaintenance of air pollution controldevices is essential to ensure thatcontrol devices function properly on along-term basis and achieve theemissions reductions that they canachieve. Many facilities can plan andschedule the routine maintenance inconjunction with scheduled downtimeof the process equipment that generatesthe streams being treated by the airpollution control device. In theseinstances, no compliance issues areraised by the outage of the controldevice for planned routine maintenance.We believe that this is the case for themajority of facilities that have emissionsources subject to MACT standards.
However, we also recognize that thereare times when planned routinemaintenance of an air pollution controldevice cannot be scheduled to coincidewith scheduled downtime of the processequipment. In these instances, thefacility would have to shutdown theprocess equipment or install redundantair pollution controls. In somecircumstances, shutdown to performplanned routine maintenance andsubsequent startup would generategreater emissions than allowing somelevel of emissions to continue to beemitted from the source, either at areduced control efficiency oruncontrolled.
We believe that relevant standardsshould incorporate flexibility asnecessary to assure that emissioncontrol equipment is properlymaintained without causinginappropriate disruptions of sourceoperations or unnecessary increases inHAP emissions. There is no uniformapproach to this issue which will beappropriate for every MACT standard.We encourage affected sources tosuggest potential allowances for routinemaintenance in each instance where itwould be helpful for the relevantstandard to expressly address this issue.We will consider all such suggestions,incorporate provisions addressingroutine maintenance into MACTstandards where we conclude thatflexibility is appropriate, and explainour decision not to incorporate suchprovisions in circumstances where weconclude that it is not appropriate.
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G. Compliance Provisions
1. Compliance Extensions
The petitioners requested us toprovide additional opportunities forowners and operators to requestcompliance extensions under CAAsection 112(i)(3). The GeneralProvisions require an owner or operatorto make such requests 12 months beforethe compliance date for a relevantstandard. The petitioners pointed outthat events could happen within the 12-month period before a compliance datethat would warrant a complianceextension.
In general, we anticipate that mostsources will have ample time to achievecompliance given the 3-year complianceperiod for many requirements. Thecompliance extension under section112(i)(3) is available for adding controlsand other compliance measuresrequiring time beyond that which weanticipated in establishing thecompliance date for NESHAP. Forexample, other compliance measuresmay include obtaining or implementingtechnology hardware or softwaresystems and process changes toaccommodate pollution prevention orother emission reduction measures.
Such a compliance extension is notappropriate for the failure of an owneror operator to properly plan and carryout the installation by the compliancedate. However, there may be situationswhere sources acting in good faith toanticipate and fulfill their complianceobligations can still not achievecompliance in a timely manner becauseof circumstances or events not entirelyof their own making. Work stoppages ata control equipment supplier’s factoryare cited as one example of a reason thatsources, acting in good faith, might notbe able to achieve compliance on time.Shortages of skilled design andconstruction engineers who are neededto build new facilities to meet relevantstandards, as well as shortages ofavailable technology to meet thedemand from sources who must complywith industry-specific MACTrequirements, may also contribute todelays in achieving compliance. Basedon the merits of such requests, weexpect to issue compliance extensions.
We are proposing to revise thisrequirement, which is in§ 63.6(i)(4)(i)(B), to allow requests up to120 days before the compliance date.We are also proposing to add a newparagraph (C) to § 63.6(i)(4)(i) to allowrequests during the last 120 days beforethe compliance date, if the need aroseduring that 120 days and if the need wasdue to circumstances beyond the
reasonable control of the owner oroperator.
We recognize that there may be somesituations where applicants for acompliance extension recognize that, forthe reasons stated above, they areunable to comply, and hence file anextension request shortly before thecompliance date, as is now provided bythe General Provisions. Operatingaffected sources after the compliancedate of a NESHAP creates a potentialenforcement situation for companieswhich, despite their best efforts, areunable to meet the deadlines for MACTcompliance. As a practical matter,companies may choose to shut downoperations rather than operate without acompliance extension. For sources whoact in good faith in filing an extensionrequest, we will try to act promptly. Inthe interim, we intend to use othertemporary measures to address thesituation. In such cases, we intend to bereceptive to entering administrativeconsent orders without penalty duringthe pendency of the review if thecompany complies with such an orderand cooperates by providing allrequested information to us forprocessing the good faith extensionrequest.
For a standard promulgated underCAA section 112(f), § 63.6(i)(4)(ii)requires a source to submit a request forcompliance extension within 15 daysafter the effective date of the NESHAP.We are proposing to increase the timeallowed for a source to submit a requestfor a compliance extension from 15 to90 calendar days after the effective dateof a relevant standard promulgatedunder CAA section 112(f). The longertime period appears needed andreasonable to allow source owners oroperators sufficient time to prepare acomplete request. We are also proposingto eliminate the requirement in§ 63.6(i)(4)(i)(B) that establishes adifferent timeframe for sources thatinclude emission points in an emissionsaverage. We believe that this specificissue is better dealt with in therespective NESHAP.
We are proposing to delete the interimmilestone information required in a§ 63.6(i)(6) request for a complianceextension under § 63.6(i)(4) and directthe focus of the request towardsupplying information on the date andmanner in which final compliancewould be achieved.
2. Title V EnforcementSeveral sections in the current
General Provisions refer to title Vobligations and general complianceobligations. We are proposing to deletethese cross references because they are
redundant or unnecessary. For example,§ 63.4(a)(5) requires an owner oroperator of a source subject to a relevantstandard to comply with therequirements of that standard regardlessof whether a title V permit has beenissued to the source incorporating thestandard. It is clear from section113(b)(2) and (c)(1) that standardspromulgated under section 112 areenforceable apart from theirincorporation into title V permits, andnothing in title V or the part 70operating permits rules suggests thecontrary. We are also proposing todelete the severability clause of § 63.4(c)because it is unnecessary.
We are proposing to delete§ 63.5(b)(5), which states that no personmay operate without complying withthe General Provisions and the relevantstandard unless that person hasobtained a compliance extension orexemption under § 63.6. We believe the§ 63.6 requirements are sufficient todefine compliance obligations.
3. Area Sources That Become MajorWe are proposing to revise § 63.6(b)(7)
and (c)(5) of the General Provisions.These paragraphs address thecompliance timing requirements thatresult when an area source subsequentlyincreases emissions, thus becoming amajor source after 1 or more applicableNESHAP have been proposed. Thesesections establish the timingrequirements when a subsequentlyaffected source at the former area sourceis considered a new source or anexisting source under the relevantstandard.
The current General Provisionsrequire new source MACT for areasources that become major after theeffective date of the relevant standard,regardless of when the portion of thesource affected by the standard (theaffected source) actually commencedconstruction (including those thatcommenced construction long beforethe proposal date of the NESHAP). Thiswould cause affected sources tounnecessarily retrofit new sourcecontrol measures on existing equipmentnot designed to accommodate suchmeasures. We are proposing to revise§ 63.6(b)(7) and (c)(5) to require newsource MACT only on affected sourcesthat commenced construction orreconstruction after the proposal date ofthe NESHAP. Those affected sourcesmust comply with new source MACTupon startup. Affected sources at formerarea sources that become major thathave not constructed or reconstructedafter the proposal date of the NESHAPwould be subject only to existing sourceMACT, and would comply by the date
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specified in the standard for existingarea sources that become major, or if nosuch compliance date is specified, begiven the same amount of time tocomply as specified for existing sourcesin the standard. These revisions areconsistent with the definition of newsource in section 112(a)(4) of the CAA,which defines a new source as one thatcommences construction orreconstruction after the Administratorfirst proposes NESHAP under section112 establishing an emission standardapplicable to such a source. Such asource would be able to reasonablyanticipate control requirements andconstruct the source to include suchcontrols as Congress intended in theCAA.
H. Test Methods
1. Performance Test Dates
We are proposing to streamline theperformance test date requirements of§ 63.7(a)(2). As currently written, thesection outlines several differentscenarios for establishing performancetest dates. However, all are tied to a 180-day period of some triggering event,usually the compliance date. Uponreview, these multiple scenarios addmore confusion than clarity, and wepropose to replace them with a blanketrequirement that sources conduct theirperformance tests with 180 days of thecompliance date. Section 63.7(a)(2)(i)through (viii) would be reserved as aresult. However, we would retain§ 63.7(a)(2)(ix) to address the scenariowhere a relevant standard ispromulgated that is more stringent thanthe proposed standard.
2. Alternative Test Methods
We propose to amend§ 63.7(c)(3)(ii)(B) to ensure that a requestto use an alternative test method doesnot delay the performance test process.If amended, the section would authorizethe owner or operator to conduct theperformance test using an alternativemethod in the absence of notification ofapproval after submitting the site-specific test plan or the request to usean alternative method. The performancetest would then be conducted within 60days after authorization to conduct thetest. A source owner or operator’sdecision to proceed with using analternative method in the absence of anotification that the method is approvedwould not preclude the owner oroperator’s legal responsibility to complywith the applicable provisions of therelevant standard. We are alsoproposing conforming amendments in§ 63.7(f), use of an alternative testmethod, to implement this approach.
3. Approval of Alternative Test Methodsand Monitoring Requirements
In 1998, we issued guidance regardingdelegation of the 40 CFR part 63 GeneralProvisions authorities to State and localair pollution control agencies(Memorandum from John S. Seitz,Director, Office of Air Quality Planningand Standards, to Regional Air DivisionDirectors, July 10, 1998). In ourSeptember 14, 2000, promulgation ofrevisions to 40 CFR part 63, subpart E(65 FR 55810), we have codified thisguidance. We are now proposing anumber of revisions to §§ 63.7 and 63.8of the General Provisions, which coverperformance testing and monitoringrequirements, to harmonize thesesections with the 1998 guidance andsubpart E rulemaking, particularly inregard to Administrator approval ofalternative test methods and monitoringrequirements. The specific revisions andsections affected are explained below.
First, the 1998 guidance and subpartE rulemaking introduced a new categoryof changes or alternatives to testmethods and monitoring referred to as‘‘intermediate changes.’’ Because thisnew category modifies the majoralternative category previously referredto in §§ 63.7 and 63.8, we are proposingto revise §§ 63.7(e)(2)(i) and (ii),63.7(f)(1), 63.8(b)(1)(i) and (ii), and63.8(f)(1) to cite the definitions forminor, intermediate, and major changesto test methods and monitoringrequirements in § 63.90(a).
Second, we have noted recentconfusion in distinguishing testmethods from monitoring for thepurposes of deciding who has thedelegated authority for approvingalternatives; consequently, we areproposing revisions to the language in§ 63.8(f)(4)(iv) and (5)(i) to clarify thisdifference.
Third, we have also noticedsignificant inconsistencies regarding theinstruments for requesting and grantingapproval of intermediate and majorchanges to test methods, in specific, thecombination of the site-specific testplan/test plan approval versus a letter ofrequest coupled with an official letter ofapproval. In consideration of thesignificance of approvals of major andintermediate changes on the compliancedecision, and a level of documentationappropriate to the decision itself, webelieve that only an official letter shouldbe used to approve intermediate andmajor changes to test methods. Also, thepotential delegated authorities forapproval of test plans versus those forapproval of intermediate or majorchanges to test methods are often notthe same. We are, therefore, proposing
revisions to § 63.7(c)(3)(ii), 63.7(e)(2)(i),and (e)(3) to clarify that major andintermediate changes to test methodscannot be requested through test plansnor approved in the course of test planapproval. To parallel this approach formonitoring, we are proposing theaddition of language to § 63.8(f)(4)(iv) toallow requests for minor changes tomonitoring to be submitted in the site-specific performance evaluation planand for these changes, whereappropriate, to be approved inconjunction with approval of this plan.
In addition, we are updating theinformation in § 63.7(c)(4)(i) regardingcontacts for requesting performanceaudit materials. We are also clarifyingthe requirements for proposing analternative monitoring system by citingin § 63.8(f)(4)(ii) and adding to § 63.2 adefinition of the basic elements thatconstitute a monitoring system.
I. Monitoring Requirements
1. Combined Emission Streams
We are proposing to change therequirement that a continuousmonitoring system be installed on eachemission stream that is combined priorto release to the atmosphere or on eachemission point for mass emissionsstandards. We recognize that there maybe cases where a blanket requirementthat each stream have a CMS may notadd compliance assurance but wouldadd costs and burden to the owner oroperator. Therefore, we are proposing achange to § 63.8(b)(2) that would allowfor the use of a single CMS formonitoring combined emission streams,provided that the monitoring issufficient to demonstrate compliancewith the relevant standard. This will beevaluated in the development of eachstandard.
For example, a relevant standardcould specify the use of a condenser forwhich compliance could bedemonstrated by monitoring andmaintaining the temperature of thecooling coils below a specified level.The compliance temperature levelwould not be compromised bycontrolling one or more emissionstreams. Therefore, a single CMS formonitoring combined emission streamswould be sufficient to demonstratecompliance.
Alternatively, the combination ofemission streams for monitoring couldresult in the inadvertent averaging ofaffected and nonaffected sources. Forexample, if the CMS is designed tomonitor the concentration of acompound in the stream, a nonaffectedsource stream with a low concentrationof the compound would mask a high
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concentration of the compound in theaffected stream. Where the combinedstream might meet the relevantstandard, the single affected streamwould not. In this case, the individualstandard requirements might overridethe General Provisions to prevent the‘‘dilution’’ of the streams fromoccurring.
2. Monitor Readouts
We are clarifying in the proposedamendments the owner or operator’sobligation regarding the accessibility ofreadouts from monitoring systemsrequired for compliance with emissionstandards. In today’s proposedamendments, we are proposing languagein § 63.8(c)(2) that requires monitorreadouts to be ‘‘readily accessible onsite.’’ This phrase ‘‘readily accessible onsite’’ means the monitor readout mustbe in plain view or in close proximitywhere the operators normally arelocated when operating suchequipment. This requirement does notmean that the monitor readout must bein plain view of the operator at alltimes, but that the device is readily orreasonably accessible so the operator oran inspector can view the readoutwithout unnecessary delay.
J. Notification Requirements
1. Initial Notification Requirements
We are proposing to reduce the sourcedescription information that an owneror operator of an affected source subjectto a relevant standard is required tosubmit in the initial notification under§ 63.9(b). The intent of the initialnotification is to identify and alert theEPA and/or delegated State agencies ofthose sources for which a relevantstandard applies.
We have evaluated and decided thatit was both unnecessary for us to receiveand burdensome for sources to supplyinformation regarding the operatingdesign capacity of an affected sourceand the identity of each emission pointfor each emitted HAP in the initialnotification. Therefore, we areproposing that the initial notificationnot require that an owner or operatorreport the operating design capacity ofthe source, and only require that theowner or operator identify the types ofemission points and HAP emitted inlieu of each emission point for eachemitted HAP.
As discussed in section II.E of thispreamble, we are proposing to revise§ 63.9(b)(5) to allow a nonmajor emittingsource that is not subject to therequirements to submit an applicationfor preconstruction review and approvaland to request a reduction in the
information required in the applicationto construct or reconstruct. Thisflexibility should reduce the burden onsmaller sources to comply with thenotification requirements.
In general, we propose to streamlinethe requirements of § 63.9(b), initialnotifications, to eliminate duplicative orunnecessary information (e.g.,§ 63.9(b)(4)(ii) through (iv)). We areproposing to delete § 63.9(b)(3) andrevise § 63.9(b)(4) and (5) to clarify theapplicability and responsibility ofsources under these requirements. Inparticular, we would clarify theresponsibilities of sources that have aninitial startup date before the effectivedate of the relevant standard, as well assources that construct or reconstructafter the effective date of the relevantstandard.
2. Performance Test NotificationSection 63.7(b) of the General
Provisions provides performance testnotification requirements that we and/ordelegated State agencies be notified atleast 60 calendar days before thescheduled date of the performance test.In cases where circumstances did notallow for such notice, the requirementwas that the notice be submitted within5 days of the date that an affected sourceintends to conduct the performance test.
Performance tests often are conductedby persons contracted to do the work,and an owner or operator may not beable to control when a performance testwill be performed. We agree that if anowner or operator cannot inform theAdministrator that it is unable toconduct a performance test because ofunforeseeable circumstances, the intentof the provisions would be met as longas an owner or operator notifies theAdministrator as soon as practicableand without delay of an intent toconduct a performance test. Therefore,we are proposing to amend § 63.7(b)(2)accordingly.
3. Area Source AnalysisWe are proposing to eliminate the
requirement in § 63.9(h)(2)(i)(E) that anowner or operator of an area sourcesubmit, as part of the Notification ofCompliance Status when a relevantstandard applies to both major and areasources, the analysis demonstrating thatthe source is an area source. Afterfurther review, we decided thatsubmission of an analysis demonstratingthat the source is not major is onlynecessary for enforcement purposeswhen a relevant standard applies toboth major and area sources. Theproposed change would eliminate theneed for nonaffected area sources tosubmit an analysis, and the need for
affected area sources to submit theanalysis with their compliancenotification. This proposed change doesnot relieve an owner or operator of asource from the responsibility todetermine whether the source is a majorsource or an area source. Refer tosection II.K of this preamble for thediscussion on the applicabilitydetermination recordkeepingrequirement for unaffected sources.
The current General Provisionsinclude a requirement in §§ 63.1(b)(3)and 63.10(b)(3) for sources both todetermine applicability and to keep arecord of this determination if thesource determines that it is not anaffected source for a relevant standard.In enacting this provision, it was ourintent to enable an owner or operator ofa source in a given source category todocument its determination that thesource is not subject to a NESHAPpromulgated for that source category.However, an unintended interpretationof the General Provisions could be torequire owners and operators of anysource, including facilities not in thesource category being regulated, toperform applicability determinationseach time any NESHAP arepromulgated. It was not our intent thatthe General Provisions require ownersand operators to make a determinationthat they are not subject to everyNESHAP that is issued. In this proposal,we are clarifying our intent. We areproposing to revise the language in§§ 63.1(b)(3) and 63.10(b)(3) to limitrequirements to the sources within thesource category of the relevantstandards. Area sources that would berequired to retain a certifiedapplicability determination includesources that are subject to limitations onthe source’s potential to emit; sourcesthat are specifically excluded from therelevant standards (e.g., research anddevelopment facilities); and sources thatare below applicability thresholdsestablished in the source category-specific rule (e.g., annual raw materialuse, production thresholds, emissions).If a source has failed to retain thedocumentation of its originaldetermination but can reestablish thatdocumentation to the satisfaction of theAdministrator and proves that it has notbeen and is not subject to the relevantstandard affecting the source category,we will consider such a violation to bea low enforcement priority.
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In addition, we are proposing toamend § 63.10(b)(3) to clarify that therequirements to determine theapplicability of a relevant standardunder § 63.1(b)(3) and to record theresults of that determination under§ 63.10(b)(3) do not by themselves createan obligation for the owner or operatorto obtain a title V operating permit.
2. Preconstruction Review ApplicationSubmittal
We are proposing to change thesubmittal requirements for anapplication for approval of constructionor reconstruction. The current GeneralProvisions require owners or operatorsof an affected source to submit anapplication for approval of theconstruction of a new major affectedsource, the reconstruction of a majoraffected source, or the reconstruction ofa major source such that the sourcebecomes a major affected source subjectto the relevant standard. Theapplication submittal is required assoon as practicable before the date thatconstruction or reconstruction isplanned to commence, but no soonerthan the effective date of a relevantstandard. The application submittal foran affected source for whichconstruction or reconstruction hadcommenced and initial startup had notoccurred before the NESHAP effectivedate is required as soon as practicablebefore startup but no later than 60 daysafter the effective date.
The petitioners commented thatspecified time constraints forapplication submittal were unnecessarybecause an owner or operator would notrisk constructing or reconstructing asource without receiving approval. Wespecified timeline submittalrequirements to ensure that owners oroperators proceeded through thepreconstruction review applicationprocess in such a way as to allow ussufficient time for review. We agree thatit is in an owner’s or operator’s bestinterest to obtain approval forconstruction or reconstruction beforeexpending time and money, whichshould provide a sufficient incentive forsources to submit applications as earlyas possible. Therefore, we are proposingto require that the application besubmitted as soon as practicable beforeconstruction or reconstruction isplanned without specifying timeconstraints (§ 63.5(d)(1)(i)). However,even though we would not specify timeconstraints within the relevant standard,we would recommend that owners oroperators allow us at least 90 days forthe review process.
L. Lesser Quantity
The petitioners expressed concernthat the definition of ‘‘lesser quantity’’in § 63.2 could create seriouscompliance problems and inequities insituations where equipment/operationsin more than one source category arepresent at a facility. For example, thepetitioners have noted that equipment/operation in each of two or more sourcecategories at an area source when arelevant section 112 standard is adoptedwould not be subject to the standard,unless the section 112 standard appliedto area sources. However, if a lesserquantity determination is subsequentlymade for a HAP emitted by theequipment/operations in one of thesource categories at the facility such thatfacility became a major source, the otherregulated source categories would alsothen become major sources withoutregard to the HAP they emit.
As part of today’s amendments, weare proposing to delete the definition oflesser quantity from § 63.2 of theGeneral Provisions. It is not our intentby deleting the definition of ‘‘lesserquantity,’’ to indicate one way or otherwhether we agree with the litigants’concerns. It is our intent that, if a lesserquantity determination would affect themajor/area source status of sources incategories for which a section 112standard was previously promulgated,we would address appropriateapplicability and complianceprocedures when such a determinationis made.
M. Clarification and Consistency
We are proposing other changes to theGeneral Provisions where necessary forclarification and consistency. These arenot substantive changes and do notchange the requirements of the GeneralProvisions. Instead, these proposedchanges would make the GeneralProvisions easier to understand and touse. Minor editorial and clarifyingchanges are discussed by way ofexample in the following paragraphs.More substantive changes are addressedin other sections of this preamble.
1. Preconstruction Review and Title VInteraction
In the current General Provisions,several paragraphs under § 63.5 (e.g.,paragraphs (b)(3), (4), and (5)) includethe phrase ‘‘whether or not an approvedpermit program is effective in the Statein which an affected source is (or wouldbe) located.’’ The intent of this phraseis to indicate that the preconstructionreview provisions that are included inthe General Provisions are establishedpursuant to section 112(i) of the CAA.
These preconstruction reviewprovisions do not rely upon a title Vpermit program for implementation;rather, they are completely independentand are implemented solely through theGeneral Provisions. Consequently, thisphrase does not affect the requirementsfor preconstruction review; it merelydistinguishes those requirements fromother requirements that maysubsequently come into place under anapproved title V program. Upon review,we have determined that this phrasemay be confusing to owners or operatorswho must comply with the relevantstandard or to State and local agenciesrequired to implement the relevantstandard. Therefore, we are proposing todelete this phrase from the GeneralProvisions.
2. Continuous vs. Continuous ParameterMonitoring Systems
We are proposing clarifying changesto § 63.8(c)(6) to identify thoserequirements that are for continuousparameter monitoring systems (CPMS)versus those that apply to CMS. Thechange is intended to avoid possibleconfusion by the owner or operator asto which provisions apply when therequirements are not clearly delineatedin a relevant standard.
3. Applicability of Standards DevelopedUnder the CAA
We are proposing to clarify in§ 63.1(a)(3) that the Administrator canspecify in a relevant standard that anaffected source subject to otherprovisions under the CAA need onlycomply with the provisions of thatstandard. This clarification reflects whatis already being done in relevantstandards. We do this in relevantstandards so that an owner or operatorof an affected source subject to otherstandards under the CAA is notburdened with the need to determinethe ‘‘more stringent’’ requirements forcompliance purposes or to duplicaterecordkeeping and reporting for eachstandard. Both the HON and petroleumrefineries NESHAP specify in theapplicability section the requirementsthat would apply when there areoverlapping requirements with otherstandards developed under the CAA.For example, in the PetroleumRefineries NESHAP (60 FR 43244), wespecified that after the compliance datesfor that NESHAP, a storage vessel thatis part of an existing source that issubject to 40 CFR part 60, subpart Kb,would only be required to comply with40 CFR part 60, subpart Kb.
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4. Unnecessary Additional InformationWe are proposing to delete
unnecessary additional informationfrom the General Provisions. Forexample, we are proposing to delete§ 63.1(a)(7) and (8) because they discussthe content of 40 CFR part 63, subpartsD and E, and do not provide informationor requirements relevant for compliancewith the General Provisions.
5. Actual Emissions or ControlEfficiency Data
We are proposing to eliminate therequirement in § 63.5(d)(2) to submit‘‘actual’’ emissions or control efficiencydata with the Notification ofCompliance Status when a relevantstandard does not require thisinformation to demonstrate compliance.We believe that this requirement asstated can cause confusion because it isoften not feasible or required that‘‘actual’’ emissions or control efficiencydata be submitted for ‘‘affected sources’’to demonstrate compliance.
6. Commence Versus Begin ActualConstruction
Section 63.5(d) of the current GeneralProvisions contains requirements fornew and reconstructed affected sources.The petitioners commented that the useof the term ‘‘commence construction’’ asa trigger for submittal of the applicationwas inappropriate. Similarly, theycommented that the expectation that thenotification of intent to construct a newmajor affected source include ‘‘theexpected commencement date of theconstruction or reconstruction’’ wasinappropriate. The General Provisionsdefine ‘‘commenced’’ in such a way thatan owner or operator would be obligatedto submit an application forconstruction or reconstruction if theyenter into a contractual obligation toundertake and complete a constructionor reconstruction. Petitioners explainedthat such contractual obligations may bein place, but actual construction plansor design information necessary forcompletion of an application may beunknown.
We evaluated those places within thecurrent General Provisions, § 63.5(d),where petitioners commented that theuse of the terms ‘‘commence’’ or‘‘commencement’’ are inappropriate. Weare proposing to amend the regulatorylanguage to specify the beginning ofactual construction rather than thecommencement of construction. Thisproposal reflects our original intent andaddresses the petitioners’ concerns.
7. Consistency With Statutory LanguageIn some cases, the current General
Provisions contain terminology that is
inconsistent with what is in the CAA.We have corrected inconsistentlanguage where appropriate. Forexample, § 63.1(a)(3) contains languageinconsistent with the parallel languageof section 112(d)(7) of the CAA. We areproposing parallel regulatory languageto match that of the CAA.
8. Use of Alternative Test MethodsWe are proposing to amend
§ 63.7(f)(2)(ii) to clarify that the use ofdefined aspects of Method 301procedures may be sufficient to validatethe data and the test method used toobtain the data. Currently, the languageimplies that a complete Method 301validation would be required to makethis demonstration in all cases, whichwas not our intent.
Method 301 establishes acceptancecriteria as well as a demonstrationprocedure for test method developmentand validation and alternative methoddemonstrations. Such criteria andprocedures did not exist before Method301; therefore, the many emission testmethods in the United States andabroad did not have a standardprocedure underlying their validation.Method 301 defines how good aproposed method is in terms of bias andprecision either standing alone orcompared to an existing (reference)method.
During the proposal and promulgationof Method 301, we recognized that otheracceptable validation procedures fordemonstrating a method’s acceptance(precision and bias) do exist, e.g.,ASTM. We acknowledged this inSections 1.1.1 and 12 of Method 301,which allow different validationapproaches under certain conditions,including other reasonable statisticalapproaches, ruggedness testing ofmethod modifications, similar exhaustmatrix demonstrations, etc.
III. Proposed Amendments to theSection 112(j) Provisions
We are proposing to clarify andcorrect the existing rules (59 FR 26429)(part 63, subpart B, §§ 63.50 through63.56) promulgated May 20, 1994,implementing section 112(j) of the CAAto better address timing andapplicability issues. A key point ofclarification is how and when newsource MACT and the associated newaffected source are defined. The currentrules establish the section 112(j)hammer date as the date for determiningwhether new source MACT shouldapply and what it should be. However,because this date could occur before asource had received a title V permitcontaining MACT emission limitationrequirements for new sources, sources
would be left to ‘‘guess’’ at what newsource MACT would be. If the sourcedidn’t guess correctly, and new sourceMACT were different than anticipated atthe commencement of construction, itmay incur significant rebuildingexpense or delays to accommodate newMACT controls when finally issued ina title V permit. Although weconsidered this difficulty in knowingthe exact nature of new source MACT,and discussed it extensively in thepromulgation preamble (59 FR 26435),the petitioners pointed out that oursolution was unworkable.
With these amendments, we areproposing an alternative remedy to thetiming requirements associated withnew source MACT determinations. Asdiscussed in section III.C of thispreamble, we propose to change thenew source MACT applicability date tothe date on which an affected source isissued a title V permit containingrequirements establishing new andexisting source MACT for that affectedsource. From this date onward, futurechanges at the facility can be made withknowledge of what new source MACT isfor that facility. This change in theapplicability date also affects areasources (i.e., nonmajor sources) thatbecome major sources. For example, anexisting area source (in a category orsubcategory for which the section 112(j)permit hammer date has passed) thatincreases emissions such that the sourcebecomes a major source would besubject to existing source MACTbecause the new source MACTapplicability date has not yet beenestablished for the source.
The other major clarification we areproposing today is the creation of a two-part MACT application process. Part 1would be a brief informationalsubmittal, followed by a substantiveapplication for MACT requirements, orPart 2. We discuss this process in moredetail in section III.D of this preamble.
A. ApplicabilityWe are proposing several changes to
clarify § 63.50 applicabilityrequirements. We have reorganized§ 63.50(a) to clarify that the section112(j) program places obligations onsource owners and operators(§ 63.50(a)(2)(i)) and on permittingauthorities (§ 63.50(a)(2)(ii)). We alsopropose to exempt research orlaboratory activities whose primarypurpose is to conduct research anddevelopment into new processes andproducts. This proposed exemption(§ 63.50(a)(1)) would remain untilresearch and development activities arelisted as a source category for regulationpursuant to section 112(c)(7) of the
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CAA. We propose to add a definition to§ 63.51 for research or laboratoryfacilities, which is discussed in moredetail in section III.B of this preamble.
We are proposing to amend§ 63.50(a)(2)(i) to clarify that onlyequipment or activities within therelevant source category or subcategorylocated at major sources are affected bythe regulatory requirementsimplementing section 112(j). Currently,the rule could be interpreted to apply toemission sources at the facility butoutside of the relevant category orsubcategory, which was not our intent.For example, assume that a source issubject to section 112(j) emissionlimitations for operations in a relevantcategory or subcategory. Otheroperations at the same facility in adifferent category or subcategory wouldnot be subject to section 112(j) emissionlimitations unless and until the section112(j) deadline for this differentcategory or subcategory passes.
We are also proposing to clarify therelationship of section 112(j)applicability to the effective date of thepermitting authority’s title V program in§ 63.50(a)(2)(i). In particular, petitionersraised the concern that, in the case of atitle V program that receives sourcecategory-limited interim approval,section 112(j) should apply only tothose sources subject to permitting inthat title V program, or should applyonly to sources located in thosegeographic areas covered by the title Vpermit program receiving partialapproval in a given State. We agree thatif the approved title V program islimited to specific source categories orsubcategories, then section 112(j) shouldnot be triggered for sources in categoriesor subcategories not covered by the titleV program.
The petitioners objected to thelanguage in § 63.50(b) which states thatthe current rule does not prevent a Stateor local regulatory authority fromimposing more stringent requirementsthan those contained in the rule. Theycontended that limitations establishedunder section 112(j) must be equivalentto section 112(d) limitations, and thatStates can only be more stringent as amatter of State law. The petitionersinterpreted the current language asarticulating a State’s ability to be morestringent than MACT as a matter ofFederal law.
We plan to retain the currentlanguage. As noted in the promulgationpreamble (59 FR 26433; May 20, 1994),many State and local regulatoryauthorities maintain regulatoryprograms that involve air toxic pollutantreviews for stationary sources. Section63.50(b) clarifies that section 112(j) does
not pre-empt any requirements of theseprograms that are at least as stringent asthe current rule. However, we arerequesting comment on this issue andwill consider revising § 63.50(b) in thepromulgated amendments if furtherclarification is needed.
Finally, we are proposing to delete§ 63.50(c) because the requirement thatStates must have legal authority toincorporate and enforce requirements ofsection 112(j) is found in 40 CFR part70. Deletion of this provision does notremove the obligation of a permittingauthority to have section 112(j)authority as a prerequisite for title Vpermit program approval.
B. DefinitionsWe are proposing to amend several of
the § 63.51 definitions for clarity andconsistency. Other proposed changesare more substantive and, in some cases,are needed to implement broaderconcepts being addressed elsewhere inthis preamble. For example, we areproposing to add or amend severaldefinitions related to the concept ofaffected source as discussed in sectionII.B of this preamble. We are proposingto add definitions of ‘‘affected source’’and ‘‘new affected source’’ to § 63.51 asthey relate to implementation of thisconcept. We are proposing to revise thedefinition of ‘‘similar source’’ to beconsistent with implementing the newaffected source concept. We areproposing to define ‘‘similar source’’ as‘‘that equipment or collection ofequipment that by virtue of its structure,operability, type of emissions andvolume and concentration of emissionsis substantially equivalent to the newaffected source and employs controltechnology that is practical for use onthe new affected source.’’ ‘‘Practical foruse’’ contemplates that the Statepermitting authority would considerwhether the control technology wouldachieve similar efficiencies. We areproposing to delete the definitions of‘‘emission point,’’ ‘‘emissions unit,’’‘‘existing major source,’’ ‘‘new emissionunit,’’ and ‘‘new major source’’ in§ 63.51 for consistency in implementingboth subparts A and B proposedamendments. Where appropriate, we areproposing edits that reflect theseproposed definition changes when theseterms are used.
1. Available InformationWe are proposing to revise the
‘‘available information’’ definition tospecify the type and timing ofinformation that the owner or operatormust submit in an equivalent MACTdetermination application under thesection 112(j) rule. As promulgated, the
deadline for submission of thisinformation is the section 112(j)deadline, which is the date on whichthe section 112(j) hammer falls.However, consistent with proposedchanges in §§ 63.52 and 63.53 to makethe permit application a two-partprocess, the substantive informationrequired by the permitting authority tomake its case-by-case MACTdetermination is now tied to submittalof the Part 2 MACT application.
As part of the section 112(j) MACTdetermination process, the proposedconcept of ‘‘available information’’ isused in such a way as to limit theintroduction of ‘‘new’’ information tothe MACT determination processbeyond the date on which the first Part2 MACT application is filed for anequivalent emission limitation for asource in the relevant source category orsubcategory in the State or jurisdiction.This approach of setting a date certainto limit the universe of ‘‘availableinformation’’ is consistent with theapproach being proposed in the newsource review program. For example,the development of a new emissioncontrol technology after the date of thefirst Part 2 MACT application would notbe considered ‘‘available information’’for another source’s MACTdetermination. However, if thetechnology were developed before thefirst Part 2 MACT application, but theinformation was only brought to thepermitting authority’s attention afterthat date, this information would beconsidered ‘‘available,’’ and it could beused in making the MACTdetermination. Also, we propose to addlanguage to the definition of ‘‘availableinformation’’ to make clear thatpermitting authorities can and shouldconsider information from the public aswell as from the applicant. Theproposed definition would require thepermitting authority to consider anyinformation submitted by the applicantor others before or during the publiccomment period on the section 112(j)equivalent emission limitation.
We believe that both the States andthe sources will have substantialincentive to identify and obtain the fullbody of information that should beconsidered in the case-by-case MACTdetermination as expeditiously aspossible. We also note that availableinformation includes, among otherthings, ‘‘additional relevant informationthat can be expeditiously provided bythe Administrator’’ before the date onwhich the first Part 2 application is filedfor a source in the relevant sourcecategory or subcategory in the State orjurisdiction. For example, suchavailable information could include
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relevant information provided on EPA’sAir Toxics Home Page before the firstPart 2 application date. The bettersupported a section 112(j) MACTdetermination is, the more likely it isthat the effects of subsequent section112(d), 112(h), and 112(g) standards onthe affected source will be minimal.
We are proposing to move the contentof items 6, 7, and 8 of the definition tothe introductory text of the definition toclarify the role and timing of the moregeneral types of ‘‘available’’ informationthat may be provided to the permittingauthority. The intent of the currentlanguage is preserved with the change.
2. Research and Development ActivitiesWe propose to add a definition of
‘‘research or laboratory activities’’ toclarify proposed language in§ 63.50(a)(1) that certain research anddevelopment activities are exempt fromthis subpart. We would limit thisexemption to sources that are notengaged in the manufacture of productsfor commercial sale, except in a deminimis manner, and where the sourceis not subject to a source categoryspecifically addressing research orlaboratory activities that is listedpursuant to section 112(c)(7) of theCAA. Section 112(c)(7) requires theAdministrator to establish a separatecategory covering research or laboratoryfacilities, as necessary to assure theequitable treatment of such facilities.
3. Other Definition ChangesWe propose to amend the definition
of ‘‘equivalent emission limitation.’’ Weare proposing to replace the phrase ‘‘atleast as stringent as’’ with ‘‘equivalentto’’ so that the language in thisdefinition is consistent with thelanguage in the CAA. Similarly, theproposed definition of ‘‘maximumachievable control technology (MACT)floor’’ contains minor amendments toensure consistency with the definitionin the Act. We are also proposing aminor change to the definition of‘‘section 112(j) deadline’’ to clarify thatthe deadline is the date 18 months afterthe date on which a relevant standard isscheduled to be promulgated. We arealso proposing to delete the definition of‘‘United States,’’ which is consideredunnecessary in the context of the rule.Finally, we are proposing to amend thedefinition of ‘‘permitting authority’’ toclarify that this term means a permittingauthority under either 40 CFR part 70 orpart 71.
C. Approval ProcessWe are proposing to expand and
modify § 63.52 with proposed newparagraphs (a) through (d) to clarify the
obligations of owners or operators ofmajor sources that include one or moresources in a category or subcategory forwhich the Administrator fails topromulgate an emission standard underthis part on or before the applicablesection 112(j) deadline. As discussed insection IV.A of this preamble, thepurpose of some of these proposedchanges is to ensure that existing MACTdeterminations (e.g., those developedunder the section 112(g) program) aregiven appropriate consideration andweight in the section 112(j) MACTdetermination process.
We have identified three situations formajor sources related to the timing ofapplicability of section 112(j) to a sourceand related to existing requirements ina source’s permit that could be affectedby the section 112(j) rule. Revised§ 63.52(a) through (c) address each ofthese situations.
The first situation, described inproposed § 63.52(a), covers majorsources that include, as of the section112(j) deadline, one or more sources ina category or subcategory for which theAdministrator has failed to promulgatean emission standard. Owners oroperators of these sources would berequired to submit a Part 1 MACTapplication to the permitting authorityby the section 112(j) deadline if theowner or operator can reasonablydetermine that one or more sources atthe major source belong to a category orsubcategory that would be subject to thesection 112(j) MACT requirements. Webelieve, in most cases, that it will beclear to owners or operators whichaffected sources are subject to section112(j) MACT requirements. However, ina few instances, there may be legitimateconfusion as to the applicability of therequirements. In these cases, proposed§ 63.52(a)(2) would require the owner oroperator to submit a Part 1 MACTapplication within 30 days of beingnotified in writing by the permittingauthority that one or more sources at themajor source belong to a section 112(j)category or subcategory.
The proposed language would requirethe permitting authority to notify theowner or operator within 120 days ofthe section 112(j) deadline that section112(j) requirements apply to a facility.We believe that permitting authoritieswill have information available at thetime of the section 112(j) deadlinethrough existing title V permits andpermit applications, as well asinformation from the EPA and othersources, to identify and notify owners oroperators within a fairly short timeperiod. The purpose of placing a cap onthe notification period is to providemajor sources with some certainty that,
if they and the permitting authority bothdetermine that their facilities are notsubject to section 112(j), then they willnot be brought into the section 112(j)process months or years after a good-faith determination was made. Werequest comment on whether the 120-day time period is sufficient forpermitting authorities to act.
Also addressed in proposed § 63.52(a)is the case where an owner or operatorhas a title V permit that addresses theemission limitation requirements ofsection 112(g) by the section 112(j)deadline. Such an owner or operatorwould be required to submit a Part 1MACT application, but additionalprovisions would allow the owner oroperator to request a determination thatthe section 112(g) emission limitationsalready in its permit are ‘‘substantiallyas effective as’’ the requirementsotherwise adopted under section 112(j)for the source. As discussed in sectionIV.A of this preamble, we believe thatMACT determinations made underseparate programs should besubstantially equivalent when the sameprocedures for determining MACT areused. Therefore, an affected source witha section 112(g) new source MACTdetermination should, in most cases,already be subject to applicablerequirements substantially as effectiveas those that would be required undersection 112(j). In these cases, thesource’s title V permit must be revisedto reflect that the source’s continuedcompliance with the section 112(g)MACT determination satisfies therequirements of section 112(j).
The second situation, addressed inproposed § 63.52(b), covers owners oroperators of sources in a category orsubcategory affected by a section 112(j)deadline, but who were not subject tosection 112(j) emission limitations at thetime of the deadline. Proposed§ 63.52(b)(1) would address sources thatinstall equipment in a category orsubcategory subject to section 112(j)requirements, and where the installationdoes not trigger the section 112(g)process (i.e., the new equipment is nota major-emitting source). These sourcesmay be major sources before theinstallation, or they may become majorsources as a result of the installation. Ineither case, the owner or operator mustsubmit a Part 1 MACT applicationwithin 30 days after startup of thesource.
Proposed § 63.52(b)(2) is similar toproposed § 63.52(a)(3) in that itaddresses sources that have entered thesection 112(g) process throughinstallation of a major-emitting source.In the case of proposed § 63.52(b)(2), thesource installs a major-emitting source
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after the section 112(j) deadline forsources in the same category orsubcategory. Where the source alreadyhas a title V permit addressing section112(g) requirements, the owners oroperators of these sources would berequired to submit a Part 1 MACTapplication to revise the title V permitaddressing section 112(g) requirements.The Part 1 MACT application must besubmitted within 30 days after startupof the source. Where the source hasapplied for but not yet received a titleV permit addressing section 112(g)requirements, the owners or operators ofthese sources would be required tosubmit a Part 1 MACT application torevise the title V permit to addresssection 112(j) requirements within 30days after issuance of the title V permitaddressing section 112(g) requirements.Once the Part 1 MACT application issubmitted, the permitting authoritywould make an equivalencydetermination for the source asdiscussed above for sources subject toproposed § 63.52(a)(3).
The relevant provisions of current§ 63.52(f), which address area (i.e.,nonmajor) sources that become majorsources, were incorporated andexpanded in the proposed new§ 63.52(b)(3) and (4) to consolidate inproposed § 63.52(b) the applicablerequirements for sources that becomesubject to section 112(j) after the section112(j) deadline. These provisionsaddress the status of area sources thatbecome major sources after the section112(j) deadline either through therelaxation of a federally enforceablelimitation on potential to emit orbecause the source becomes majorbecause the EPA established a lesserquantity emission rate pursuant tosection 112(a) of the CAA.
In one case, we are proposing tochange the Part 1 MACT applicationsubmittal date from the current§ 63.52(f) provisions. The current rulerequires the source to comply with thesection 112(j) emission limitations on orbefore the date of becoming a majorsource. Under today’s proposal, if anarea source increases its potential toemit HAP such that the source becomesa major source subject to subpart B, dueto a relaxation in any federallyenforceable emission limitation, thenthe owner or operator must submit aPart 1 MACT application within 30 daysafter the source becomes a major source.We are proposing this change toimplement the concept discussed earlierthat the resulting affected source issubject to existing source MACT andshould have timing requirementssimilar to other sources that become
subject to section 112(j) requirementsafter the section 112(j) deadline.
A similar situation exists for areasources that subsequently become majordue to the establishment of a lesserquantity emissions rate under section112(a) of the CAA for an affected sourceat the area source. Currently, owners oroperators of sources in categories orsubcategories subject to 112(j)requirements must submit a MACTapplication within 6 months of the datesuch a source becomes a major source.We solicit comments on whether thistimeline should be retained, or whetherit would be beneficial to make it moreconsistent with the application deadlinerequirements for other sources, i.e., 30days from the triggering event.
The third situation is addressed inproposed § 63.52(c). This section coversowners or operators of sources whohave a title V permit that addresses therequirements of section 112(j), andsubsequent actions occur at the sourcethat trigger section 112(j) requirements.In the simplest case, when events suchas the addition of a new process unitoccur, the permit already contains therelevant section 112(j) requirements,and the source complies with the permitconditions. In other cases, the permitmay not contain sufficient requirementsto address the section 112(j)requirements. For example, a source ina given category or subcategory mayhave a title V permit that addressessection 112(j) emission limitations forthe production of chemical ‘‘A.’’ If thesource then installs a new process unitto produce chemical ‘‘B,’’ and the newprocess unit includes equipment that isin the same source category but was notpreviously addressed in the source’stitle V permit, section 112(j) emissionlimitations would need to be developedto address this scenario. In this case, theowner or operator must submit a Part 1MACT application within 30 days afterbeginning construction. In the casewhere a new affected source isconstructed after the issuance of thepermit, the owner or operator mustobtain a title V permit revision withapplicable limits prior to startup of thenew affected source.
We are proposing to add § 63.52(d) toprovide a process by which the owneror operator of a source could obtain upfront determinations from thepermitting authority. Proposed§ 63.52(d)(1) would allow the owner oroperator to request an applicabilitydetermination from the permittingauthority in the case of uncertaintyregarding the source’s status withrespect to section 112(j) requirements.The form of the request would be thesubmission of a Part 1 MACT
application. Some sources might preferto obtain an up front determination fromthe permitting authority rather than wait120 days for the permitting authority tonotify them of their applicability or inorder to have documentation of theirnonapplicability.
Proposed § 63.52(d)(2) provides thatan owner or operator of a new affectedsource may submit an application for aNotice of MACT Approval beforeconstruction, under § 63.54. Thisprovision is contained in the currentrule as § 63.52(a)(4).
Proposed § 63.52(e) wouldincorporate the two-part permitapplication process. The rationale andcontent of each of the two applicationsare discussed in section III.D of thispreamble. The timing of the submittal ofthe Part 1 application has already beenaddressed in the proposed changes to§ 63.52, paragraphs (a) through (d). Thefocus of proposed § 63.52(e) is thereview process for the Part 2 MACTapplication.
Proposed § 63.52(e)(1) would requiresubmittal of the Part 2 MACTapplication within 6 months aftersubmittal of the Part 1 MACTapplication. This timeline is analogousto the current rule, which allows asource 6 months to submit a revisedapplication upon determination that theoriginal application, submitted at thesection 112(j) deadline, is incomplete.Today’s proposal would provide this 6-month extension as a matter of coursein recognition of the fact that the Part 1MACT application is not required to becomplete enough to support a MACTdetermination.
Proposed § 63.52(e)(2) would providea process by which both equivalencydeterminations and applicabilitydeterminations can proceed. An owneror operator who requests anapplicability determination underproposed § 63.52(d)(1) must complywith the remaining provisions of thissubpart if the permitting authoritydetermines the source is subject tosection 112(j) requirements. If thepermitting authority determines thesection 112(j) requirements do not applyto the source, no further action by theowner or operator is necessary.
Given the importance of the outcomein an equivalency determination underproposed § 63.52(a)(3) or (b)(2), theproposed process for an equivalencydetermination includes the opportunityfor full public, EPA, and affected Statereview. If the permitting authoritydetermines that the existing section112(g) permit terms and conditionssatisfy the section 112(j) requirements,the requirements of section 112(j) aresatisfied once the source’s title V permit
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is revised to reflect that the source’scontinued compliance with the section112(g) MACT determination satisfies therequirements of section 112(j). If thepermitting authority determines that thesection 112(g) permit terms andconditions are not sufficient to satisfythe section 112(j) requirements, thesource must proceed with submittal ofa Part 2 MACT application.
Proposed application completenessprovisions in § 63.52(e)(3) and (4) wouldprovide that if the permitting authorityfails to notify the source that theapplication is incomplete, in writingand within 60 days, the MACTapplication would be consideredcomplete. A Part 2 MACT application isconsidered complete if the informationis sufficient to begin or continueprocessing the application. Similarly, asprovided in proposed § 63.52(e)(4), acompleteness determination should notlimit the permitting authority’s ability torequest additional information from thesource owner or operator; such a requestshould receive a timely response.
We are proposing minor edits to§ 63.52(c)(2) to use more generic termswhen referring to the title V permitprocess. The use of these terms in thisparagraph and throughout the rule is toensure that the rules implementing thesection 112(j) provisions of the CAA canbe used in the context of the title Vpermitting process under parts 70 and71.
Proposed amended § 63.52(e)(5)would clarify that, given timelysubmittal of a complete application, afailure to receive a permit under section112(j) within 18 months would not bea violation of section 112(j).
We are proposing to retitle § 63.52(d)from ‘‘Emission limitation’’ to ‘‘Permitcontent’’ to more accurately reflect thecontents of the section. In addition, weare proposing to clarify § 63.52(f) toensure that the permit containsnotification, operation andmaintenance, performance testing,monitoring, and reporting andrecordkeeping requirements consistentwith the part 63, subpart A, GeneralProvisions. In addition, proposed§ 63.52(f)(2)(i) replaces the term‘‘Federal enforceability’’ with‘‘practicable enforceability.’’ The formerterm was borrowed from the EPA’s June28, 1989 Federal Register notice (54 FR27274) on potential to emit. There,‘‘Federal enforceability’’ was used as ashort-hand reference to severalattributes, including enforceability as apractical matter. Today’s change wouldclarify the intent of this provision toensure achievement of this goal.
We are proposing clarifications tomake the compliance date for a new
affected source the date of startup of thenew affected source, as opposed to thedate the title V permit is issued, ascurrently promulgated.
We are proposing § 63.52(f)(1) toimplement the requirement for thepermitting authority to include in eachpermit implementing section 112(j) thedefinition of affected source and newaffected source arising from each case-by-case MACT determination. Asdiscussed elsewhere, delineation ofthese terms is integral to the proposedchanges to clarify the approval processfor new and existing sources under thesection 112(j) program.
We are proposing to add § 63.52(g) toclarify the dates by which a permit mustbe issued. In most cases, that date iswithin 24 months after submittal of thePart 1 MACT application. However, ifthe source’s owner or operator requestsan applicability or equivalencydetermination under proposed§ 63.52(e)(2), the permitting authoritymust issue the permit within 18 monthsafter receiving the Part 2 MACTapplication.
We propose to redesignate § 63.52(e)as § 63.52(h) and clarify its existingposition on enhanced monitoring. Inparticular, we expect States toincorporate monitoring, recordkeepingand reporting mechanisms and othermeans of assuring compliance, such asposting all compliance reports on apublicly available electronic bulletinboard, that comport with the enhancedmonitoring approach in section114(a)(3). This is the approach weendeavor to utilize in the developmentof new MACT standards under section112(d). In many instances, this willrequire an improvement over existingcompliance assurance provisions, if thesource has such preexistingrequirements, to provide the superiorenforceability contemplated in theMACT program.
We are proposing to add § 63.52(i) toclarify for all affected sources whichsources must comply with MACT forexisting sources versus MACT for newsources. The application of new sourceMACT is limited to new affectedsources, as defined in the title V permitaddressing section 112(j) MACTemission limitations for those affectedsources. This language reflects ourproposed approach to implement theconcepts of ‘‘affected source’’ and ‘‘newaffected source.’’
For example, as currentlypromulgated, an existing area sourcecould become a major source subject tonew source MACT through the additionof a single piece or collection ofequipment such that the source’spotential to emit increases by only a
small amount (e.g., from 9.9 tons/year to10.1 tons/year). We agree with thepetitioners that the possible costs andburdens faced by a source in this casecould be unreasonable because thechange in status could entail installationof new source MACT on existingequipment. Therefore, we are proposingto limit new source MACT to sourcesthat become major emitters because theyadd a new affected source as defined by§ 63.51; new source MACT would onlyapply to the new affected source. Thisapproach is also consistent with theproposed definition of ‘‘new affectedsource.’’
D. Application ContentWe are proposing to delete current
§ 63.53(a) because it is redundant giventhe provisions in § 63.55, which addressMACT determinations for affectedsources subject to case-by-casedetermination of equivalent emissionlimitations.
We are proposing to revise and move§ 63.53(b) and proposing to add new§ 63.53(b) to reflect the proposed changefrom a single MACT permit applicationdue on the section 112(j) deadline to a2-part MACT permit application dueover a 6-month time period, asdiscussed in the previous section.However, the majority of currentlyrequired information is included inproposed new § 63.53(a) and (b).
Proposed § 63.53(a) describes therequired content of the Part 1 MACTapplication, which includes basicinformation such as name, address, abrief description of the relevant majorsource, and an identification of therelevant source category and types ofemission units belonging to the relevantsource category. Sources for which asection 112(g) determination has beenmade should identify any relevantequipment or activities as well. Thepurpose of allowing the morestreamlined Part 1 application at thesection 112(j) deadline rather than acomplete permit application is inacknowledgment that the source mayrequire more time to compile thedetailed information required for thepermitting authority to make a MACTfloor determination, and that thedetermination process is an iterative onewith the permitting authority. The Part1 application content is analogous to the§ 63.9(b) initial notification content.
Proposed § 63.53(b) describes thecontents of the Part 2 MACT applicationand lists additional relevant process,pollutant, and control information.Proposed § 63.53(b) incorporates the‘‘affected source’’ language, whereapplicable. Requirements for newaffected sources to report the expected
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date of commencement of constructionand the expected date of completion ofconstruction were deleted because thisinformation is irrelevant to the overallapplication review process. We are alsoproposing to add the phrase ‘‘in therelevant source category’’ in§ 63.53(b)(1)(ii) to clarify thatinformation is not required for HAPemissions from source categories otherthan the relevant source categories. Weare also proposing to add the phrase‘‘estimated total uncontrolled andcontrolled emission rate’’ to clarify thatinformation on both uncontrolled andcontrolled emission rates is needed.
Proposed § 63.53(b)(1)(iii) languageincludes the phrase ‘‘Federal, State, orlocal limitations or requirements’’ toclarify the universe of potentiallyapplicable requirements that could beconsidered by the permitting authority.Current § 63.53(b)(8), which includes arequest for detailed capacity utilizationinformation, would be eliminatedbecause we believe this informationwould not be generally available at thetime the permit application is due.However, the requirement to includeinformation on uncontrolled emissionswould be incorporated into theproposed § 63.53(b)(1)(ii) language.Similarly, we are proposing to delete thelanguage regarding controlled emissionsat maximum capacity from § 63.53(b)(9),but other required information would beretained in proposed § 63.53(b)(1)(iv)such as the requirement to includeidentification of control technology inplace.
We are proposing to delete the current§ 63.53(b)(10) requirement to includethe MACT floor because the floordetermination will be made by thepermitting authority, thereby obviatingthe mandate for the source to reportinformation on the floor to thepermitting authority. This change isconsistent with proposed changes to§ 63.55, discussed in section III.F of thispreamble. While a MACT floordetermination is not required of theowner or operator, proposed§ 63.53(b)(1)(v) would allow the owneror operator the option of recommendinga MACT floor.
The information currently required inpromulgated § 63.53(b)(11) through (13)would be retained in proposed§ 63.53(b)(2), but only as optionalinformation to be provided at thesource’s discretion. Proposed§ 63.53(b)(1)(vi) mirrors the current§ 63.53(b)(14) language allowing thepermitting authority to request anyother information reasonably needed inthe permit application. The informationprovided under § 63.53(b)(1)(vi) issubject to the confidential business
information protections provided underthe CAA.
E. Preconstruction Review
We are proposing clarifying languageto the introduction of § 63.54 toemphasize that the purpose of thesection is to describe alternative reviewprocesses that the permitting authoritymay select from to make a MACTdetermination for new affected sources.We believe that preconstruction review,although optional in the context ofsection 112(j), is a useful tool for Statesand sources in making case-by-caseMACT determinations for new affectedsources. Therefore, we do not want topreclude the ability of the States toemploy existing preconstruction reviewprograms or to develop ‘‘enhanced’’review programs using the § 63.54(b)optional administrative procedures forsources subject to the section 112(j)provisions.
We are proposing to delete § 63.54(e)and (f) because language in proposed§ 63.52(f)(2)(iii) addresses the issuesraised by these sections.
F. Enforcement Liability
Petitioners raised several questionsregarding exposure to enforcementliability that relate to sources whichhave not been clearly identified assources within the particular sourcecategory that are subject to section 112(j)requirements. We hope that all suchquestions of applicability for a sourcewill be clarified before the section 112(j)permit application is due so that theseissues will not arise. However, theremay initially be a lack of clarity, and itis also possible that some applicabilityissues may not be resolved before a finalsection 112(d) MACT standard is issued.Accordingly, certain hypotheticalsituations are discussed below in orderto provide guidance regarding our intentin implementing section 112(j).
The first situation involves a sourcethat the permitting authority hasidentified in the section 112(j) processas not being a source covered by section112(j). If a subsequently promulgatedsection 112(d) MACT standard clarifiesthat this source is indeed covered, doesthe source face liability for notcomplying with section 112(j)previously? We have concluded thatsuch a source would not face anyliability so long as it came intocompliance with the section 112(d)standard as required, since it had noregulatory duty under section 112(j),and provided that the permittingauthority actually identified the sourcein the section 112(j) process as not beinga source covered by section 112(j).
A second situation involves a sourcethat obtains assurance from theappropriate officials within thepermitting authority that the source isnot in the section 112(j) source categoryand is, thus, not covered by section112(j). If a citizen disagrees and suesarguing that the source should be in thesource category, what liability exposuredoes the source face? It is our positionthat the source should face no liabilityin such a circumstance, provided thatthe source did obtain assurances fromthe appropriate officials within thepermitting authority that it is not in thesection 112(j) source category. Thesource is only obligated to abide by therequirements under section 112(j) asarticulated by the permitting authority.If a citizen wishes to assert that thesection 112(j) applicability criteria areinappropriate, then the remedy is toconvince or force the permittingauthority to modify its regulatoryrequirements.
A third concern involves a situationwhere the permitting authority or EPAhas not clearly defined the sourcecategory and the source does not submitan application by the deadline. If,however, the permitting authority laterdetermines that the source is in thesection 112(j) source category and, thus,an application is due, what enforcementliability does the source face for failingto submit the application by thedeadline? Again, in all instancesinvolving the section 112(j) program,either the permitting authority or theEPA should identify the source categorywith sufficient specificity to eliminateany such problem. But in case such asituation should arise, it is unreasonableto assert that a source is liable if thesource was not provided sufficientnotice that an application was due. Inother words, the permitting authorityand the EPA are responsible for definingthe section 112(j) source category withsufficient clarity so that a source canreasonably determine whether it fallswithin that source category. Absentsuch clarity and adequate notice—provided within the original sourcecategory description, in subsequent EPAdocuments (either in the FederalRegister or on EPA’s Air Toxics HomePage, provided that specific notice ismade in the Federal Register to theavailability of such a document on theAir Toxics Home Page) or throughsubsequent notification by thepermitting authority pursuant toproposed § 63.52(a)(2)—a source shouldnot be liable for failing to submit asection 112(j) application. On the otherhand, a source would be liable forfailing to submit a section 112(j)
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application if the section 112(j) sourcecategory was clearly defined.
G. MACT DeterminationsIn today’s action, we are proposing to
delete § 63.55(a) because it is redundantgiven the other changes proposed today,and it results in an unintendedpresumptive effect on the section 112(j)standard development process. Forexample, the contents of current§ 63.55(a)(3) and (4) are found largely inthe proposed Part 2 applicationrequirements although the informationmay now be supplied on an optionalbasis unless specifically requested bythe permitting authority. Thismovement from a requirement to anoptional submission reflects the conceptthat the MACT determination process isiterative, and that the responsibility fordetermining MACT lies with thepermitting authority.
We are proposing to delete§ 63.55(a)(1) because it suggests that aproposed relevant emission standard isa presumptive MACT determination.While a proposed relevant standardshould be given serious consideration inthe MACT determination process, therehave been instances where key elementsof a proposed MACT standard changesignificantly between proposal andpromulgation. Similarly, retaining thelanguage in § 63.55(a)(2) would result inthe presumptive use of any ‘‘guidance ordistributed information establishing aMACT floor finding for the sourcecategory or subcategory by the section112(j) deadline.’’ We agree that thequality of information embraced by thisprovision could vary widely and maynot have been developed with thebenefit of public notice and comment.
Proposed § 63.55(a) contains newlanguage to ensure that there are no gapsin the MACT determination processbetween obtaining the application andmaking the determination. We areproposing to revise § 63.55(a)(2) and (3)to clarify that the MACT determinationwill be established according to therequirements of section 112(d)(3) of theCAA and based on availableinformation. The revisions to thedefinition of ‘‘available information,’’discussed in section III.B of thispreamble, would ensure that thepermitting authority has the neededinformation to make the MACTdetermination. The proposed deletion ofthe explicit consideration of‘‘information provided in publiccomments’’ would eliminate redundantinformation. The section 112(j) processalready requires the inclusion ofprovisions for notice and publiccomment. We are proposing to delete§ 63.55(b)(4) and (5) consistent with
deleting related requirements regardingthe presumptive use of proposed rulesand other MACT floor guidance in thecurrent § 63.55(a)(1) and (2).
H. Case-by-case MACT RequirementsAfter Promulgation of a SubsequentMACT Standard
Section 63.56 describes the case-by-case handling of requirements fordetermining equivalent emissionlimitations after promulgation of asubsequent MACT standard. We areproposing to amend § 63.56(a) to clarifythe relevance of emission standards toaffected sources. We are proposing torevise § 63.56(b) to clarify that thesubsequently promulgated MACTstandard will be incorporated into thetitle V permit upon its renewal. Section63.56(b) would also assure affectedsources that the period for compliancefor existing sources would be no shorterthan the time provided in thepromulgated MACT standard.
We are proposing to amend theintroductory text to § 63.56(c) byrevising § 63.56(c)(1) and adding§ 63.56(c)(2). Section 63.56(c)(1) wouldclarify that the permitting authoritydoes not need to change the emissionlevel in the permit to the promulgatedMACT standard level of control if thelevel of control in the permit issubstantially as effective as the level ofcontrol in the promulgated MACTstandard. This language implements theconcepts discussed in section IV.A ofthis preamble. We are proposing to add§ 63.56(c)(2) to state that the permittingauthority must not incorporate any lessstringent emission limitation of thepromulgated standard in the title Vpermit and may consider more stringentterms due to the requirements of section112(d) and (h). This section precludesthe possibility of sources being requiredto change previously approved controltechnologies when the ‘‘new’’ standardis found to be as substantially aseffective as the previous MACTdetermination, but it also precludessources from changing controls in thecase the ‘‘new’’ standard is less stringentthan the previous MACT determination.Taken together, § 63.56(c)(1) and (2)maintains the status quo of previousMACT determinations that are found tobe substantially as effective as asubsequent MACT.
I. Section 112(j) Guidelines DocumentWe have published a guidance
document titled ‘‘Guidelines for MACTDeterminations under Section 112(j),’’EPA 453/R–94–026, May 1994. Thepurpose of the document is to givepermitting authorities additionalguidance in making MACT
determinations based on the principlesestablished in proposed § 63.55. Wehave revised this document toincorporate relevant clarifications andrevisions proposed today. The draftrevised document is available on theTTN (SUPPLEMENTARY INFORMATION).Comments on the draft reviseddocument should be submitted togetherwith comments on today’s proposedrule changes. The guidance documentcontains procedures for evaluatingwhether a control technology isconsistent with the minimumrequirements established in section112(d) of the CAA. Because section112(j)(5) requires that case-by-caseMACT determinations be ‘‘equivalent tothe limitation that would apply to suchsource if an emission standard had beenpromulgated in a timely manner undersubsection (d),’’ we believe thatconsideration of this guidancedocument is a crucial component of thesection 112(j) case-by-case MACTdetermination process.
IV. Additional Issues
A. Discussion of the RelationshipAmong Requirements Under Section112(d), (g), (h), and (j)
1. Background and Summary of IssueOne area of concern the petitioners
identified involves the substantiverelationship between a case-by-caseMACT emission limitation issued undersection 112(j) and a MACT standardsubsequently issued under section112(d) or (h). Petitioners are alsoconcerned regarding the relationshipbetween a case-by-case MACTdetermination under section 112(g) anda subsequently issued case-by-caseMACT emission limitation undersection 112(j), or MACT standard undersection 112(d) or (h). In general, thepetitioners believe that compliance witha case-by-case MACT determinationshould constitute compliance with asubsequent case-by-case MACTdetermination or MACT standard.
Throughout the development of thesection 112 program, we havemaintained as one of our primary goalsconsistency among the different section112 requirements of the CAA. As statedin the final section 112(j) rule, ‘‘EPA’sprimary goal is to create as muchconsistency as possible between case-by-case MACT determinations undersection 112(j) and implementation ofsubsequent 112(d) standards * * * theagency intends to ensure the greatestpossible consistency among section112(d), (g), and (j) provisions.’’
In general, we do not disagree withthe petitioners in that if the four MACTstandard setting provisions of the CAA
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are appropriately implemented, theywill be based on substantially similartypes of information concerningemission controls and will reflectsimilar regulatory policies concerningthe feasibility of further emissionreductions. However, we do not agreethat it would be appropriate to concludethat a previous case-by-case MACTlimitation automatically satisfiessubsequent section 112 MACTrequirements.
With respect to the subsequentapplicability of a section 112(d) or (h)standard or a section 112(j) MACTdetermination to a source for which asection 112(g) MACT determination hasbeen made, this issue is resolved by thesection 112(g) regulations andaccompanying preamble, promulgatedon December 27, 1996 at 61 FR 68399.Consistent with that Federal Registeraction, a source that receives a case-by-case MACT determination under section112(g) must comply with the subsequentcase-by-case MACT determination orMACT standard, although the sourcemay have a period of up to 8 years toachieve such compliance. Thesubsequent case-by-case MACTdetermination or MACT standard maystipulate that compliance with the priorcase-by-case MACT constitutescompliance with the subsequentdetermination or standard.
In general, we believe that requiring asource that has received a case-by-caseMACT determination under section112(g) to comply with subsequentlyadopted MACT requirements will notresult in any inappropriate regulatoryburden. This is primarily because wehave required the implementation ofsection 112(g) only with respect toconstruction or reconstruction of majorsources of HAP, and the resultant case-by-case determination would requirenew source MACT. Even though anysection 112(g) MACT determination willincorporate MACT for new sources, themajor source in question will likely beconsidered an existing source by thetime of issuance of any subsequentMACT limitation for the source undersection 112(j) or MACT standardapplicable to the source under section112(d) or (h).
We note that any case-by-case MACTlimitation adopted for a source undersection 112(j) will normally be made bythe same permitting authority thatwould have issued any prior case-by-case MACT determination for the samesource under section 112(g). We believethat it is appropriate to afford thepermitting authority some discretion toconsider the substantive adequacy ofexisting section 112(g) requirementswhen it makes a subsequent decision
concerning the emission limitationsrequired by section 112(j).
We believe that the concernspetitioners expressed are mostsignificant in the context of a potentialtransition from a case-by-case MACTdetermination made by the permittingauthority under section 112(j) for anindividual source to a generallyapplicable MACT standard adopted bythe EPA under section 112(d) or (h).Although the statutory criterion forestablishing the subsequent standardunder section 112(d) or (h) may beidentical to the criterion governing theissuance of the case-by-case MACTdetermination under section 112(j), inpractice there may be differences in theconclusions reached by the permittingauthority and the EPA. Such differencescould easily arise due to differing databases, differing approaches to analysisof the same data, or differences in theform of the standard adopted. Thus,unless the permitting authority hassome measure of discretion to reconcilethe different regulatory outcomes, thepotential exists for sources subject to acase-by-case MACT determination to beforced to take action to respond tocontrol, monitoring, recordkeeping, andreporting requirements that differ fromthose required by a subsequent case-by-case MACT or generally applicableMACT standard, even though the resultsof the case-by-case requirements do notdiffer from the standard in anyconsequential way. We see this as anirrational outcome that wouldundermine effective and efficientenvironmental policy, and we do notbelieve that Congress intendedsubstantial additional burdens to beimposed (e.g., capital investments innew emission controls) regardless of thesignificance of the resultant impact onactual emission reductions.
Accordingly, we are proposing twobasic clarifications in which sequentialMACT requirements under section112(d), (g), (h), and (j) will beimplemented by the responsiblepermitting authority. First, thepermitting authority would adopt aprior case-by-case new source MACTdetermination for a process orproduction unit under section 112(g) asits case-by-case MACT limitation undersection 112(j) for the same process orproduction unit if the permittingauthority determines that the priorrequirements are ‘‘substantially aseffective’’ in controlling HAP emissionsas the requirements which thepermitting authority would otherwisehave adopted under section 112(j).Similarly, if the permitting authoritydetermines that the controls required bya prior case-by-case MACT limitation
for a source under section 112(j) are‘‘substantially as effective’’ incontrolling HAP emissions as a MACTstandard governing that same sourcesubsequently promulgated undersection 112(d) or (h), the permittingauthority would construe compliancewith the prior section 112(j) emissionlimitation as compliance with thepromulgated standard and revise theoperating permit accordingly. Asexplained below, we and the petitionersevaluated several approaches to definequantitatively the criterion‘‘substantially as effective’’ andconcluded that it is appropriate to leaveit qualitative with substantial discretionvested in the permitting authority. Alsoas explained below, this discretion willbe tempered by use of the title V processto ensure public, EPA, and affectedState review of the permittingauthorities’ conclusions.
2. Legal Authority and StatutoryLimitations
We believe that our authority toimplement a policy that allows thepermitting authority to use the‘‘substantially as effective’’ test issupported by both the language ofsection 112(j) and the Alabama Powerde minimis doctrine. The language insection 112(j) implies a measure ofstatutory flexibility with regard to thisissue. The language in section 112(j)(6)states, ‘‘* * * the Administrator (or theState) shall revise such permit upon thenext renewal to reflect the standardpromulgated by the Administratorproviding such source a reasonable timeto comply, but no longer than 8 years* * *’’ We believe that this languagerequires the Administrator or State toconsider the subsequent section 112(d)standard in revising the source’s permit.
The de minimis doctrine set forth inAlabama Power Co. v. Costle, 636 F.2d323 (D.C. Cir. 1979), allows the EPA topromulgate a ‘‘categorical exemption. . . as an exercise of agency powerinherent in most statutory regimes’’ if:(1) ‘‘Congress has (not) beenextraordinarily rigid,’’ id. at 361; and (2)‘‘the burdens of regulation (would) yielda gain of trivial or no value,’’ id., ‘‘in thesense of furthering goals of the statute,’’Sierra Club v. EPA, 719 F.2d 436, 462(D.C. Cir. 1983). We believe that bothtests are met here. With respect to thefirst criterion, nothing in the language ofsection 112 (g) or (j), or theimplementing regulations precludes theproposed approach. Under the secondcriterion, as explained above, the intentis that the permitting authority wouldbe afforded discretion to find priorrequirements to be ‘‘substantially aseffective’’ as new requirements, unless
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the new requirements would result inmeaningful emission reductions overthose achieved by the case-by-casedetermination.
Invocation of the de minimis doctrineis appropriate here for two reasons.First, the MACT requirements that arethe subject of the comparison may notbe in the same form, meaning it cannotstrictly be said that compliance withone would necessarily entailcompliance with the other. Today’sproposal would allow a somewhatbroader basis for analysis, one thatfocuses on the effect on emissions of thedifferent determinations rather thanstrict compliance with specific control,monitoring, recordkeeping, andreporting requirements.
Secondly, the ‘‘substantially aseffective’’ test contemplates that in someinstances the prior MACT determinationmay not reduce HAP emissions as muchas a subsequent case-by-case MACTdetermination or MACT standard. Asthe difference in emission reductioneffectiveness increases between theprior and subsequent MACTrequirements, it will be increasinglydifficult for the permitting authority tofind that the prior requirements satisfythe test of ‘‘substantially as effective.’’
3. Other Factors ConsideredIn addition to considering whether
such a policy is supported by the Act,we considered several other factors inreevaluating our policy on this issue.These factors included: (1) Theanticipated outcome among section 112(d), (g), (h), and (j) requirements; (2)issues associated with quantifying exactequivalency; and (3) the public’s inputinto source specific decisions.
To a large extent, we consider theMACT process replicable; that is, whenthe same question is asked, whether inthe context of section 112 (g), (j), (d), or(h), the outcome will more often thannot be substantially the same with thesame environmental result.
We anticipate that in the vast majorityof cases, section 112(g) new sourceMACT determinations will result in alevel of control equivalent to or betterthan the level of control required by asubsequent section 112(j) case-by-caseemission limitation or subsequentsection 112 (d) or (h) MACT standard.In most cases, the process or productionunits required to meet new sourceMACT under section 112(g) will besubject to existing source MACTrequirements under any subsequent112(j) MACT limitation or promulgatedsubsequent section 112 (d) or (h) MACTstandard. New source MACT undersection 112(g) should rarely, if ever, beless stringent than existing source
MACT under a section 112 (d) or (h)MACT standard or section 112(j) MACTemission limitation. We believe it isappropriate to afford the permittingauthority some discretion to promoteconsistency in sequential case-by-casedeterminations under section 112 (g)and (j), but consider that appropriatelymade section 112(g) MACTdeterminations will rarely, if ever,present any potential conflict withsubsequent MACT requirements.
We believe there are cases where twoproperly conducted MACT analysescould arrive at somewhat differentconclusions. This situation is mostlikely to occur in source categories withrelatively few sources that also exhibitsome variability in their operations.Another scenario is where there is asignificant body of data comprising theinformation to be considered in theMACT floor analyses and MACTanalyses, and different regulators arriveat different conclusions. For example, adifferent outcome could be reached ifone regulator bases a decision on themean performance of a group of sourcesand another regulator uses the medianperformance. Similarly, differentrounding techniques and otheranalytical decisions could result insomewhat different outcomes.
However, in most cases, the MACTdeterminations for emission limitationsunder section 112(j) and MACTstandards under section 112 (d) and (h)should result in outcomes that aresubstantially equivalent. We believe thatsufficient communication channels andinformation exist, such as MACTpartnerships and the MACT database,that any required case-by-casedeterminations under section 112(j)should not be made ignorant of existinginformation. Although the availability ofcontrols may change over time, we donot foresee a long period of timeelapsing between adoption of anynecessary section 112(j) MACT emissionlimitations and subsequentpromulgation of a generally applicableMACT standard.
We evaluated several issuesassociated with determiningequivalency among section 112 (d), (g),(h), and (j) MACT emission limitations.As a result, we concluded that the levelof quantitative analysis required toshow exact equivalency amongstandards that are different in such areasas the form, applicability, test methods,or technology can be a very difficult andresource intensive process. In addition,as noted above, we believe that exactequivalency is not required by the CAAor the Alabama Power de minimisdoctrine.
Some examples will illustrate howdifferent forms of a standard anddifferent emission limits can still resultin equivalent outcomes on a source-specific basis. The first example relieson the nature of flares as a controltechnology and the fact that we havedetermined that flares provide at least98 percent efficient destruction ofemission streams, provided that theflares and emission streams meet theflare specification criteria found at§ 63.11(b) of the General Provisions. Forexample, the flares must be steam-assisted, air-assisted, or non-assisted,operated at all times, and operated witha flame present at all times. Flares mustonly be used with the net heating valueof the gas being combusted at 11.2megaJoules per standard cubic meter(MJ/scm) (300 British thermal units perstandard cubic foot (BTU/scf)) or greaterif the flare is steam-assisted or air-assisted; or with the net heating valueof the gas being combusted at 7.45 MJ/scm (200 BTU/scf) or greater if the flareis non-assisted. Flares must also bedesigned to satisfy specific exit velocityconstraints.
At least two scenarios could occurwhere a case-by-case MACTdetermination could appear to be lessstringent on paper, but in reality wouldbe ‘‘substantially as effective’’ as asubsequent MACT standard. Forexample, a MACT standard applicableto a given source could be an equipmentstandard requiring use of flares toensure at least a 98 percent emissionreduction. However, a case-by-caseMACT could have required at least a 95percent emission reduction, butexamination of the individual source’spermit revealed that the affectedemission stream is ducted to a flare. Itwould be relatively simple to determineif the actual flare and emission streamwould meet the flare specifications. Ifthey meet the flare specifications, the‘‘difference’’ in required controlefficiencies is moot, because the designand operation of the control technologywould drive the true performance level.Alternatively, the source could haveelected to send the emission stream toan incinerator. Review of the incineratordesign, combined with performance testdata, would allow the permittingauthority to determine whether theactual reductions are likely to achieve atleast 98 percent efficiency.
The second example is based on thefact that the performance of somecontrols is variable and highlydependent on how they are operated.For example, condensation systems canbe designed and operated to meet afairly wide range of emission reductionscenarios. Condensation systems are
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often selected as control devicesbecause it is desirable to recover aproduct in the emission stream. Thecost of operating the condensationsystem is largely driven by thetemperature reduction necessary tocondense the solvent-laden air to thedew point and the cost of purifying thecondensate to obtain a usable product.To compare a case-by-case MACTdetermination based on a condensationsystem to a subsequent MACT standardrequiring a specific level of controlwould require an engineering analysisof the system design, characterization ofthe emission stream, and the evaluationof test data. Depending on the outcomeof this site-specific analysis, a findingthat the initial MACT determination is‘‘substantially as effective’’ as asubsequent MACT standard is entirelypossible.
Given issues associated withquantifying exact equivalency, we see itas beneficial to focus the decisionregarding the adequacy of a past MACTemission limitation on the actualemission reductions associated withthat limitation, rather than on strictcompliance with differing requirements.By evaluating the actual effect from bothsets of requirements, the decision isfocused on the practical benefit to theenvironment rather than an exercise inpaperwork.
We are concerned about ensuringsufficient public input into decisionsmade concerning the substantiveadequacy of a prior MACT emissionlimitation to satisfy subsequentrequirements. Case-by-case MACTemission limitations under section112(j) and MACT standardspromulgated under sections 112 (d) and(h), and the implementation of theserequirements through issuance of title Voperating permits, all involve a processin which the public may participate.However, the issues in theseproceedings are broader than whether asource’s section 112(g) case-by-caseMACT determination should be adoptedunder section 112(j), or a source’ssection 112(j) MACT emissionlimitation satisfies subsequent section112 (d) or (h) requirements. Therefore,we believe it is necessary to assure thatany determination by a permittingauthority under the ‘‘substantially aseffective’’ criterion will be adopted andimplemented only after public and EPAreview.
We believe that the permit reviewprocess in title V provides the bestvehicle to satisfy this concern withoutadding additional burden to the sourceor the permitting agency. The proposal,therefore, would require that any suchdetermination be made through a title V
permitting action that involves all theelements required at permit issuance.The part 70 process should providesufficient review by the public, EPA,and affected States to ensure that thetest of ‘‘substantially as effective’’ isapplied in a manner consistent with ourstated legal and policy rationale.
4. Proposed SolutionWe are proposing in today’s
amendments two basic clarifications to:(1) The process in which a case-by-caseMACT determination under section112(g) is replaced by a case-by-caseMACT emission limitation undersection 112(j), and (2) the process inwhich a generally applicable MACTstandard promulgated under section 112(d) or (h) is implemented for a sourcesubject to a prior case-by-case MACTemission limitation under section 112(j).
We are proposing to amend § 63.1(e)of the General Provisions and§§ 63.52(a)(3), (b)(2), (e)(2)(ii), and63.56(c)(1) of the section 112(j) rule.First, the permitting authority wouldadopt a prior case-by-case MACTdetermination for a process orproduction unit under section 112(g) asits case-by-case MACT limitation for thesame process or production unit undersection 112(j), if it determines that theprior requirements are ‘‘substantially aseffective’’ in controlling HAP emissionsas the requirements which thepermitting authority would otherwisehave adopted under section 112(j).Second, if the permitting authoritydetermines that the requirements of aprior case-by-case MACT emissionlimitation for a source under section112(j) are ‘‘substantially as effective’’ incontrolling HAP emissions as a MACTstandard subsequently promulgatedunder section 112 (d) or (h), thepermitting authority would construecompliance with the prior emissionlimitation as compliance with thepromulgated standard and revise theoperating permit accordingly. In eithercase, the determination by thepermitting authority would be subject,consistent with parts 70 and 71, to bothpublic and EPA review (including EPA’sopportunity to object) through itsincorporation in the source’s title Vpermit. If the source’s current MACTdetermination is not ‘‘substantially aseffective’’ as the new MACTrequirements, then any permit mustassure compliance with the subsequentMACT requirements.
In today’s amendments, we areproposing that ‘‘substantially aseffective’’ not be defined in a rigidmanner, given the multitude of factorsthat go into determining MACT. Rather,permitting authorities must have
sufficient latitude to make judgments—both qualitative and quantitative—as towhether a particular case-by-case MACTdetermination applies air pollutioncontrol requirements in a manner thatachieves the overall environmentalresults of the particular section 112(d)standard.
The ‘‘substantially as effective’’approach is based on the practicalitiesof developing MACT requirements inaccordance with the statutory languageand structure of section 112. Section112 provides criteria for establishingMACT along with a minimum level ofstringency, but is not so rigid as toconsistently yield the same exact resultby different decision makers. Section112(d)(2) makes clear that MACT mustbe determined based on all relevanttechnical, economic and other factualcircumstances of the particularmanufacturing operations encompassedby a source category or subcategory(‘‘* * * shall require the maximumdegree of reduction in emissions * * *that the Administrator, taking intoconsideration the cost of achieving suchemission reduction, and any nonairquality health and environmentalimpacts and energy requirements* * *’’). Section 112(d)(3) addresses theminimum level of stringency requiredfor new source standards (‘‘* * * shallnot be less stringent than the emissioncontrol that is achieved in practice bythe best controlled similar source’’) andfor existing source standards (‘‘* * *shall not be less stringent, and may bemore stringent than * * * the averageemission limitation achieved by the bestperforming 12 percent of the existingsources * * * for categories orsubcategories with 30 or more sources,or * * * the average emission limitationachieved by the best performing sources* * * for categories or subcategorieswith fewer than 30 sources’’). In thoseinstances where we have made a cleardetermination in a final section 112(d)or (h) standard regarding the applicableMACT floor for a category, a positive‘‘substantially as effective’’ finding canbe made if the permitting authoritydetermines that a prior case-by-caseMACT limitation under section 112(j) is‘‘substantially as effective’’ incontrolling HAP emissions, and theactual emission reductions achieved areconsistent with the MACT floordetermination.
While we do not intend to establishany mandatory criteria that wouldgovern the ‘‘substantially as effective’’determination by the permittingauthority, we believe that it could beuseful to establish some analyticbenchmarks to guide the permittingauthority in exercising its discretion. It
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should be recognized at the outset thatno one of these benchmarks wouldnecessarily be dispositive on the‘‘substantially as effective’’ judgment bythe permitting authority, and otherfactors also might need to be considereddepending on the particularmanufacturing operation in question.
One benchmark is the difference incontrol equipment requirements andefficiencies between the two MACTrequirements. On one hand, in thosecases where a section 112(j) reviewleads to a decision not to further limitemissions, and a subsequently issuedMACT standard requires significantemission reductions, there is littlelatitude to construe the prior section112(j) outcome as ‘‘substantially aseffective’’ as the promulgated standard.On the other hand, a difference inrequirements such as types of controlequipment and/or control efficiencylevels would not preclude a‘‘substantially as effective’’ judgment.For example, such a judgment might bereasonable where the section 112(j)determination: (1) Reflects a differentcompliance approach as compared withthe section 112(d) standard, (2)mandates control equipment differentfrom the section 112(d) standard thathas benefits in terms of ‘‘other nonairquality health and environmentalimpacts and energy requirements,’’ or(3) combines control equipmentrequirements with work practices and/or pollution prevention measures notprescribed by the section 112(d)standard.
Another benchmark could be capitalinvestments to comply with MACTrequirements following the issuance ofthe prior case-by-case MACTdetermination. Such a benchmarkwould afford the permitting authoritysome latitude in those situations wherea source has made significantexpenditures in good-faith reliance on acase-by-case MACT determination. Webelieve that requiring the source toundertake such expenditures to meetsubsequent section 112(d) MACTrequirements, particularly where thedifferences in resultant control of HAPemissions are not significant, would beirrational. Arguably, this concern is notpresented in instances where a sourcehas not made any capital expendituresto come into compliance with theprevious case-by-case MACTdetermination and would not beeconomically disadvantaged comparedto other sources that must implementnew controls.
We request comment on the‘‘substantially as effective’’ approachand these benchmarks for evaluating asource’s ‘‘substantially as effective’’
claim, and on our decision reflected intoday’s proposal to proceed with aflexible test that affords permittingauthorities the latitude to exercisereasonable judgments—bothquantitative and qualitative—inaccordance with the statutory languageand structure.
5. Timing and Implementation Issues
Another issue is when the ‘‘hand-off’’occurs among the various section 112program requirements. As discussedabove, promulgated MACT standardsreplace section 112(j) and (g)determinations. Once section 112(d) or(h) requirements have been establishedfor a given category or subcategory ofsources, no subsequent actions undersection 112(j) or (g) will be requiredbecause the section 112(d) or (h)requirements establish the requirementsfor that particular affected source. Ofcourse, section 112(j) or (g)requirements could eventually betriggered for other operations at thefacility in different categories orsubcategories for which a section 112(d)or (h) standard has not been issued.
Because the length of time required toobtain a title V permit addressingsection 112(j) emission limitationscould be up to 24 months after thesection 112(j) hammer date, and becauseprocess or production units meeting thesection 112(g) threshold could beconstructed after that date, we believe itis essential that section 112(g) MACTdeterminations continue to be made,even in cases where the source is in acategory or subcategory for which thesection 112(j) deadline has passed. Suchsources would first obtain a MACTdetermination under the section 112(g)requirements, and then obtain adetermination as to whether that MACTdetermination satisfies the section 112(j)requirements. As described above, webelieve that, in the majority of cases, thesection 112(g) requirements will befound to be substantially as effective asthe section 112(j) requirements, and thepermitting authority can then adopt theexisting section 112(g) determination asits case-by-case new source MACTdetermination under section 112(j). Infact, since in this case the section 112(g)and (j) determinations would beessentially contemporaneous, thelikelihood of a meaningful discrepancywould be further reduced. However,since the source must obtain theapplicable case-by-case determinationunder section 112(g) before actualconstruction or reconstruction, a timelynew source MACT determination willbe assured.
6. Prohibition of BackslidingThis final issue concerns language in
the existing section 112(j) rule, whichwould give the permitting authoritydiscretion to relax applicable emissionrequirements when the level of controlrequired for a source by an emissionstandard under section 112(d) or (h) isless stringent than the level of controlrequired by a prior section 112(j) MACTdetermination for the same source. Wehave concluded that it is inappropriateto permit such ‘‘backsliding’’ ininstances when more stringent emissioncontrols have already been required bythe permitting authority. Accordingly,we are proposing to amend the existingsection 112(j) rule to provide that anymore stringent emission limitations fora source previously adopted by thepermitting authority under section112(j) will continue to apply and mustbe retained by the permitting authoritywhen it issues or revises a title V permitapplicable to the source.
B. Potential to EmitWe are currently developing a
separate rulemaking to address severalpotential-to-emit issues. That proposedrulemaking would amend the GeneralProvisions. We will take final action onthat separate proposal after receivingand considering public comments. Untilwe take final action on that futureproposal, any determination of potentialto emit made to determine a facility’sapplicability status under a relevant part63 standard should be made accordingto requirements set forth in the relevantstandard and in the promulgatedGeneral Provisions. Any determinationof potential to emit should also take intoconsideration two EPA policy guidancememoranda, ‘‘Options for Limiting thePotential to Emit (PTE) of a StationarySource Under Section 112 and Title Vof the Clean Air Act,’’ John S. Seitz andRobert I. Van Heuvelen, to RegionalOffices, January 25, 1995; and‘‘Extension of January 25, 1995 Potentialto Emit Transition Policy,’’ John S. Seitzand Robert I. Van Heuvelen, to RegionalOffices, August 27, 1997. Both of thesepolicy memoranda can be found onEPA’s Clean Air Act bulletin boardunder ‘‘title V/policy guidance memos.’’
V. Administrative Requirements
A. Executive Order 12866, RegulatoryPlanning and Review
Under Executive Order 12866 (58 FR51735; October 4, 1993), the Agencymust determine whether the regulatoryaction is ‘‘significant’’ and thereforesubject to OMB review and therequirements of the Executive Order.The Order defines ‘‘significant
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regulatory action’’ as one that is likelyto result in a rule that may:
(1) Have an annual effect on theeconomy of $100 million or more oradversely affect in a material way theeconomy, a sector of the economy,productivity, competition, jobs, theenvironment, public health or safety, orState, local, or tribal governments orcommunities;
(2) Create a serious inconsistency orotherwise interfere with an action takenor planned by another agency;
(3) Materially alter the budgetaryimpact of entitlements, grants, user fees,or loan programs or the rights andobligations of recipients thereof; or
(4) Raise novel legal or policy issuesarising out of legal mandates, thePresident’s priorities, or the principlesset forth in the Executive Order.
It has been determined that this ruleis not a ‘‘significant regulatory action’’under the terms of Executive Order12866 and is therefore not subject toOMB review.
B. Executive Order 13132, FederalismExecutive Order 13132, entitled,
‘‘Federalism (64 FR 43255, August 10,1999), requires EPA to develop anaccountable process to ensure‘‘meaningful and timely input by Stateand local officials in the development ofregulatory policies that have Federalismimplications.’’ ‘‘Policies that haveFederalism implications’’ are defined inthe Executive Order to includeregulations that have ‘‘substantial directeffects on the States, on the relationshipbetween the national Government andStates, or on the distribution of powerand responsibilities among the variouslevels of government.’’
This proposed rule does not haveFederalism implications. It will nothave substantial direct effects on theStates, on the relationship between thenational Government and States, or onthe distribution of power andresponsibilities among the variouslevels of government, as specified inExecutive Order 13132. The EPArecognizes that the provisions of theexisting regulations governing case-by-case determinations by permittingauthorities under CAA section 112(j), asset forth in 40 CFR part 63, subpart B,might be construed to have substantialeffects on the distribution ofresponsibilities between the FederalGovernment, States, and localities.However, the revisions to the section112(j) regulations set forth in today’sproposal do not themselves have sucheffects. Thus, Executive Order 13132does not apply to this rule.
Nevertheless, in the spirit ofExecutive Order 13132 and consistent
with EPA policy to promotecommunications between EPA, State,and local governments, EPA specificallysolicits comment on this proposed rulefrom State and local officials.
C. Executive Order 13084, Consultationand Coordination with Indian TribalGovernments
On November 6, 2000, the Presidentissued Executive Order 13175 (65 FR67249) entitled, ‘‘Consultation andCoordination with Indian TribalGovernments.’’ Executive Order 13175took effect on January 6, 2001, andrevokes Executive Order 13084 (TribalConsultation) as of that date. EPAdeveloped this proposed rule, however,during the period when EO13084 was ineffect; thus, EPA addressed tribalconsiderations under EO13084. EPAwill analyze and fully comply with therequirements of EO 13175 beforepromulgating the final rule.
Under Executive Order 13084, EPAmay not issue a regulation that is notrequired by statute, that significantly oruniquely affects the communities ofIndian tribal governments, and thatimposes substantial direct compliancecosts on those communities, unless theFederal Government provides the fundsnecessary to pay the direct compliancecosts incurred by the tribalgovernments, or EPA consults withthose governments. If EPA complies byconsulting, Executive Order 13084requires EPA to provide to OMB, in aseparately identified section of thepreamble to the rule, a description ofthe extent of EPA’s prior consultationwith representatives of affected tribalgovernments, a summary of the natureof their concerns, and a statementsupporting the need to issue theregulation. In addition, Executive Order13084 requires EPA to develop aneffective process permitting electedofficials and other representatives ofIndian tribal governments ‘‘to providemeaningful and timely input in thedevelopment of regulatory policies onmatters that significantly or uniquelyaffect their communities.’’
Today’s proposed rule does notsignificantly or uniquely affect thecommunities of Indian tribalgovernments. Accordingly, therequirements of section 3(b) ofExecutive Order 13084 do not apply tothis action.
D. Executive Order 13045, Protection ofChildren from Environmental HealthRisks and Safety Risks
Executive Order 13045 (62 FR 19885,April 23, 1997) applies to any rule that:(1) Is determined to be ‘‘economicallysignificant’’ as defined under Executive
Order 12866, and (2) concerns anenvironmental health or safety risk thatEPA has reason to believe may have adisproportionate effect on children. Ifthe regulatory action meets both criteria,EPA must evaluate the environmentalhealth or safety effects of the plannedrule on children, and explain why theplanned regulation is preferable to otherpotentially effective and reasonablyfeasible alternatives that EPAconsidered.
The EPA interprets Executive Order13045 as applying only to thoseregulatory actions that are based onhealth or safety risks, such that theanalysis required under section 5–501 ofthe Executive Order has the potential toinfluence the regulation. This rule is notsubject to Executive Order 13045because it is based on technologyperformance and not on health or safetyrisks. Furthermore, this rule has beendetermined not to be ‘‘economicallysignificant’’ as defined under ExecutiveOrder 12866.
E. Unfunded Mandates Reform Act of1995
Title II of the Unfunded MandatesReform Act of 1995 (UMRA), PublicLaw 104–4, establishes requirements forFederal agencies to assess the effects oftheir regulatory actions on State, local,and tribal governments and the privatesector. Under section 202 of the UMRA,EPA generally must prepare a writtenstatement, including a cost-benefitanalysis, for proposed and final ruleswith ‘‘Federal mandates’’ that mayresult in expenditures by State, local,and tribal governments, in aggregate, orby the private sector, of $100 million ormore in any 1 year. Before promulgatingan EPA rule for which a writtenstatement is needed, section 205 of theUMRA generally requires EPA toidentify and consider a reasonablenumber of regulatory alternatives andadopt the least-costly, most cost-effective, or least-burdensomealternative that achieves the objectivesof the rule. The provisions of section205 do not apply when they areinconsistent with applicable law.Moreover, section 205 allows EPA toadopt an alternative other than the least-costly, most cost-effective, or least-burdensome alternative if theAdministrator publishes with the finalrule an explanation why that alternativewas not adopted. Before EPA establishesany regulatory requirements that maysignificantly or uniquely affect smallgovernments, including tribalgovernments, it must have developedunder section 203 of the UMRA a smallgovernment agency plan. The plan mustprovide for notifying potentially
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affected small governments, enablingofficials of affected small governmentsto have meaningful and timely input inthe development of EPA’s regulatoryproposals with significant Federalintergovernmental mandates, andinforming, educating, and advisingsmall governments on compliance withthe regulatory requirements.
The EPA has determined that thisproposed rule does not contain aFederal mandate that may result inexpenditures of $100 million or morefor State, local, and tribal governments,in the aggregate, or the private sector inany 1 year. Because the regulatoryrevisions proposed here would clarifyexisting requirements and reduceregulatory burden, this action is not a‘‘significant’’ regulatory action withinthe meaning of Executive Order 12866,and it does not impose any additionalFederal mandate on State, local andtribal governments or the private sectorwithin the meaning of the UMRA. Thus,today’s proposed rule is not subject tothe requirements of sections 202, 203,and 205 of the UMRA.
F. Regulatory Flexibility Act (RFA) asAmended by Small Business RegulatoryEnforcement Fairness Act of 1996(SBREFA), 5 U.S.C. 601 et seq.
The RFA generally requires an agencyto prepare a regulatory flexibilityanalysis of any proposed rule subject tonotice and comment rulemakingrequirements under the AdministrativeProcedures Act or any other statuteunless the agency certifies that the rulewill not have a significant economicimpact on a substantial number of smallentities. Small entities include smallbusinesses, small organizations, andsmall governmental jurisdictions.
For purposes of assessing the impactsof today’s amendments on smallentities, small entity is defined as: (1) Asmall business as defined in eachapplicable subpart; (2) a smallgovernmental jurisdiction that is agovernment of a city, county, town,school district or special district with apopulation of less than 50,000; and (3)a small organization that is any not-for-profit enterprise which is independentlyowned and operated and is notdominant in its field.
This analysis is not necessary for theGeneral Provisions amendments,however, because it is unknown at thistime which requirements from theGeneral Provisions will be applicable toany particular source category, whethersuch category includes smallbusinesses, and how significant theimpacts of those requirements would beon small businesses. Impacts on smallentities associated with the General
Provisions will be assessed whenspecific emission standards affectingthose sources are developed. ‘‘Smallentities’’ will be defined in the contextof the applicability of those standards.
Similarly, no analysis is required forthe amendments to the section 112(j)rule. The rule provides general guidanceand procedures concerning theimplementation of an underlyingstatutory requirement, but it does not byitself impose any regulatoryrequirements or prescribe the specificcontent of any case-by-casedetermination which might be madeunder section 112(j). Moreover, becausethe requirements of section 112(j) areonly triggered in certain limitedcircumstances, it is not possible at thistime to ascertain whether anydeterminations will be made undersection 112(j) or whether any smallbusiness would be subject to such adetermination. Finally, we note that wefound that no regulatory flexibilityanalysis was required for the existingSection 112(j) rule, and the net effect ofthe proposed amendments to that rulewill be to reduce potential regulatoryburdens.
Pursuant to the provisions of 5 U.S.C.605(b), I, hereby, certify that thisproposed rule will not have a significanteconomic impact on a substantialnumber of small business entities.Under the RFA, an agency is notrequired to prepare a regulatoryflexibility analysis for a rule that theagency head certifies will not have asignificant economic impact on asubstantial number of small entities.Consequently, a regulatory flexibilityanalysis is not required and has notbeen prepared.
G. Paperwork Reduction ActAs required by the Paperwork
Reduction Act (PRA), 44 U.S.C. 3501 etseq., the OMB must clear any reportingand recordkeeping requirements thatqualify as an information collectionrequest (ICR) under the PRA.
Approval of an ICR is not required forthe General Provisions because, forsources affected by section 112 only, theGeneral Provisions do not require anyactivities until source category-specificstandards have been promulgated oruntil title V permit programs becomeeffective. The actual recordkeeping andreporting burden that would be imposedby the General Provisions for eachsource category covered by part 63 willbe estimated when a standardapplicable to such category ispromulgated.
The information collectionrequirements contained in the proposedamendments to the final Section 112(j)
rule will be submitted to OMB forapproval under the provisions of thePRA. The EPA has prepared an ICRdocument (ICR No. 1648.03), and youmay obtain a copy from Sandy Farmerby mail at Office of EnvironmentalInformation, Collection StrategiesDivision (2822), U.S. EnvironmentalProtection Agency, 1200 PennsylvaniaAvenue, NW, Washington, DC 20460, byemail at [email protected], or bycalling (202) 260–2740. You may alsodownload a copy off the Internet athttp://www.epa.gov/icr. Theinformation requirements are noteffective until OMB approves them.
The collection of information requiredby the proposed amendments to thefinal rule has an estimated nationwiderecordkeeping and reporting burden of319,305 hours ($40,032,198). Thecurrent ICR 1648–02 for the section112(j) regulations was approved andcovers the period from November 15,1999 to November 15, 2001. The burdenhours per occurrence for respondentshas not changed. However, ICR 1648–02spanned the period in which the section112(j) rule would apply to any of thesource categories covered by the MACTstandards scheduled for promulgationby 1997. This ICR spans the period inwhich the section 112(j) rule wouldapply to any of the source categoriescovered by the MACT standardsscheduled for promulgation by 2000,which is a different set of sourcecategories. Therefore, because thenumber of respondents is different forthis ICR, the burden estimatedrepresents an increase of 299,562 hoursfrom the currently approved ICR.
Burden means the total time, effort, orfinancial resources expended by personsto generate, maintain, retain, or discloseor provide information to or for aFederal agency. This includes the timeneeded to (1) review instructions; (2)develop, acquire, install, and utilizetechnology and systems for the purposesof collecting, validating, and verifyinginformation, processing andmaintaining information, and disclosingand providing information; (3) adjustthe existing ways to comply with anypreviously applicable instructions andrequirements; (4) train personnel to beable to respond to a collection ofinformation; (5) search data sources; (6)complete and review the collection ofinformation; and (7) transmit orotherwise disclose the information.
An agency may not conduct orsponsor, and a person is not required torespond to, a collection of informationunless it displays a currently valid OMBcontrol number. The OMB controlnumbers for EPA’s regulations are listedin 40 CFR part 9 and 48 CFR chapter 15.
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H. National Technology Transfer andAdvancement Act of 1995
Under section 12(d) of the NationalTechnology Transfer and AdvancementAct (NTTAA) of 1995 (Pub. L. 104–113),all Federal agencies are required to usevoluntary consensus standards (VCS) intheir regulatory and procurementactivities unless to do so would beinconsistent with applicable law orotherwise impractical. Voluntaryconsensus standards are technicalstandards (e.g., materials specifications,test methods, sampling procedures,business practices) developed oradopted by one or more voluntaryconsensus bodies. The NTTAA requiresFederal agencies to provide Congress,through annual reports to OMB, withexplanations when an agency does notuse available and applicable voluntaryconsensus standards.
These rules do not involve technicalstandards. Therefore, EPA is notconsidering the use of any VCS.
The proposed amendments to theGeneral Provisions do not include anytechnical standards; they consistprimarily of revisions to the generallyapplicable procedural andadministrative requirements that theGeneral Provisions overlay on NESHAP.The proposed amendments to thesection 112(j) rule, which establishesrequirements and procedures for owner/operators of major sources of HAP andpermitting authorities to follow if theEPA misses the deadline forpromulgation of a section 112(d)standard, clarify and amend currentprocedural and administrativeprovisions to establish equivalentemissions limitations by permit.Therefore, section 112(j) is also not avehicle for the application of VCS.
List of Subjects in 40 CFR Part 63
Environmental protection,Administrative practice and procedure,Air pollution control, Hazardoussubstances, Intergovernmental relations,Reporting and recordkeepingrequirements.
Dated: February 23, 2001.Christine T. Whitman,Administrator.
For the reasons cited in the preamble,part 63, title 40, chapter I of the Codeof Federal Regulations is proposed to beamended as follows:
PART 63—[AMENDED]
1. The authority citation for part 63continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart A—[Amended]
2. Section 63.1 is amended by:a. Revising paragraphs (a)(3) and (4);b. Removing and reserving paragraphs
(a)(7) and (8);c. Removing and reserving paragraphs
(a)(13) through (14);d. Removing and reserving paragraph
introductory text and (c)(2)(iii)g. Removing and reserving paragraph
(c)(4); andh. Revising paragraph (e);The revisions read as follows:
§ 63.1 Applicability.(a) * * *(3) No emission standard or other
requirement established under this partshall be interpreted, construed, orapplied to diminish or replace therequirements of a more stringentemission limitation or other applicablerequirement established by theAdministrator pursuant to otherauthority of the Act (section 111, part Cor D or any other authority of this Act),or a standard issued under Stateauthority. The Administrator mayspecify in a specific standard under thispart that facilities subject to otherprovisions under the Act need onlycomply with the provisions of thatstandard.
(4)(i) Each relevant part 63 standardshall identify explicitly whether eachprovision in this subpart A is or is notincluded in such relevant standard.
(ii) If a relevant part 63 standardincorporates the requirements of part60, part 61 or other part 63 standards,the relevant part 63 standard shallidentify explicitly the applicability ofeach corresponding part 60, part 61, orother part 63 subpart A (General)provision.
(iii) The General Provisions in thissubpart A do not apply to regulationsdeveloped pursuant to section 112(r) ofthe amended Act, unless otherwisespecified in those regulations.* * * * *
(7) [Reserved](8) [Reserved]
* * * * *(13) [Reserved](14) [Reserved](b) * * *(2) [Reserved](3) An owner or operator of a
stationary source who is in the relevantsource category and who determinesthat the source is not subject to arelevant standard or other requirementestablished under this part shall keep arecord as specified in § 63.10(b)(3).
(c) * * *(1) If a relevant standard has been
established under this part, the owner oroperator of an affected source shallcomply with the provisions of thatstandard and of this subpart as providedin paragraph (a)(4) of this section.
(2) Except as provided in§ 63.10(b)(3), if a relevant standard hasbeen established under this part, theowner or operator of an affected sourcemay be required to obtain a title Vpermit from a permitting authority inthe State in which the source is located.Emission standards promulgated in thispart for area sources pursuant to section112(c)(3) of the Act will specifywhether—* * * * *
(iii) If a standard fails to specify whatthe permitting requirements will be forarea sources affected by such a standard,then area sources that are subject to thestandard will be subject to therequirement to obtain a title V permitwithout any deferral.* * * * *
(4) [Reserved]* * * * *
(e) If the Administrator promulgatesan emission standard under section112(d) or (h) of the Act that is applicableto a source subject to an emissionlimitation by permit established undersection 112(j) of the Act, and therequirements under the section 112(j)emission limitation are substantially aseffective as the promulgated emissionstandard, the owner or operator mayrequest the permitting authority torevise the source’s title V permit toreflect that the emission limitation inthe permit satisfies the requirements ofthe promulgated emission standard. Theprocess by which the permittingauthority determines whether thesection 112(j) emission limitation issubstantially as effective as thepromulgated emission standard shallinclude, consistent with part 70 or 71 ofthis chapter, the opportunity for fullpublic, EPA, and affected State review(including the opportunity for EPA’sobjection) prior to the permit revisionbeing finalized. A negativedetermination by the permittingauthority constitutes final action forpurposes of review and appeal underthe applicable title V operating permitprogram.
3. Section 63.2 is amended by:a. Revising the definition of Affected
source;b. Revising the definition of
Commenced;c. Revising the definition of
Construction;d. Revising paragraph (2) in the
definition of Effective date;
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e. Revising the definition ofEquivalent emission limitation;
f. Revising paragraph (6) in thedefinition of Federally enforceable;
g. Revising the first sentence in thedefinition of Malfunction;
h. Revising the definition of Newsource;
i. Revising the introductory text in thedefinition of Reconstruction;
j. Amending the definition of Relevantstandard by revising the first sentenceof paragraph (4) and redesignating theflush paragraph to the end of paragraph(4) and revising the last sentence ofnewly designated text in paragraph (4).
k. Revising the definition ofShutdown;
l. Revising the definition of Startup;m. By adding in alphabetical order
definitions for Monitoring, New affectedsource, and Working day; and
n. By removing definitions forCompliance plan, Lesser quantity, andPart 70 permit.
The revisions and additions read asfollows:
§ 63.2 Definitions.
* * * * *Affected source, for the purposes of
this part, means the collection ofequipment, activities, or both within asingle contiguous area and undercommon control that is included in asection 112(c) source category orsubcategory for which a section 112(d)standard or other relevant standard isestablished pursuant to section 112 ofthe Act. Each relevant standard willdefine the ‘‘affected source,’’ which willbe the definition above unless adifferent definition is warranted basedon a published justification as to whythe definition above would result insignificant administrative, practical, orimplementation problems and why thedifferent definition would resolve thoseproblems. The term ‘‘affected source,’’as used in this part, is separate anddistinct from any other use of that termin EPA regulations such as thoseimplementing title IV of the Act.Affected source may be defineddifferently for part 63 than affectedfacility and stationary source in parts 60and 61, respectively.* * * * *
Commenced means, with respect toconstruction or reconstruction of anaffected source, that an owner oroperator has undertaken a continuousprogram of construction orreconstruction or that an owner oroperator has entered into a contractualobligation to undertake and complete,within a reasonable time, a continuous
program of construction orreconstruction.* * * * *
Construction means the on-sitefabrication, erection, or installation ofan affected source. Construction doesnot include the removal of allequipment comprising an affectedsource from an existing location andreinstallation of such equipment at anew location. However, removal andreinstallation of an affected source willbe construed as reconstruction if itsatisfies the criteria for reconstructionset forth below.* * * * *
Effective date means: * * *(2) With regard to an alternative
emission limitation or equivalentemission limitation determined by theAdministrator (or a State with anapproved permit program), the date thatthe alternative emission limitation orequivalent emission limitation becomeseffective according to the provisions ofthis part.* * * * *
Equivalent emission limitation meansany maximum achievable controltechnology emission limitation orrequirements which are applicable to amajor source of hazardous air pollutantsand are adopted by the Administrator(or a State with an approved permitprogram) on a case-by-case basis,pursuant to section 112(g) or (j) of theAct.* * * * *
Federally enforceable * * *(6) Limitations and conditions that are
part of an operating permit where thepermit and the permitting programpursuant to which it was issued meet allof the following criteria:
(i) The operating permit program hasbeen submitted to and approved by EPAinto a State Implementation Plan (SIP)under section 110 of the Clean Air Act;
(ii) The SIP imposes a legal obligationthat operating permit holders adhere tothe terms and limitations of suchpermits and provides that permitswhich do not conform to the operatingpermit program requirements and therequirements of EPA’s underlyingregulations may be deemed not‘‘federally enforceable’’ by EPA;
(iii) The operating permit programrequires that all emission limitations,controls, and other requirementsimposed by such permits will be at leastas stringent as any other applicablelimitations and requirements containedin the SIP or enforceable under the SIP,and that the program may not issuepermits that waive, or make lessstringent, any limitations orrequirements contained in or issued
pursuant to the SIP, or that areotherwise ‘‘federally enforceable’’;
(iv) The limitations, controls, andrequirements in the permit in questionare permanent, quantifiable, andotherwise enforceable as a practicalmatter; and
(v) The permit in question was issuedonly after adequate and timely noticeand opportunity for comment for EPAand the public.* * * * *
Malfunction means any sudden,infrequent, and not reasonablypreventable failure of air pollutioncontrol and monitoring equipment,process equipment, or a process tooperate in a normal or usual manner.* * *
Monitoring means the collection anduse of measurement data or otherinformation to control the operation ofa process or pollution control devicerelative to assuring compliance withapplicable requirements. Monitoring iscomposed of four elements:
(1) Indicator(s) of performance—theparameter or parameters you measure orobserve for demonstrating properoperation of the pollution controlmeasures or compliance with theapplicable emissions limitation orstandard. Indicators of performance mayinclude direct or predicted emissions(including opacity) measurements,operational parametric values thatcorrespond to process or control device(and capture system) efficiency oremissions rates, and recorded findingsof inspection of work practice activitiesor design characteristics. Indicators maybe expressed as a single maximum orminimum value, a function of processvariables (e.g., within a range ofpressure drops), a particular operationalor work practice status (e.g., a damperposition, completion of a waste recoverytask), or an interdependency betweentwo or more variables.
(2) Measurement techniques—themeans by which you gather and recordinformation of or about the indicators ofperformance. The components of themeasurement technique include thedetector type, location and installationspecifications, inspection procedures,and quality assurance and qualitycontrol measures. Examples ofmeasurement techniques includecontinuous emission monitoringsystems, continuous opacity monitoringsystems, continuous parametricmonitoring systems, and manualinspections that include making recordsof process conditions or work practices.
(3) Monitoring frequency—thenumber of times you obtain and recordmonitoring data over a specified time
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interval. Examples of monitoringfrequencies include at least four pointsequally spaced for each hour forcontinuous emissions or parametricmonitoring systems, at least every 10seconds for continuous opacitymonitoring systems, and at least onceper operating day (or week, month, etc.)for work practice or design inspections.
(4) Averaging time—the period overwhich you average and use data toverify proper operation of the pollutioncontrol approach or compliance withthe emissions limitation or standard.Examples of averaging time include a 3-hour average in units of the emissionslimitation, a 30-day rolling averageemissions value, a daily average of acontrol device operational parametricrange, and an instantaneous alarm.
New affected source means thecollection of equipment, activities, orboth within a single contiguous area andunder common control that is includedin a section 112(c) source category orsubcategory that is subject to a section112(d) or other relevant standard fornew sources. Each relevant standardwill define the term ‘‘new affectedsource,’’ which will be the same as the‘‘affected source’’ unless a differentcollection is warranted based onconsideration of factors including:
(1) Emission reduction impacts ofcontrolling individual sources versusgroups of sources;
(2) Cost effectiveness of controllingindividual equipment;
(3) Flexibility to accommodatecommon control strategies;
(4) Cost/benefits of emissionsaveraging;
(5) Incentives for pollutionprevention;
(6) Feasibility and cost of controllingprocesses that share common equipment(e.g., product recovery devices);
(7) Feasibility and cost of monitoring;and
(8) Other relevant factors.New source means any affected source
the construction or reconstruction ofwhich is commenced after theAdministrator first proposes a relevantemission standard under this partestablishing an emission standardapplicable to such source.* * * * *
Reconstruction, unless otherwisedefined in a relevant standard, meansthe replacement of components of anaffected or a previously nonaffectedsource to such an extent that:* * * * *
Relevant standard means: * * *(4) An equivalent emission limitation
established pursuant to section 112 ofthe Act that applies to the collection of
equipment, activities, or both regulatedby such standard or limitation.* * * Every relevant standardestablished pursuant to section 112 ofthe Act includes subpart A of this part,as provided by § 63.1(a)(4), and allapplicable appendices of this part or ofother parts of this chapter that arereferenced in that standard.* * * * *
Shutdown means the cessation ofoperation of an affected source orportion of an affected source for anypurpose.* * * * *
Startup means the setting in operationof an affected source or portion of anaffected source for any purpose.* * * * *
Working day means any day on whichFederal Government offices (or Stategovernment offices for a State that hasobtained delegation under section112(l)) are open for normal business.Saturdays, Sundays, and official Federal(or where delegated, State) holidays arenot working days.
4. Section 63.4 is amended by:a. Revising paragraph (a)(1);b. Removing paragraphs (a)(3) through
(a)(5);c. Removing and reserving paragraph
(b)(3); andd. Revising paragraph (c).The revisions read as follows:
§ 63.4 Prohibited activities andcircumvention.
(a) * * *(1) No owner or operator subject to
the provisions of this part shall operateany affected source in violation of therequirements of this part. Affectedsources subject to and in compliancewith either an extension of complianceor an exemption from compliance arenot in violation of the requirements ofthis part. An extension of compliancecan be granted by the Administratorunder this part; by a State with anapproved permit program; or by thePresident under section 112(i)(4) of theAct.* * * * *
after November 15, 1990 which dividesownership of an operation, within thesame facility among various ownerswhere there is no real change in control,will not affect applicability. Owners andoperators shall not use fragmentation orphasing of reconstruction activities (i.e.,intentionally dividing reconstructioninto multiple parts for purposes ofavoiding new source requirements) to
avoid becoming subject to new sourcerequirements.
5. Section 63.5 is amended by:a. Revising the section heading;b. Revising paragraphs (a)(1) through
(2);c. Revising paragraph (b)(1);d. Revising paragraphs (b)(3) through
preconstruction review requirements ofsection 112(i)(1). After the effective dateof a relevant standard, promulgatedpursuant to section 112, paragraph (d),(f), or (h) of the Act, under this part, thepreconstruction review requirements inthis section apply to owners oroperators of new affected sources andreconstructed affected sources that aremajor-emitting as specified in thissection. New and reconstructed affectedsources that commence construction orreconstruction before the effective dateof a relevant standard are not subject tothe preconstruction reviewrequirements specified in paragraphs(b)(3), (d), and (e) of this section.
(2) This section includes notificationrequirements for new affected sourcesand reconstructed affected sources thatare not major-emitting and that are orbecome subject to a relevantpromulgated emission standard after theeffective date of a relevant standardpromulgated under this part.
(b) Requirements for existing, newlyconstructed, and reconstructed affectedsources. (1) A new affected source forwhich construction commences afterproposal of a relevant standard issubject to relevant standards for newaffected sources, including compliancedates. An affected source for whichreconstruction commences afterproposal of a relevant standard issubject to relevant standards for newsources, including compliance dates,irrespective of any change in emissionsof hazardous air pollutants from thatsource.* * * * *
(3) After the effective date of anyrelevant standard promulgated by the
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Administrator under this part, noperson may:
(i) Construct a new affected sourcethat is major-emitting and subject tosuch standard;
(ii) Reconstruct an affected source thatis major-emitting and subject to suchstandard; or
(iii) Reconstruct a major source, suchthat the source becomes an affectedsource that is major-emitting and subjectto the standard, without obtainingwritten approval, in advance, from theAdministrator in accordance with theprocedures specified in paragraphs (d)and (e) of this section.
(4) After the effective date of anyrelevant standard promulgated by theAdministrator under this part, an owneror operator who constructs a newaffected source that is not major-emitting or reconstructs an affectedsource that is not major-emitting that issubject to such standard, or reconstructsa source such that the source becomesan affected source subject to thestandard, shall notify the Administratorof the intended construction orreconstruction. The notification shall besubmitted in accordance with theprocedures in § 63.9(b).
(5) [Reserved](6) After the effective date of any
relevant standard promulgated by theAdministrator under this part,equipment added (or a process change)to an affected source that is within thescope of the definition of affected sourceunder the relevant standard shall beconsidered part of the affected sourceand subject to all provisions of therelevant standard established for thataffected source.* * * * *
(d) * * *(1) * * *(i) An owner or operator who is
subject to the requirements of paragraph(b)(3) of this section shall submit to theAdministrator an application forapproval of the construction orreconstruction. The application shall besubmitted as soon as practicable beforeactual construction or reconstructionbegins. The application for approval ofconstruction or reconstruction may beused to fulfill the initial notificationrequirements of § 63.9(b)(5). The owneror operator may submit the applicationfor approval well in advance of the dateactual construction or reconstructionbegins in order to ensure a timelyreview by the Administrator and thatthe planned date to begin will not bedelayed.
(ii) * * *(B) A notification of intention to
construct a new major affected source or
make any physical or operationalchange to a major affected source thatmay meet or has been determined tomeet the criteria for a reconstruction, asdefined in § 63.2 or in the relevantstandard;* * * * *
(E) The expected date of the beginningof actual construction or reconstruction;* * * * *
(G) [Reserved]* * * * *
(2) Application for approval ofconstruction. Each application forapproval of construction shall include,in addition to the information requiredin paragraph (d)(1)(ii) of this section,technical information describing theproposed nature, size, design, operatingdesign capacity, and method ofoperation of the source, including anidentification of each type of emissionpoint for each type of hazardous airpollutant that is emitted (or couldreasonably be anticipated to be emitted)and a description of the planned airpollution control system (equipment ormethod) for each emission point. Thedescription of the equipment to be usedfor the control of emissions shallinclude each control device for eachhazardous air pollutant and theestimated control efficiency (percent)for each control device. The descriptionof the method to be used for the controlof emissions shall include an estimatedcontrol efficiency (percent) for thatmethod. Such technical informationshall include calculations of emissionestimates in sufficient detail to permitassessment of the validity of thecalculations.
(3) * * *(vi) If in the application for approval
of reconstruction the owner or operatordesignates the affected source as areconstructed source and declares thatthere are no economic or technicallimitations to prevent the source fromcomplying with all relevant standards orother requirements, the owner oroperator need not submit theinformation required in paragraphs(d)(3)(iii) through (d)(3)(v) of thissection.* * * * *
(f) * * *(1) Preconstruction review procedures
that a State utilizes for other purposesmay also be utilized for purposes of thissection if the procedures aresubstantially equivalent to thosespecified in this section. TheAdministrator will approve anapplication for construction orreconstruction specified in paragraphs(b)(3) and (d) of this section if the owneror operator of a new affected source or
reconstructed affected source, who issubject to such requirement,demonstrates to the Administrator’ssatisfaction that the followingconditions have been (or will be) met:
(i) The owner or operator of the newaffected source or reconstructed affectedsource has undergone a preconstructionreview and approval process in the Statein which the source is (or would be)located and has received a federallyenforceable construction permit thatcontains a finding that the source willmeet the relevant promulgated emissionstandard, if the source is properly builtand operated; and
(ii) In making its finding, the State hasconsidered factors substantiallyequivalent to those specified inparagraph (e)(1) of this section.
(iii) [Reserved](iv) [Reserved](2) The owner or operator shall
submit to the Administrator the requestfor approval of construction orreconstruction under this paragraph(f)(2) no later than the applicationdeadline specified in paragraph (d)(1) ofthis section (see also § 63.9(b)(2)). Theowner or operator shall include in therequest information sufficient for theAdministrator’s determination. TheAdministrator will evaluate the owneror operator’s request in accordance withthe procedures specified in paragraph(e) of this section. The Administratormay request additional relevantinformation after the submittal of arequest for approval of construction orreconstruction under this paragraph.
6. Section 63.6 is amended by:a. Revising paragraph (a)(1)
introductory text;b. Revising paragraphs (b)(1) through
(b)(2);c. Revising paragraph (b)(3)(i);d. Revising paragraphs (b)(4) through
introductory text, (e)(3)(i)(A), (e)(3)(ii),the first three sentences of paragraphs(e)(3)(iii) and (e)(3)(v), revisingparagraphs (e)(3)(iv), (e)(3)(vii)(B),(e)(3)(vii)(C), (e)(3)(viii) and addingparagraph (e)(3)(ix);
k. Revising paragraph (f)(1);l. Revising paragraph (f)(2)(iii)(D);m. Revising paragraph (f)(3);n. Revising paragraph (h)(1);o. Revising paragraph (h)(2)(iii)(C);p. Revising paragraph (i)(4)(i)(B);q. Revising the last sentence of
paragraph (i)(4)(ii);
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r. Revising paragraphs (i)(6)(i)(B)(1)and (2) and removing and reservingparagraphs (i)(6)(i)(C) & (D);
s. Revising paragraph (i)(12)(i)t. Revising paragraph (i)(14); andu. Adding paragraph (i)(4)(i)(C).The revisions and additions read as
follows:
§ 63.6 Compliance with standards andmaintenance requirements.
(a) * * *(1) The requirements in this section
apply to owners or operators of affectedsources for which any relevant standardhas been established pursuant to section112 of the Act and the applicability ofsuch requirements is set out inaccordance with § 63.1(a)(4) unless—* * * * *
(b) Compliance dates for new andreconstructed affected sources. (1)Except as specified in paragraphs (b)(3)and (4) of this section, the owner oroperator of a new or reconstructedaffected source for which constructionor reconstruction commences afterproposal of a relevant standard that hasan initial startup before the effectivedate of a relevant standard establishedunder this part pursuant to section112(d), (f), or (h) of the Act shall complywith such standard not later than thestandard’s effective date.
(2) Except as specified in paragraphs(b)(3) and (4) of this section, the owneror operator of a new or reconstructedaffected source that has an initialstartup after the effective date of arelevant standard established under thispart pursuant to section 112(d), (f), or(h) of the Act shall comply with suchstandard upon startup of the source.
(3) * * *(i) The promulgated standard (that is,
the relevant standard) is more stringentthan the proposed standard; forpurposes of this paragraph, a findingthat controls or compliance methods are‘‘more stringent’’ shall include controltechnologies or performance criteria andcompliance or compliance assurancemethods that are different but aresubstantially equivalent to thoserequired by the promulgated rule, asdetermined by the Administrator (or hisor her authorized representative); and* * * * *
(4) The owner or operator of anaffected source for which constructionor reconstruction is commenced afterthe proposal date of a relevant standardestablished pursuant to section 112(d) ofthe Act but before the proposal date ofa relevant standard established pursuantto section 112(f) shall not be required tocomply with the section 112(f) emissionstandard until the date 10 years after thedate construction or reconstruction is
commenced, except that, if the section112(f) standard is promulgated morethan 10 years after construction orreconstruction is commenced, theowner or operator shall comply with thestandard as provided in paragraphs(b)(1) and (2) of this section.
(5) The owner or operator of a newsource that is subject to the compliancerequirements of paragraph (b)(3) or (4)of this section shall notify theAdministrator in accordance with§ 63.9(d).* * * * *
(7) When an area source becomes amajor source by the addition ofequipment or operations that meet thedefinition of new affected source in therelevant standard, the portion of theexisting facility that is a new affectedsource shall comply with allrequirements of that standard applicableto new sources. The source owner oroperator shall comply with the relevantstandard upon startup.
(c) * * *(2) If an existing source is subject to
a standard established under this partpursuant to section 112(f) of the Act, theowner or operator shall comply with thestandard by the date 90 days after thestandard’s effective date, or by the datespecified in an extension granted to thesource by the Administrator underparagraph (i)(4)(ii) of this section,whichever is later.* * * * *
(5) Except as provided in paragraph(b)(7) of this section, the owner oroperator of an area source that increasesits emissions of (or its potential to emit)hazardous air pollutants such that thesource becomes a major source shall besubject to relevant standards for existingsources. Such sources shall comply bythe date specified in the standards forexisting area sources that become majorsources. If no such compliance date isspecified in the standards, the sourceshall have a period of time to complywith the relevant emission standard thatis equivalent to the compliance periodspecified in the relevant standard forexisting sources in existence at the timethe standard becomes effective.* * * * *
(e) * * *(1)(i) At all times, including periods
of startup, shutdown, and malfunction,owners or operators shall operate andmaintain any affected source, includingassociated air pollution controlequipment and monitoring equipment,in a manner consistent with safety andgood air pollution control practices forminimizing emissions to the levelsrequired by the relevant standards, i.e.,meet the emission standard or comply
with the startup, shutdown, andmalfunction plan. Determination ofwhether such operation andmaintenance procedures are being usedwill be based on information availableto the Administrator which mayinclude, but is not limited to,monitoring results, review of operationand maintenance procedures (includingthe startup, shutdown, and malfunctionplan required in paragraph (e)(3) of thissection), review of operation andmaintenance records, and inspection ofthe source.
(ii) Malfunctions shall be corrected assoon as practicable after theiroccurrence in accordance with thestartup, shutdown, and malfunctionplan required in paragraph (e)(3) of thissection. To the extent that anunexpected event arises during astartup, shutdown, or malfunction, anowner or operator shall comply byminimizing emissions during such astartup, shutdown, and malfunctionevent consistent with safety and goodair pollution control practices.* * * * *
(2) [Reserved](3) * * *(i) The owner or operator of an
affected source shall develop andimplement a written startup, shutdown,and malfunction plan that describes, indetail, procedures for operating andmaintaining the source during periodsof startup, shutdown, and malfunction,a program of corrective action formalfunctioning process, and airpollution control and monitoringequipment used to comply with therelevant standard. This plan shall bedeveloped by the owner or operator bythe source’s compliance date for thatrelevant standard. The purpose of thestartup, shutdown, and malfunctionplan is to—
(A) Ensure that, at all times, ownersor operators operate and maintainaffected sources, including associatedair pollution control and monitoringequipment, in a manner consistent withsafety and good air pollution controlpractices for minimizing emissions tothe levels required by the relevantstandards;* * * * *
(ii) During periods of startup,shutdown, and malfunction, the owneror operator of an affected source shalloperate and maintain such source(including associated air pollutioncontrol and monitoring equipment) inaccordance with the proceduresspecified in the startup, shutdown, andmalfunction plan developed underparagraph (e)(3)(i) of this section.
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(iii) When actions taken by the owneror operator during a startup, shutdown,or malfunction (including actions takento correct a malfunction) are consistentwith the procedures specified in theaffected source’s startup, shutdown, andmalfunction plan, the owner or operatorshall keep records for that event whichdemonstrate that the proceduresspecified in the plan were followed.These records may take the form of a‘‘checklist,’’ or other effective form ofrecordkeeping that confirmsconformance with the startup,shutdown, and malfunction plan forthat event. In addition, the owner oroperator shall keep records of theseevents as specified in § 63.10(b),including records of the occurrence andduration of each startup, shutdown, ormalfunction of operation and eachmalfunction of the air pollution controland monitoring equipment. * * *
(iv) If an action taken by the owner oroperator during a startup, shutdown, ormalfunction (including an action takento correct a malfunction) is notconsistent with the procedures specifiedin the affected source’s startup,shutdown, and malfunction plan, andthe source exceeds the relevantemission standard, then the owner oroperator shall record the actions takenfor that event and shall report suchactions within 2 working days aftercommencing actions inconsistent withthe plan, followed by a letter within 7working days after the end of the event,in accordance with § 63.10(d)(5) (unlessthe owner or operator makes alternativereporting arrangements, in advance,with the Administrator.
(v) The owner operator shall maintainat the affected source a current startup,shutdown, and malfunction plan andshall make the plan available uponrequest for inspection and copying bythe Administrator. In addition, if thestartup, shutdown, and malfunctionplan is subsequently revised asprovided in paragraph (e)(3)(viii) of thissection, the owner or operator shallmaintain at the affected source eachprevious (i.e., superseded) version of thestartup, shutdown, and malfunctionplan, and shall make each such previousversion available for inspection andcopying by the Administrator for aperiod of 5 years after revision of theplan. If at any time after adoption of astartup, shutdown, and malfunctionplan the affected source ceasesoperation or is otherwise no longersubject to the provisions of this part, theowner or operator shall retain a copy ofthe most recent plan for 5 years from thedate the source ceases operation or is nolonger subject to this part and shallmake the plan available upon request
for inspection and copying by theAdministrator. * * ** * * * *
(vii) * * *(B) Fails to provide for the operation
of the source (including associated airpollution control and monitoringequipment) during a startup, shutdown,or malfunction event in a mannerconsistent with safety and good airpollution control practices forminimizing emissions to the levelsrequired by the relevant standards; or
(C) Does not provide adequateprocedures for correctingmalfunctioning process and/or airpollution control and monitoringequipment as quickly as practicable.
(viii) The owner or operator mayperiodically revise the startup,shutdown, and malfunction plan for theaffected source as necessary to satisfythe requirements of this part or to reflectchanges in equipment or procedures atthe affected source. Unless thepermitting authority provides otherwise,the owner or operator may make suchrevisions to the startup, shutdown, andmalfunction plan without priorapproval by the Administrator or thepermitting authority. However, eachsuch revision to a startup, shutdown,and malfunction plan must be reportedin the semiannual report required by§ 63.10(d)(5). If the startup, shutdown,and malfunction plan fails to address orinadequately addresses an event thatmeets the characteristics of amalfunction but was not included in thestartup, shutdown, and malfunctionplan at the time the owner or operatordeveloped the plan, the owner oroperator shall revise the startup,shutdown, and malfunction plan within45 days after the event to includedetailed procedures for operating andmaintaining the source during similarmalfunction events and a program ofcorrective action for similarmalfunctions of process or air pollutioncontrol and monitoring equipment. Inthe event that the owner or operatormakes any revision to the startup,shutdown, and malfunction plan whichalters the scope of the activities at thesource which are deemed to be astartup, shutdown, malfunction, orotherwise modifies the applicability ofany emission limit, work practicerequirement, or other requirement in astandard established under this part, therevised plan shall not take effect untilafter the owner or operator has provideda written notice describing the revisionto the permitting authority.
(ix) The title V permit for an affectedsource shall require that the owner oroperator adopt a startup, shutdown, and
malfunction plan which conforms to theprovisions of this part, and that theowner or operator operate and maintainthe source in accordance with theprocedures specified in the currentstartup, shutdown, and malfunctionplan. However, any revisions made tothe startup, shutdown, and malfunctionplan in accordance with the proceduresestablished by this part shall not bedeemed to constitute permit revisionsunder part 70 or part 71 of this chapter.Moreover, none of the proceduresspecified by the startup, shutdown, andmalfunction plan for an affected sourceshall be deemed to fall within thepermit shield provision in section 504(f)of the Act.
(f) * * *(1) Applicability. The non-opacity
emission standards set forth in this partshall apply at all times except duringperiods of startup, shutdown, andmalfunction, and as otherwise specifiedin an applicable subpart. If a startup,shutdown, or malfunction of oneportion of an affected source does notaffect the ability of particular emissionpoints within other portions of theaffected source to comply with the non-opacity emission standards set forth inthis part, then that emission point shallstill be required to comply with the non-opacity emission standards and otherapplicable requirements.
(2) * * *(iii) * * *(D) The performance test was
appropriately quality-assured, asspecified in § 63.7(c).* * * * *
(3) Finding of compliance. TheAdministrator will make a findingconcerning an affected source’scompliance with a non-opacity emissionstandard, as specified in paragraphs(f)(1) and (2) of this section, uponobtaining all the complianceinformation required by the relevantstandard (including the written reportsof performance test results, monitoringresults, and other information, ifapplicable) and information available tothe Administrator pursuant to paragraph(e)(1)(i) of this section.* * * * *
(h) * * *(1) Applicability. The opacity and
visible emission standards set forth inthis part shall apply at all times exceptduring periods of startup, shutdown,and malfunction, and as otherwisespecified in an applicable subpart. If astartup, shutdown, or malfunction ofone portion of an affected source doesnot affect the ability of particularemission points within other portions ofthe affected source to comply with the
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opacity and visible emission standardsset forth in this part, then that emissionpoint shall still be required to complywith the opacity and visible emissionstandards and other applicablerequirements.
(2) * * *(iii) * * *(C) The opacity or visible emission
test was conducted and the resultingdata were reduced using EPA-approvedtest methods and procedures, asspecified in § 63.7(e); and* * * * *
(i) * * *(4)(i) * * *(B) Any request under this paragraph
for an extension of compliance with arelevant standard shall be submitted inwriting to the appropriate authority nolater than 120 days prior to the affectedsource’s compliance date (as specifiedin paragraphs (b) and (c) of this section),except as provided for in paragraph(i)(4)(i)(C) of this section. Nonfrivolousrequests submitted under this paragraphwill stay the effect of the rule as to theemission points in question until suchtime as the request is granted or denied.A denial will be effective as of the dateof denial. Emission standardsestablished under this part may specifyalternative dates for the submittal ofrequests for an extension of complianceif alternatives are appropriate for thesource categories affected by thosestandards.
(C) An owner or operator may submita compliance extension request after thedate specified in paragraph (i)(4)(i)(B) ofthis section provided the need for thecompliance extension arose after thatdate, and before the otherwiseapplicable compliance date, and theneed arose due to circumstances beyondreasonable control of the owner oroperator. This request shall include, inaddition to the information required inparagraph (i)(6)(i) of this section, astatement of the reasons additional timeis needed and the date when the owneror operator first learned of the problems.Nonfrivolous requests submitted underthis paragraph will stay the effect of therule as to the emission points inquestion until such time as the requestis granted or denied. A denial will beeffective as of the original compliancedate.
(ii) * * * Any request for an extensionof compliance with a relevant standardunder this paragraph shall be submittedin writing to the Administrator not laterthan 90 calendar days after the effectivedate of the relevant standard.* * * * *
(6)(i) * * *(B) * * *
(1) The date by which on-siteconstruction, installation of emissioncontrol equipment, or a process changeis planned to be initiated; and
(2) The date by which finalcompliance is to be achieved.
(C) [Reserved](D) [Reserved]
* * * * *(12)(i) The Administrator (or the State
with an approved permit program) willnotify the owner or operator in writingof approval or intention to denyapproval of a request for an extension ofcompliance within 30 calendar daysafter receipt of sufficient information toevaluate a request submitted underparagraph (i)(4)(i) or (i)(5) of thissection. The Administrator (or the State)will notify the owner or operator inwriting of the status of his/herapplication, that is, whether theapplication contains sufficientinformation to make a determination,within 30 calendar days after receipt ofthe original application and within 30calendar days after receipt of anysupplementary information that issubmitted. The 30-day approval ordenial period will begin after the owneror operator has been notified in writingthat his/her application is complete.* * * * *
(14) The Administrator (or the Statewith an approved permit program) mayterminate an extension of compliance atan earlier date than specified if anyspecification under paragraph (i)(10)(iii)or (iv) of this section is not met. Upona determination to terminate, theAdministrator will notify, in writing,the owner or operator of theAdministrator’s determination toterminate, together with:
(i) Notice of the reason fortermination; and
(ii) Notice of opportunity for theowner or operator to present in writing,within 15 calendar days after he/she isnotified of the determination toterminate, additional information orarguments to the Administrator beforefurther action on the termination.
(iii) A final determination toterminate an extension of compliancewill be in writing and will set forth thespecific grounds on which thetermination is based. The finaldetermination will be made within 30calendar days after presentation ofadditional information or arguments, orwithin 30 calendar days after the finaldate specified for the presentation if nopresentation is made.* * * * *
7. Section 63.7 is amended by:a. Revising paragraphs (a)(1) and (a)(2)
introductory text;
b. Removing and reserving paragraphs(a)(2)(i) through (viii)
c. Revising paragraph (b)(2);d. Revising paragraphs (c)(3)(ii)(A)
through (B);e. Revising paragraph (c)(4)(i);f. Revising paragraphs (e)(2)(i)
through (iii)g. Revising paragraph (f)(1);h. Revising paragraphs (f)(2)(i)
through (ii); andi. Revising paragraph (f)(3).The revisions read as follows:
§ 63.7 Performance testing requirements.(a) * * *(1) The applicability of this section is
set out in § 63.1(a)(4).(2) If required to do performance
testing by a relevant standard, andunless a waiver of performance testingis obtained under this section or theconditions of paragraph (c)(3)(ii)(B) ofthis section apply, the owner or operatorof the affected source shall perform suchtests within 180 days of the compliancedate for such source.
(i)—(viii) [Reserved]* * * * *
(b) * * *(2) In the event the owner or operator
is unable to conduct the performancetest on the date specified in thenotification requirement specified inparagraph (b)(1) of this section, due tounforeseeable circumstances beyond hisor her control, the owner or operatorshall notify the Administrator as soon aspracticable and without delay prior tothe scheduled performance test date andspecify the date when the performancetest is rescheduled. This notification ofdelay in conducting the performancetest shall not relieve the owner oroperator of legal responsibility forcompliance with any other applicableprovisions of this part or with any otherapplicable Federal, State, or localrequirement, nor will it prevent theAdministrator from implementing orenforcing this part or taking any otheraction under the Act.
(c) * * *(3) * * *(ii) * * *(A) If the owner or operator intends to
demonstrate compliance using the testmethod(s) specified in the relevantstandard or with only minor changes tothose tests methods (see paragraph(e)(2)(i) of this section), the owner oroperator shall conduct the performancetest within the time specified in thissection using the specified method(s);
(B) If the owner or operator intends todemonstrate compliance by using analternative to any test method specifiedin the relevant standard, the owner oroperator is authorized to conduct the
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performance test using an alternativetest method after the Administratorapproves the use of the alternativemethod when the Administratorapproves the site-specific test plan (ifreview of the site-specific test plan isrequested) or after the alternativemethod is approved (see paragraph (f) ofthis section). However, the owner oroperator is authorized to conduct theperformance test using an alternativemethod in the absence of notification ofapproval 45 days after submission of thesite-specific test plan or request to usean alternative method. The owner oroperator is authorized to conduct theperformance test within 60 calendardays after he/she is authorized todemonstrate compliance using analternative test method.Notwithstanding the requirements inthe preceding three sentences, theowner or operator may proceed toconduct the performance test asrequired in this section (without theAdministrator’s prior approval of thesite-specific test plan) if he/shesubsequently chooses to use thespecified testing and monitoringmethods instead of an alternative.* * * * *
(4)(i) Performance test method auditprogram. The owner or operator shallanalyze performance audit (PA) samplesduring each performance test. Theowner or operator shall requestperformance audit materials 30 daysprior to the test date. Audit materialsincluding cylinder audit gases may beobtained by contacting the appropriateEPA Regional Office or the responsibleenforcement authority.* * * * *
(e) * * *(2) * * *(i) Specifies or approves, in specific
cases, the use of a test method withminor changes in methodology (seedefinition in § 63.90(a)). Such changesmay be approved in conjunction withapproval of the site-specific test plan(see paragraph (c) of this section); or
(ii) Approves the use of anintermediate or major change oralternative to a test method (seedefinitions in § 63.90(a)), the results ofwhich the Administrator hasdetermined to be adequate for indicatingwhether a specific affected source is incompliance; or
(iii) Approves shorter sampling timesor smaller sample volumes whennecessitated by process variables orother factors; or* * * * *
(f) * * *(1) General. Until authorized to use an
intermediate or major change or
alternative to a test method, the owneror operator of an affected sourceremains subject to the requirements ofthis section and the relevant standard.
(2) * * *(i) Notifies the Administrator of his or
her intention to use an alternative testmethod at least 60 days before theperformance test is scheduled to begin;
(ii) Uses Method 301 in appendix Ato this part to validate the alternativetest method. This may include the useof specific procedures of Method 301 ifuse of such procedures are sufficient tovalidate the alternative test method; and* * * * *
(3) The Administrator will determinewhether the owner or operator’svalidation of the proposed alternativetest method is adequate and issue anapproval or disapproval of thealternative test method. If the owner oroperator intends to demonstratecompliance by using an alternative toany test method specified in therelevant standard, the owner or operatoris authorized to conduct theperformance test using an alternativetest method after the Administratorapproves the use of the alternativemethod. However, the owner or operatoris authorized to conduct theperformance test using an alternativemethod in the absence of notification ofapproval/disapproval 45 days aftersubmission of the request to use analternative method and the requestsatisfies the requirements in paragraph(f)(2) of this section. The owner oroperator is authorized to conduct theperformance test within 60 calendardays after he/she is authorized todemonstrate compliance using analternative test method.Notwithstanding the requirements inthe preceding three sentences, theowner or operator may proceed toconduct the performance test asrequired in this section (without theAdministrator’s prior approval of thesite-specific test plan) if he/shesubsequently chooses to use thespecified testing and monitoringmethods instead of an alternative.* * * * *
i. Adding paragraph (f)(4)(iv);j. Revising the heading of paragraph
(f)(5) and revising paragraph (f)(5)(i)introductory text;
k. Revising paragraph (g)(1); andl. Revising paragraph (g)(5).The revisions and additions read as
follows:
§ 63.8 Monitoring requirements.(a) * * *(1) The applicability of this section is
set out in § 63.1(a)(4).* * * * *
(b) * * *(1) * * *(i) Specifies or approves the use of
minor changes in methodology for thespecified monitoring requirements andprocedures (see § 63.90(a) fordefinition); or
(ii) Approves the use of anintermediate or major change oralternative to any monitoringrequirements or procedures (see§ 63.90(a) for definition).* * * * *
(2)(i) When the emissions from two ormore affected sources are combinedbefore being released to the atmosphere,the owner or operator may install anapplicable CMS for each emissionstream or for the combined emissionsstreams, provided the monitoring issufficient to demonstrate compliancewith the relevant standard.
(ii) If the relevant standard is a massemission standard and the emissionsfrom one affected source are released tothe atmosphere through more than onepoint, the owner or operator shall installan applicable CMS at each emissionpoint unless the installation of fewersystems is—* * * * *
(c) * * *(1)(i) The owner or operator of an
affected source shall maintain andoperate each CMS as specified in§ 63.6(e)(1).
(ii) The owner or operator shall keepthe necessary parts for routine repairs ofthe affected CMS equipment readilyavailable.
(iii) The owner or operator of anaffected source shall develop andimplement a written startup, shutdown,and malfunction plan for CMS asspecified in § 63.6(e)(3).
(2)(i) All CMS shall be installed suchthat representative measures ofemissions or process parameters fromthe affected source are obtained. Inaddition, CEMS shall be locatedaccording to procedures contained inthe applicable performancespecification(s).
(ii) Unless the individual subpartstates otherwise, the owner or operator
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shall ensure the read out (that portionof the CMS that provides a visualdisplay or record) from any CMSrequired for compliance with theemission standard is readily accessibleon site for operational control orinspection by the operator of theequipment.* * * * *
(6) The owner or operator of a CMSinstalled in accordance with theprovisions of this part and theapplicable CMS performancespecification(s) shall check the zero(low-level) and high-level calibrationdrifts at least once daily in accordancewith the written procedure specified inthe performance evaluation plandeveloped under paragraphs (e)(3)(i)and (ii) of this section. The zero (low-level) and high-level calibration driftsshall be adjusted, at a minimum,whenever the 24-hour zero (low-level)drift exceeds two times the limits of theapplicable performance specification(s)specified in the relevant standard. Thesystem must allow the amount of excesszero (low-level) and high-level driftmeasured at the 24-hour interval checksto be recorded and quantified wheneverspecified. For COMS, all optical andinstrumental surfaces exposed to theeffluent gases shall be cleaned prior toperforming the zero (low-level) andhigh-level drift adjustments; the opticalsurfaces and instrumental surfaces shallbe cleaned when the cumulativeautomatic zero compensation, ifapplicable, exceeds 4 percent opacity.The CPMS must be calibrated prior touse for the purposes of complying withthis section. The CPMS must be checkeddaily for indication that the system isresponding. If the CPMS systemincludes an internal system check,results must be recorded and checkeddaily for proper operation.* * * * *
(f) * * *(1) General. Until permission to use
an alternative monitoring procedure(minor, intermediate, or major changes;see definition in § 63.90(a)) has beengranted by the Administrator under thisparagraph, the owner or operator of anaffected source remains subject to therequirements of this section and therelevant standard.* * * * *
(4)(i) Request to use alternativemonitoring procedure. An owner oroperator who wishes to use analternative monitoring procedure shallsubmit an application to theAdministrator as described in paragraph(f)(4)(ii) of this section. The applicationmay be submitted at any time providedthat the monitoring procedure is not the
performance test method used todemonstrate compliance with a relevantstandard or other requirement. If thealternative monitoring procedure willserve as the performance test methodthat is to be used to demonstratecompliance with a relevant standard,the application shall be submitted atleast 60 days before the performanceevaluation is scheduled to begin andmust meet the requirements for analternative test method under § 63.7(f).
(ii) The application shall contain adescription of the proposed alternativemonitoring system which addresses thefour elements contained in thedefinition of monitoring in § 63.2 and aperformance evaluation test plan, ifrequired, as specified in paragraph (e)(3)of this section. In addition, theapplication shall include informationjustifying the owner or operator’srequest for an alternative monitoringmethod, such as the technical oreconomic infeasibility, or theimpracticality, of the affected sourceusing the required method.* * * * *
(iv) Application for minor changes tomonitoring procedures, as specified inparagraph (b)(1) of this section, may bemade in the site-specific performanceevaluation plan.
(5) Approval of request to usealternative monitoring procedure.
(i) The Administrator will notify theowner or operator of approval orintention to deny approval of therequest to use an alternative monitoringmethod within 30 calendar days afterreceipt of the original request andwithin 30 calendar days after receipt ofany supplementary information that issubmitted. If a request for a minorchange is made in conjunction with site-specific performance evaluation plan,then approval of the plan will constituteapproval of the minor change. Beforedisapproving any request to use analternative monitoring method, theAdministrator will notify the applicantof the Administrator’s intention todisapprove the request together with—* * * * *
(g) Reduction of monitoring data.(1) The owner or operator of each
CMS shall reduce the monitoring data asspecified in paragraphs (g)(1) through(5) of this section.* * * * *
(5) Monitoring data recorded duringperiods of unavoidable CMSbreakdowns, out-of-control periods,repairs, maintenance periods,calibration checks, and zero (low-level)and high-level adjustments shall not beincluded in any data average computedunder this part. For owners or operators
complying with the requirements of§ 63.10(b)(2)(vii)(A) or (B), data averagesmust include any data recorded duringperiods of monitor breakdown ormalfunction.
9. Section 63.9 is amended by:a. Revising paragraph (a)(1);b. Revising paragraph (b)(2)(iv);c. Revising the introductory text of
(b)(4)(ii) through (iii).The revisions and additions read as
follows:
§ 63.9 Notification requirements.(a) * * *(1) The applicability of this section is
set out in § 63.1(a)(4).* * * * *
(b) * * *(2) * * *(iv) A brief description of the nature,
size, design, and method of operation ofthe source and an identification of thetypes of emission points within theaffected source subject to the relevantstandard and types of hazardous airpollutants emitted; and* * * * *
(3) [Reserved](4) The owner or operator of a new or
reconstructed major affected source forwhich an application for approval ofconstruction or reconstruction isrequired under § 63.5(d) shall providethe following information in writing tothe Administrator:
(i) A notification of intention toconstruct a new major-emitting affectedsource, reconstruct a major-emittingaffected source, or reconstruct a majorsource such that the source becomes amajor-emitting affected source with theapplication for approval of constructionor reconstruction as specified in§ 63.5(d)(1)(i); and
(ii) [Reserved](iii) [Reserved]
* * * * *(5) The owner or operator of a new or
reconstructed affected source for whichan application for approval ofconstruction or reconstruction is notrequired under § 63.5(d) shall providethe following information in writing tothe Administrator:
(i) A notification of intention toconstruct a new affected source,reconstruct an affected source, orreconstruct a source such that thesource becomes an affected source, and
(ii) A notification of the actual date ofstartup of the source, delivered or
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postmarked within 15 calendar daysafter that date.
(iii) Unless the owner or operator hasrequested and received prior permissionfrom the Administrator to submit lessthan the information in § 63.5(d), thenotification shall include theinformation required on the applicationfor approval of construction orreconstruction as specified in§ 63.5(d)(1)(i).* * * * *
(h) * * *(2)(i) * * *(E) If the relevant standard applies to
both major and area sources, an analysisdemonstrating whether the affectedsource is a major source (using theemissions data generated for thisnotification);* * * * *
through (b)(2)(v);c. Revising paragraph (b)(3);d. Adding paragraph (e)(3)(i)(C); andThe revisions read as follows:
§ 63.10 Recordkeeping and reportingrequirements.
(a) * * *(1) The applicability of this section is
set out in § 63.1(a)(4).* * * * *
(b) * * *(2) * * *(ii) The occurrence and duration of
each malfunction of the required airpollution control and monitoringequipment;
(iii) All required maintenanceperformed on the air pollution controland monitoring equipment;
(iv) Actions taken during periods ofstartup, shutdown, and malfunction(including corrective actions to restoremalfunctioning process and airpollution control and monitoringequipment to its normal or usualmanner of operation) when such actionsare different from the proceduresspecified in the affected source’sstartup, shutdown, and malfunctionplan (see § 63.6(e)(3));
(v) All information necessary todemonstrate conformance with theaffected source’s startup, shutdown, andmalfunction plan (see § 63.6(e)(3)) whenall actions taken during periods ofstartup, shutdown, and malfunction(including corrective actions to restoremalfunctioning process and airpollution control and monitoringequipment to its normal or usualmanner of operation) are consistent withthe procedures specified in such plan.(The information needed to demonstrate
conformance with the startup,shutdown, and malfunction plan may berecorded using a ‘‘checklist,’’ or someother effective form of recordkeeping, inorder to minimize the recordkeepingburden for conforming events);* * * * *
(3) Recordkeeping requirement forapplicability determinations. If anowner or operator determines that his orher stationary source that emits (or hasthe potential to emit, withoutconsidering controls) one or morehazardous air pollutants regulated byany standard established pursuant tosection 112(d) or (f), and that stationarysource is in the source categoryregulated by the relevant standard, butthat source is not subject to the relevantstandard (or other requirementestablished under this part) because oflimitations on the source’s potential toemit or an exclusion, the owner oroperator shall keep a record of theapplicability determination on site atthe source for a period of 5 years afterthe determination, or until the sourcechanges its operations to become anaffected source, whichever comes first.The record of the applicabilitydetermination shall be signed by theperson making the determination andinclude an analysis (or otherinformation) that demonstrates why theowner or operator believes the source isunaffected (e.g., because the source is anarea source). The analysis (or otherinformation) shall be sufficientlydetailed to allow the Administrator tomake a finding about the source’sapplicability status with regard to therelevant standard or other requirement.If relevant, the analysis shall beperformed in accordance withrequirements established in relevantsubparts of this part for this purpose forparticular categories of stationarysources. If relevant, the analysis shouldbe performed in accordance with EPAguidance materials published to assistsources in making applicabilitydeterminations under section 112, ifany. The requirements to determineapplicability of a standard under§ 63.1(b)(3) and to record the results ofthat determination under paragraph(b)(3) of this section shall not bythemselves create an obligation for theowner or operator to obtain a title Vpermit.* * * * *
(e) * * *(3) * * *(i) * * *(C) The CMS data are to be used
directly for compliance determinationand the source experienced excessemissions, in which case quarterly
reports shall be submitted. Once asource reports excess emissions, thesource shall follow a quarterly reportingformat until a request to reducereporting frequency under paragraph(e)(3)(ii) of this section is approved.* * * * *
11. Section 63.11 is amended byrevising paragraph (a) to read as follows:
§ 63.11 Control device requirements.(a) Applicability. The applicability of
this section is set out in § 63.1(a)(4).* * * * *
Subpart B—[Amended]
12. Section 63.50 is amended byrevising paragraph (a) and removingparagraph (c) to read as follows:
§ 63.50 Applicability.(a) General applicability.(1) The requirements of this section
through § 63.56 implement section112(j) of the Clean Air Act (as amendedin 1990). The requirements of thissection through § 63.56 apply in eachState beginning on the effective date ofan approved title V permit program insuch State. The requirements of thissection through § 63.56 do not apply toresearch or laboratory activities asdefined in § 63.51.
(2) The requirements of this sectionthrough § 63.56 apply to:
(i) Owners or operators of affectedsources within a source category orsubcategory under this part that arelocated at a major source that is subjectto an approved title V permit programand for which the Administrator hasfailed to promulgate emission standardsby the section 112(j) deadlines. If title Vapplicability has been deferred for asource category, then section 112(j) isnot applicable for sources in thatcategory within that State, local or tribaljurisdiction until those sources becomesubject to title V permittingrequirements; and
(ii) Permitting authorities with anapproved title V permit program.* * * * *
13. Section 63.51 is amended by:a. Removing the definition of
emission point;b. Removing the definition of
emission unit;c. Removing the definition of existing
major source;d. Removing the definition of new
emission unit;e. Removing the definition of new
major source;f. Removing the definition of United
States;g. Revising the introductory text of
this section;
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h. Amending the definition ofavailable information by revising theintroductory text and paragraphs (2)through (5);
i. Revising the definition of enhancedreview;
j. Revising the definition of equivalentemission limitation;
k. Revising paragraphs (1)(i) and (ii) ofthe definition of maximum achievablecontrol technology (MACT) floor;
l. Revising the definition of section112(j) deadline;
m. Revising the definition of similarsource;
n. Adding in alphabetical order thedefinition of new affected source; and
p. Adding in alphabetical order thedefinition of research or laboratoryactivities.
The revisions and additions read asfollows:
§ 63.51 Definitions.Terms used in §§ 63.50 through 63.56
that are not defined in this section havethe meaning given to them in the Act,or in subpart A of this part.
Affected source means the collectionof equipment, activities, or both withina single contiguous area and undercommon control that is in a section112(c) source category or subcategoryfor which the Administrator has failedto promulgate an emission standard bythe section 112(j) deadline, and that isaddressed by an applicable MACTemission limitation establishedpursuant to this subpart.
Available information means, forpurposes of conducting a MACT floorfinding and identifying controltechnology options under this subpart,any information that is available as ofthe date on which the first Part 2 MACTapplication is filed for a source in therelevant source category or subcategoryin the State or jurisdiction; and,pursuant to the requirements of thissubpart, is additional relevantinformation that can be expeditiouslyprovided by the Administrator, issubmitted by the applicant or othersprior to or during the public commentperiod on the section 112(j) equivalentemission limitation for that source, orinformation contained in theinformation sources in paragraphs (1)through (5) of this definition.
(1) * * *(2) Relevant background information
documents for a draft or proposedregulation.
(3) Any relevant regulation,information or guidance collected by theAdministrator establishing a MACTfloor finding and/or MACTdetermination.
(4) Relevant data and informationavailable from the Clean Air Technology
Center developed pursuant to section112(l)(3) of the Act.
(5) Relevant data and informationcontained in the Aerometric InformationRetrieval System (AIRS) includinginformation in the MACT database.* * * * *
Enhanced review means a reviewprocess containing all administrativesteps needed to ensure that the termsand conditions resulting from thereview process can be incorporatedusing title V permitting procedures.
Equivalent emission limitation meansan emission limitation, establishedunder section 112(j) of the Act, whichis equivalent to the MACT standard thatEPA would have promulgated undersection 112(d) or (h) of the Act.* * * * *
Maximum achievable controltechnology (MACT) floor means:
(1) * * *(i) The average emission limitation
achieved by the best performing 12percent of the existing sources (forwhich the Administrator has emissionsinformation), * * *
(ii) The average emission limitationachieved by the best performing fivesources (for which the Administratorhas or could reasonably obtainemissions information) in the categoryor subcategory, for categories orsubcategories with fewer than 30sources;* * * * *
New affected source means thecollection of equipment, activities, orboth, that if constructed after theissuance of a section 112(j) permit forthe source pursuant to § 63.52, is subjectto the applicable MACT emissionlimitation for new sources. Each permitshall define the term ‘‘new affectedsource,’’ which will be the same as the‘‘affected source’’ unless a differentcollection is warranted based onconsideration of factors including:
(1) Emission reduction impacts ofcontrolling individual sources versusgroups of sources;
(2) Cost effectiveness of controllingindividual equipment;
(3) Flexibility to accommodatecommon control strategies;
(4) Cost/benefits of emissionsaveraging;
(5) Incentives for pollutionprevention;
(6) Feasibility and cost of controllingprocesses that share common equipment(e.g., product recovery devices);
(7) Feasibility and cost of monitoring;and
(8) Other relevant factors.* * * * *
Research or laboratory activitiesmeans activities whose primary purpose
is to conduct research and developmentinto new processes and products; wheresuch activities are operated under theclose supervision of technically trainedpersonnel and are not engaged in themanufacture of products for commercialsale in commerce, except in a deminimis manner; and where the sourceis not in a source category, specificallyaddressing research or laboratoryactivities, that is listed pursuant tosection 112(c)(7) of the Act.
Section 112(j) deadline means thedate 18 months after the date for whicha relevant standard is scheduled to bepromulgated under this part, except thatfor all major sources listed in the sourcecategory schedule for which a relevantstandard is scheduled to be promulgatedby November 15, 1994, the section112(j) deadline is November 15, 1996,and for all major sources listed in thesource category schedule for which arelevant standard is scheduled to bepromulgated by November 15, 1997, thesection 112(j) deadline is December 15,1999.
Similar source means that equipmentor collection of equipment that, byvirtue of its structure, operability, typeof emissions and volume andconcentration of emissions, issubstantially equivalent to the newaffected source and employs controltechnology for control of emissions ofhazardous air pollutants that is practicalfor use on the new affected source.* * * * *
14. Section 63.52 is revised to read asfollows:
§ 63.52 Approval process for new andexisting affected sources.
(a) Sources subject to section 112(j) asof the section 112(j) deadline. Therequirements of paragraphs (a)(1)through (3) of this section apply tomajor sources that include, as of thesection 112(j) deadline, one or moresources in a category or subcategory forwhich the Administrator has failed topromulgate an emission standard underthis part on or before an applicablesection 112(j) deadline. Existing sourceMACT requirements (including relevantcompliance deadlines), as specified in atitle V permit issued to the sourcepursuant to the requirements of thesubpart, shall apply to such sources.
(1) The owner or operator shallsubmit an application for a title Vpermit or for a revision to an existingtitle V permit or a pending title V permitmeeting the requirements of § 63.53(a)by the section 112(j) deadline if theowner or operator can reasonablydetermine that one or more sources atthe major source belong in the categoryor subcategory subject to section 112(j).
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(2) If an application was notsubmitted under paragraph (a)(1) of thissection and if notified by the permittingauthority, the owner or operator shallsubmit an application for a title Vpermit or for a revision to an existingtitle V permit or a pending title V permitmeeting the requirements of § 63.53(a)within 30 days of being notified inwriting by the permitting authority thatone or more sources at the major sourcebelong to such category or subcategory.Such written notification shall be issuedby the permitting authority within 120days of the section 112(j) deadline.
(3) The requirements in paragraphs(a)(3)(i) through (ii) of this section applywhen the owner or operator hasobtained a title V permit thatincorporates a case-by-case MACTdetermination by the permittingauthority under section 112(g) or hassubmitted a title V permit applicationfor a revision that incorporates a case-by-case MACT determination undersection 112(g), but has not submitted anapplication for a title V permit revisionthat addresses the emission limitationrequirements of section 112(j).
(i) When the owner or operator has atitle V permit that incorporates a case-by-case MACT determination by thepermitting authority under section112(g), the owner or operator shallsubmit an application meeting therequirements of § 63.53(a) for a title Vpermit revision within 30 days of thesection 112(j) deadline or within 30days of being notified in writing by thepermitting authority that one or moresources at the major source belong insuch category or subcategory. Using theprocedures established in paragraph (e)of this section, the permitting authorityshall determine whether the emissionlimitations adopted pursuant to theprior case-by-case MACT determinationunder section 112(g) are substantially aseffective as the emission limitationswhich the permitting authority wouldotherwise adopt pursuant to section112(j) for the source in question. If thepermitting authority determines that theemission limitations previously adoptedto effectuate section 112(g) aresubstantially as effective as the emissionlimitations which the permittingauthority would otherwise adopt toeffectuate section 112(j) for the source,then the permitting authority shallretain the existing emission limitationsin the permit as the emission limitationsto effectuate section 112(j). The title Vpermit applicable to that source shall berevised accordingly. If the permittingauthority does not retain the existingemission limitations in the permit as theemission limitations to effectuatesection 112(j), the MACT requirements
of this subpart are satisfied uponissuance of a revised title V permitincorporating any additional section112(j) requirements.
(ii) When the owner or operator hassubmitted a title V permit applicationthat incorporates a case-by-case MACTdetermination by the permittingauthority under section 112(g), but hasnot received the permit incorporatingthe section 112(g) requirements, theowner or operator shall continue topursue a title V permit that addressesthe emission limitation requirements ofsection 112(g). Within 30 days ofissuance of that title V permit, theowner or operator shall submit anapplication meeting the requirements of§ 63.53(a) for a change to the existingtitle V permit. Using the proceduresestablished in paragraph (e) of thissection, the permitting authority shalldetermine whether the emissionlimitations adopted pursuant to theprior case-by-case MACT determinationunder section 112(g) are substantially aseffective as the emission limitationswhich the permitting authority wouldotherwise adopt pursuant to section112(j) for the source in question. If thepermitting authority determines that theemission limitations previously adoptedto effectuate section 112(g) aresubstantially as effective as the emissionlimitations which the permittingauthority would otherwise adopt toeffectuate section 112(j) for the source,then the permitting authority shallretain the existing emission limitationsin the permit as the emission limitationsto effectuate section 112(j). The title Vpermit applicable to that source shall berevised accordingly. If the permittingauthority does not retain the existingemission limitations in the permit as theemission limitations to effectuatesection 112(j), the MACT requirementsof this subpart are satisfied uponissuance of a revised title V permitincorporating any additional section112(j)requirements.
(b) Sources that become subject tosection 112(j) after the section 112(j)deadline and that do not have a title Vpermit addressing section 112(j)requirements. The requirements ofparagraphs (b)(1) through (4) of thissection apply to sources that do notmeet the criteria in paragraph (a) of thissection on the section 112(j) deadlineand are, therefore, not subject to section112(j) on that date, but where eventsoccur subsequent to the section 112(j)deadline that would bring the sourceunder the requirements of this subpart,and the source does not have a title Vpermit that addresses the requirementsof section 112(j).
(1) When one or more sources in acategory or subcategory subject to therequirements of this subpart areinstalled at a major source, or result inthe source becoming a major source dueto the installation, and the installationdoes not invoke section 112(g)requirements, the owner or operatorshall submit an application meeting therequirements of § 63.53(a) within 30days of startup of the source. Thisapplication shall be reviewed using theprocedures established in paragraph (e)of this section. Existing source MACTrequirements (including relevantcompliance deadlines), as specified in atitle V permit issued pursuant to therequirements of this subpart, shall applyto such sources.
(2) The requirements in thisparagraph apply when one or moresources in a category or subcategorysubject to this subpart are installed at amajor source, or result in the sourcebecoming a major source due to theinstallation, and the installation doesrequire emission limitations to beestablished and permitted under section112(g), and the owner or operator hasnot submitted an application for a titleV permit revision that addresses theemission limitation requirements ofsection 112(j). In this case, the owner oroperator shall apply for and obtain atitle V permit that addresses theemission limitation requirements ofsection 112(g). Within 30 days ofissuance of that title V permit, theowner or operator shall submit anapplication meeting the requirements of§ 63.53(a) for a revision to the existingtitle V permit. Using the proceduresestablished in paragraph (e) of thissection, the permitting authority shalldetermine whether the emissionlimitations adopted pursuant to theprior case-by-case MACT determinationunder section 112(g) are substantially aseffective as the emission limitationswhich the permitting authority wouldotherwise adopt pursuant to section112(j) for the source in question. If thepermitting authority determines that theemission limitations previously adoptedto effectuate section 112(g) aresubstantially as effective as the emissionlimitations which the permittingauthority would otherwise adopt toeffectuate section 112(j) for the source,then the permitting authority shallretain the existing emission limitationsin the permit as the emission limitationsto effectuate section 112(j). The title Vpermit applicable to that source shall berevised accordingly. If the permittingauthority does not retain the existingemission limitations in the permit as theemission limitations to effectuate
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section 112(j), the MACT requirementsof this subpart are satisfied uponissuance of a revised title V permitincorporating any additional section112(j) requirements.
(3) The owner or operator of an areasource that, due to a relaxation in anyfederally enforceable emissionlimitation (such as a restriction on hoursof operation), increases its potential toemit hazardous air pollutants such thatthe source becomes a major source thatis subject to this subpart, shall submitan application meeting the requirementsof § 63.53(a) for a title V permit or foran application for a title V permitrevision within 30 days after the datethat such source becomes a majorsource. This application shall bereviewed using the proceduresestablished in paragraph (e) of thissection. Existing source MACTrequirements (including relevantcompliance deadlines), as specified in atitle V permit issued pursuant to therequirements of this subpart, shall applyto such sources.
(4) After the effective date of thissubpart, if the Administrator establishesa lesser quantity emission rate undersection 112(a)(1) of the Act that resultsin an area source becoming a majorsource that is subject to this subpart,then the owner or operator of such amajor source shall submit anapplication meeting the requirements of§ 63.53(a) for a title V permit or for achange to an existing title V permit orpending title V permit on or before thedate 6 months after the date that suchsource becomes a major source. Existingsource MACT requirements (includingrelevant compliance deadlines), asspecified in a title V permit issuedpursuant to the requirements of thissubpart, shall apply to such sources.
(c) Sources that have a title V permitaddressing section 112(j) requirements.The requirements of paragraphs (c)(1)and (2) of this section apply to majorsources that include one or moresources in a category or subcategory forwhich the Administrator fails topromulgate an emission standard underthis part on or before an applicablesection 112(j) deadline, and the owneror operator has a permit meeting thesection 112(j) requirements, and wherechanges occur at the major source toequipment, activities, or both,subsequent to the section 112(j)deadline.
(1) If the title V permit alreadyprovides the appropriate requirementsthat address the events that occur underparagraph (c) of this section subsequentto the section 112(j) deadline, then thesource shall comply with the applicablenew source MACT or existing source
MACT requirements as specified in thepermit, and the section 112(j)requirements are thus satisfied.
(2) If the title V permit does notcontain the appropriate requirementsthat address the events that occur underparagraph (c) of this section subsequentto the section 112(j) deadline, then theowner or operator shall submit anapplication for a revision to the existingtitle V permit that meets therequirements of § 63.53(a). Theapplication shall be submitted within 30days of beginning construction and shallbe reviewed using the proceduresestablished in paragraph (e) of thissection. Existing source MACTrequirements (including relevantcompliance deadlines), as specified in atitle V permit issued pursuant to therequirements of this subpart, shall applyto such sources.
(d) Requests for applicabilitydetermination or notice of MACTapproval.
(1) An owner or operator who isunsure of whether one or more sourcesat a major source belong in a categoryor subcategory for which theAdministrator has failed to promulgatean emission standard under this partmay, on or before an applicable section112(j) deadline, request an applicabilitydetermination from the permittingauthority by submitting an applicationmeeting the requirements of § 63.53(a)by the applicable deadlines specified inparagraphs (a), (b), or (c) of this section.
(2) In addition to meeting therequirements of paragraphs (a), (b), and(c) of this section, the owner or operatorof a new affected source may submit anapplication for a Notice of MACTApproval before construction, pursuantto § 63.54.
(e) Permit application review.(1) Within 6 months after an owner or
operator submits a Part 1 MACTapplication meeting the requirements of§ 63.53(a), the owner or operator shallsubmit a Part 2 MACT applicationmeeting the requirements of § 63.53(b).Part 2 MACT applications shall bereviewed by the permitting authorityaccording to procedures established in§ 63.55. The resulting MACTdetermination shall be incorporated intothe source’s title V permit according toprocedures established under title V,and any other regulations approvedunder title V in the jurisdiction inwhich the affected source is located.
(2) Notwithstanding paragraph (e)(1)of this section, the owner or operatormay request either an applicabilitydetermination or an equivalencydetermination by the permittingauthority as provided in paragraphs(e)(2)(i) and (ii) of this section.
(i) As specified in paragraph (d)(1) ofthis section, an owner or operator mayrequest, through submittal of anapplication pursuant to § 63.53(a), adetermination by the permittingauthority of whether one or moresources at a major source belong in acategory or subcategory for which theAdministrator has failed to promulgatean emission standard under this part. Ifthe applicability determination ispositive, the owner or operator shallcomply with the applicable provisionsof this subpart. The owner or operatorshall submit a Part 2 MACT applicationwithin 6 months of being notified of thepositive applicability determination. Ifthe applicability determination isnegative, then no further action by theowner or operator is necessary.
(ii) As specified in paragraphs (a) and(b) of this section, an owner or operatormay request, through submittal of anapplication meeting the requirements of§ 63.53(a), a determination by thepermitting authority of whetheremission limitations adopted pursuantto a prior case-by-case MACTdetermination under section 112(g) thatapply to one or more sources at a majorsource in a relevant category orsubcategory are substantially as effectiveas the emission limitations which thepermitting authority would otherwiseadopt pursuant to section 112(j) for thesource in question. The process fordetermination by the permittingauthority of whether the emissionlimitations in the prior case-by-caseMACT determination are substantiallyas effective as the emission limitationswhich the permitting authority wouldotherwise adopt under section 112(j)shall include the opportunity for fullpublic, EPA, and affected State reviewprior to a final determination. If thepermitting authority determines that theemission limitations in the prior case-by-case MACT determination aresubstantially as effective as the emissionlimitations which the permittingauthority would otherwise adopt undersection 112(j), then the permittingauthority shall adopt the existingemission limitations in the permit as theemission limitations to effectuatesection 112(j) for the source in question.If more than 3 years remain on thecurrent title V permit, the owner oroperator shall submit an application fora title V permit revision to make anyconforming changes in the permitrequired to adopt the existing emissionlimitations as the section 112(j) MACTemission limitations. If less than 3 yearsremain on the current title V permit, anyrequired conforming changes shall bemade when the permit is renewed. If the
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permitting authority determines that theemission limitations in the prior case-by-case MACT determination undersection 112(g) are not substantially aseffective as the emission limitationswhich the permitting authority wouldotherwise adopt for the source inquestion under section 112(j), the owneror operator shall comply with theapplicable provisions of this subpart.The owner or operator shall submit aPart 2 MACT application within 6months of being notified of such anegative determination. A negativedetermination under this sectionconstitutes final action for purposes ofjudicial review under 40 CFR70.4(b)(3)(x) and corresponding Statetitle V program provisions.
(3) Within 60 days of submittal of thePart 2 MACT application, the permittingauthority shall notify the owner oroperator in writing whether theapplication is complete or incomplete.The Part 2 MACT application shall bedeemed complete unless the permittingauthority notifies the owner or operatorin writing within 60 days of thesubmittal that the Part 2 MACTapplication is incomplete. A Part 2MACT application is complete if it issufficient to begin processing theapplication for a title V permitaddressing section 112(j) requirements.
(4) Following submittal of a Part 1 orPart 2 MACT application, the permittingauthority may request additionalinformation from the owner or operator.The owner or operator shall respond tosuch requests in a timely manner.
(5) If the owner or operator hassubmitted a timely and completeapplication as required by this section,any failure to have a title V permitaddressing section 112(j) requirementsshall not be a violation of section 112(j),unless the delay in final action is dueto the failure of the applicant to submit,in a timely manner, informationrequired or requested to process theapplication. Once a completeapplication is submitted, the owner oroperator shall not be in violation of therequirement to have a title V permitaddressing section 112(j) requirements.
(f) Permit content. The title V permitshall contain an equivalent emissionlimitation (or limitations) for therelevant category or subcategorydetermined on a case-by-case basis bythe permitting authority, or, if theapplicable criteria in subpart D of thispart are met, the title V permit maycontain an alternative emissionlimitation. For the purposes of thepreceding sentence, early reductionsmade pursuant to section 112(i)(5)(A) ofthe Act shall be achieved not later thanthe date on which the relevant standard
should have been promulgatedaccording to the source categoryschedule for standards.
(1) The title V permit shall contain anemission standard or emissionlimitation that is equivalent to existingsource MACT and an emission standardor emission limitation that is equivalentto new source MACT for control ofemissions of hazardous air pollutants.The MACT emission standards orlimitations shall be determined by thepermitting authority and shall be basedon the degree of emission reductionsthat can be achieved if the controltechnologies or work practices areinstalled, maintained, and operatedproperly. The permit shall also specifythe affected source and the new affectedsource. If construction of a new affectedsource or reconstruction of an affectedsource commences after a title V permitmeeting the requirements of section112(j) has been issued for the source, thenew source MACT compliance datesshall apply.
(2) The title V permit shall specifyany notification, operation andmaintenance, performance testing,monitoring, and reporting andrecordkeeping requirements. Indeveloping the title V permit, thepermitting authority shall consider andspecify the appropriate provisions ofsubpart A of this part. The title V permitshall also include the information inparagraphs (f)(2)(i) through (iii) of thissection.
(i) In addition to the MACT emissionlimitation required by paragraph (f)(1) ofthis section, additional emission limits,production limits, operational limits orother terms and conditions necessary toensure practicable enforceability of theMACT emission limitation.
(ii) Compliance certifications, testing,monitoring, reporting andrecordkeeping requirements that areconsistent with requirementsestablished pursuant to title V andparagraph (h) of this section.
(iii) Compliance dates by which theowner or operator shall be incompliance with the MACT emissionlimitation and all other applicable termsand conditions of the permit.
(A) The owner or operator of anaffected source subject to therequirements of this subpart shallcomply with the emission limitation(s)by the date established in the source’stitle V permit. In no case shall suchcompliance date be later than 3 yearsafter the issuance of the permit for thatsource, except where the permittingauthority issues a permit that grants anadditional year to comply in accordancewith section 112(i)(3)(B) of the Act, or
unless otherwise specified in section112(i), or in subpart D of this part.
(B) The owner or operator of a newaffected source, as defined in the title Vpermit meeting the requirements ofsection 112(j), that is subject to therequirements of this paragraph shallcomply with a new source MACT levelof control immediately upon startup ofthe new affected source.
(g) Permit issuance dates.(1) Except as specified in paragraph
(g)(2) of this section, the permittingauthority shall issue a title V permitmeeting section 112(j) requirementswithin 24 months of the submittal of thePart 1 MACT application, or
(2) The permitting authority shallissue a title V permit meeting section112(j) requirements within 18 months ofsubmittal of the complete Part 2 MACTapplication from a source owner oroperator receiving a determinationunder paragraph (e)(2) of this section.
(h) Enhanced monitoring. Inaccordance with section 114(a)(3) of theAct, monitoring shall be capable ofdemonstrating continuous compliancefor each compliance period during theapplicable reporting period. Suchmonitoring data shall be of sufficientquality to be used as a basis for directlyenforcing all applicable requirementsestablished under this subpart,including emission limitations.
(i) MACT emission limitations.(1) Owners or operators of affected
sources subject to paragraphs (a), (b),and (c) of this section shall comply withall requirements of this subpart that areapplicable to affected sources, includingthe compliance date for affected sourcesestablished in paragraph (f)(2)(iii)(A) ofthis section.
(2) Owners or operators of newaffected sources subject to paragraph(c)(1) of this section shall comply withall requirements of this subpart that areapplicable to new affected sources,including the compliance date for newaffected sources established inparagraph (f)(2)(iii)(B) of this section.
15. Section 63.53 is revised to read asfollows:
§ 63.53 Application content for case-by-case MACT determinations.
(a) Part 1 MACT Application. The Part1 application for a MACT determinationshall contain the information inparagraphs (a)(1) through (4) of thissection.
(1) The name and address (physicallocation) of the major source.
(2) A brief description of the majorsource and an identification of therelevant source category.
(3) An identification of the types ofsources belonging to the relevant sourcecategory.
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(4) An identification of any affectedsources for which a section 112(g)MACT determination has been made.
(b) Part 2 MACT Application.(1) The Part 2 application for a MACT
determination shall contain theinformation in paragraphs (b)(i) through(vi) of this section.
(i) For a new affected source, theanticipated date of startup of operation.
(ii) The hazardous air pollutantsemitted by each affected source in therelevant source category and anestimated total uncontrolled andcontrolled emission rate for hazardousair pollutants from the affected source.
(iii) Any existing Federal, State, orlocal limitations or requirementsapplicable to the affected source.
(iv) For each piece of equipment oractivity or source, an identification ofcontrol technology in place.
(v) Information relevant toestablishing the MACT floor, and, at theoption of the owner or operator, arecommended MACT floor.
(vi) Any other information reasonablyneeded by the permitting authorityincluding, at the discretion of thepermitting authority, informationrequired pursuant to subpart A of thispart.
(2) The Part 2 application for a MACTdetermination may contain thefollowing information:
(i) Recommended emissionlimitations for the affected source andsupport information consistent with§ 63.52(f). The owner or operator mayrecommend a specific design,equipment, work practice, oroperational standard, or combinationthereof, as an emission limitation.
(ii) A description of the controltechnologies that shall be applied tomeet the emission limitation includingtechnical information on the design,operation, size, estimated controlefficiency and any other informationdeemed appropriate by the permittingauthority, and identification of theaffected sources to which the controltechnologies shall be applied.
(iii) Relevant parameters to bemonitored and frequency of monitoringto demonstrate continuous compliancewith the MACT emission limitation overthe applicable reporting period.
16. Section 63.54 is amended by:a. Adding introductory text;b. Revising paragraph (a)(1) through
i. Redesignating paragraph (g) as (e)and revising newly designatedparagraph (e);
j. Redesignating paragraph (h) as (f).The revisions and addition read as
follows:
§ 63.54 Preconstruction review proceduresfor new affected sources.
The requirements of this sectionapply to an owner or operator whoconstructs a new affected source subjectto § 63.52(c)(1). The purpose of thissection is to describe alternative reviewprocesses that the permitting authoritymay use to make a MACT determinationfor the new affected source.
(a) Review process for new affectedsources.
(1) If the permitting authority requiresan owner or operator to obtain or revisea title V permit before construction ofthe new affected source, or when theowner or operator chooses to obtain orrevise a title V permit beforeconstruction, the owner or operatorshall follow the procedures establishedunder the applicable title V permitprogram before construction of the newaffected source.
(2) If an owner or operator is notrequired to obtain or revise a title Vpermit before construction of the newaffected source (and has not elected todo so), but the new affected source iscovered by any preconstruction orpreoperation review requirementsestablished pursuant to section 112(g) ofthe Act, then the owner or operator shallcomply with those requirements inorder to ensure that the requirements ofsection 112(j) and (g) are satisfied. If thenew affected source is not covered bysection 112(g), the permitting authority,in its discretion, may issue a Notice ofMACT Approval, or the equivalent, inaccordance with the procedures setforth in paragraphs (b) through (f) of thissection, or an equivalent permit reviewprocess, before construction oroperation of the new affected source.* * * * *
(b) Optional administrativeprocedures for preconstruction orpreoperation review for new affectedsources. The permitting authority mayprovide for an enhanced review ofsection 112(j) MACT determinations forreview procedures and compliancerequirements equivalent to those setforth in paragraphs (b) through (f) of thissection.* * * * *
(6) Approval of an applicant’sproposed control technology shall be setforth in a Notice of MACT Approval (orthe equivalent) as described in§ 63.52(f).
(c) Opportunity for public commenton notice of MACT approval. * * ** * * * *
(3) A notice by prominentadvertisement in the area affected of thelocation of the source information andanalysis specified in § 63.52(f). The formand content of the notice shall besubstantially equivalent to that found in§ 70.7 of this chapter.* * * * *
(d) Review by the EPA and affectedstates. The permitting authority shallsend copies of the preliminary notice (intime for comment) and final noticerequired by paragraph (c) of this sectionto the Administrator through theappropriate Regional Office, and to allother State and local air pollutioncontrol agencies having jurisdiction inaffected States. The permitting authorityshall provide EPA with a review periodfor the final notice of at least 45 daysand shall not issue a final Notice ofMACT Approval until EPA objectionsare satisfied.
(e) Compliance with MACTdeterminations. An owner or operator ofa major source that is subject to a MACTdetermination shall comply withnotification, operation andmaintenance, performance testing,monitoring, reporting, andrecordkeeping requirements establishedunder § 63.52(h), under title V, and atthe discretion of the permittingauthority, under subpart A of this part.The permitting authority shall providethe EPA with the opportunity to reviewcompliance requirements forconsistency with requirementsestablished pursuant to title V duringthe review period under paragraph (d)of this section.* * * * *
17. Section 63.55 is revised to read asfollows:
§ 63.55 Maximum achievable controltechnology (MACT) determinations foraffected sources subject to case-by-casedetermination of equivalent emissionlimitations.
(a) Requirements for permittingauthorities. The permitting authorityshall determine whether the § 63.53(a)Part 1 and § 63.53(b) Part 2 MACTapplication is complete or anapplication for a Notice of MACTApproval is approvable. In either case,when the application is complete orapprovable, the permitting authorityshall establish hazardous air pollutantemissions limitations equivalent to thelimitations that would apply if anemission standard had been issued in atimely manner under section 112(d) or(h) of the Act. The permitting authorityshall establish these emissions
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16360 Federal Register / Vol. 66, No. 57 / Friday, March 23, 2001 / Proposed Rules
limitations consistent with thefollowing requirements and principles:
(1) Emission limitations shall beestablished for the equipment andactivities within the affected sourceswithin a source category or subcategoryfor which the section 112(j) deadlinehas passed.
(2) Each emission limitation for anexisting affected source shall reflect themaximum degree of reduction inemissions of hazardous air pollutants(including a prohibition on suchemissions, where achievable) that thepermitting authority, taking intoconsideration the cost of achieving suchemission reduction and any non-airquality health and environmentalimpacts and energy requirements,determines is achievable by affectedsources in the category or subcategoryfor which the section 112(j) deadlinehas passed. This limitation shall not beless stringent than the MACT floorwhich shall be established by thepermitting authority according to therequirements of section 112(d)(3)(A) and(B) and shall be based upon availableinformation.
(3) Each emission limitation for a newaffected source shall reflect themaximum degree of reduction inemissions of hazardous air pollutants(including a prohibition on suchemissions, where achievable) that thepermitting authority, taking intoconsideration the cost of achieving suchemission reduction and any non-airquality health and environmentalimpacts and energy requirements,determines is achievable. Thislimitation shall not be less stringentthan the emission limitation achieved inpractice by the best controlled similarsource which shall be established by thepermitting authority according to therequirements of section 112(d)(3). Thislimitation shall be based upon availableinformation.
(4) The permitting authority shallselect a specific design, equipment,work practice, or operational standard,or combination thereof, when it is notfeasible to prescribe or enforce anequivalent emission limitation due tothe nature of the process or pollutant. It
is not feasible to prescribe or enforce alimitation when the Administratordetermines that hazardous air pollutantscannot be emitted through a conveyancedesigned and constructed to capturesuch pollutant, or that any requirementfor, or use of, such a conveyance wouldbe inconsistent with any Federal, State,or local law, or the application ofmeasurement methodology to aparticular class of sources is notpracticable due to technological andeconomic limitations.
(5) Nothing in this subpart shallprevent a State or local permittingauthority from establishing an emissionlimitation more stringent than requiredby Federal regulations.
(b) Reporting to national data base.The owner or operator shall submitadditional copies of its Part 1 and Part2 MACT application for a title V permit,permit revision, or Notice of MACTApproval, whichever is applicable, tothe EPA at the same time the materialis submitted to the permitting authority.
18. Section 63.56 is revised to read asfollows:
§ 63.56 Requirements for case-by-casedetermination of equivalent emissionlimitations after promulgation ofsubsequent MACT standard.
(a) If the Administrator promulgates arelevant emission standard that isapplicable to one or more affectedsources within a major source before thedate a permit application under thisparagraph (a) is approved, the title Vpermit shall contain the promulgatedstandard rather than the emissionlimitation determined under § 63.52,and the owner or operator shall complywith the promulgated standard by thecompliance date in the promulgatedstandard.
(b) If the Administrator promulgates arelevant emission standard undersection 112(d) or (h) of the Act that isapplicable to a source after the date apermit is issued pursuant to § 63.52 or§ 63.54, the permitting authority shallincorporate requirements of thatstandard in the title V permit upon itsnext renewal. The permitting authorityshall establish a compliance date in the
revised permit that assures that theowner or operator shall comply with thepromulgated standard within areasonable time, but not longer than 8years after such standard is promulgatedor 8 years after the date by which theowner or operator was first required tocomply with the emission limitationestablished by the permit, whichever isearlier. However, in no event shall theperiod for compliance for existingsources be shorter than that provided forexisting sources in the promulgatedstandard.
(c) Notwithstanding the requirementsof paragraph (a) or (b) of this section, therequirements of paragraphs (c)(1) and(2) of this section shall apply.
(1) If the Administrator promulgatesan emission standard under section112(d) or (h) that is applicable to anaffected source after the date a permitapplication under this paragraph isapproved under § 63.52 or § 63.54, thepermitting authority is not required tochange the emission limitation in thepermit to reflect the promulgatedstandard if the permitting authoritydetermines that the level of controlrequired by the emission limitation inthe permit is substantially as effective asthat required by the promulgatedstandard pursuant to § 63.1(e).
(2) If the Administrator promulgatesan emission standard under section112(d) or (h) of the Act that is applicableto an affected source after the date apermit application under this paragraphis approved under § 63.52 or § 63.54,and the level of control required by thepromulgated emission standard is lessstringent than the level of controlrequired by any emission limitation inthe prior MACT determination, thepermitting authority shall notincorporate any less stringent emissionlimitation of the promulgated standardin the title V permit applicable to suchsource(s) and shall consider any morestringent provisions of the prior MACTdetermination to be applicable legalrequirements when issuing or revisingsuch a title V permit.[FR Doc. 01–5251 Filed 3–22–01; 8:45 am]BILLING CODE 6560–50–P
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