[Federal Register Volume 66, Number 57 (Friday, March 23, 2001)]
[Proposed Rules]
[Pages 16318-16360]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-5251]
[[Page 16317]]
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Part II
Environmental Protection Agency
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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
Federal Register / Vol. 66, No. 57 / Friday, March 23, 2001 /
Proposed Rules
[[Page 16318]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[FRL-6949-7]
RIN 2060-AF31
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)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed amendments.
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SUMMARY: General Provisions (Subpart A). On March 16, 1994, the EPA
promulgated General Provisions for national emission standards for
hazardous air pollutants (NESHAP) and other regulatory requirements
that are established under section 112 of the Clean Air Act as amended
in 1990 (CAA or Act) (59 FR 12408). In today's action, we are proposing
amendments to the General Provisions that would revise and clarify
several of the current provisions.
We are proposing these amendments, in part, as a result of
decisions reached in settlement negotiations conducted between
petitioners, who filed for review of the General Provisions, and the
EPA. The proposed amendments also reflect internal EPA discussions on
issues regarding implementation of the General Provisions.
Section 112(j) Provisions (Subpart B). In addition, in today's
action, we are proposing amendments to rules that establish equivalent
emission limitations by permit under section 112(j) of the Act. The
``section 112(j)'' rule establishes requirements and procedures for
owners or operators of major sources of hazardous air pollutants (HAP),
and permitting authorities, to comply with section 112(j). The section
112(j) rule was promulgated on May 20, 1994 (59 FR 26429).
These proposed amendments have been developed in response to
settlement negotiations conducted between petitioners, who filed for
review of the section 112(j) rule, and the EPA. The proposed amendments
also reflect internal EPA discussions regarding implementation of the
section 112(j) rule.
DATES: Comments. Submit comments on or before May 22, 2001.
Public Hearing. If anyone contacts us requesting to speak at a
public hearing by April 2, 2001, a public hearing will be held on April
23, 2001.
ADDRESSES: Comments. Written comments should be submitted (in duplicate
if possible) to: Air and Radiation Docket and Information Center
(6102), Attention Docket Number A-2001-02, Part 63 General Provisions
(Subpart A) and Section 112(j) Regulations (Subpart B) Litigation
Settlement Amendments, U.S. Environmental Protection Agency, 1200
Pennsylvania Ave., NW, Washington, DC 20460. We request a separate copy
also be sent to the appropriate contact person listed below in the FOR
FURTHER INFORMATION CONTACT section.
Public Hearing. If a public hearing is held, it will be held at
10:00 a.m. on April 23, 2001 in our Office of Administration
Auditorium, Research Triangle Park, North Carolina, or at an alternate
site nearby.
Docket. Docket No. A-2001-02, Part 63 General Provisions (Subpart
A) and Section 112(j) Regulations (Subpart B) Litigation Settlement
Amendments, contains information relevant to today's proposed
rulemaking. This docket is located at the U.S. Environmental Protection
Agency, 401 M Street, SW, Washington, DC 20460 in room M-1500,
Waterside Mall (ground floor), and is available for public inspection
and copying from 8:30 a.m. and 5:30 p.m., Monday through Friday,
excluding legal holidays. A reasonable fee may be charged for copying.
FOR FURTHER INFORMATION CONTACT: For further information about the
proposed rule amendments, contact Mr. James Szykman, Emission Standards
Division (MD-13), U.S. Environmental Protection Agency, Research
Triangle Park, North Carolina 27711, telephone (919) 541-5469, E-mail
[email protected]; or Mr. Rick Colyer, Emission Standards Division
(MD-13), U.S. Environmental Protection Agency, Research Triangle Park,
North Carolina 27711, telephone (919) 541-5262, E-mail
[email protected].
For questions about the public hearing, contact Ms. Dorothy Apple,
Policy, Planning and Standards Group, Emission Standards Division (MD-
13), U.S. Environmental Protection Agency, Research Triangle Park,
North Carolina 27711, telephone (919) 541-4487, E-mail
[email protected].
SUPPLEMENTARY INFORMATION: Comments. Comments and data may be submitted
by electronic mail (e-mail) to: [email protected]. Electronic
comments must be submitted as an ASCII file to avoid the use of special
characters and encryption problems and will also be accepted on disks
in WordPerfect version 5.1, 6.1 or Corel 8 file format. All
comments and data submitted in electronic form must note the docket
number A-2001-02, Part 63 General Provisions (Subpart A) and section
112(j) Regulations (Subpart B) Litigation Settlement Amendments. No
confidential business information (CBI) should be submitted by e-mail.
Electronic comments may be filed online at many Federal Depository
Libraries.
Commenters wishing to submit proprietary information for
consideration must clearly distinguish such information from other
comments and clearly label it as CBI. Send submissions containing such
proprietary information directly to the following address, and not to
the public docket, to ensure that proprietary information is not
inadvertently placed in the docket: Attention: Mr. Rick Colyer, c/o
OAQPS Document Control Officer (Room 740B), U.S. Environmental
Protection Agency, 411 W. Chapel Hill Street, Durham, NC 27701. We will
disclose information identified as CBI only to the extent allowed by
the procedures set forth in 40 CFR part 2. If no claim of
confidentiality accompanies a submission when we receive it, the
information may be made available to the public without further notice
to the commenter.
Public Hearing. Persons interested in presenting oral testimony or
inquiring as to whether a hearing is to be held should contact Ms.
Dorothy Apple at least 2 days in advance of the public hearing. Persons
interested in attending such a public hearing must also contact Ms.
Apple to verify the time, date, and location of the hearing. The
address, telephone number, and e-mail address for Ms. Apple are listed
in the preceding FOR FURTHER INFORMATION CONTACT SECTION. If a public
hearing is held, it will provide interested parties the opportunity to
present data, views, or arguments concerning these proposed amendments.
Docket. The docket is an organized and complete file of all the
information considered by us in the development of this rulemaking. The
docket is a dynamic file because material is added throughout the
rulemaking process. The docketing system is intended to allow members
of the public and industries involved to readily identify and locate
documents so that they can effectively participate in the rulemaking
process. Along with the proposed and promulgated standards and their
preambles, the contents of the docket will serve as the record in the
case of judicial review. (See section
[[Page 16319]]
307(d)(7)(A) of the CAA.) The regulatory text and other materials
related to this rulemaking are available for review in the docket or
copies may be mailed on request from the Air Docket by calling (202)
260-7548. A reasonable fee may be charged for copying docket materials.
Worldwide Web (WWW). In addition to being available in the docket,
an electronic copy of today's proposed rule amendments will also be
available on the WWW through the Technology Transfer Network (TTN).
Following the Administrator's signature, a copy of the rule will be
posted on the TTN's policy and guidance page for newly proposed or
promulgated rules http://www.epa.gov/ttn/oarpg. The TTN provides
information and technology exchange in various areas of air pollution
control. If more information regarding the TTN is needed, call the TTN
HELP line at (919) 541-5384.
Regulated Entities. Categories and entities potentially regulated
by this action include all section 112 source categories listed under
section 112(c) of the CAA.
Industry Group: Source Category
Fuel Combustion:
Combustion Turbines
Engine Test Facilities
Industrial Boilers
Institutional/Commercial Boilers
Process Heaters
Reciprocating Internal Combustion Engines
Rocket Testing Facilities
Non-Ferrous Metals Processing:
Primary Aluminum Production
Primary Copper Smelting
Primary Lead Smelting
Primary Magnesium Refining
Secondary Aluminum Production
Secondary Lead Smelting
Ferrous Metals Processing:
Coke By-Product Plants
Coke Ovens: Charging, Top Side, and Door Leaks
Coke Ovens: Pushing, Quenching, Battery Stacks
Ferroalloys Production: Silicomanganese and Ferromanganese
Integrated Iron and Steel Manufacturing
Iron Foundries Electric Arc Furnace (EAF) Operation
Steel Foundries
Steel Pickling--HCl Process Facilities and Hydrochloric Acid
Regeneration
Mineral Products Processing:
Alumina Processing
Asphalt Concrete Manufacturing
Asphalt Processing
Asphalt Roofing Manufacturing
Asphalt/Coal Tar Application--Metal Pipes
Clay Products Manufacturing
Lime Manufacturing
Mineral Wool Production
Portland Cement Manufacturing
Refractories Manufacturing
Taconite Iron Ore Processing
Wool Fiberglass Manufacturing
Petroleum and Natural Gas Production and Refining:
Oil and Natural Gas Production
Natural Gas Transmission and Storage
Petroleum Refineries--Catalytic Cracking (Fluid and other)
Units, Catalytic
Reforming Units, and Sulfur Plant Units
Petroleum Refineries--Other Sources Not Distinctly Listed
Liquids Distribution:
Gasoline Distribution (Stage 1)
Marine Vessel Loading Operations
Organic Liquids Distribution (Non-Gasoline)
Surface Coating Processes:
Aerospace Industries
Auto and Light Duty Truck
Large Appliance
Magnetic Tapes
Manufacture of Paints, Coatings, and Adhesives
Metal Can
Metal Coil
Metal Furniture
Miscellaneous Metal Parts and Products
Paper and Other Webs
Plastic Parts and Products
Printing, Coating, and Dyeing of Fabrics
Printing/Publishing
Shipbuilding and Ship
Wood Building Products
Wood Furniture
Waste Treatment and Disposal:
Hazardous Waste Incineration
Municipal Landfills
Off-Site Waste and Recovery Operations
Publicly Owned Treatment
Works (POTW) Emissions
Sewage Sludge Incineration
Site Remediation
Solid Waste Treatment, Storage and Disposal Facilities (TSDF)
Agricultural Chemicals Production:
Pesticide Active Ingredient Production
Fibers Production Processes:
Acrylic Fibers/Modacrylic Fibers Production
Rayon Production
Spandex Production
Food and Agriculture Processes:
Manufacturing of Nutritional Yeast
Cellulose Food Casing Manufacturing
Vegetable Oil Production
Pharmaceutical Production Processes:
Pharmaceuticals Production
Polymers and Resins Production:
Acetal Resins Production
Acrylonitrile-Butadiene-Styrene Production
Alkyd Resins Production
Amino Resins Production
Boat Manufacturing
Butyl Rubber Production
Carboxymethylcellulose Production
Cellophane Production
Cellulose Ethers Production
Epichlorohydrin Elastomers Production
Epoxy Resins Production
Ethylene-Propylene Rubber Production
Flexible Polyurethane Foam Production
Hypalon (tm) Production
Maleic Anhydride Copolymers Production
Methylcellulose Production
Methyl Methacrylate-Acrylonitrile-Butadiene-Styrene Production
Methyl Methacrylate-Butadiene-Styrene Terpolymers Production
Neoprene Production
Nitrile Butadiene Rubber Production
Nitrile Resins Production
Non-Nylon Polyamides Production
Phenolic Resins Production
Polybutadiene Rubber Production
Polycarbonates Production
Polyester Resins Production
Polyether Polyols Production
Polyethylene Terephthalate Production
Polymerized Vinylidene Chloride Production
Polymethyl Methacrylate Resins Production
Polystyrene Production
Polysulfide Rubber Production
Polyvinyl Acetate Emulsions Production
Polyvinyl Alcohol Production
Polyvinyl Butyral Production
Polyvinyl Chloride and Copolymers Production
Reinforced Plastic Composites Production
Styrene-Acrylonitrile Production
Styrene-Butadiene Rubber and Latex Production
Production of Inorganic Chemicals:
Ammonium Sulfate Production--Caprolactam By-Product Plants
Carbon Black Production
Chlorine Production
Cyanide Chemicals Manufacturing
Fumed Silica Production
Hydrochloric Acid Production
Hydrogen Fluoride Production
Phosphate Fertilizers Production
Phosphoric Acid Manufacturing
Uranium Hexafluoride Production
Production of Organic Chemicals:
Ethylene Processes
Quaternary Ammonium Compounds Production
Synthetic Organic Chemical
Miscellaneous Processes:
Benzyltrimethylammonium Chloride Production
Butadiene Dimers Production
Carbonyl Sulfide Production
Cellulosic Sponge Manufacturing
Chelating Agents Production
Chlorinated Paraffins
Chromic Acid Anodizing
Commercial Dry Cleaning (Perchloroethylene)--Transfer Machines
Commercial Sterilization Facilities
Decorative Chromium Electroplating
Dry Cleaning (Petroleum Solvent)
Ethylidene Norbornene Production
Explosives Production
Flexible Polyurethane Foam Fabrication Operations
Friction Products Manufacturing
Halogenated Solvent Cleaners
Hard Chromium Electroplating
Hydrazine Production
Industrial Cleaning (Perchloroethylene)--Dry-to-dry Machines
Industrial Dry Cleaning (Perchloroethylene)--Transfer Machines
Industrial Process Cooling Towers
Leather Tanning and Finishing Operations
OBPA/1,3-Diisocyanate Production
Paint Stripping Operations
Photographic Chemicals Production
Phthalate Plasticizers Production
Plywood and Composite Wood Products
Polyether Polyols Production
[[Page 16320]]
Pulp and Paper Production
Rubber Chemicals Manufacturing
Rubber Tire Manufacturing
Semiconductor Manufacturing
Symmetrical Tetrachloropyridine Production
Categories of Area Sources:
Chromic Acid Anodizing
Commercial Dry Cleaning (Perchloroethylene)--Dry-to-Dry Machines
Commercial Dry Cleaning (Perchloroethylene)--Transfer Machines
Commercial Sterilization Facilities
Decorative Chromium Electroplating
Halogenated Solvent Cleaners
Hard Chromium Electroplating
Secondary Lead Smelting
This list is not intended to be exhaustive, but rather provides a guide
for readers regarding entities likely to be regulated by this action.
To determine whether you are regulated by this action, you should
examine your source category specific section 112 regulation. If you
have any questions regarding the applicability of this action to a
particular entity, consult the person listed in the preceding FOR
FURTHER INFORMATION CONTACT SECTION.
Outline. The information presented in this preamble is organized as
follows:
I. Background
A. General Provisions
B. Section 112(j) Provisions
II. Proposed Amendments to the General Provisions
A. Presumptive Applicability of the General Provisions
B. Definition of Affected Source
C. Other Definitions
D. Prohibited Activities and Circumvention
E. Preconstruction Review
F. Startup, Shutdown and Malfunction Plans
G. Compliance Provisions
H. Test Methods
I. Monitoring Requirements
J. Notification Requirements
K. Recordkeeping and Reporting Requirements
L. Lesser Quantity
M. Clarification and Consistency
III. Proposed Amendments to the Section 112(j) Provisions
A. Applicability
B. Definitions
C. Approval Process
D. Application Content
E. Preconstruction Review
F. Enforcement Liability
G. MACT Determinations
H. Case-by-Case MACT Requirements after Promulgation of a
Subsequent MACT Standard
I. Section 112(j) Guidelines Document
IV. Additional Issues
A. Discussion of the Relationship Among Requirements Under
Section 112(d), (g), and (j)
B. Potential to Emit
V. Administrative Requirements
A. Executive Order 12866, Regulatory Planning and Review
B. Executive Order 13132, Federalism
C. Executive Order 13084, Consultation and Coordination with
Indian Tribal Governments
D. Executive Order 13045, Protection of Children from
Environmental Health Risks and Safety Risks
E. Unfunded Mandates Reform Act of 1995
F. Regulatory Flexibility Act (RFA) as Amended by Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601
et seq.
G. Paperwork Reduction Act
H. National Technology Transfer and Advancement Act of 1995
I. Background
A. General Provisions
Section 112 of the CAA requires us to list categories and
subcategories of major sources and area sources of HAP and to establish
NESHAP for the listed source categories and subcategories. Major
sources of HAP are those that have the potential to emit greater than
10 tons/yr of any one HAP or 25 tons/yr of any combination of HAP. Area
sources of HAP are those sources that do not have potential to emit
greater than 10 tons/yr of any one HAP and 25 tons/yr of any
combination of HAP. The General Provisions to 40 CFR part 63 establish
the framework for emission standards and other requirements developed
pursuant to section 112 of the Act. The General Provisions eliminate
the repetition of general information and requirements in individual
NESHAP by consolidating all generally applicable information in one
location. They include sections on applicability, definitions,
compliance dates and requirements, monitoring, recordkeeping and
reporting, among others. In addition, they include administrative
sections concerning actions that the EPA (or delegated authorities)
must take, such as making determinations of applicability, reviewing
applications for approval of new construction, responding to requests
for extensions or waivers of applicable requirements, and generally
enforcing national air toxics standards. The General Provisions become
applicable to a section 112(d) source category rule when the source
category rule is promulgated and becomes effective.
The General Provisions to part 63 were developed in a collaborative
process that included input from industry and other interested parties.
On August 11, 1993, we proposed the General Provisions in the Federal
Register (58 FR 42760). We received numerous comments on that proposal
from industry groups, environmental groups, and State and local
agencies, and those comments addressed a wide range of issues and
requirements in the proposed rulemaking. We published our final
decisions regarding the General Provisions in the Federal Register on
March 16, 1994 (59 FR 12408). In the preamble to the promulgated rule,
we discussed major comments on the proposal and our responses to those
comments. We addressed other comments in the Background Information
Document (BID) for the promulgated rulemaking (EPA-450/3-91-019b). In
responding to comments, we made some changes and some clarifications to
the final package and retained other provisions where the Agency
believed it was appropriate to do so. On May 16, 1994, six petitioners
filed for review of the General Provisions. They cited a variety of
issues raised in comments on the proposed rule whose resolution they
believed to be inappropriate. In addition, we have identified other
changes that would clarify the EPA's original intent. The amendments to
the General Provisions being proposed today constitute the outcome of
settlement negotiations between the EPA and the petitioners and
internal Agency discussions.
The amendments proposed in today's action would have the effect of
clarifying certain sections of the General Provisions and of altering
other sections.
B. Section 112(j) Provisions
The 1990 Amendments to section 112 of the CAA include a new section
112(j), which is entitled ``Equivalent Emission Limitation by Permit.''
Section 112(j)(2) provides that the provisions of section 112(j) apply
if the EPA misses a deadline for promulgation of a standard under
section 112(d) established in the source category schedule for
standards. After the effective date of a title V permit program in a
State, section 112(j)(3) requires the owner or operator of a major
source in a source category, for which the EPA failed to promulgate a
section 112(d) standard, to submit a permit application 18 months after
the missed promulgation deadline. Section 112(j)(5) also specifies that
if the applicable criteria for voluntary early reductions established
under section 112(i)(5) are met, then this alternative emission limit
satisfies the requirements of section 112(j), provided that the
emission reductions are achieved by the missed promulgation date.
The proposed rule implementing section 112(j) of the CAA was
published on July 13, 1993 (58 FR 37778). The public comments were
considered, and changes we deemed appropriate were made in developing a
final rule.
[[Page 16321]]
On May 20, 1994 (59 FR 26429), we issued a final rule for
implementing section 112(j). That rule requires major source owners or
operators to submit a permit application by the date 18 months after a
missed date on the regulatory schedule. As required under section
112(j) of the Act, the section 112(j) rule establishes requirements for
the content of permit applications, contains provisions governing the
establishment of the maximum achievable control technology (MACT)-
equivalent emission limitations by the permitting authority, includes
the criteria for the reviewing authority to determine completeness, and
allows the applicant up to 6 months to revise and resubmit the
application. As required in subsection 112(j)(5) of the Act, the rule
also establishes compliance dates:
No such pollutant may be emitted in amounts exceeding an
emission limitation contained in a permit immediately for new
sources and, as expeditiously as practicable, but not later than the
date 3 years after the permit is issued for existing sources or such
other compliance date as would apply under subsection (i).
Several petitioners filed for review of several provisions of the
section 112(j) rule that they believed needed to be clarified or
streamlined. The amendments to the section 112(j) rule being proposed
today constitute the outcome of settlement negotiations between the EPA
and the litigants. In addition, we have made other clarifying changes
we consider to be appropriate.
II. Proposed Amendments to the General Provisions
A. Presumptive Applicability of the General Provisions
We are proposing to amend the presumptive applicability of 40 CFR
part 63, subpart A (General Provisions). The promulgated rule applies,
in its entirety (Secs. 63.1 through 63.15), to owners or operators of
an affected source subject to a relevant subpart established under 40
CFR part 63, unless otherwise indicated in the subpart. This
presumption was intended to eliminate the repetition of requirements
that would be applicable to all owners or operators affected by the
General Provisions. To date, relevant subparts typically include a
General Provisions applicability table that delineates the provisions
that apply and do not apply.
We recognized concern that potential confusion could result by
applying the General Provisions presumptively when they are not
tailored to the circumstances of each relevant subpart. For example, a
relevant subpart could indicate that all of the monitoring requirements
of Sec. 63.8 of the General Provisions apply. Some of the requirements
in Sec. 63.8 are inappropriate for some sources and may confuse an
owner or operator (e.g., requirements for continuous opacity monitoring
systems (COMS) in Sec. 63.8 are not appropriate for all sources).
The objective of the General Provisions, i.e., to avoid repetitive
redrafting of common provisions in each subpart of the part, is valid
and should be preserved. Therefore, today we are proposing a revised
applicability of the General Provisions that would retain the benefits
and reduce or eliminate the potential for confusion. This proposed
action would not reduce or narrow the scope of applicable requirements.
Instead, it would reduce the confusion as to the actual requirements of
each applicable subpart.
We have determined that the dual objectives of efficiency and
clarity can best be met by including in each part 63 subpart a table
that specifies precisely which subpart A General Provisions are and are
not included in such subpart. Many existing part 63 subparts already
include such a table, and this has been very helpful for both the
regulatory authorities and the regulated community. These tables
specify applicability down to the subparagraph level of detail so that
there is no doubt as to the total universe of applicable General
Provisions. In some instances, we have determined that a general
provision should apply but that a very minor change to that provision
is appropriate for a specific standard. In such cases, we may indicate
in the table that the general provision does apply but with that minor
change, or we may indicate in the table that the general provision does
not apply. In the latter case, the appropriate requirement would be set
out in its entirety in the subpart. Either approach is acceptable
provided there is no compromise to clarity.
To streamline part 63 subparts and to avoid imposing conflicting
requirements on sources subject to more than one part 63 subpart or to
subparts under other parts, we have often allowed compliance with one
subpart (sometimes with some changes) to constitute compliance with the
other(s). We recognize that each subpart incorporates some or all of
the General Provisions of the part under which it is promulgated.
Therefore, if a part 63 subpart incorporates portions of other
subparts, we will clarify the precise extent to which the General
Provisions that are incorporated in other subparts become incorporated
in the part 63 subpart in a table of General Provision applicability
for each part, and we will explicitly state the resolution of any
conflicts between applicable General Provisions of the various parts.
It is important to note that, in addition to the changes to the
presumptive applicability of the General Provisions, today's proposal
includes changes to a number of other sections of the General
Provisions (e.g., definitions). The effect of the proposed changes on
relevant subparts that have already been promulgated depends on the
manner in which the General Provisions were incorporated into the
relevant subparts. If a relevant subpart specifically set out General
Provisions that are subject to today's proposal (i.e., wrote the
relevant General Provision in the relevant subpart itself), then that
subpart is not affected since today's proposal pertains only to the
General Provisions and does not include a proposal to change the
specific provisions of promulgated subparts.
However, if a relevant subpart incorporates by reference General
Provisions that are subject to today's proposal or if the General
Provisions presumptively applied to a relevant subpart, then the
changes to the General Provisions being proposed today would apply to
the extent that the changed provisions are incorporated by reference
into, or presumptively apply to, the existing relevant subpart. Based
on an analysis of the potential impact of these proposed changes on
promulgated subparts, we do not believe they have disrupted the
integrity of the promulgated subparts. We have not identified any
conflicts that would result in contradictory or incompatible effects
from the promulgation of today's proposed amendments. Also, we
identified no cross-reference conflicts due to adding or deleting
paragraphs or subparagraphs that were cross-referenced by previously
promulgated part 63 subparts. However, we are requesting comment on any
conflicts identified by others that result solely from applying these
proposed amendments to the General Provisions to promulgated part 63
subparts.
B. Definition of Affected Source
1. Background on the Term ``Affected Source''
The General Provisions define the term ``affected source'' to be
``* * * the stationary source, the group of stationary sources, or the
portion of a stationary source that is regulated by a relevant standard
or other requirement established pursuant to section 112 of the Act.''
(40 CFR 63.2). We have defined and used this term primarily as
[[Page 16322]]
a means of specifying for each part 63 subpart what equipment or
activities are affected. In practice, each source-category-specific
section 112(d) or (h) standard (MACT standard) promulgated to date has
either directly or implicitly defined affected source to be the
collection of processes, activities, or equipment to which a specific
MACT standard applies. Thus, the term ``affected source'' has been
principally used to define the applicability of MACT standards.
The term ``affected source'' also serves a second purpose in
conjunction with other terms and provisions contained in the General
Provisions; it defines where new source MACT applies under a relevant
standard. Specifically, the General Provisions define the terms
``construction'' and ``reconstruction'' with reference to the term
``affected source'' (40 CFR 63.2) and provide that new source MACT
applies when construction and reconstruction occur (40 CFR 63.5). For
example, if an affected source is defined in a relevant standard to be
an integrated process unit, then new source MACT would be triggered
under that relevant standard by constructing a new integrated process
unit or reconstructing an existing integrated process unit, unless that
relevant standard provides otherwise.
It is important to note that, while the term ``affected source''
currently functions both to define the applicability of relevant
standards and to specify where new source MACT applies, it has not had
a significant bearing on the process of determining the MACT floor or
establishing MACT emission limitations. Specifically, our practice in
developing MACT standards for source categories or subcategories is to
organize, as appropriate, the available information for the HAP-
emitting equipment and activities within the category or subcategory
and to perform the analyses to determine MACT for the category or
subcategory. Available information leads us to organize equipment and
activities within source categories into related groups (i.e., tanks,
process vents, equipment leaks) and to determine the MACT floor and
MACT for each group. In other situations, we are able to use available
information collectively for all the HAP-emitting equipment and
activities within the source category or subcategory in determining the
MACT floor and MACT. In either situation, we ensure that MACT is at
least as stringent as the MACT floor for the HAP-emitting equipment and
activities fulfilling the requirements of CAA section 112(d)(2) and
(3).
2. Questions Raised by the Petitioners
The principal concerns of the petitioners regarding the definition
and use of the term ``affected source'' relate to its role in defining
the scope of a section 112(c) source category or subcategory covered by
a MACT standard, determining where new source MACT applies, and certain
reporting obligations (e.g., notifications and approvals under
Sec. 63.5). For example, the petitioners contend that new source MACT
should only be triggered by constructing or reconstructing significant
collections of equipment. In other words, they believe that new source
MACT should not be triggered by the installation of small sources, such
as a single valve or a single reactor that is part of a larger,
integrated process. Instead, they believe that the applicability of new
source MACT should be guided by consideration of size, functional
relationship, and other factors that would prescribe a measure of
significance in the new source MACT applicability analysis.
The petitioners' specific concerns relate to the fact that the
existing definition of ``affected source'' provides, without
limitation, that the affected source may be defined to be any size,
even as small as a piece of a stationary source (e.g., a single pump or
valve). Since ``construction'' and ``reconstruction'' are defined with
reference to ``affected source,'' the possible result is that new
source MACT may be prescribed inappropriately for small activities, a
result that is contrary to the petitioners' legal and practical view as
to where new source MACT should apply.
Moreover, the petitioners are concerned that the dual roles of the
term ``affected source'' (i.e., defining the applicability of relevant
standards and prescribing where new source MACT applies) are confusing
and potentially inconsistent. For example, when considering the role of
``affected source'' in defining the applicability of relevant
standards, it may be useful to define the term broadly so that all the
equipment in the section 112(c) source category or subcategory can be
accommodated within a single unified subpart. However, when considering
the role of ``affected source'' in determining where new and existing
source MACT apply, circumstances may dictate that new source MACT
should apply to a collection of equipment that is smaller than the
entire collection subject to the subpart. In such a case, the use of
the one term ``affected source'' for two roles is potentially
irreconcilable.
3. Discussion of Affected Source
Although our interpretation of the statute differs from the
petitioners' interpretation, we agree that new source MACT should be
applied to units for which new source MACT is reasonable. We believe
that using tools available under the statute, such as applicability
cutoffs, subcategorization, and emission averaging, achieves this
result. However, as a first step toward addressing the petitioners'
concerns, we and the petitioners reviewed promulgated subparts to
determine how ``affected source'' was defined and to assess whether new
source MACT has been applied reasonably to these affected sources.
We found that our decisions on affected sources have appropriately
considered the application of MACT to new sources. We believe we have
reasonably determined when construction of a collection of equipment
should be subject to new source MACT. Specifically, where we have
determined that new source MACT should apply to less than the entire
collection of regulated equipment, the results have not produced the
kind of unreasonable outcomes that were expressed by the petitioners.
As noted above, in selecting the affected source(s) for particular
MACT standards, our primary task is to ensure that MACT is applied to
all the HAP-emitting equipment within the source category being
regulated and, therefore, affected by the MACT standards for that
source category. The collection of equipment evaluated in determining
MACT (including the MACT floor) is usually the collection of equipment
used in defining the affected source. Because of the data structures
for estimating the MACT floor and the interactions of equipment types
within the source category, we have occasionally performed the MACT
floor analysis on subsets of all the equipment in the category. While
available data requires us to evaluate such subsets of equipment, the
overall result of this evaluation is that MACT can be determined.
Accordingly, the aggregated collection of equipment would constitute
the affected source for the MACT standards. For example, MACT for
equipment leaks of organic chemicals is based on an overall program of
leak detection and repair that is not practicable for single pieces of
equipment. Similarly, many process vents are controlled after they are
brought together by a collection system. Such engineering solutions are
common throughout the source categories for which MACT standards have
been or
[[Page 16323]]
are being developed. For such situations, it is necessary to define the
affected source broadly to address these practical considerations in
determining and implementing MACT. We have occasionally defined the
affected source differently for equipment affected by existing source
MACT and equipment affected by new source MACT. This has resulted from
the differences in existing source MACT and new source MACT, as well as
a desire to provide owners with flexibility through emissions averaging
across a broad array of existing equipment at plant sites. Some source
categories are essentially comprised of a small number of independent
HAP-emitting equipment that has no functional interactions at the
process level and is controlled separately. In such cases, it may be
reasonable from a MACT implementation perspective to have separate
affected sources for purposes of focusing new source MACT
applicability.
When a MACT standard is based on total emissions from all the
equipment in a source category, we select an affected source based on
such equipment. This approach makes sense for industries where a
categorywide emission standard provides the opportunity and incentive
for owners and operators to utilize control strategies that are
significantly more cost effective than if standards were established
for each emission point within a plant. In selecting such an affected
source, we ensure that the overall emission reduction is equivalent to
that obtained through a MACT standard established for each emission
point within a plant. Examples of where we have adopted this approach
include the standards for Wood Furniture Operations (40 CFR part 63,
subpart JJ) and Polymers and Resins II (40 CFR part 63, subpart W).
In other situations, we have designated all or a portion of the
collection of equipment within the source category or subcategory as
the affected source. For example, in the NESHAP for Halogenated Solvent
Cleaning (degreasing) (part 63, subpart T), the affected source is
defined as each individual batch vapor, in-line vapor, in-line cold,
and batch cold solvent cleaning machine that uses specified solvents.
However, in the Hazardous Organic NESHAP (HON) (part 63, subparts F, G,
and H), we selected an aggregate of all equipment in the chemical
manufacturing process units (CMPU) at a major source in the synthetic
organic chemical manufacturing industry as the affected source for
existing source MACT. In this case, we developed MACT after evaluating
equipment in groups (e.g., tanks, process vents, and equipment leaks)
with the affected source as the aggregated equipment, allowing
emissions averaging provisions to be implemented. At the same time, we
selected a major emitting CMPU as the basis for the affected source for
new source MACT.
We recognize that an implication of selecting a narrow definition
of affected source (e.g., a dry cleaning tank and associated equipment)
is that new source MACT requirements could be triggered more easily
than if the affected source were defined as a plant or a collection of
equipment. We believe that this is appropriate where the emission
reduction and cost impacts are reasonable. For example, under the
perchloroethylene dry cleaning standards, a new cleaning machine added
to an existing facility in the source category would be a new source,
subject to new source MACT. We determined that new source MACT controls
were readily available and economically feasible for major source dry
cleaners.
In most NESHAP promulgated thus far, existing source MACT and new
source MACT have been determined to be equivalent or only slightly
different in terms of the emission reduction that must be achieved.
This is also the case in the degreasing and chrome electroplating
NESHAP. Thus, as a practical matter, the control requirements for a new
electroplating tank would have been the same, regardless of whether
that tank was considered a separate new affected source or an addition
to an affected source. However, we recognize that there is an
additional burden on owners and operators attributable to a narrower
definition of affected source, mainly associated with reporting
requirements. The General Provisions already address this burden by
requiring only a routine notification when adding a new nonmajor-
emitting affected source and not the preconstruction review required
for major new affected sources.
As indicated in the above discussion, we believe we have followed a
reasonable decision-making process in developing all NESHAP under
section 112(d) while appropriately exercising our discretion based on
industry-specific circumstances. Furthermore, we believe that our
approach has not resulted in significant inconsistencies in how new
source MACT is applied and the burden that may be imposed. However, in
light of concerns raised by the petitioners, we agree that the
potential for such inconsistencies to arise in future relevant
standards is greater if the decision-making process is not more
formally defined. Accordingly, we agreed to clarify the basis for
selecting affected sources. In addition, we are proposing a minor
amendment to the General Provisions to address this concern. We are
proposing that for each future relevant standard we develop, we will
explicitly define the terms ``affected source'' and ``new affected
source.'' The use of two terms will clarify the applicability of
existing source MACT and determine where new source MACT should apply.
As a general matter, we are proposing that the affected source for a
particular relevant standard will consist of all existing HAP-emitting
equipment and activities at a single contiguous site which are within a
specific section 112(c) source category or subcategory. During the
standards-setting process, we may find it appropriate, after gathering
sufficient information, to combine several listed categories into one,
or to further divide the category into subcategories. This does not
affect our authority to distinguish among classes, types, and sizes of
sources in establishing emission standards. The statute and associated
legislative history afford us substantial latitude in defining an
affected source, but we are electing to adopt this general approach to
the affected source definition because it is responsive to the concerns
articulated by the petitioners, and it will foster greater
predictability and consistency of regulatory outcomes. As noted above,
combining disparate types of equipment and activities within a single
affected source does not preclude a separate assessment of the
emissions from particular types of equipment or activities. Moreover, a
standard for a larger affected source may still be a composite of
sublimits or other elements expressly directed at particular types of
equipment or activities.
Although we have decided that it is generally sensible to define an
affected source broadly, our experience in developing and promulgating
NESHAP indicates that there will be instances where a broad definition
will result in significant administrative, practical, or implementation
problems, and a narrower definition would resolve those problems. Thus,
today's proposal would allow us to more narrowly define affected source
in a particular MACT standard, but the MACT standard must be
accompanied by a justification of why defining the affected source as
all equipment in the section 112(c) source category or subcategory
would result in significant administrative, practical, or
implementation problems, and why the
[[Page 16324]]
narrower definition would resolve the problems.
Defining the ``new affected source'' for each relevant standard
will ensure a more formal consideration of the implications of applying
new source MACT to affected sources potentially subject to new source
MACT. The ``new affected source'' is a collection of equipment or
activities that, if constructed, would be required to comply with new
source MACT. In deciding what will constitute the new affected source
for MACT applicability purposes, we would consider the following
factors: (1) Emission reduction impacts of controlling individual
sources versus groups of sources; (2) cost effectiveness of controlling
individual equipment; (3) flexibility to accommodate common control
strategies; (4) cost/benefits of emissions averaging; (5) incentives
for pollution prevention; (6) feasibility and cost of controlling
processes that share common equipment (e.g. product recovery devices);
(7) feasibility and cost of monitoring; and (8) other relevant factors.
When new source MACT can reasonably be applied considering the
eight factors in the definition of ``new affected source,'' this
collection may be different from the affected source. Accordingly, in
selecting the new affected source, we would have considered whether an
appropriate basis exists for establishing a definition for the new
affected source that differs from the affected source definition. In
selecting the new affected source, we will explain our basis for this
selection. We will also consider the information and analyses that are
offered by interested persons.
The new affected source definition will differ from the affected
source definition in a particular MACT standard only where a
distinction is warranted based on the foregoing identified factors. As
discussed above, the proposal also affords us discretion to define
affected source as different from all of the equipment in the source
category or subcategory for a particular MACT standard where warranted
based on special circumstances. Any exercise of our discretion with
regard to the affected source definition is distinct from the question
of the new affected source definition. Thus, even where we define
affected source differently, we do not intend thereby to alter in any
way the manner in which the foregoing specified factors will be applied
to select an appropriate definition for new affected sources.
We believe that ``new affected sources'' defined in previously
promulgated NESHAP are consistent with this new process. We are
proposing the new process to ensure openness to the decisions on where
to apply new source MACT. For example, in the HON rule, the affected
source definition broadly encompasses a number of discrete processes at
a facility. In this situation, it was reasonable to require new source
MACT when a major-emitting chemical manufacturing process unit is
constructed. The openness and consideration of relevant factors
resulted in the reasonable application of new source MACT.
In setting a MACT standard, we will also consider whether a
sufficient reason exists for defining ``reconstruction'' differently
from the definition currently found in the General Provisions. The
generic definition looks primarily to whether replaced equipment
exceeds 50 percent of the fixed capital cost of an affected source, but
also allows for consideration of technical and economic feasibility. We
propose to amend the General Provisions to allow a different definition
of ``reconstruction'' for specific MACT standards where warranted by
technical and economic considerations. For example, we may find that
because of the functional interrelationship of equipment encompassed by
the affected source, it is reasonable to provide that new source MACT
will apply only where 75 percent of the fixed capital cost of the
source is replaced. We would then codify this definition of
``reconstruction'' into that specific MACT standard.
An explicit discussion of this decision-making process and the
factors considered in developing standards under section 112(d) will
also guide States in developing section 112(j) MACT determinations. In
addition, we would also like to clarify that, if a State defines the
new affected source in a section 112(j) determination as adding a
major-emitting process or production unit (such as in 40 CFR 63.41), we
would not object to such an approach.
C. Other Definitions
1. Construction
We are proposing to clarify in today's amendments the effect of
relocating an existing source subject to MACT. The issue is whether or
not a relocated source is ``constructed,'' and thus subject to new
source MACT. In the Background Information Document for the Promulgated
General Provisions Regulations for 40 CFR Part 63 (EPA 450/3-91-019b,
Feb 94), which contains our response to comments for the part 63
General Provisions, we stated our intended outcome on the issue of
relocation. In general, we stated that when an existing source
relocates and no other changes are made to the source, the source
retains its existing source status. Changes to the source means any
changes to the source's process or control equipment, method of
operation, or emissions. The source would be subject to new source
requirements if, in the process of relocating, the source was
reconstructed, i.e., significant replacement of components.
However, the definition of construction in the General Provisions
does 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 the definition of construction in
Sec. 63.2 by adding: ``Construction does not include the removal of all
equipment comprising an affected source from an existing location and
reinstallation of such equipment at a new location. However, removal
and reinstallation of an affected source will be construed as
reconstruction if it satisfies the criteria for reconstruction as set
forth below.'' Adding this language to the definition of construction
will achieve our original intent.
2. Major Source
We are proposing to clarify the definition of a ``major source'' in
the General Provisions, specifically pertaining to the effect of a
public right of way through a major source. If a source would be a
major source, except for the fact that it is intersected by a public
right of way, such as a public road, it will still be considered a
major source. However, if the sources would be considered separate
plant sites without the public right of way, then the public right of
way in and of itself does not create a single (possibly major) source.
The following examples illustrate this clarification. Suppose a
plant site is a major source and a public road is built that intersects
the plant site. Even though the public road may divide the plant site
into two potentially nonmajor sources, the plant site will still be
considered a major source because the source was considered a single
plant site before the public right of way was built.
Suppose a nonmajor source, located along a public road, decides to
build a new nonmajor source directly across the road. Even though the
public road divides these two potentially nonmajor sources, they will
be considered a single major source as long as the two sources are
under common control and together
[[Page 16325]]
equal more than the major source threshold.
Finally, suppose a nonmajor source located along a public road
decides to build a new nonmajor source down the road from the nonmajor
source (the two sources are on tracts of land that are offset along the
public right of way, such that they do not touch). If, without the
public road (public right of way), there would be two noncontiguous
plant sites and not a single plant site, the public right of way in and
of itself would not create a major source. Therefore, both plant sites
are considered nonmajor sources.
3. Working Day
We propose to add a definition for ``working day'' to clarify
timeline requirements expressed in working days within the General
Provisions. For example, Sec. 63.6(e)(3) (startup, shutdown and
malfunction plan requirements) requires that an owner or operator
record actions taken during a startup, shutdown, or malfunction that
are inconsistent with a startup, shutdown and malfunction plan within 2
working days after commencing the inconsistent actions. We are
proposing to add a definition to clarify that a ``working day'' is any
day on which Federal government offices (or State government offices
for a State that has obtained delegation under section 112(l)) are open
for normal business. Saturdays, Sundays, and official Federal (or where
delegated, State) holidays would not constitute a ``working day.''
4. Compliance Plan
We are proposing to delete the ``compliance plan'' definition from
the General Provisions. Representatives of sources have commented that
compliance plans were required under title V and not under section 112
of the CAA. We assessed and agreed that there would not be an adverse
or unintended effect from its deletion.
5. Part 70 Permit
We are proposing to delete the definition of ``part 70 permit''
because the definition of ``title V permit'' is more generic and
deletion is consistent with other streamlining efforts in this proposal
to remove unnecessary references to other authorities.
D. Prohibited Activities and Circumvention
We are proposing to delete Sec. 63.4(b)(3) and create a new
Sec. 63.4(c) that clarifies our position on ``fragmentation.'' Section
63.4(b)(3) of the General Provisions prohibits circumvention of
relevant standards by fragmenting an operation. Some have suggested
that dividing production between various manufacturing facilities to
reduce the potential to emit below regulatory thresholds at one or more
facilities and, thus, avoid control requirements or permitting
obligations, should be considered a legitimate compliance strategy. The
prohibition against fragmentation is intended to prevent dividing an
operation within the same facility among various owners and, thus,
avoid applicability where there is no real change in control. Merely
changing the name of the owner of a portion of a facility to a new
corporate entity which is nonetheless still under common control should
not be a compliance strategy that would legitimately avoid compliance.
Sources also cannot phase reconstruction activities to avoid
applicable new source requirements. While we do not intend to
circumscribe legitimate business or compliance strategies, we are
proposing that activities that are fragmented or phased to stay within
the 50 percent of fixed capital cost criteria in item (1) of the
definition of ``reconstruction'' in Sec. 63.2 shall be considered
together for applying that criteria. Periodic replacement of equipment
to maintain production to meet product demands should not be aggregated
for determining whether reconstruction has occurred. To illustrate, if
a process modernization project involves a new reactor, heat exchange
system, separation devices and storage vessels, and separate contracts
are awarded for various portions of the project, limiting each one to
less than 50 percent of the replacement cost of a comparable new
affected source, these contracts should be considered together in
applying that 50 percent criteria. However, if the same process unit
were expanded, debottlenecked, or upgraded over time by replacing these
various components, the projects should not be considered together to
determine whether the 50 percent of fixed capital cost is eventually
exceeded since the projects were not phased (or fragmented) to avoid
new source MACT.
E. Preconstruction Review
We are also proposing to amend the requirements for preconstruction
review. We are proposing to amend the title of Sec. 63.5 to more
accurately reflect the contents of the section. The proposed title is
``Preconstruction Review and Notification Requirements.'' The following
paragraphs discuss the more substantive proposed amendments.
1. Preconstruction Review Applicability
Under the current General Provisions, owners or operators of
sources that commence construction or reconstruction after the proposal
date of a relevant standard, but do not start up before the effective
date of such standard, are required to undergo preconstruction review.
We recognize that this requirement could cause costly delays as the
owner or operator may be forced to cease construction or delay startup
until a preconstruction review is completed.
We have concluded that sources commencing construction prior to the
effective date of a relevant standard should not have to undergo
preconstruction review under the General Provisions. We are proposing
to amend Sec. 63.5(a) of the General Provisions to exempt these sources
from the requirement for preconstruction review. Thus, only sources
that commence construction or reconstruction after the effective date
of a relevant standard would be required to undergo such
preconstruction review. However, regardless of whether preconstruction
review is required, sources that commence construction or
reconstruction after the proposal date of a relevant standard are
subject to new source MACT requirements, and they must be in compliance
at startup, or by the promulgation date of the NESHAP, if startup
occurs prior to the promulgation date.
Similarly, we are proposing to amend Sec. 63.5(a) to require
preconstruction notification only for nonmajor-emitting affected
sources that commence construction or reconstruction after the
effective date (even though all affected sources commencing
construction and reconstruction after proposal must meet new source
MACT). The owners or operators of these sources, while not subject to
preconstruction review, are subject to notification requirements. We
are proposing to revise the related notification requirements in
Sec. 63.9(b)(5) to allow the source to request a reduction in the
information required in the application to construct or reconstruct
(Sec. 63.9(b)(5)(iii)). This flexibility should reduce the burden on
smaller sources to comply with the notification requirements. However,
in the event the permitting authority grants the source permission to
not submit portions or all of the standard information, the source
would still be required to keep this information on file and available
for inspection.
We note that some owners and operators will be otherwise required
to apply for and obtain a case-by-case
[[Page 16326]]
MACT determination under section 112(g) before commencing construction
or reconstruction of a process or production unit. The proposed
revisions of the preconstruction review requirements in the General
Provisions do not alter in any way the obligation of an owner or
operator to meet the separate requirements established by the EPA under
section 112(g).
2. State Preconstruction Review
We evaluated the State preconstruction review requirements and
recognized that owners or operators may object to another approval
process when a source has already gone through a similar State
preconstruction review process. We are proposing to allow States that
have taken delegation of the General Provisions and of a relevant
subpart to use their preconstruction review procedures to meet the
preconstruction review requirements of Sec. 63.5 when they are
substantially equivalent (Sec. 63.5(f)(1)).
Under this proposal, we would allow owners or operators of affected
sources to notify the Regional Office of a State's finding that their
preconstruction review program requirements are substantially
equivalent to the General Provision's preconstruction review
requirements.This proposed change would allow States with existing
programs for review of new sources for toxics to utilize their programs
as long as they are ``substantially equivalent'' to those required
under Sec. 63.5 of the General Provisions. For an owner or operator of
an affected source, it would also eliminate the burden of having to go
through two similar preconstruction review procedures. This proposed
change provides flexibility and reduces the potential burden for both
the permitting authority and owners and operators of affected sources.
F. Startup, Shutdown, and Malfunction Plans
1. Incorporation in Title V Permit
The current General Provisions include a requirement that an
affected source's startup, shutdown, and malfunction (SSM) plan ``be
incorporated by reference into the source's title V permit.'' Some of
the litigants, as well as some others in the regulated community, have
expressed concern that this language could be construed to require
permit revision procedures to be followed each time that an SSM plan is
revised. We believe that it would be unduly burdensome and
inappropriate to require that permit revision procedures be utilized
each time an affected source revises its SSM plan.
We are proposing to delete the current language concerning
``incorporation by reference,'' replacing it with new language stating
that the title V permit for an affected source must require that the
owner or operator adopt a SSM plan and operate and maintain the source
in accordance with the procedures specified in the plan. The new
language makes it clear that, unless the permitting authority provides
otherwise, an affected source may make appropriate revisions to a SSM
plan without prior approval by the Administrator or the permitting
authority. Further, because there are no requirements for prior review
and approval of a SSM plan, permit revision procedures are not required
in connection with revising the SSM plan, and the permit shield in CAA
section 504(f) does not apply to the contents of a SSM plan.
In developing the new language, it became apparent that the current
General Provisions do not adequately describe the procedures to be
followed when an affected source revises its SSM plan. Accordingly, we
are proposing to add new language requiring each affected source to
report each revision to its SSM plan in the semiannual report required
by Sec. 63.10(d)(5). Moreover, the proposed language would require
prior written notice to the permitting authority if an affected source
intends to revise its SSM plan in a manner which would alter the scope
of the activities that are deemed to be a startup, shutdown, or
malfunction, or would otherwise modify the applicability of MACT
requirements to the source.
Petitioners also expressed concern that the SSM plans must be
submitted with the permit application because they are voluminous and
may contain confidential information. Extracting the confidential
business information parts of the plan for public submission would be a
burdensome and needless exercise. If the permit writer deems it
appropriate, then the SSM plan must be submitted. Additionally, the
title V program requires the permit writer to make publicly available
all parts of the permit, including plans, under 40 CFR
70.4(b)(3)(viii), which also limits confidential matters to those
specified in CAA section 114(c). Thus, to minimize the unnecessary
production of the SSM plan, the permit authority must require that the
SSM plan be made publicly available only if requested by any person.
However, if no person seeks a copy of the SSM plan, then there is no
need for a source to submit it.
The source must develop, operate, maintain, and report according to
such a plan. The owner or operator of an affected source must keep a
copy of the SSM plan on record and available for inspection upon
request by the Administrator. The Administrator may also request a copy
of the SSM plan with confidential business information removed to
provide to interested members of the public. In addition, the owner or
operator is required to report on a semiannual basis that actions taken
in response to SSM events were consistent with the SSM plan. If the
owner or operator takes actions inconsistent with the SSM plan and the
source exceeds the relevant emission standards, the owner or operator
must report such actions periodically. An initial report is required
within 2 working days after commencing actions inconsistent with the
plan, and a followup letter is required within 7 working days after the
end of the startup, shutdown, or malfunction event. We believe that the
reporting and recordkeeping requirements associated with the SSM plan
will ensure that owners and operators comply with the intent of the
plan.
2. Enforceability of Operation and Maintenance Requirements
Section 63.6(e) of the General Provisions establishes the
requirement for good operation and maintenance of air pollution control
and monitoring equipment. We do not see this requirement as exposing a
source to enforcement liability every time a source fails to follow an
instruction in an owner's manual that has a zero or negligible impact
on actually minimizing emissions. For example, if a control equipment
manufacturer recommends that lubricants be changed on a regular
schedule, and the source is late in making the change, we are not
suggesting that this is inconsistent with good air pollution control
practices for minimizing emissions. Vendor specifications are not
necessarily the best or only indication of good operating practices.
Where appropriate, sources may alter their operation and maintenance
practices to accommodate their actual situation. We expect to use this
section to control bad practices where there is an indication of an
actual increase in emissions or a significant risk of the same.
We do not intend to seek double penalties for situations that
involve simultaneous violations of the good operations and maintenance
requirements and any otherwise applicable emission standard, including
work practice requirements. We may
[[Page 16327]]
allege both violations in the alternative, but do not intend to seek
double penalties. If a source has proof that it has complied with the
emissions standard, then there should be no allegation of bad operation
and maintenance during such period.
We are proposing to amend Sec. 63.6(e)(1)(i) to clarify the
``general duty'' of owners or operators to ``operate and maintain any
affected source, including associated air pollution control and
monitoring equipment, in a manner consistent with safety and good air
pollution control practices for minimizing emissions to the levels
required by the relevant standards.'' However, this general duty does
not require a source to reduce emissions below the level required by
the standard. Furthermore, when the source is in a period such that the
SSM plan applies, this general duty would not necessarily require the
source to meet the standard so long as the source is in compliance with
the plan.
We are proposing to amend language in Sec. 63.6(e)(1)(ii) of the
General Provisions by adding language to recognize that there will
inevitably be situations at facilities that were not contemplated when
the SSM plan was developed. Because there is no protocol in the SSM
plan for such a situation, it would be impossible for a source to
follow the plan. During such circumstances, a source must do the best
it can, consistent with safety and good air pollution control
practices, to minimize emissions, relying on its best engineering
judgment, expertise and familiarity with the equipment, as well as on
the protocols for similar malfunctions that are in the SSM plan, if
any. Conversely, compliance with an inadequate or improperly developed
SSM plan is no defense for failing to minimize emissions.
We also acknowledge that there may be situations that cannot be
prevented by owners or operators through better design or preventive
maintenance. Some petitioners commented that there may be instances
that require an owner or operator to bypass emission control devices
until emissions can be vented to other control equipment to avert
personal injury, equipment failure, or property damages. It was always
our intent to consider safety in addition to good air pollution control
practices when operating and maintaining affected sources. Therefore,
where appropriate, we are proposing to clarify this intent in the
General Provisions.
As noted in the regulatory text, where such unusual situations
arise, a report justifying the procedure followed must be filed. If the
Administrator or designee responds to this report by requiring a
revision to the SSM plan, then the source must do so. The incident may
be minor in its consequences or unlikely to arise again, in which case
the Administrator may determine that it is not necessary to revise the
SSM plan. However, sources are not excused from exerting best efforts
to minimize emissions merely because there is no protocol listed in the
SSM plan for the unique circumstances. Failure to minimize emissions is
a violation of operation and maintenance requirements established under
section 112 of the CAA.
3. Report Submittal Requirements
We have identified reporting requirements in the current General
Provisions that establish different timelines for related reporting
requirements associated with the SSM plans. In order to facilitate
reporting for the owner or operator, we are proposing to amend these
timelines to make them consistent with each other.
Section 63.8(c)(1)(ii) requires that for those malfunctions (or
other events) that affect the continuous monitoring system (CMS), the
owner or operator must report actions not consistent with the SSM plans
if the relevant standard is exceeded, within 24 hours after commencing
actions inconsistent with the plan. A followup report is required
within 2 weeks after commencing actions inconsistent with the plan.
Section 63.6(e)(3)(iv) requires that an owner or operator who takes an
action inconsistent with the SSM plan report such actions within 2 days
after commencing such actions. This must be followed by a letter within
7 working days after the end of the event.
We have considered these provisions and agree that it is reasonable
to require these reports on the same schedule. We are proposing to
revise the requirements in Sec. 63.8(c)(1) to ensure that SSM
monitoring reports are filed consistently with the timeframes of
reports required in Sec. 63.6(e)(3)(iv), which would require an initial
report within 2 working days and a followup report within 7 working
days. Consistency in these provisions should have the effect of
simplifying reporting requirements for owners and operators.
4. Applicability of the Startup, Shutdown and Malfunction Plan
We are proposing to clarify that the SSM plan includes procedures
for operating and maintaining both air pollution control devices and
monitoring equipment. Although the intent of coverage of the plan is
explicitly stated at the beginning of Sec. 63.6, we recognize that it
is unclear that the provisions also apply to monitoring equipment in
other parts of the section. Therefore, we are proposing to clarify
where necessary that the SSM plan provisions apply to monitoring
equipment, as well as control device equipment.
5. Routine Maintenance
We recognize that routine maintenance of air pollution control
devices is essential to ensure that control devices function properly
on a long-term basis and achieve the emissions reductions that they can
achieve. Many facilities can plan and schedule the routine maintenance
in conjunction with scheduled downtime of the process equipment that
generates the streams being treated by the air pollution control
device. In these instances, no compliance issues are raised by the
outage of the control device for planned routine maintenance. We
believe that this is the case for the majority of facilities that have
emission sources subject to MACT standards.
However, we also recognize that there are times when planned
routine maintenance of an air pollution control device cannot be
scheduled to coincide with scheduled downtime of the process equipment.
In these instances, the facility would have to shutdown the process
equipment or install redundant air pollution controls. In some
circumstances, shutdown to perform planned routine maintenance and
subsequent startup would generate greater emissions than allowing some
level of emissions to continue to be emitted from the source, either at
a reduced control efficiency or uncontrolled.
We believe that relevant standards should incorporate flexibility
as necessary to assure that emission control equipment is properly
maintained without causing inappropriate disruptions of source
operations or unnecessary increases in HAP emissions. There is no
uniform approach to this issue which will be appropriate for every MACT
standard. We encourage affected sources to suggest potential allowances
for routine maintenance in each instance where it would be helpful for
the relevant standard to expressly address this issue. We will consider
all such suggestions, incorporate provisions addressing routine
maintenance into MACT standards where we conclude that flexibility is
appropriate, and explain our decision not to incorporate such
provisions in circumstances where we conclude that it is not
appropriate.
[[Page 16328]]
G. Compliance Provisions
1. Compliance Extensions
The petitioners requested us to provide additional opportunities
for owners and operators to request compliance extensions under CAA
section 112(i)(3). The General Provisions require an owner or operator
to make such requests 12 months before the compliance date for a
relevant standard. The petitioners pointed out that events could happen
within the 12-month period before a compliance date that would warrant
a compliance extension.
In general, we anticipate that most sources will have ample time to
achieve compliance given the 3-year compliance period for many
requirements. The compliance extension under section 112(i)(3) is
available for adding controls and other compliance measures requiring
time beyond that which we anticipated in establishing the compliance
date for NESHAP. For example, other compliance measures may include
obtaining or implementing technology hardware or software systems and
process changes to accommodate pollution prevention or other emission
reduction measures.
Such a compliance extension is not appropriate for the failure of
an owner or operator to properly plan and carry out the installation by
the compliance date. However, there may be situations where sources
acting in good faith to anticipate and fulfill their compliance
obligations can still not achieve compliance in a timely manner because
of circumstances or events not entirely of their own making. Work
stoppages at a control equipment supplier's factory are cited as one
example of a reason that sources, acting in good faith, might not be
able to achieve compliance on time. Shortages of skilled design and
construction engineers who are needed to build new facilities to meet
relevant standards, as well as shortages of available technology to
meet the demand from sources who must comply with industry-specific
MACT requirements, may also contribute to delays in achieving
compliance. Based on the merits of such requests, we expect to issue
compliance extensions.
We are proposing to revise this requirement, which is in
Sec. 63.6(i)(4)(i)(B), to allow requests up to 120 days before the
compliance date. We are also proposing to add a new paragraph (C) to
Sec. 63.6(i)(4)(i) to allow requests during the last 120 days before
the compliance date, if the need arose during that 120 days and if the
need was due to circumstances beyond the reasonable control of the
owner or operator.
We recognize that there may be some situations where applicants for
a compliance extension recognize that, for the reasons stated above,
they are unable to comply, and hence file an extension request shortly
before the compliance date, as is now provided by the General
Provisions. Operating affected sources after the compliance date of a
NESHAP creates a potential enforcement situation for companies which,
despite their best efforts, are unable to meet the deadlines for MACT
compliance. As a practical matter, companies may choose to shut down
operations rather than operate without a compliance extension. For
sources who act in good faith in filing an extension request, we will
try to act promptly. In the interim, we intend to use other temporary
measures to address the situation. In such cases, we intend to be
receptive to entering administrative consent orders without penalty
during the pendency of the review if the company complies with such an
order and cooperates by providing all requested information to us for
processing the good faith extension request.
For a standard promulgated under CAA section 112(f),
Sec. 63.6(i)(4)(ii) requires a source to submit a request for
compliance extension within 15 days after the effective date of the
NESHAP. We are proposing to increase the time allowed for a source to
submit a request for a compliance extension from 15 to 90 calendar days
after the effective date of a relevant standard promulgated under CAA
section 112(f). The longer time period appears needed and reasonable to
allow source owners or operators sufficient time to prepare a complete
request. We are also proposing to eliminate the requirement in
Sec. 63.6(i)(4)(i)(B) that establishes a different timeframe for
sources that include emission points in an emissions average. We
believe that this specific issue is better dealt with in the respective
NESHAP.
We are proposing to delete the interim milestone information
required in a Sec. 63.6(i)(6) request for a compliance extension under
Sec. 63.6(i)(4) and direct the focus of the request toward supplying
information on the date and manner in which final compliance would be
achieved.
2. Title V Enforcement
Several sections in the current General Provisions refer to title V
obligations and general compliance obligations. We are proposing to
delete these cross references because they are redundant or
unnecessary. For example, Sec. 63.4(a)(5) requires an owner or operator
of a source subject to a relevant standard to comply with the
requirements of that standard regardless of whether a title V permit
has been issued to the source incorporating the standard. It is clear
from section 113(b)(2) and (c)(1) that standards promulgated under
section 112 are enforceable apart from their incorporation into title V
permits, and nothing in title V or the part 70 operating permits rules
suggests the contrary. We are also proposing to delete the severability
clause of Sec. 63.4(c) because it is unnecessary.
We are proposing to delete Sec. 63.5(b)(5), which states that no
person may operate without complying with the General Provisions and
the relevant standard unless that person has obtained a compliance
extension or exemption under Sec. 63.6. We believe the Sec. 63.6
requirements are sufficient to define compliance obligations.
3. Area Sources That Become Major
We are proposing to revise Sec. 63.6(b)(7) and (c)(5) of the
General Provisions. These paragraphs address the compliance timing
requirements that result when an area source subsequently increases
emissions, thus becoming a major source after 1 or more applicable
NESHAP have been proposed. These sections establish the timing
requirements when a subsequently affected source at the former area
source is considered a new source or an existing source under the
relevant standard.
The current General Provisions require new source MACT for area
sources that become major after the effective date of the relevant
standard, regardless of when the portion of the source affected by the
standard (the affected source) actually commenced construction
(including those that commenced construction long before the proposal
date of the NESHAP). This would cause affected sources to unnecessarily
retrofit new source control measures on existing equipment not designed
to accommodate such measures. We are proposing to revise
Sec. 63.6(b)(7) and (c)(5) to require new source MACT only on affected
sources that commenced construction or reconstruction after the
proposal date of the NESHAP. Those affected sources must comply with
new source MACT upon startup. Affected sources at former area sources
that become major that have not constructed or reconstructed after the
proposal date of the NESHAP would be subject only to existing source
MACT, and would comply by the date
[[Page 16329]]
specified in the standard for existing area sources that become major,
or if no such compliance date is specified, be given the same amount of
time to comply as specified for existing sources in the standard. These
revisions are consistent with the definition of new source in section
112(a)(4) of the CAA, which defines a new source as one that commences
construction or reconstruction after the Administrator first proposes
NESHAP under section 112 establishing an emission standard applicable
to such a source. Such a source would be able to reasonably anticipate
control requirements and construct the source to include such controls
as Congress intended in the CAA.
H. Test Methods
1. Performance Test Dates
We are proposing to streamline the performance test date
requirements of Sec. 63.7(a)(2). As currently written, the section
outlines several different scenarios for establishing performance test
dates. However, all are tied to a 180-day period of some triggering
event, usually the compliance date. Upon review, these multiple
scenarios add more confusion than clarity, and we propose to replace
them with a blanket requirement that sources conduct their performance
tests with 180 days of the compliance date. Section 63.7(a)(2)(i)
through (viii) would be reserved as a result. However, we would retain
Sec. 63.7(a)(2)(ix) to address the scenario where a relevant standard
is promulgated that is more stringent than the proposed standard.
2. Alternative Test Methods
We propose to amend Sec. 63.7(c)(3)(ii)(B) to ensure that a request
to use an alternative test method does not delay the performance test
process. If amended, the section would authorize the owner or operator
to conduct the performance test using an alternative method in the
absence of notification of approval after submitting the site-specific
test plan or the request to use an alternative method. The performance
test would then be conducted within 60 days after authorization to
conduct the test. A source owner or operator's decision to proceed with
using an alternative method in the absence of a notification that the
method is approved would not preclude the owner or operator's legal
responsibility to comply with the applicable provisions of the relevant
standard. We are also proposing conforming amendments in Sec. 63.7(f),
use of an alternative test method, to implement this approach.
3. Approval of Alternative Test Methods and Monitoring Requirements
In 1998, we issued guidance regarding delegation of the 40 CFR part
63 General Provisions authorities to State and local air pollution
control agencies (Memorandum from John S. Seitz, Director, Office of
Air Quality Planning and Standards, to Regional Air Division Directors,
July 10, 1998). In our September 14, 2000, promulgation of revisions to
40 CFR part 63, subpart E (65 FR 55810), we have codified this
guidance. We are now proposing a number of revisions to Secs. 63.7 and
63.8 of the General Provisions, which cover performance testing and
monitoring requirements, to harmonize these sections with the 1998
guidance and subpart E rulemaking, particularly in regard to
Administrator approval of alternative test methods and monitoring
requirements. The specific revisions and sections affected are
explained below.
First, the 1998 guidance and subpart E rulemaking introduced a new
category of changes or alternatives to test methods and monitoring
referred to as ``intermediate changes.'' Because this new category
modifies the major alternative category previously referred to in
Secs. 63.7 and 63.8, we are proposing to revise Secs. 63.7(e)(2)(i) and
(ii), 63.7(f)(1), 63.8(b)(1)(i) and (ii), and 63.8(f)(1) to cite the
definitions for minor, intermediate, and major changes to test methods
and monitoring requirements in Sec. 63.90(a).
Second, we have noted recent confusion in distinguishing test
methods from monitoring for the purposes of deciding who has the
delegated authority for approving alternatives; consequently, we are
proposing revisions to the language in Sec. 63.8(f)(4)(iv) and (5)(i)
to clarify this difference.
Third, we have also noticed significant inconsistencies regarding
the instruments for requesting and granting approval of intermediate
and major changes to test methods, in specific, the combination of the
site-specific test plan/test plan approval versus a letter of request
coupled with an official letter of approval. In consideration of the
significance of approvals of major and intermediate changes on the
compliance decision, and a level of documentation appropriate to the
decision itself, we believe that only an official letter should be used
to approve intermediate and major changes to test methods. Also, the
potential delegated authorities for approval of test plans versus those
for approval of intermediate or major changes to test methods are often
not the same. We are, therefore, proposing revisions to
Sec. 63.7(c)(3)(ii), 63.7(e)(2)(i), and (e)(3) to clarify that major
and intermediate changes to test methods cannot be requested through
test plans nor approved in the course of test plan approval. To
parallel this approach for monitoring, we are proposing the addition of
language to Sec. 63.8(f)(4)(iv) to allow requests for minor changes to
monitoring to be submitted in the site-specific performance evaluation
plan and for these changes, where appropriate, to be approved in
conjunction with approval of this plan.
In addition, we are updating the information in Sec. 63.7(c)(4)(i)
regarding contacts for requesting performance audit materials. We are
also clarifying the requirements for proposing an alternative
monitoring system by citing in Sec. 63.8(f)(4)(ii) and adding to
Sec. 63.2 a definition of the basic elements that constitute a
monitoring system.
I. Monitoring Requirements
1. Combined Emission Streams
We are proposing to change the requirement that a continuous
monitoring system be installed on each emission stream that is combined
prior to release to the atmosphere or on each emission point for mass
emissions standards. We recognize that there may be cases where a
blanket requirement that each stream have a CMS may not add compliance
assurance but would add costs and burden to the owner or operator.
Therefore, we are proposing a change to Sec. 63.8(b)(2) that would
allow for the use of a single CMS for monitoring combined emission
streams, provided that the monitoring is sufficient to demonstrate
compliance with the relevant standard. This will be evaluated in the
development of each standard.
For example, a relevant standard could specify the use of a
condenser for which compliance could be demonstrated by monitoring and
maintaining the temperature of the cooling coils below a specified
level. The compliance temperature level would not be compromised by
controlling one or more emission streams. Therefore, a single CMS for
monitoring combined emission streams would be sufficient to demonstrate
compliance.
Alternatively, the combination of emission streams for monitoring
could result in the inadvertent averaging of affected and nonaffected
sources. For example, if the CMS is designed to monitor the
concentration of a compound in the stream, a nonaffected source stream
with a low concentration of the compound would mask a high
[[Page 16330]]
concentration of the compound in the affected stream. Where the
combined stream might meet the relevant standard, the single affected
stream would not. In this case, the individual standard requirements
might override the General Provisions to prevent the ``dilution'' of
the streams from occurring.
2. Monitor Readouts
We are clarifying in the proposed amendments the owner or
operator's obligation regarding the accessibility of readouts from
monitoring systems required for compliance with emission standards. In
today's proposed amendments, we are proposing language in
Sec. 63.8(c)(2) that requires monitor readouts to be ``readily
accessible on site.'' This phrase ``readily accessible on site'' means
the monitor readout must be in plain view or in close proximity where
the operators normally are located when operating such equipment. This
requirement does not mean that the monitor readout must be in plain
view of the operator at all times, but that the device is readily or
reasonably accessible so the operator or an inspector can view the
readout without unnecessary delay.
J. Notification Requirements
1. Initial Notification Requirements
We are proposing to reduce the source description information that
an owner or operator of an affected source subject to a relevant
standard is required to submit in the initial notification under
Sec. 63.9(b). The intent of the initial notification is to identify and
alert the EPA and/or delegated State agencies of those sources for
which a relevant standard applies.
We have evaluated and decided that it was both unnecessary for us
to receive and burdensome for sources to supply information regarding
the operating design capacity of an affected source and the identity of
each emission point for each emitted HAP in the initial notification.
Therefore, we are proposing that the initial notification not require
that an owner or operator report the operating design capacity of the
source, and only require that the owner or operator identify the types
of emission points and HAP emitted in lieu of each emission point for
each emitted HAP.
As discussed in section II.E of this preamble, we are proposing to
revise Sec. 63.9(b)(5) to allow a nonmajor emitting source that is not
subject to the requirements to submit an application for
preconstruction review and approval and to request a reduction in the
information required in the application to construct or reconstruct.
This flexibility should reduce the burden on smaller sources to comply
with the notification requirements.
In general, we propose to streamline the requirements of
Sec. 63.9(b), initial notifications, to eliminate duplicative or
unnecessary information (e.g., Sec. 63.9(b)(4)(ii) through (iv)). We
are proposing to delete Sec. 63.9(b)(3) and revise Sec. 63.9(b)(4) and
(5) to clarify the applicability and responsibility of sources under
these requirements. In particular, we would clarify the
responsibilities of sources that have an initial startup date before
the effective date of the relevant standard, as well as sources that
construct or reconstruct after the effective date of the relevant
standard.
2. Performance Test Notification
Section 63.7(b) of the General Provisions provides performance test
notification requirements that we and/or delegated State agencies be
notified at least 60 calendar days before the scheduled date of the
performance test. In cases where circumstances did not allow for such
notice, the requirement was that the notice be submitted within 5 days
of the date that an affected source intends to conduct the performance
test.
Performance tests often are conducted by persons contracted to do
the work, and an owner or operator may not be able to control when a
performance test will be performed. We agree that if an owner or
operator cannot inform the Administrator that it is unable to conduct a
performance test because of unforeseeable circumstances, the intent of
the provisions would be met as long as an owner or operator notifies
the Administrator as soon as practicable and without delay of an intent
to conduct a performance test. Therefore, we are proposing to amend
Sec. 63.7(b)(2) accordingly.
3. Area Source Analysis
We are proposing to eliminate the requirement in
Sec. 63.9(h)(2)(i)(E) that an owner or operator of an area source
submit, as part of the Notification of Compliance Status when a
relevant standard applies to both major and area sources, the analysis
demonstrating that the source is an area source. After further review,
we decided that submission of an analysis demonstrating that the source
is not major is only necessary for enforcement purposes when a relevant
standard applies to both major and area sources. The proposed change
would eliminate the need for nonaffected area sources to submit an
analysis, and the need for affected area sources to submit the analysis
with their compliance notification. This proposed change does not
relieve an owner or operator of a source from the responsibility to
determine whether the source is a major source or an area source. Refer
to section II.K of this preamble for the discussion on the
applicability determination recordkeeping requirement for unaffected
sources.
K. Recordkeeping and Reporting Requirements
1. Recordkeeping Requirement for Unaffected Sources
The current General Provisions include a requirement in
Secs. 63.1(b)(3) and 63.10(b)(3) for sources both to determine
applicability and to keep a record of this determination if the source
determines that it is not an affected source for a relevant standard.
In enacting this provision, it was our intent to enable an owner or
operator of a source in a given source category to document its
determination that the source is not subject to a NESHAP promulgated
for that source category. However, an unintended interpretation of the
General Provisions could be to require owners and operators of any
source, including facilities not in the source category being
regulated, to perform applicability determinations each time any NESHAP
are promulgated. It was not our intent that the General Provisions
require owners and operators to make a determination that they are not
subject to every NESHAP that is issued. In this proposal, we are
clarifying our intent. We are proposing to revise the language in
Secs. 63.1(b)(3) and 63.10(b)(3) to limit requirements to the sources
within the source category of the relevant standards. Area sources that
would be required to retain a certified applicability determination
include sources that are subject to limitations on the source's
potential to emit; sources that are specifically excluded from the
relevant standards (e.g., research and development facilities); and
sources that are below applicability thresholds established in the
source category-specific rule (e.g., annual raw material use,
production thresholds, emissions). If a source has failed to retain the
documentation of its original determination but can reestablish that
documentation to the satisfaction of the Administrator and proves that
it has not been and is not subject to the relevant standard affecting
the source category, we will consider such a violation to be a low
enforcement priority.
[[Page 16331]]
In addition, we are proposing to amend Sec. 63.10(b)(3) to clarify
that the requirements to determine the applicability of a relevant
standard under Sec. 63.1(b)(3) and to record the results of that
determination under Sec. 63.10(b)(3) do not by themselves create an
obligation for the owner or operator to obtain a title V operating
permit.
2. Preconstruction Review Application Submittal
We are proposing to change the submittal requirements for an
application for approval of construction or reconstruction. The current
General Provisions require owners or operators of an affected source to
submit an application for approval of the construction of a new major
affected source, the reconstruction of a major affected source, or the
reconstruction of a major source such that the source becomes a major
affected source subject to the relevant standard. The application
submittal is required as soon as practicable before the date that
construction or reconstruction is planned to commence, but no sooner
than the effective date of a relevant standard. The application
submittal for an affected source for which construction or
reconstruction had commenced and initial startup had not occurred
before the NESHAP effective date is required as soon as practicable
before startup but no later than 60 days after the effective date.
The petitioners commented that specified time constraints for
application submittal were unnecessary because an owner or operator
would not risk constructing or reconstructing a source without
receiving approval. We specified timeline submittal requirements to
ensure that owners or operators proceeded through the preconstruction
review application process in such a way as to allow us sufficient time
for review. We agree that it is in an owner's or operator's best
interest to obtain approval for construction or reconstruction before
expending time and money, which should provide a sufficient incentive
for sources to submit applications as early as possible. Therefore, we
are proposing to require that the application be submitted as soon as
practicable before construction or reconstruction is planned without
specifying time constraints (Sec. 63.5(d)(1)(i)). However, even though
we would not specify time constraints within the relevant standard, we
would recommend that owners or operators allow us at least 90 days for
the review process.
L. Lesser Quantity
The petitioners expressed concern that the definition of ``lesser
quantity'' in Sec. 63.2 could create serious compliance problems and
inequities in situations where equipment/operations in more than one
source category are present at a facility. For example, the petitioners
have noted that equipment/operation in each of two or more source
categories at an area source when a relevant section 112 standard is
adopted would not be subject to the standard, unless the section 112
standard applied to area sources. However, if a lesser quantity
determination is subsequently made for a HAP emitted by the equipment/
operations in one of the source categories at the facility such that
facility became a major source, the other regulated source categories
would also then become major sources without regard to the HAP they
emit.
As part of today's amendments, we are proposing to delete the
definition of lesser quantity from Sec. 63.2 of the General Provisions.
It is not our intent by deleting the definition of ``lesser quantity,''
to indicate one way or other whether we agree with the litigants'
concerns. It is our intent that, if a lesser quantity determination
would affect the major/area source status of sources in categories for
which a section 112 standard was previously promulgated, we would
address appropriate applicability and compliance procedures when such a
determination is made.
M. Clarification and Consistency
We are proposing other changes to the General Provisions where
necessary for clarification and consistency. These are not substantive
changes and do not change the requirements of the General Provisions.
Instead, these proposed changes would make the General Provisions
easier to understand and to use. Minor editorial and clarifying changes
are discussed by way of example in the following paragraphs. More
substantive changes are addressed in other sections of this preamble.
1. Preconstruction Review and Title V Interaction
In the current General Provisions, several paragraphs under
Sec. 63.5 (e.g., paragraphs (b)(3), (4), and (5)) include the phrase
``whether or not an approved permit program is effective in the State
in which an affected source is (or would be) located.'' The intent of
this phrase is to indicate that the preconstruction review provisions
that are included in the General Provisions are established pursuant to
section 112(i) of the CAA. These preconstruction review provisions do
not rely upon a title V permit program for implementation; rather, they
are completely independent and are implemented solely through the
General Provisions. Consequently, this phrase does not affect the
requirements for preconstruction review; it merely distinguishes those
requirements from other requirements that may subsequently come into
place under an approved title V program. Upon review, we have
determined that this phrase may be confusing to owners or operators who
must comply with the relevant standard or to State and local agencies
required to implement the relevant standard. Therefore, we are
proposing to delete this phrase from the General Provisions.
2. Continuous vs. Continuous Parameter Monitoring Systems
We are proposing clarifying changes to Sec. 63.8(c)(6) to identify
those requirements that are for continuous parameter monitoring systems
(CPMS) versus those that apply to CMS. The change is intended to avoid
possible confusion by the owner or operator as to which provisions
apply when the requirements are not clearly delineated in a relevant
standard.
3. Applicability of Standards Developed Under the CAA
We are proposing to clarify in Sec. 63.1(a)(3) that the
Administrator can specify in a relevant standard that an affected
source subject to other provisions under the CAA need only comply with
the provisions of that standard. This clarification reflects what is
already being done in relevant standards. We do this in relevant
standards so that an owner or operator of an affected source subject to
other standards under the CAA is not burdened with the need to
determine the ``more stringent'' requirements for compliance purposes
or to duplicate recordkeeping and reporting for each standard. Both the
HON and petroleum refineries NESHAP specify in the applicability
section the requirements that would apply when there are overlapping
requirements with other standards developed under the CAA. For example,
in the Petroleum Refineries NESHAP (60 FR 43244), we specified that
after the compliance dates for that NESHAP, a storage vessel that is
part of an existing source that is subject to 40 CFR part 60, subpart
Kb, would only be required to comply with 40 CFR part 60, subpart Kb.
[[Page 16332]]
4. Unnecessary Additional Information
We are proposing to delete unnecessary additional information from
the General Provisions. For example, we are proposing to delete
Sec. 63.1(a)(7) and (8) because they discuss the content of 40 CFR part
63, subparts D and E, and do not provide information or requirements
relevant for compliance with the General Provisions.
5. Actual Emissions or Control Efficiency Data
We are proposing to eliminate the requirement in Sec. 63.5(d)(2) to
submit ``actual'' emissions or control efficiency data with the
Notification of Compliance Status when a relevant standard does not
require this information to demonstrate compliance. We believe that
this requirement as stated can cause confusion because it is often not
feasible or required that ``actual'' emissions or control efficiency
data be submitted for ``affected sources'' to demonstrate compliance.
6. Commence Versus Begin Actual Construction
Section 63.5(d) of the current General Provisions contains
requirements for new and reconstructed affected sources. The
petitioners commented that the use of the term ``commence
construction'' as a trigger for submittal of the application was
inappropriate. Similarly, they commented that the expectation that the
notification of intent to construct a new major affected source include
``the expected commencement date of the construction or
reconstruction'' was inappropriate. The General Provisions define
``commenced'' in such a way that an owner or operator would be
obligated to submit an application for construction or reconstruction
if they enter into a contractual obligation to undertake and complete a
construction or reconstruction. Petitioners explained that such
contractual obligations may be in place, but actual construction plans
or design information necessary for completion of an application may be
unknown.
We evaluated those places within the current General Provisions,
Sec. 63.5(d), where petitioners commented that the use of the terms
``commence'' or ``commencement'' are inappropriate. We are proposing to
amend the regulatory language to specify the beginning of actual
construction rather than the commencement of construction. This
proposal reflects our original intent and addresses the petitioners'
concerns.
7. Consistency With Statutory Language
In some cases, the current General Provisions contain terminology
that is inconsistent with what is in the CAA. We have corrected
inconsistent language where appropriate. For example, Sec. 63.1(a)(3)
contains language inconsistent with the parallel language of section
112(d)(7) of the CAA. We are proposing parallel regulatory language to
match that of the CAA.
8. Use of Alternative Test Methods
We are proposing to amend Sec. 63.7(f)(2)(ii) to clarify that the
use of defined aspects of Method 301 procedures may be sufficient to
validate the data and the test method used to obtain the data.
Currently, the language implies that a complete Method 301 validation
would be required to make this demonstration in all cases, which was
not our intent.
Method 301 establishes acceptance criteria as well as a
demonstration procedure for test method development and validation and
alternative method demonstrations. Such criteria and procedures did not
exist before Method 301; therefore, the many emission test methods in
the United States and abroad did not have a standard procedure
underlying their validation. Method 301 defines how good a proposed
method is in terms of bias and precision either standing alone or
compared to an existing (reference) method.
During the proposal and promulgation of Method 301, we recognized
that other acceptable validation procedures for demonstrating a
method's acceptance (precision and bias) do exist, e.g., ASTM. We
acknowledged this in Sections 1.1.1 and 12 of Method 301, which allow
different validation approaches under certain conditions, including
other reasonable statistical approaches, ruggedness testing of method
modifications, similar exhaust matrix demonstrations, etc.
III. Proposed Amendments to the Section 112(j) Provisions
We are proposing to clarify and correct the existing rules (59 FR
26429) (part 63, subpart B, Secs. 63.50 through 63.56) promulgated May
20, 1994, implementing section 112(j) of the CAA to better address
timing and applicability issues. A key point of clarification is how
and when new source MACT and the associated new affected source are
defined. The current rules establish the section 112(j) hammer date as
the date for determining whether new source MACT should apply and what
it should be. However, because this date could occur before a source
had received a title V permit containing MACT emission limitation
requirements for new sources, sources would be left to ``guess'' at
what new source MACT would be. If the source didn't guess correctly,
and new source MACT were different than anticipated at the commencement
of construction, it may incur significant rebuilding expense or delays
to accommodate new MACT controls when finally issued in a title V
permit. Although we considered this difficulty in knowing the exact
nature of new source MACT, and discussed it extensively in the
promulgation preamble (59 FR 26435), the petitioners pointed out that
our solution was unworkable.
With these amendments, we are proposing an alternative remedy to
the timing requirements associated with new source MACT determinations.
As discussed in section III.C of this preamble, we propose to change
the new source MACT applicability date to the date on which an affected
source is issued a title V permit containing requirements establishing
new and existing source MACT for that affected source. From this date
onward, future changes at the facility can be made with knowledge of
what new source MACT is for that facility. This change in the
applicability date also affects area sources (i.e., nonmajor sources)
that become major sources. For example, an existing area source (in a
category or subcategory for which the section 112(j) permit hammer date
has passed) that increases emissions such that the source becomes a
major source would be subject to existing source MACT because the new
source MACT applicability date has not yet been established for the
source.
The other major clarification we are proposing today is the
creation of a two-part MACT application process. Part 1 would be a
brief informational submittal, followed by a substantive application
for MACT requirements, or Part 2. We discuss this process in more
detail in section III.D of this preamble.
A. Applicability
We are proposing several changes to clarify Sec. 63.50
applicability requirements. We have reorganized Sec. 63.50(a) to
clarify that the section 112(j) program places obligations on source
owners and operators (Sec. 63.50(a)(2)(i)) and on permitting
authorities (Sec. 63.50(a)(2)(ii)). We also propose to exempt research
or laboratory activities whose primary purpose is to conduct research
and development into new processes and products. This proposed
exemption (Sec. 63.50(a)(1)) would remain until research and
development activities are listed as a source category for regulation
pursuant to section 112(c)(7) of the
[[Page 16333]]
CAA. We propose to add a definition to Sec. 63.51 for research or
laboratory facilities, which is discussed in more detail in section
III.B of this preamble.
We are proposing to amend Sec. 63.50(a)(2)(i) to clarify that only
equipment or activities within the relevant source category or
subcategory located at major sources are affected by the regulatory
requirements implementing section 112(j). Currently, the rule could be
interpreted to apply to emission sources at the facility but outside of
the relevant category or subcategory, which was not our intent. For
example, assume that a source is subject to section 112(j) emission
limitations for operations in a relevant category or subcategory. Other
operations at the same facility in a different category or subcategory
would not be subject to section 112(j) emission limitations unless and
until the section 112(j) deadline for this different category or
subcategory passes.
We are also proposing to clarify the relationship of section 112(j)
applicability to the effective date of the permitting authority's title
V program in Sec. 63.50(a)(2)(i). In particular, petitioners raised the
concern that, in the case of a title V program that receives source
category-limited interim approval, section 112(j) should apply only to
those sources subject to permitting in that title V program, or should
apply only to sources located in those geographic areas covered by the
title V permit program receiving partial approval in a given State. We
agree that if the approved title V program is limited to specific
source categories or subcategories, then section 112(j) should not be
triggered for sources in categories or subcategories not covered by the
title V program.
The petitioners objected to the language in Sec. 63.50(b) which
states that the current rule does not prevent a State or local
regulatory authority from imposing more stringent requirements than
those contained in the rule. They contended that limitations
established under section 112(j) must be equivalent to section 112(d)
limitations, and that States can only be more stringent as a matter of
State law. The petitioners interpreted the current language as
articulating a State's ability to be more stringent than MACT as a
matter of Federal law.
We plan to retain the current language. As noted in the
promulgation preamble (59 FR 26433; May 20, 1994), many State and local
regulatory authorities maintain regulatory programs that involve air
toxic pollutant reviews for stationary sources. Section 63.50(b)
clarifies that section 112(j) does not pre-empt any requirements of
these programs that are at least as stringent as the current rule.
However, we are requesting comment on this issue and will consider
revising Sec. 63.50(b) in the promulgated amendments if further
clarification is needed.
Finally, we are proposing to delete Sec. 63.50(c) because the
requirement that States must have legal authority to incorporate and
enforce requirements of section 112(j) is found in 40 CFR part 70.
Deletion of this provision does not remove the obligation of a
permitting authority to have section 112(j) authority as a prerequisite
for title V permit program approval.
B. Definitions
We are proposing to amend several of the Sec. 63.51 definitions for
clarity and consistency. Other proposed changes are more substantive
and, in some cases, are needed to implement broader concepts being
addressed elsewhere in this preamble. For example, we are proposing to
add or amend several definitions related to the concept of affected
source as discussed in section II.B of this preamble. We are proposing
to add definitions of ``affected source'' and ``new affected source''
to Sec. 63.51 as they relate to implementation of this concept. We are
proposing to revise the definition of ``similar source'' to be
consistent with implementing the new affected source concept. We are
proposing to define ``similar source'' as ``that equipment or
collection of equipment that by virtue of its structure, operability,
type of emissions and volume and concentration of emissions is
substantially equivalent to the new affected source and employs control
technology that is practical for use on the new affected source.''
``Practical for use'' contemplates that the State permitting authority
would consider whether the control technology would achieve similar
efficiencies. We are proposing to delete the definitions of ``emission
point,'' ``emissions unit,'' ``existing major source,'' ``new emission
unit,'' and ``new major source'' in Sec. 63.51 for consistency in
implementing both subparts A and B proposed amendments. Where
appropriate, we are proposing edits that reflect these proposed
definition changes when these terms are used.
1. Available Information
We are proposing to revise the ``available information'' definition
to specify the type and timing of information that the owner or
operator must submit in an equivalent MACT determination application
under the section 112(j) rule. As promulgated, the deadline for
submission of this information is the section 112(j) deadline, which is
the date on which the section 112(j) hammer falls. However, consistent
with proposed changes in Secs. 63.52 and 63.53 to make the permit
application a two-part process, the substantive information required by
the permitting authority to make its case-by-case MACT determination is
now tied to submittal of the Part 2 MACT application.
As part of the section 112(j) MACT determination process, the
proposed concept of ``available information'' is used in such a way as
to limit the introduction of ``new'' information to the MACT
determination process beyond the date on which the first Part 2 MACT
application is filed for an equivalent emission limitation for a source
in the relevant source category or subcategory in the State or
jurisdiction. This approach of setting a date certain to limit the
universe of ``available information'' is consistent with the approach
being proposed in the new source review program. For example, the
development of a new emission control technology after the date of the
first Part 2 MACT application would not be considered ``available
information'' for another source's MACT determination. However, if the
technology were developed before the first Part 2 MACT application, but
the information was only brought to the permitting authority's
attention after that date, this information would be considered
``available,'' and it could be used in making the MACT determination.
Also, we propose to add language to the definition of ``available
information'' to make clear that permitting authorities can and should
consider information from the public as well as from the applicant. The
proposed definition would require the permitting authority to consider
any information submitted by the applicant or others before or during
the public comment period on the section 112(j) equivalent emission
limitation.
We believe that both the States and the sources will have
substantial incentive to identify and obtain the full body of
information that should be considered in the case-by-case MACT
determination as expeditiously as possible. We also note that available
information includes, among other things, ``additional relevant
information that can be expeditiously provided by the Administrator''
before the date on which the first Part 2 application is filed for a
source in the relevant source category or subcategory in the State or
jurisdiction. For example, such available information could include
[[Page 16334]]
relevant information provided on EPA's Air Toxics Home Page before the
first Part 2 application date. The better supported a section 112(j)
MACT determination is, the more likely it is that the effects of
subsequent section 112(d), 112(h), and 112(g) standards on the affected
source will be minimal.
We are proposing to move the content of items 6, 7, and 8 of the
definition to the introductory text of the definition to clarify the
role and timing of the more general types of ``available'' information
that may be provided to the permitting authority. The intent of the
current language is preserved with the change.
2. Research and Development Activities
We propose to add a definition of ``research or laboratory
activities'' to clarify proposed language in Sec. 63.50(a)(1) that
certain research and development activities are exempt from this
subpart. We would limit this exemption to sources that are not engaged
in the manufacture of products for commercial sale, except in a de
minimis manner, and where the source is not subject to a source
category specifically addressing research or laboratory activities that
is listed pursuant to section 112(c)(7) of the CAA. Section 112(c)(7)
requires the Administrator to establish a separate category covering
research or laboratory facilities, as necessary to assure the equitable
treatment of such facilities.
3. Other Definition Changes
We propose to amend the definition of ``equivalent emission
limitation.'' We are proposing to replace the phrase ``at least as
stringent as'' with ``equivalent to'' so that the language in this
definition is consistent with the language in the CAA. Similarly, the
proposed definition of ``maximum achievable control technology (MACT)
floor'' contains minor amendments to ensure consistency with the
definition in the Act. We are also proposing a minor change to the
definition of ``section 112(j) deadline'' to clarify that the deadline
is the date 18 months after the date on which a relevant standard is
scheduled to be promulgated. We are also proposing to delete the
definition of ``United States,'' which is considered unnecessary in the
context of the rule. Finally, we are proposing to amend the definition
of ``permitting authority'' to clarify that this term means a
permitting authority under either 40 CFR part 70 or part 71.
C. Approval Process
We are proposing to expand and modify Sec. 63.52 with proposed new
paragraphs (a) through (d) to clarify the obligations of owners or
operators of major sources that include one or more sources in a
category or subcategory for which the Administrator fails to promulgate
an emission standard under this part on or before the applicable
section 112(j) deadline. As discussed in section IV.A of this preamble,
the purpose of some of these proposed changes is to ensure that
existing MACT determinations (e.g., those developed under the section
112(g) program) are given appropriate consideration and weight in the
section 112(j) MACT determination process.
We have identified three situations for major sources related to
the timing of applicability of section 112(j) to a source and related
to existing requirements in a source's permit that could be affected by
the section 112(j) rule. Revised Sec. 63.52(a) through (c) address each
of these situations.
The first situation, described in proposed Sec. 63.52(a), covers
major sources that include, as of the section 112(j) deadline, one or
more sources in a category or subcategory for which the Administrator
has failed to promulgate an emission standard. Owners or operators of
these sources would be required to submit a Part 1 MACT application to
the permitting authority by the section 112(j) deadline if the owner or
operator can reasonably determine that one or more sources at the major
source belong to a category or subcategory that would be subject to the
section 112(j) MACT requirements. We believe, in most cases, that it
will be clear to owners or operators which affected sources are subject
to section 112(j) MACT requirements. However, in a few instances, there
may be legitimate confusion as to the applicability of the
requirements. In these cases, proposed Sec. 63.52(a)(2) would require
the owner or operator to submit a Part 1 MACT application within 30
days of being notified in writing by the permitting authority that one
or more sources at the major source belong to a section 112(j) category
or subcategory.
The proposed language would require the permitting authority to
notify the owner or operator within 120 days of the section 112(j)
deadline that section 112(j) requirements apply to a facility. We
believe that permitting authorities will have information available at
the time of the section 112(j) deadline through existing title V
permits and permit applications, as well as information from the EPA
and other sources, to identify and notify owners or operators within a
fairly short time period. The purpose of placing a cap on the
notification period is to provide major sources with some certainty
that, if they and the permitting authority both determine that their
facilities are not subject to section 112(j), then they will not be
brought into the section 112(j) process months or years after a good-
faith determination was made. We request comment on whether the 120-day
time period is sufficient for permitting authorities to act.
Also addressed in proposed Sec. 63.52(a) is the case where an owner
or operator has a title V permit that addresses the emission limitation
requirements of section 112(g) by the section 112(j) deadline. Such an
owner or operator would be required to submit a Part 1 MACT
application, but additional provisions would allow the owner or
operator to request a determination that the section 112(g) emission
limitations already in its permit are ``substantially as effective as''
the requirements otherwise adopted under section 112(j) for the source.
As discussed in section IV.A of this preamble, we believe that MACT
determinations made under separate programs should be substantially
equivalent when the same procedures for determining MACT are used.
Therefore, an affected source with a section 112(g) new source MACT
determination should, in most cases, already be subject to applicable
requirements substantially as effective as those that would be required
under section 112(j). In these cases, the source's title V permit must
be revised to reflect that the source's continued compliance with the
section 112(g) MACT determination satisfies the requirements of section
112(j).
The second situation, addressed in proposed Sec. 63.52(b), covers
owners or operators of sources in a category or subcategory affected by
a section 112(j) deadline, but who were not subject to section 112(j)
emission limitations at the time of the deadline. Proposed
Sec. 63.52(b)(1) would address sources that install equipment in a
category or subcategory subject to section 112(j) requirements, and
where the installation does not trigger the section 112(g) process
(i.e., the new equipment is not a major-emitting source). These sources
may be major sources before the installation, or they may become major
sources as a result of the installation. In either case, the owner or
operator must submit a Part 1 MACT application within 30 days after
startup of the source.
Proposed Sec. 63.52(b)(2) is similar to proposed Sec. 63.52(a)(3)
in that it addresses sources that have entered the section 112(g)
process through installation of a major-emitting source. In the case of
proposed Sec. 63.52(b)(2), the source installs a major-emitting source
[[Page 16335]]
after the section 112(j) deadline for sources in the same category or
subcategory. Where the source already has a title V permit addressing
section 112(g) requirements, the owners or operators of these sources
would be required to submit a Part 1 MACT application to revise the
title V permit addressing section 112(g) requirements. The Part 1 MACT
application must be submitted within 30 days after startup of the
source. Where the source has applied for but not yet received a title V
permit addressing section 112(g) requirements, the owners or operators
of these sources would be required to submit a Part 1 MACT application
to revise the title V permit to address section 112(j) requirements
within 30 days after issuance of the title V permit addressing section
112(g) requirements. Once the Part 1 MACT application is submitted, the
permitting authority would make an equivalency determination for the
source as discussed above for sources subject to proposed
Sec. 63.52(a)(3).
The relevant provisions of current Sec. 63.52(f), which address
area (i.e., nonmajor) sources that become major sources, were
incorporated and expanded in the proposed new Sec. 63.52(b)(3) and (4)
to consolidate in proposed Sec. 63.52(b) the applicable requirements
for sources that become subject to section 112(j) after the section
112(j) deadline. These provisions address the status of area sources
that become major sources after the section 112(j) deadline either
through the relaxation of a federally enforceable limitation on
potential to emit or because the source becomes major because the EPA
established a lesser quantity emission rate pursuant to section 112(a)
of the CAA.
In one case, we are proposing to change the Part 1 MACT application
submittal date from the current Sec. 63.52(f) provisions. The current
rule requires the source to comply with the section 112(j) emission
limitations on or before the date of becoming a major source. Under
today's proposal, if an area source increases its potential to emit HAP
such that the source becomes a major source subject to subpart B, due
to a relaxation in any federally enforceable emission limitation, then
the owner or operator must submit a Part 1 MACT application within 30
days after the source becomes a major source. We are proposing this
change to implement the concept discussed earlier that the resulting
affected source is subject to existing source MACT and should have
timing requirements similar to other sources that become subject to
section 112(j) requirements after the section 112(j) deadline.
A similar situation exists for area sources that subsequently
become major due to the establishment of a lesser quantity emissions
rate under section 112(a) of the CAA for an affected source at the area
source. Currently, owners or operators of sources in categories or
subcategories subject to 112(j) requirements must submit a MACT
application within 6 months of the date such a source becomes a major
source. We solicit comments on whether this timeline should be
retained, or whether it would be beneficial to make it more consistent
with the application deadline requirements for other sources, i.e., 30
days from the triggering event.
The third situation is addressed in proposed Sec. 63.52(c). This
section covers owners or operators of sources who have a title V permit
that addresses the requirements of section 112(j), and subsequent
actions occur at the source that trigger section 112(j) requirements.
In the simplest case, when events such as the addition of a new process
unit occur, the permit already contains the relevant section 112(j)
requirements, and the source complies with the permit conditions. In
other cases, the permit may not contain sufficient requirements to
address the section 112(j) requirements. For example, a source in a
given category or subcategory may have a title V permit that addresses
section 112(j) emission limitations for the production of chemical
``A.'' If the source then installs a new process unit to produce
chemical ``B,'' and the new process unit includes equipment that is in
the same source category but was not previously addressed in the
source's title V permit, section 112(j) emission limitations would need
to be developed to address this scenario. In this case, the owner or
operator must submit a Part 1 MACT application within 30 days after
beginning construction. In the case where a new affected source is
constructed after the issuance of the permit, the owner or operator
must obtain a title V permit revision with applicable limits prior to
startup of the new affected source.
We are proposing to add Sec. 63.52(d) to provide a process by which
the owner or operator of a source could obtain up front determinations
from the permitting authority. Proposed Sec. 63.52(d)(1) would allow
the owner or operator to request an applicability determination from
the permitting authority in the case of uncertainty regarding the
source's status with respect to section 112(j) requirements. The form
of the request would be the submission of a Part 1 MACT application.
Some sources might prefer to obtain an up front determination from the
permitting authority rather than wait 120 days for the permitting
authority to notify them of their applicability or in order to have
documentation of their nonapplicability.
Proposed Sec. 63.52(d)(2) provides that an owner or operator of a
new affected source may submit an application for a Notice of MACT
Approval before construction, under Sec. 63.54. This provision is
contained in the current rule as Sec. 63.52(a)(4).
Proposed Sec. 63.52(e) would incorporate the two-part permit
application process. The rationale and content of each of the two
applications are discussed in section III.D of this preamble. The
timing of the submittal of the Part 1 application has already been
addressed in the proposed changes to Sec. 63.52, paragraphs (a) through
(d). The focus of proposed Sec. 63.52(e) is the review process for the
Part 2 MACT application.
Proposed Sec. 63.52(e)(1) would require submittal of the Part 2
MACT application within 6 months after submittal of the Part 1 MACT
application. This timeline is analogous to the current rule, which
allows a source 6 months to submit a revised application upon
determination that the original application, submitted at the section
112(j) deadline, is incomplete. Today's proposal would provide this 6-
month extension as a matter of course in recognition of the fact that
the Part 1 MACT application is not required to be complete enough to
support a MACT determination.
Proposed Sec. 63.52(e)(2) would provide a process by which both
equivalency determinations and applicability determinations can
proceed. An owner or operator who requests an applicability
determination under proposed Sec. 63.52(d)(1) must comply with the
remaining provisions of this subpart if the permitting authority
determines the source is subject to section 112(j) requirements. If the
permitting authority determines the section 112(j) requirements do not
apply to the source, no further action by the owner or operator is
necessary.
Given the importance of the outcome in an equivalency determination
under proposed Sec. 63.52(a)(3) or (b)(2), the proposed process for an
equivalency determination includes the opportunity for full public,
EPA, and affected State review. If the permitting authority determines
that the existing section 112(g) permit terms and conditions satisfy
the section 112(j) requirements, the requirements of section 112(j) are
satisfied once the source's title V permit
[[Page 16336]]
is revised to reflect that the source's continued compliance with the
section 112(g) MACT determination satisfies the requirements of section
112(j). If the permitting authority determines that the section 112(g)
permit terms and conditions are not sufficient to satisfy the section
112(j) requirements, the source must proceed with submittal of a Part 2
MACT application.
Proposed application completeness provisions in Sec. 63.52(e)(3)
and (4) would provide that if the permitting authority fails to notify
the source that the application is incomplete, in writing and within 60
days, the MACT application would be considered complete. A Part 2 MACT
application is considered complete if the information is sufficient to
begin or continue processing the application. Similarly, as provided in
proposed Sec. 63.52(e)(4), a completeness determination should not
limit the permitting authority's ability to request additional
information from the source owner or operator; such a request should
receive a timely response.
We are proposing minor edits to Sec. 63.52(c)(2) to use more
generic terms when referring to the title V permit process. The use of
these terms in this paragraph and throughout the rule is to ensure that
the rules implementing the section 112(j) provisions of the CAA can be
used in the context of the title V permitting process under parts 70
and 71.
Proposed amended Sec. 63.52(e)(5) would clarify that, given timely
submittal of a complete application, a failure to receive a permit
under section 112(j) within 18 months would not be a violation of
section 112(j).
We are proposing to retitle Sec. 63.52(d) from ``Emission
limitation'' to ``Permit content'' to more accurately reflect the
contents of the section. In addition, we are proposing to clarify
Sec. 63.52(f) to ensure that the permit contains notification,
operation and maintenance, performance testing, monitoring, and
reporting and recordkeeping requirements consistent with the part 63,
subpart A, General Provisions. In addition, proposed
Sec. 63.52(f)(2)(i) replaces the term ``Federal enforceability'' with
``practicable enforceability.'' The former term was borrowed from the
EPA's June 28, 1989 Federal Register notice (54 FR 27274) on potential
to emit. There, ``Federal enforceability'' was used as a short-hand
reference to several attributes, including enforceability as a
practical matter. Today's change would clarify the intent of this
provision to ensure achievement of this goal.
We are proposing clarifications to make the compliance date for a
new affected source the date of startup of the new affected source, as
opposed to the date the title V permit is issued, as currently
promulgated.
We are proposing Sec. 63.52(f)(1) to implement the requirement for
the permitting authority to include in each permit implementing section
112(j) the definition of affected source and new affected source
arising from each case-by-case MACT determination. As discussed
elsewhere, delineation of these terms is integral to the proposed
changes to clarify the approval process for new and existing sources
under the section 112(j) program.
We are proposing to add Sec. 63.52(g) to clarify the dates by which
a permit must be issued. In most cases, that date is within 24 months
after submittal of the Part 1 MACT application. However, if the
source's owner or operator requests an applicability or equivalency
determination under proposed Sec. 63.52(e)(2), the permitting authority
must issue the permit within 18 months after receiving the Part 2 MACT
application.
We propose to redesignate Sec. 63.52(e) as Sec. 63.52(h) and
clarify its existing position on enhanced monitoring. In particular, we
expect States to incorporate monitoring, recordkeeping and reporting
mechanisms and other means of assuring compliance, such as posting all
compliance reports on a publicly available electronic bulletin board,
that comport with the enhanced monitoring approach in section
114(a)(3). This is the approach we endeavor to utilize in the
development of new MACT standards under section 112(d). In many
instances, this will require an improvement over existing compliance
assurance provisions, if the source has such preexisting requirements,
to provide the superior enforceability contemplated in the MACT
program.
We are proposing to add Sec. 63.52(i) to clarify for all affected
sources which sources must comply with MACT for existing sources versus
MACT for new sources. The application of new source MACT is limited to
new affected sources, as defined in the title V permit addressing
section 112(j) MACT emission limitations for those affected sources.
This language reflects our proposed approach to implement the concepts
of ``affected source'' and ``new affected source.''
For example, as currently promulgated, an existing area source
could become a major source subject to new source MACT through the
addition of a single piece or collection of equipment such that the
source's potential to emit increases by only a small amount (e.g., from
9.9 tons/year to 10.1 tons/year). We agree with the petitioners that
the possible costs and burdens faced by a source in this case could be
unreasonable because the change in status could entail installation of
new source MACT on existing equipment. Therefore, we are proposing to
limit new source MACT to sources that become major emitters because
they add a new affected source as defined by Sec. 63.51; new source
MACT would only apply to the new affected source. This approach is also
consistent with the proposed definition of ``new affected source.''
D. Application Content
We are proposing to delete current Sec. 63.53(a) because it is
redundant given the provisions in Sec. 63.55, which address MACT
determinations for affected sources subject to case-by-case
determination of equivalent emission limitations.
We are proposing to revise and move Sec. 63.53(b) and proposing to
add new Sec. 63.53(b) to reflect the proposed change from a single MACT
permit application due on the section 112(j) deadline to a 2-part MACT
permit application due over a 6-month time period, as discussed in the
previous section. However, the majority of currently required
information is included in proposed new Sec. 63.53(a) and (b).
Proposed Sec. 63.53(a) describes the required content of the Part 1
MACT application, which includes basic information such as name,
address, a brief description of the relevant major source, and an
identification of the relevant source category and types of emission
units belonging to the relevant source category. Sources for which a
section 112(g) determination has been made should identify any relevant
equipment or activities as well. The purpose of allowing the more
streamlined Part 1 application at the section 112(j) deadline rather
than a complete permit application is in acknowledgment that the source
may require more time to compile the detailed information required for
the permitting authority to make a MACT floor determination, and that
the determination process is an iterative one with the permitting
authority. The Part 1 application content is analogous to the
Sec. 63.9(b) initial notification content.
Proposed Sec. 63.53(b) describes the contents of the Part 2 MACT
application and lists additional relevant process, pollutant, and
control information. Proposed Sec. 63.53(b) incorporates the ``affected
source'' language, where applicable. Requirements for new affected
sources to report the expected
[[Page 16337]]
date of commencement of construction and the expected date of
completion of construction were deleted because this information is
irrelevant to the overall application review process. We are also
proposing to add the phrase ``in the relevant source category'' in
Sec. 63.53(b)(1)(ii) to clarify that information is not required for
HAP emissions from source categories other than the relevant source
categories. We are also proposing to add the phrase ``estimated total
uncontrolled and controlled emission rate'' to clarify that information
on both uncontrolled and controlled emission rates is needed.
Proposed Sec. 63.53(b)(1)(iii) language includes the phrase
``Federal, State, or local limitations or requirements'' to clarify the
universe of potentially applicable requirements that could be
considered by the permitting authority. Current Sec. 63.53(b)(8), which
includes a request for detailed capacity utilization information, would
be eliminated because we believe this information would not be
generally available at the time the permit application is due. However,
the requirement to include information on uncontrolled emissions would
be incorporated into the proposed Sec. 63.53(b)(1)(ii) language.
Similarly, we are proposing to delete the language regarding controlled
emissions at maximum capacity from Sec. 63.53(b)(9), but other required
information would be retained in proposed Sec. 63.53(b)(1)(iv) such as
the requirement to include identification of control technology in
place.
We are proposing to delete the current Sec. 63.53(b)(10)
requirement to include the MACT floor because the floor determination
will be made by the permitting authority, thereby obviating the mandate
for the source to report information on the floor to the permitting
authority. This change is consistent with proposed changes to
Sec. 63.55, discussed in section III.F of this preamble. While a MACT
floor determination is not required of the owner or operator, proposed
Sec. 63.53(b)(1)(v) would allow the owner or operator the option of
recommending a MACT floor.
The information currently required in promulgated Sec. 63.53(b)(11)
through (13) would be retained in proposed Sec. 63.53(b)(2), but only
as optional information to be provided at the source's discretion.
Proposed Sec. 63.53(b)(1)(vi) mirrors the current Sec. 63.53(b)(14)
language allowing the permitting authority to request any other
information reasonably needed in the permit application. The
information provided under Sec. 63.53(b)(1)(vi) is subject to the
confidential business information protections provided under the CAA.
E. Preconstruction Review
We are proposing clarifying language to the introduction of
Sec. 63.54 to emphasize that the purpose of the section is to describe
alternative review processes that the permitting authority may select
from to make a MACT determination for new affected sources. We believe
that preconstruction review, although optional in the context of
section 112(j), is a useful tool for States and sources in making case-
by-case MACT determinations for new affected sources. Therefore, we do
not want to preclude the ability of the States to employ existing
preconstruction review programs or to develop ``enhanced'' review
programs using the Sec. 63.54(b) optional administrative procedures for
sources subject to the section 112(j) provisions.
We are proposing to delete Sec. 63.54(e) and (f) because language
in proposed Sec. 63.52(f)(2)(iii) addresses the issues raised by these
sections.
F. Enforcement Liability
Petitioners raised several questions regarding exposure to
enforcement liability that relate to sources which have not been
clearly identified as sources within the particular source category
that are subject to section 112(j) requirements. We hope that all such
questions of applicability for a source will be clarified before the
section 112(j) permit application is due so that these issues will not
arise. However, there may initially be a lack of clarity, and it is
also possible that some applicability issues may not be resolved before
a final section 112(d) MACT standard is issued. Accordingly, certain
hypothetical situations are discussed below in order to provide
guidance regarding our intent in implementing section 112(j).
The first situation involves a source that the permitting authority
has identified in the section 112(j) process as not being a source
covered by section 112(j). If a subsequently promulgated section 112(d)
MACT standard clarifies that this source is indeed covered, does the
source face liability for not complying with section 112(j) previously?
We have concluded that such a source would not face any liability so
long as it came into compliance with the section 112(d) standard as
required, since it had no regulatory duty under section 112(j), and
provided that the permitting authority actually identified the source
in the section 112(j) process as not being a source covered by section
112(j).
A second situation involves a source that obtains assurance from
the appropriate officials within the permitting authority that the
source is not in the section 112(j) source category and is, thus, not
covered by section 112(j). If a citizen disagrees and sues arguing that
the source should be in the source category, what liability exposure
does the source face? It is our position that the source should face no
liability in such a circumstance, provided that the source did obtain
assurances from the appropriate officials within the permitting
authority that it is not in the section 112(j) source category. The
source is only obligated to abide by the requirements under section
112(j) as articulated by the permitting authority. If a citizen wishes
to assert that the section 112(j) applicability criteria are
inappropriate, then the remedy is to convince or force the permitting
authority to modify its regulatory requirements.
A third concern involves a situation where the permitting authority
or EPA has not clearly defined the source category and the source does
not submit an application by the deadline. If, however, the permitting
authority later determines that the source is in the section 112(j)
source category and, thus, an application is due, what enforcement
liability does the source face for failing to submit the application by
the deadline? Again, in all instances involving the section 112(j)
program, either the permitting authority or the EPA should identify the
source category with sufficient specificity to eliminate any such
problem. But in case such a situation should arise, it is unreasonable
to assert that a source is liable if the source was not provided
sufficient notice that an application was due. In other words, the
permitting authority and the EPA are responsible for defining the
section 112(j) source category with sufficient clarity so that a source
can reasonably determine whether it falls within that source category.
Absent such clarity and adequate notice--provided within the original
source category description, in subsequent EPA documents (either in the
Federal Register or on EPA's Air Toxics Home Page, provided that
specific notice is made in the Federal Register to the availability of
such a document on the Air Toxics Home Page) or through subsequent
notification by the permitting authority pursuant to proposed
Sec. 63.52(a)(2)--a source should not be liable for failing to submit a
section 112(j) application. On the other hand, a source would be liable
for failing to submit a section 112(j)
[[Page 16338]]
application if the section 112(j) source category was clearly defined.
G. MACT Determinations
In today's action, we are proposing to delete Sec. 63.55(a) because
it is redundant given the other changes proposed today, and it results
in an unintended presumptive effect on the section 112(j) standard
development process. For example, the contents of current
Sec. 63.55(a)(3) and (4) are found largely in the proposed Part 2
application requirements although the information may now be supplied
on an optional basis unless specifically requested by the permitting
authority. This movement from a requirement to an optional submission
reflects the concept that the MACT determination process is iterative,
and that the responsibility for determining MACT lies with the
permitting authority.
We are proposing to delete Sec. 63.55(a)(1) because it suggests
that a proposed relevant emission standard is a presumptive MACT
determination. While a proposed relevant standard should be given
serious consideration in the MACT determination process, there have
been instances where key elements of a proposed MACT standard change
significantly between proposal and promulgation. Similarly, retaining
the language in Sec. 63.55(a)(2) would result in the presumptive use of
any ``guidance or distributed information establishing a MACT floor
finding for the source category or subcategory by the section 112(j)
deadline.'' We agree that the quality of information embraced by this
provision could vary widely and may not have been developed with the
benefit of public notice and comment.
Proposed Sec. 63.55(a) contains new language to ensure that there
are no gaps in the MACT determination process between obtaining the
application and making the determination. We are proposing to revise
Sec. 63.55(a)(2) and (3) to clarify that the MACT determination will be
established according to the requirements of section 112(d)(3) of the
CAA and based on available information. The revisions to the definition
of ``available information,'' discussed in section III.B of this
preamble, would ensure that the permitting authority has the needed
information to make the MACT determination. The proposed deletion of
the explicit consideration of ``information provided in public
comments'' would eliminate redundant information. The section 112(j)
process already requires the inclusion of provisions for notice and
public comment. We are proposing to delete Sec. 63.55(b)(4) and (5)
consistent with deleting related requirements regarding the presumptive
use of proposed rules and other MACT floor guidance in the current
Sec. 63.55(a)(1) and (2).
H. Case-by-case MACT Requirements After Promulgation of a Subsequent
MACT Standard
Section 63.56 describes the case-by-case handling of requirements
for determining equivalent emission limitations after promulgation of a
subsequent MACT standard. We are proposing to amend Sec. 63.56(a) to
clarify the relevance of emission standards to affected sources. We are
proposing to revise Sec. 63.56(b) to clarify that the subsequently
promulgated MACT standard will be incorporated into the title V permit
upon its renewal. Section 63.56(b) would also assure affected sources
that the period for compliance for existing sources would be no shorter
than the time provided in the promulgated MACT standard.
We are proposing to amend the introductory text to Sec. 63.56(c) by
revising Sec. 63.56(c)(1) and adding Sec. 63.56(c)(2). Section
63.56(c)(1) would clarify that the permitting authority does not need
to change the emission level in the permit to the promulgated MACT
standard level of control if the level of control in the permit is
substantially as effective as the level of control in the promulgated
MACT standard. This language implements the concepts discussed in
section IV.A of this preamble. We are proposing to add Sec. 63.56(c)(2)
to state that the permitting authority must not incorporate any less
stringent emission limitation of the promulgated standard in the title
V permit and may consider more stringent terms due to the requirements
of section 112(d) and (h). This section precludes the possibility of
sources being required to change previously approved control
technologies when the ``new'' standard is found to be as substantially
as effective as the previous MACT determination, but it also precludes
sources from changing controls in the case the ``new'' standard is less
stringent than the previous MACT determination. Taken together,
Sec. 63.56(c)(1) and (2) maintains the status quo of previous MACT
determinations that are found to be substantially as effective as a
subsequent MACT.
I. Section 112(j) Guidelines Document
We have published a guidance document titled ``Guidelines for MACT
Determinations under Section 112(j),'' EPA 453/R-94-026, May 1994. The
purpose of the document is to give permitting authorities additional
guidance in making MACT determinations based on the principles
established in proposed Sec. 63.55. We have revised this document to
incorporate relevant clarifications and revisions proposed today. The
draft revised document is available on the TTN (SUPPLEMENTARY
INFORMATION). Comments on the draft revised document should be
submitted together with comments on today's proposed rule changes. The
guidance document contains procedures for evaluating whether a control
technology is consistent with the minimum requirements established in
section 112(d) of the CAA. Because section 112(j)(5) requires that
case-by-case MACT determinations be ``equivalent to the limitation that
would apply to such source if an emission standard had been promulgated
in a timely manner under subsection (d),'' we believe that
consideration of this guidance document is a crucial component of the
section 112(j) case-by-case MACT determination process.
IV. Additional Issues
A. Discussion of the Relationship Among Requirements Under Section
112(d), (g), (h), and (j)
1. Background and Summary of Issue
One area of concern the petitioners identified involves the
substantive relationship between a case-by-case MACT emission
limitation issued under section 112(j) and a MACT standard subsequently
issued under section 112(d) or (h). Petitioners are also concerned
regarding the relationship between a case-by-case MACT determination
under section 112(g) and a subsequently issued case-by-case MACT
emission limitation under section 112(j), or MACT standard under
section 112(d) or (h). In general, the petitioners believe that
compliance with a case-by-case MACT determination should constitute
compliance with a subsequent case-by-case MACT determination or MACT
standard.
Throughout the development of the section 112 program, we have
maintained as one of our primary goals consistency among the different
section 112 requirements of the CAA. As stated in the final section
112(j) rule, ``EPA's primary goal is to create as much consistency as
possible between case-by-case MACT determinations under section 112(j)
and implementation of subsequent 112(d) standards * * * the agency
intends to ensure the greatest possible consistency among section
112(d), (g), and (j) provisions.''
In general, we do not disagree with the petitioners in that if the
four MACT standard setting provisions of the CAA
[[Page 16339]]
are appropriately implemented, they will be based on substantially
similar types of information concerning emission controls and will
reflect similar regulatory policies concerning the feasibility of
further emission reductions. However, we do not agree that it would be
appropriate to conclude that a previous case-by-case MACT limitation
automatically satisfies subsequent section 112 MACT requirements.
With respect to the subsequent applicability of a section 112(d) or
(h) standard or a section 112(j) MACT determination to a source for
which a section 112(g) MACT determination has been made, this issue is
resolved by the section 112(g) regulations and accompanying preamble,
promulgated on December 27, 1996 at 61 FR 68399. Consistent with that
Federal Register action, a source that receives a case-by-case MACT
determination under section 112(g) must comply with the subsequent
case-by-case MACT determination or MACT standard, although the source
may have a period of up to 8 years to achieve such compliance. The
subsequent case-by-case MACT determination or MACT standard may
stipulate that compliance with the prior case-by-case MACT constitutes
compliance with the subsequent determination or standard.
In general, we believe that requiring a source that has received a
case-by-case MACT determination under section 112(g) to comply with
subsequently adopted MACT requirements will not result in any
inappropriate regulatory burden. This is primarily because we have
required the implementation of section 112(g) only with respect to
construction or reconstruction of major sources of HAP, and the
resultant case-by-case determination would require new source MACT.
Even though any section 112(g) MACT determination will incorporate MACT
for new sources, the major source in question will likely be considered
an existing source by the time of issuance of any subsequent MACT
limitation for the source under section 112(j) or MACT standard
applicable to the source under section 112(d) or (h).
We note that any case-by-case MACT limitation adopted for a source
under section 112(j) will normally be made by the same permitting
authority that would have issued any prior case-by-case MACT
determination for the same source under section 112(g). We believe that
it is appropriate to afford the permitting authority some discretion to
consider the substantive adequacy of existing section 112(g)
requirements when it makes a subsequent decision concerning the
emission limitations required by section 112(j).
We believe that the concerns petitioners expressed are most
significant in the context of a potential transition from a case-by-
case MACT determination made by the permitting authority under section
112(j) for an individual source to a generally applicable MACT standard
adopted by the EPA under section 112(d) or (h). Although the statutory
criterion for establishing the subsequent standard under section 112(d)
or (h) may be identical to the criterion governing the issuance of the
case-by-case MACT determination under section 112(j), in practice there
may be differences in the conclusions reached by the permitting
authority and the EPA. Such differences could easily arise due to
differing data bases, differing approaches to analysis of the same
data, or differences in the form of the standard adopted. Thus, unless
the permitting authority has some measure of discretion to reconcile
the different regulatory outcomes, the potential exists for sources
subject to a case-by-case MACT determination to be forced to take
action to respond to control, monitoring, recordkeeping, and reporting
requirements that differ from those required by a subsequent case-by-
case MACT or generally applicable MACT standard, even though the
results of the case-by-case requirements do not differ from the
standard in any consequential way. We see this as an irrational outcome
that would undermine effective and efficient environmental policy, and
we do not believe that Congress intended substantial additional burdens
to be imposed (e.g., capital investments in new emission controls)
regardless of the significance of the resultant impact on actual
emission reductions.
Accordingly, we are proposing two basic clarifications in which
sequential MACT requirements under section 112(d), (g), (h), and (j)
will be implemented by the responsible permitting authority. First, the
permitting authority would adopt a prior case-by-case new source MACT
determination for a process or production unit under section 112(g) as
its case-by-case MACT limitation under section 112(j) for the same
process or production unit if the permitting authority determines that
the prior requirements are ``substantially as effective'' in
controlling HAP emissions as the requirements which the permitting
authority would otherwise have adopted under section 112(j). Similarly,
if the permitting authority determines that the controls required by a
prior case-by-case MACT limitation for a source under section 112(j)
are ``substantially as effective'' in controlling HAP emissions as a
MACT standard governing that same source subsequently promulgated under
section 112(d) or (h), the permitting authority would construe
compliance with the prior section 112(j) emission limitation as
compliance with the promulgated standard and revise the operating
permit accordingly. As explained below, we and the petitioners
evaluated several approaches to define quantitatively the criterion
``substantially as effective'' and concluded that it is appropriate to
leave it qualitative with substantial discretion vested in the
permitting authority. Also as explained below, this discretion will be
tempered by use of the title V process to ensure public, EPA, and
affected State review of the permitting authorities' conclusions.
2. Legal Authority and Statutory Limitations
We believe that our authority to implement a policy that allows the
permitting authority to use the ``substantially as effective'' test is
supported by both the language of section 112(j) and the Alabama Power
de minimis doctrine. The language in section 112(j) implies a measure
of statutory flexibility with regard to this issue. The language in
section 112(j)(6) states, ``* * * the Administrator (or the State)
shall revise such permit upon the next renewal to reflect the standard
promulgated by the Administrator providing such source a reasonable
time to comply, but no longer than 8 years * * *'' We believe that this
language requires the Administrator or State to consider the subsequent
section 112(d) standard in revising the source's permit.
The de minimis doctrine set forth in Alabama Power Co. v. Costle,
636 F.2d 323 (D.C. Cir. 1979), allows the EPA to promulgate a
``categorical exemption . . . as an exercise of agency power inherent
in most statutory regimes'' if: (1) ``Congress has (not) been
extraordinarily rigid,'' id. at 361; and (2) ``the burdens of
regulation (would) yield a gain of trivial or no value,'' id., ``in the
sense of furthering goals of the statute,'' Sierra Club v. EPA, 719
F.2d 436, 462 (D.C. Cir. 1983). We believe that both tests are met
here. With respect to the first criterion, nothing in the language of
section 112 (g) or (j), or the implementing regulations precludes the
proposed approach. Under the second criterion, as explained above, the
intent is that the permitting authority would be afforded discretion to
find prior requirements to be ``substantially as effective'' as new
requirements, unless
[[Page 16340]]
the new requirements would result in meaningful emission reductions
over those achieved by the case-by-case determination.
Invocation of the de minimis doctrine is appropriate here for two
reasons. First, the MACT requirements that are the subject of the
comparison may not be in the same form, meaning it cannot strictly be
said that compliance with one would necessarily entail compliance with
the other. Today's proposal would allow a somewhat broader basis for
analysis, one that focuses on the effect on emissions of the different
determinations rather than strict compliance with specific control,
monitoring, recordkeeping, and reporting requirements.
Secondly, the ``substantially as effective'' test contemplates that
in some instances the prior MACT determination may not reduce HAP
emissions as much as a subsequent case-by-case MACT determination or
MACT standard. As the difference in emission reduction effectiveness
increases between the prior and subsequent MACT requirements, it will
be increasingly difficult for the permitting authority to find that the
prior requirements satisfy the test of ``substantially as effective.''
3. Other Factors Considered
In addition to considering whether such a policy is supported by
the Act, we considered several other factors in reevaluating our policy
on this issue. These factors included: (1) The anticipated outcome
among section 112 (d), (g), (h), and (j) requirements; (2) issues
associated with quantifying exact equivalency; and (3) the public's
input into source specific decisions.
To a large extent, we consider the MACT process replicable; that
is, when the same question is asked, whether in the context of section
112 (g), (j), (d), or (h), the outcome will more often than not be
substantially the same with the same environmental result.
We anticipate that in the vast majority of cases, section 112(g)
new source MACT determinations will result in a level of control
equivalent to or better than the level of control required by a
subsequent section 112(j) case-by-case emission limitation or
subsequent section 112 (d) or (h) MACT standard. In most cases, the
process or production units required to meet new source MACT under
section 112(g) will be subject to existing source MACT requirements
under any subsequent 112(j) MACT limitation or promulgated subsequent
section 112 (d) or (h) MACT standard. New source MACT under section
112(g) should rarely, if ever, be less stringent than existing source
MACT under a section 112 (d) or (h) MACT standard or section 112(j)
MACT emission limitation. We believe it is appropriate to afford the
permitting authority some discretion to promote consistency in
sequential case-by-case determinations under section 112 (g) and (j),
but consider that appropriately made section 112(g) MACT determinations
will rarely, if ever, present any potential conflict with subsequent
MACT requirements.
We believe there are cases where two properly conducted MACT
analyses could arrive at somewhat different conclusions. This situation
is most likely to occur in source categories with relatively few
sources that also exhibit some variability in their operations. Another
scenario is where there is a significant body of data comprising the
information to be considered in the MACT floor analyses and MACT
analyses, and different regulators arrive at different conclusions. For
example, a different outcome could be reached if one regulator bases a
decision on the mean performance of a group of sources and another
regulator uses the median performance. Similarly, different rounding
techniques and other analytical decisions could result in somewhat
different outcomes.
However, in most cases, the MACT determinations for emission
limitations under section 112(j) and MACT standards under section 112
(d) and (h) should result in outcomes that are substantially
equivalent. We believe that sufficient communication channels and
information exist, such as MACT partnerships and the MACT database,
that any required case-by-case determinations under section 112(j)
should not be made ignorant of existing information. Although the
availability of controls may change over time, we do not foresee a long
period of time elapsing between adoption of any necessary section
112(j) MACT emission limitations and subsequent promulgation of a
generally applicable MACT standard.
We evaluated several issues associated with determining equivalency
among section 112 (d), (g), (h), and (j) MACT emission limitations. As
a result, we concluded that the level of quantitative analysis required
to show exact equivalency among standards that are different in such
areas as the form, applicability, test methods, or technology can be a
very difficult and resource intensive process. In addition, as noted
above, we believe that exact equivalency is not required by the CAA or
the Alabama Power de minimis doctrine.
Some examples will illustrate how different forms of a standard and
different emission limits can still result in equivalent outcomes on a
source-specific basis. The first example relies on the nature of flares
as a control technology and the fact that we have determined that
flares provide at least 98 percent efficient destruction of emission
streams, provided that the flares and emission streams meet the flare
specification criteria found at Sec. 63.11(b) of the General
Provisions. For example, the flares must be steam-assisted, air-
assisted, or non-assisted, operated at all times, and operated with a
flame present at all times. Flares must only be used with the net
heating value of the gas being combusted at 11.2 megaJoules per
standard cubic meter (MJ/scm) (300 British thermal units per standard
cubic foot (BTU/scf)) or greater if the flare is steam-assisted or air-
assisted; or with the net heating value of the gas being combusted at
7.45 MJ/scm (200 BTU/scf) or greater if the flare is non-assisted.
Flares must also be designed to satisfy specific exit velocity
constraints.
At least two scenarios could occur where a case-by-case MACT
determination could appear to be less stringent on paper, but in
reality would be ``substantially as effective'' as a subsequent MACT
standard. For example, a MACT standard applicable to a given source
could be an equipment standard requiring use of flares to ensure at
least a 98 percent emission reduction. However, a case-by-case MACT
could have required at least a 95 percent emission reduction, but
examination of the individual source's permit revealed that the
affected emission stream is ducted to a flare. It would be relatively
simple to determine if the actual flare and emission stream would meet
the flare specifications. If they meet the flare specifications, the
``difference'' in required control efficiencies is moot, because the
design and operation of the control technology would drive the true
performance level. Alternatively, the source could have elected to send
the emission stream to an incinerator. Review of the incinerator
design, combined with performance test data, would allow the permitting
authority to determine whether the actual reductions are likely to
achieve at least 98 percent efficiency.
The second example is based on the fact that the performance of
some controls is variable and highly dependent on how they are
operated. For example, condensation systems can be designed and
operated to meet a fairly wide range of emission reduction scenarios.
Condensation systems are
[[Page 16341]]
often selected as control devices because it is desirable to recover a
product in the emission stream. The cost of operating the condensation
system is largely driven by the temperature reduction necessary to
condense the solvent-laden air to the dew point and the cost of
purifying the condensate to obtain a usable product. To compare a case-
by-case MACT determination based on a condensation system to a
subsequent MACT standard requiring a specific level of control would
require an engineering analysis of the system design, characterization
of the emission stream, and the evaluation of test data. Depending on
the outcome of this site-specific analysis, a finding that the initial
MACT determination is ``substantially as effective'' as a subsequent
MACT standard is entirely possible.
Given issues associated with quantifying exact equivalency, we see
it as beneficial to focus the decision regarding the adequacy of a past
MACT emission limitation on the actual emission reductions associated
with that limitation, rather than on strict compliance with differing
requirements. By evaluating the actual effect from both sets of
requirements, the decision is focused on the practical benefit to the
environment rather than an exercise in paperwork.
We are concerned about ensuring sufficient public input into
decisions made concerning the substantive adequacy of a prior MACT
emission limitation to satisfy subsequent requirements. Case-by-case
MACT emission limitations under section 112(j) and MACT standards
promulgated under sections 112 (d) and (h), and the implementation of
these requirements through issuance of title V operating permits, all
involve a process in which the public may participate. However, the
issues in these proceedings are broader than whether a source's section
112(g) case-by-case MACT determination should be adopted under section
112(j), or a source's section 112(j) MACT emission limitation satisfies
subsequent section 112 (d) or (h) requirements. Therefore, we believe
it is necessary to assure that any determination by a permitting
authority under the ``substantially as effective'' criterion will be
adopted and implemented only after public and EPA review.
We believe that the permit review process in title V provides the
best vehicle to satisfy this concern without adding additional burden
to the source or the permitting agency. The proposal, therefore, would
require that any such determination be made through a title V
permitting action that involves all the elements required at permit
issuance. The part 70 process should provide sufficient review by the
public, EPA, and affected States to ensure that the test of
``substantially as effective'' is applied in a manner consistent with
our stated legal and policy rationale.
4. Proposed Solution
We are proposing in today's amendments two basic clarifications to:
(1) The process in which a case-by-case MACT determination under
section 112(g) is replaced by a case-by-case MACT emission limitation
under section 112(j), and (2) the process in which a generally
applicable MACT standard promulgated under section 112 (d) or (h) is
implemented for a source subject to a prior case-by-case MACT emission
limitation under section 112(j).
We are proposing to amend Sec. 63.1(e) of the General Provisions
and Secs. 63.52(a)(3), (b)(2), (e)(2)(ii), and 63.56(c)(1) of the
section 112(j) rule. First, the permitting authority would adopt a
prior case-by-case MACT determination for a process or production unit
under section 112(g) as its case-by-case MACT limitation for the same
process or production unit under section 112(j), if it determines that
the prior requirements are ``substantially as effective'' in
controlling HAP emissions as the requirements which the permitting
authority would otherwise have adopted under section 112(j). Second, if
the permitting authority determines that the requirements of a prior
case-by-case MACT emission limitation for a source under section 112(j)
are ``substantially as effective'' in controlling HAP emissions as a
MACT standard subsequently promulgated under section 112 (d) or (h),
the permitting authority would construe compliance with the prior
emission limitation as compliance with the promulgated standard and
revise the operating permit accordingly. In either case, the
determination by the permitting authority would be subject, consistent
with parts 70 and 71, to both public and EPA review (including EPA's
opportunity to object) through its incorporation in the source's title
V permit. If the source's current MACT determination is not
``substantially as effective'' as the new MACT requirements, then any
permit must assure compliance with the subsequent MACT requirements.
In today's amendments, we are proposing that ``substantially as
effective'' not be defined in a rigid manner, given the multitude of
factors that go into determining MACT. Rather, permitting authorities
must have sufficient latitude to make judgments--both qualitative and
quantitative--as to whether a particular case-by-case MACT
determination applies air pollution control requirements in a manner
that achieves the overall environmental results of the particular
section 112(d) standard.
The ``substantially as effective'' approach is based on the
practicalities of developing MACT requirements in accordance with the
statutory language and structure of section 112. Section 112 provides
criteria for establishing MACT along with a minimum level of
stringency, but is not so rigid as to consistently yield the same exact
result by different decision makers. Section 112(d)(2) makes clear that
MACT must be determined based on all relevant technical, economic and
other factual circumstances of the particular manufacturing operations
encompassed by a source category or subcategory (``* * * shall require
the maximum degree of reduction in emissions * * * that the
Administrator, taking into consideration the cost of achieving such
emission reduction, and any nonair quality health and environmental
impacts and energy requirements * * *''). Section 112(d)(3) addresses
the minimum level of stringency required for new source standards (``*
* * shall not be less stringent than the emission control that is
achieved in practice by the best controlled similar source'') and for
existing source standards (``* * * shall not be less stringent, and may
be more stringent than * * * the average emission limitation achieved
by the best performing 12 percent of the existing sources * * * for
categories or subcategories with 30 or more sources, or * * * the
average emission limitation achieved by the best performing sources * *
* for categories or subcategories with fewer than 30 sources''). In
those instances where we have made a clear determination in a final
section 112(d) or (h) standard regarding the applicable MACT floor for
a category, a positive ``substantially as effective'' finding can be
made if the permitting authority determines that a prior case-by-case
MACT limitation under section 112(j) is ``substantially as effective''
in controlling HAP emissions, and the actual emission reductions
achieved are consistent with the MACT floor determination.
While we do not intend to establish any mandatory criteria that
would govern the ``substantially as effective'' determination by the
permitting authority, we believe that it could be useful to establish
some analytic benchmarks to guide the permitting authority in
exercising its discretion. It
[[Page 16342]]
should be recognized at the outset that no one of these benchmarks
would necessarily be dispositive on the ``substantially as effective''
judgment by the permitting authority, and other factors also might need
to be considered depending on the particular manufacturing operation in
question.
One benchmark is the difference in control equipment requirements
and efficiencies between the two MACT requirements. On one hand, in
those cases where a section 112(j) review leads to a decision not to
further limit emissions, and a subsequently issued MACT standard
requires significant emission reductions, there is little latitude to
construe the prior section 112(j) outcome as ``substantially as
effective'' as the promulgated standard. On the other hand, a
difference in requirements such as types of control equipment and/or
control efficiency levels would not preclude a ``substantially as
effective'' judgment. For example, such a judgment might be reasonable
where the section 112(j) determination: (1) Reflects a different
compliance approach as compared with the section 112(d) standard, (2)
mandates control equipment different from the section 112(d) standard
that has benefits in terms of ``other nonair quality health and
environmental impacts and energy requirements,'' or (3) combines
control equipment requirements with work practices and/or pollution
prevention measures not prescribed by the section 112(d) standard.
Another benchmark could be capital investments to comply with MACT
requirements following the issuance of the prior case-by-case MACT
determination. Such a benchmark would afford the permitting authority
some latitude in those situations where a source has made significant
expenditures in good-faith reliance on a case-by-case MACT
determination. We believe that requiring the source to undertake such
expenditures to meet subsequent section 112(d) MACT requirements,
particularly where the differences in resultant control of HAP
emissions are not significant, would be irrational. Arguably, this
concern is not presented in instances where a source has not made any
capital expenditures to come into compliance with the previous case-by-
case MACT determination and would not be economically disadvantaged
compared to other sources that must implement new controls.
We request comment on the ``substantially as effective'' approach
and these benchmarks for evaluating a source's ``substantially as
effective'' claim, and on our decision reflected in today's proposal to
proceed with a flexible test that affords permitting authorities the
latitude to exercise reasonable judgments--both quantitative and
qualitative--in accordance with the statutory language and structure.
5. Timing and Implementation Issues
Another issue is when the ``hand-off'' occurs among the various
section 112 program requirements. As discussed above, promulgated MACT
standards replace section 112(j) and (g) determinations. Once section
112(d) or (h) requirements have been established for a given category
or subcategory of sources, no subsequent actions under section 112(j)
or (g) will be required because the section 112(d) or (h) requirements
establish the requirements for that particular affected source. Of
course, section 112(j) or (g) requirements could eventually be
triggered for other operations at the facility in different categories
or subcategories for which a section 112(d) or (h) standard has not
been issued.
Because the length of time required to obtain a title V permit
addressing section 112(j) emission limitations could be up to 24 months
after the section 112(j) hammer date, and because process or production
units meeting the section 112(g) threshold could be constructed after
that date, we believe it is essential that section 112(g) MACT
determinations continue to be made, even in cases where the source is
in a category or subcategory for which the section 112(j) deadline has
passed. Such sources would first obtain a MACT determination under the
section 112(g) requirements, and then obtain a determination as to
whether that MACT determination satisfies the section 112(j)
requirements. As described above, we believe that, in the majority of
cases, the section 112(g) requirements will be found to be
substantially as effective as the section 112(j) requirements, and the
permitting authority can then adopt the existing section 112(g)
determination as its case-by-case new source MACT determination under
section 112(j). In fact, since in this case the section 112(g) and (j)
determinations would be essentially contemporaneous, the likelihood of
a meaningful discrepancy would be further reduced. However, since the
source must obtain the applicable case-by-case determination under
section 112(g) before actual construction or reconstruction, a timely
new source MACT determination will be assured.
6. Prohibition of Backsliding
This final issue concerns language in the existing section 112(j)
rule, which would give the permitting authority discretion to relax
applicable emission requirements when the level of control required for
a source by an emission standard under section 112(d) or (h) is less
stringent than the level of control required by a prior section 112(j)
MACT determination for the same source. We have concluded that it is
inappropriate to permit such ``backsliding'' in instances when more
stringent emission controls have already been required by the
permitting authority. Accordingly, we are proposing to amend the
existing section 112(j) rule to provide that any more stringent
emission limitations for a source previously adopted by the permitting
authority under section 112(j) will continue to apply and must be
retained by the permitting authority when it issues or revises a title
V permit applicable to the source.
B. Potential to Emit
We are currently developing a separate rulemaking to address
several potential-to-emit issues. That proposed rulemaking would amend
the General Provisions. We will take final action on that separate
proposal after receiving and considering public comments. Until we take
final action on that future proposal, any determination of potential to
emit made to determine a facility's applicability status under a
relevant part 63 standard should be made according to requirements set
forth in the relevant standard and in the promulgated General
Provisions. Any determination of potential to emit should also take
into consideration two EPA policy guidance memoranda, ``Options for
Limiting the Potential to Emit (PTE) of a Stationary Source Under
Section 112 and Title V of the Clean Air Act,'' John S. Seitz and
Robert I. Van Heuvelen, to Regional Offices, January 25, 1995; and
``Extension of January 25, 1995 Potential to Emit Transition Policy,''
John S. Seitz and Robert I. Van Heuvelen, to Regional Offices, August
27, 1997. Both of these policy memoranda can be found on EPA's Clean
Air Act bulletin board under ``title V/policy guidance memos.''
V. Administrative Requirements
A. Executive Order 12866, Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735; October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant
[[Page 16343]]
regulatory action'' as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
B. Executive Order 13132, Federalism
Executive Order 13132, entitled, ``Federalism (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have Federalism implications.''
``Policies that have Federalism implications'' are defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
Government and States, or on the distribution of power and
responsibilities among the various levels of government.''
This proposed rule does not have Federalism implications. It will
not have substantial direct effects on the States, on the relationship
between the national Government and States, or on the distribution of
power and responsibilities among the various levels of government, as
specified in Executive Order 13132. The EPA recognizes that the
provisions of the existing regulations governing case-by-case
determinations by permitting authorities under CAA section 112(j), as
set forth in 40 CFR part 63, subpart B, might be construed to have
substantial effects on the distribution of responsibilities between the
Federal Government, States, and localities. However, the revisions to
the section 112(j) regulations set forth in today's proposal do not
themselves have such effects. Thus, Executive Order 13132 does not
apply to this rule.
Nevertheless, in the spirit of Executive Order 13132 and consistent
with EPA policy to promote communications between EPA, State, and local
governments, EPA specifically solicits comment on this proposed rule
from State and local officials.
C. Executive Order 13084, Consultation and Coordination with Indian
Tribal Governments
On November 6, 2000, the President issued Executive Order 13175 (65
FR 67249) entitled, ``Consultation and Coordination with Indian Tribal
Governments.'' Executive Order 13175 took effect on January 6, 2001,
and revokes Executive Order 13084 (Tribal Consultation) as of that
date. EPA developed this proposed rule, however, during the period when
EO13084 was in effect; thus, EPA addressed tribal considerations under
EO13084. EPA will analyze and fully comply with the requirements of EO
13175 before promulgating the final rule.
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
Government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to OMB, in a separately identified section of
the preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation. In addition, Executive Order 13084
requires EPA to develop an effective process permitting elected
officials and other representatives of Indian tribal governments ``to
provide meaningful and timely input in the development of regulatory
policies on matters that significantly or uniquely affect their
communities.''
Today's proposed rule does not significantly or uniquely affect the
communities of Indian tribal governments. Accordingly, the requirements
of section 3(b) of Executive Order 13084 do not apply to this action.
D. Executive Order 13045, Protection of Children from Environmental
Health Risks and Safety Risks
Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any
rule that: (1) Is determined to be ``economically significant'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, EPA must evaluate the environmental health or safety
effects of the planned rule on children, and explain why the planned
regulation is preferable to other potentially effective and reasonably
feasible alternatives that EPA considered.
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under section 5-501 of the Executive Order has
the potential to influence the regulation. This rule is not subject to
Executive Order 13045 because it is based on technology performance and
not on health or safety risks. Furthermore, this rule has been
determined not to be ``economically significant'' as defined under
Executive Order 12866.
E. Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures by State, local, and tribal governments, in
aggregate, or by the private sector, of $100 million or more in any 1
year. Before promulgating an EPA rule for which a written statement is
needed, section 205 of the UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least-costly, most cost-effective, or least-burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least-
costly, most cost-effective, or least-burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially
[[Page 16344]]
affected small governments, enabling officials of affected small
governments to have meaningful and timely input in the development of
EPA's regulatory proposals with significant Federal intergovernmental
mandates, and informing, educating, and advising small governments on
compliance with the regulatory requirements.
The EPA has determined that this proposed rule does not contain a
Federal mandate that may result in expenditures of $100 million or more
for State, local, and tribal governments, in the aggregate, or the
private sector in any 1 year. Because the regulatory revisions proposed
here would clarify existing requirements and reduce regulatory burden,
this action is not a ``significant'' regulatory action within the
meaning of Executive Order 12866, and it does not impose any additional
Federal mandate on State, local and tribal governments or the private
sector within the meaning of the UMRA. Thus, today's proposed rule is
not subject to the requirements of sections 202, 203, and 205 of the
UMRA.
F. Regulatory Flexibility Act (RFA) as Amended by Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et
seq.
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any proposed rule subject to notice and comment
rulemaking requirements under the Administrative Procedures Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
For purposes of assessing the impacts of today's amendments on
small entities, small entity is defined as: (1) A small business as
defined in each applicable subpart; (2) a small governmental
jurisdiction that is a government of a city, county, town, school
district or special district with a population of less than 50,000; and
(3) a small organization that is any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.
This analysis is not necessary for the General Provisions
amendments, however, because it is unknown at this time which
requirements from the General Provisions will be applicable to any
particular source category, whether such category includes small
businesses, and how significant the impacts of those requirements would
be on small businesses. Impacts on small entities associated with the
General Provisions will be assessed when specific emission standards
affecting those sources are developed. ``Small entities'' will be
defined in the context of the applicability of those standards.
Similarly, no analysis is required for the amendments to the
section 112(j) rule. The rule provides general guidance and procedures
concerning the implementation of an underlying statutory requirement,
but it does not by itself impose any regulatory requirements or
prescribe the specific content of any case-by-case determination which
might be made under section 112(j). Moreover, because the requirements
of section 112(j) are only triggered in certain limited circumstances,
it is not possible at this time to ascertain whether any determinations
will be made under section 112(j) or whether any small business would
be subject to such a determination. Finally, we note that we found that
no regulatory flexibility analysis was required for the existing
Section 112(j) rule, and the net effect of the proposed amendments to
that rule will be to reduce potential regulatory burdens.
Pursuant to the provisions of 5 U.S.C. 605(b), I, hereby, certify
that this proposed rule will not have a significant economic impact on
a substantial number of small business entities. Under the RFA, an
agency is not required to prepare a regulatory flexibility analysis for
a rule that the agency head certifies will not have a significant
economic impact on a substantial number of small entities.
Consequently, a regulatory flexibility analysis is not required and has
not been prepared.
G. Paperwork Reduction Act
As required by the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et
seq., the OMB must clear any reporting and recordkeeping requirements
that qualify as an information collection request (ICR) under the PRA.
Approval of an ICR is not required for the General Provisions
because, for sources affected by section 112 only, the General
Provisions do not require any activities until source category-specific
standards have been promulgated or until title V permit programs become
effective. The actual recordkeeping and reporting burden that would be
imposed by the General Provisions for each source category covered by
part 63 will be estimated when a standard applicable to such category
is promulgated.
The information collection requirements contained in the proposed
amendments to the final Section 112(j) rule will be submitted to OMB
for approval under the provisions of the PRA. The EPA has prepared an
ICR document (ICR No. 1648.03), and you may obtain a copy from Sandy
Farmer by mail at Office of Environmental Information, Collection
Strategies Division (2822), U.S. Environmental Protection Agency, 1200
Pennsylvania Avenue, NW, Washington, DC 20460, by email at
[email protected], or by calling (202) 260-2740. You may also
download a copy off the Internet at http://www.epa.gov/icr. The
information requirements are not effective until OMB approves them.
The collection of information required by the proposed amendments
to the final rule has an estimated nationwide recordkeeping and
reporting burden of 319,305 hours ($40,032,198). The current ICR 1648-
02 for the section 112(j) regulations was approved and covers the
period from November 15, 1999 to November 15, 2001. The burden hours
per occurrence for respondents has not changed. However, ICR 1648-02
spanned the period in which the section 112(j) rule would apply to any
of the source categories covered by the MACT standards scheduled for
promulgation by 1997. This ICR spans the period in which the section
112(j) rule would apply to any of the source categories covered by the
MACT standards scheduled for promulgation by 2000, which is a different
set of source categories. Therefore, because the number of respondents
is different for this ICR, the burden estimated represents an increase
of 299,562 hours from the currently approved ICR.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to (1) review instructions; (2) develop, acquire, install, and
utilize technology and systems for the purposes of collecting,
validating, and verifying information, processing and maintaining
information, and disclosing and providing information; (3) adjust the
existing ways to comply with any previously applicable instructions and
requirements; (4) train personnel to be able to respond to a collection
of information; (5) search data sources; (6) complete and review the
collection of information; and (7) transmit or otherwise disclose the
information.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
[[Page 16345]]
H. National Technology Transfer and Advancement Act of 1995
Under section 12(d) of the National Technology Transfer and
Advancement Act (NTTAA) of 1995 (Pub. L. 104-113), all Federal agencies
are required to use voluntary consensus standards (VCS) in their
regulatory and procurement activities unless to do so would be
inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, business practices)
developed or adopted by one or more voluntary consensus bodies. The
NTTAA requires Federal agencies to provide Congress, through annual
reports to OMB, with explanations when an agency does not use available
and applicable voluntary consensus standards.
These rules do not involve technical standards. Therefore, EPA is
not considering the use of any VCS.
The proposed amendments to the General Provisions do not include
any technical standards; they consist primarily of revisions to the
generally applicable procedural and administrative requirements that
the General Provisions overlay on NESHAP. The proposed amendments to
the section 112(j) rule, which establishes requirements and procedures
for owner/operators of major sources of HAP and permitting authorities
to follow if the EPA misses the deadline for promulgation of a section
112(d) standard, clarify and amend current procedural and
administrative provisions to establish equivalent emissions limitations
by permit. Therefore, section 112(j) is also not a vehicle for the
application of VCS.
List of Subjects in 40 CFR Part 63
Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous substances, Intergovernmental
relations, Reporting and recordkeeping requirements.
Dated: February 23, 2001.
Christine T. Whitman,
Administrator.
For the reasons cited in the preamble, part 63, title 40, chapter I
of the Code of Federal Regulations is proposed to be amended as
follows:
PART 63--[AMENDED]
1. The authority citation for part 63 continues 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 (b)(2);
e. Revising paragraph (b)(3);
f. Revising paragraphs (c)(1), (c)(2) introductory text and
(c)(2)(iii)
g. Removing and reserving paragraph (c)(4); and
h. Revising paragraph (e);
The revisions read as follows:
Sec. 63.1 Applicability.
(a) * * *
(3) No emission standard or other requirement established under
this part shall be interpreted, construed, or applied to diminish or
replace the requirements of a more stringent emission limitation or
other applicable requirement established by the Administrator pursuant
to other authority of the Act (section 111, part C or D or any other
authority of this Act), or a standard issued under State authority. The
Administrator may specify in a specific standard under this part that
facilities subject to other provisions under the Act need only comply
with the provisions of that standard.
(4)(i) Each relevant part 63 standard shall identify explicitly
whether each provision in this subpart A is or is not included in such
relevant standard.
(ii) If a relevant part 63 standard incorporates the requirements
of part 60, part 61 or other part 63 standards, the relevant part 63
standard shall identify explicitly the applicability of each
corresponding part 60, part 61, or other part 63 subpart A (General)
provision.
(iii) The General Provisions in this subpart A do not apply to
regulations developed pursuant to section 112(r) of the amended Act,
unless otherwise specified 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
relevant source category and who determines that the source is not
subject to a relevant standard or other requirement established under
this part shall keep a record as specified in Sec. 63.10(b)(3).
(c) * * *
(1) If a relevant standard has been established under this part,
the owner or operator of an affected source shall comply with the
provisions of that standard and of this subpart as provided in
paragraph (a)(4) of this section.
(2) Except as provided in Sec. 63.10(b)(3), if a relevant standard
has been established under this part, the owner or operator of an
affected source may be required to obtain a title V permit from a
permitting authority in the State in which the source is located.
Emission standards promulgated in this part for area sources pursuant
to section 112(c)(3) of the Act will specify whether--
* * * * *
(iii) If a standard fails to specify what the permitting
requirements will be for area sources affected by such a standard, then
area sources that are subject to the standard will be subject to the
requirement to obtain a title V permit without any deferral.
* * * * *
(4) [Reserved]
* * * * *
(e) If the Administrator promulgates an emission standard under
section 112(d) or (h) of the Act that is applicable to a source subject
to an emission limitation by permit established under section 112(j) of
the Act, and the requirements under the section 112(j) emission
limitation are substantially as effective as the promulgated emission
standard, the owner or operator may request the permitting authority to
revise the source's title V permit to reflect that the emission
limitation in the permit satisfies the requirements of the promulgated
emission standard. The process by which the permitting authority
determines whether the section 112(j) emission limitation is
substantially as effective as the promulgated emission standard shall
include, consistent with part 70 or 71 of this chapter, the opportunity
for full public, EPA, and affected State review (including the
opportunity for EPA's objection) prior to the permit revision being
finalized. A negative determination by the permitting authority
constitutes final action for purposes of review and appeal under the
applicable title V operating permit program.
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;
[[Page 16346]]
e. Revising the definition of Equivalent emission limitation;
f. Revising paragraph (6) in the definition of Federally
enforceable;
g. Revising the first sentence in the definition of Malfunction;
h. Revising the definition of New source;
i. Revising the introductory text in the definition of
Reconstruction;
j. Amending the definition of Relevant standard by revising the
first sentence of paragraph (4) and redesignating the flush paragraph
to the end of paragraph (4) and revising the last sentence of newly
designated text in paragraph (4).
k. Revising the definition of Shutdown;
l. Revising the definition of Startup;
m. By adding in alphabetical order definitions for Monitoring, New
affected source, and Working day; and
n. By removing definitions for Compliance plan, Lesser quantity,
and Part 70 permit.
The revisions and additions read as follows:
Sec. 63.2 Definitions.
* * * * *
Affected source, for the purposes of this part, means the
collection of equipment, activities, or both within a single contiguous
area and under common control that is included in a section 112(c)
source category or subcategory for which a section 112(d) standard or
other relevant standard is established pursuant to section 112 of the
Act. Each relevant standard will define the ``affected source,'' which
will be the definition above unless a different definition is warranted
based on a published justification as to why the definition above would
result in significant administrative, practical, or implementation
problems and why the different definition would resolve those problems.
The term ``affected source,'' as used in this part, is separate and
distinct from any other use of that term in EPA regulations such as
those implementing title IV of the Act. Affected source may be defined
differently for part 63 than affected facility and stationary source in
parts 60 and 61, respectively.
* * * * *
Commenced means, with respect to construction or reconstruction of
an affected source, that an owner or operator has undertaken a
continuous program of construction or reconstruction or that an owner
or operator has entered into a contractual obligation to undertake and
complete, within a reasonable time, a continuous program of
construction or reconstruction.
* * * * *
Construction means the on-site fabrication, erection, or
installation of an affected source. Construction does not include the
removal of all equipment comprising an affected source from an existing
location and reinstallation of such equipment at a new location.
However, removal and reinstallation of an affected source will be
construed as reconstruction if it satisfies the criteria for
reconstruction set forth below.
* * * * *
Effective date means: * * *
(2) With regard to an alternative emission limitation or equivalent
emission limitation determined by the Administrator (or a State with an
approved permit program), the date that the alternative emission
limitation or equivalent emission limitation becomes effective
according to the provisions of this part.
* * * * *
Equivalent emission limitation means any maximum achievable control
technology emission limitation or requirements which are applicable to
a major source of hazardous air pollutants and are adopted by the
Administrator (or a State with an approved permit program) on a case-
by-case basis, pursuant to section 112(g) or (j) of the Act.
* * * * *
Federally enforceable * * *
(6) Limitations and conditions that are part of an operating permit
where the permit and the permitting program pursuant to which it was
issued meet all of the following criteria:
(i) The operating permit program has been submitted to and approved
by EPA into a State Implementation Plan (SIP) under section 110 of the
Clean Air Act;
(ii) The SIP imposes a legal obligation that operating permit
holders adhere to the terms and limitations of such permits and
provides that permits which do not conform to the operating permit
program requirements and the requirements of EPA's underlying
regulations may be deemed not ``federally enforceable'' by EPA;
(iii) The operating permit program requires that all emission
limitations, controls, and other requirements imposed by such permits
will be at least as stringent as any other applicable limitations and
requirements contained in the SIP or enforceable under the SIP, and
that the program may not issue permits that waive, or make less
stringent, any limitations or requirements contained in or issued
pursuant to the SIP, or that are otherwise ``federally enforceable'';
(iv) The limitations, controls, and requirements in the permit in
question are permanent, quantifiable, and otherwise enforceable as a
practical matter; and
(v) The permit in question was issued only after adequate and
timely notice and opportunity for comment for EPA and the public.
* * * * *
Malfunction means any sudden, infrequent, and not reasonably
preventable failure of air pollution control and monitoring equipment,
process equipment, or a process to operate in a normal or usual manner.
* * *
Monitoring means the collection and use of measurement data or
other information to control the operation of a process or pollution
control device relative to assuring compliance with applicable
requirements. Monitoring is composed of four elements:
(1) Indicator(s) of performance--the parameter or parameters you
measure or observe for demonstrating proper operation of the pollution
control measures or compliance with the applicable emissions limitation
or standard. Indicators of performance may include direct or predicted
emissions (including opacity) measurements, operational parametric
values that correspond to process or control device (and capture
system) efficiency or emissions rates, and recorded findings of
inspection of work practice activities or design characteristics.
Indicators may be expressed as a single maximum or minimum value, a
function of process variables (e.g., within a range of pressure drops),
a particular operational or work practice status (e.g., a damper
position, completion of a waste recovery task), or an interdependency
between two or more variables.
(2) Measurement techniques--the means by which you gather and
record information of or about the indicators of performance. The
components of the measurement technique include the detector type,
location and installation specifications, inspection procedures, and
quality assurance and quality control measures. Examples of measurement
techniques include continuous emission monitoring systems, continuous
opacity monitoring systems, continuous parametric monitoring systems,
and manual inspections that include making records of process
conditions or work practices.
(3) Monitoring frequency--the number of times you obtain and record
monitoring data over a specified time
[[Page 16347]]
interval. Examples of monitoring frequencies include at least four
points equally spaced for each hour for continuous emissions or
parametric monitoring systems, at least every 10 seconds for continuous
opacity monitoring systems, and at least once per operating day (or
week, month, etc.) for work practice or design inspections.
(4) Averaging time--the period over which you average and use data
to verify proper operation of the pollution control approach or
compliance with the emissions limitation or standard. Examples of
averaging time include a 3-hour average in units of the emissions
limitation, a 30-day rolling average emissions value, a daily average
of a control device operational parametric range, and an instantaneous
alarm.
New affected source means the collection of equipment, activities,
or both within a single contiguous area and under common control that
is included in a section 112(c) source category or subcategory that is
subject to a section 112(d) or other relevant standard for new sources.
Each relevant standard will define the term ``new affected source,''
which will be the same as the ``affected source'' unless a different
collection is warranted based on consideration of factors including:
(1) Emission reduction impacts of controlling individual sources
versus groups of sources;
(2) Cost effectiveness of controlling individual equipment;
(3) Flexibility to accommodate common control strategies;
(4) Cost/benefits of emissions averaging;
(5) Incentives for pollution prevention;
(6) Feasibility and cost of controlling processes 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 of which is commenced after the Administrator first
proposes a relevant emission standard under this part establishing an
emission standard applicable to such source.
* * * * *
Reconstruction, unless otherwise defined in a relevant standard,
means the replacement of components of an affected or a previously
nonaffected source to such an extent that:
* * * * *
Relevant standard means: * * *
(4) An equivalent emission limitation established pursuant to
section 112 of the Act that applies to the collection of equipment,
activities, or both regulated by such standard or limitation.
* * * Every relevant standard established pursuant to section 112 of
the Act includes subpart A of this part, as provided by
Sec. 63.1(a)(4), and all applicable appendices of this part or of other
parts of this chapter that are referenced in that standard.
* * * * *
Shutdown means the cessation of operation of an affected source or
portion of an affected source for any purpose.
* * * * *
Startup means the setting in operation of an affected source or
portion of an affected source for any purpose.
* * * * *
Working day means any day on which Federal Government offices (or
State government offices for a State that has obtained delegation under
section 112(l)) are open for normal business. Saturdays, Sundays, and
official Federal (or where delegated, State) holidays are not 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); and
d. Revising paragraph (c).
The revisions read as follows:
Sec. 63.4 Prohibited activities and circumvention.
(a) * * *
(1) No owner or operator subject to the provisions of this part
shall operate any affected source in violation of the requirements of
this part. Affected sources subject to and in compliance with either an
extension of compliance or an exemption from compliance are not in
violation of the requirements of this part. An extension of compliance
can be granted by the Administrator under this part; by a State with an
approved permit program; or by the President under section 112(i)(4) of
the Act.
* * * * *
(3)-(5) [Reserved]
(b) * * *
(3) [Reserved]
(c) Fragmentation. Fragmentation after November 15, 1990 which
divides ownership of an operation, within the same facility among
various owners where there is no real change in control, will not
affect applicability. Owners and operators shall not use fragmentation
or phasing of reconstruction activities (i.e., intentionally dividing
reconstruction into multiple parts for purposes of avoiding new source
requirements) to avoid becoming subject to new source requirements.
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 (4);
e. Removing and reserving paragraph (b)(5);
f. Revising paragraph (b)(6);
g. Revising paragraph (d)(1)(i);
h. Revising paragraph (d)(1)(ii)(B);
i. Revising paragraph (d)(1)(ii)(E);
j. Removing and reserving paragraph (d)(1)(ii)(G);
k. Revising paragraph (d)(2);
l. Revising paragraph (d)(3)(vi); and
m. Revising paragraphs (f)(1) through (f)(2).
The revisions read as follows:
Sec. 63.5 Preconstruction review and notification requirements.
(a) * * *
(1) This section implements the preconstruction review requirements
of section 112(i)(1). After the effective date of a relevant standard,
promulgated pursuant to section 112, paragraph (d), (f), or (h) of the
Act, under this part, the preconstruction review requirements in this
section apply to owners or operators of new affected sources and
reconstructed affected sources that are major-emitting as specified in
this section. New and reconstructed affected sources that commence
construction or reconstruction before the effective date of a relevant
standard are not subject to the preconstruction review requirements
specified in paragraphs (b)(3), (d), and (e) of this section.
(2) This section includes notification requirements for new
affected sources and reconstructed affected sources that are not major-
emitting and that are or become subject to a relevant promulgated
emission standard after the effective date of a relevant standard
promulgated under this part.
(b) Requirements for existing, newly constructed, and reconstructed
affected sources. (1) A new affected source for which construction
commences after proposal of a relevant standard is subject to relevant
standards for new affected sources, including compliance dates. An
affected source for which reconstruction commences after proposal of a
relevant standard is subject to relevant standards for new sources,
including compliance dates, irrespective of any change in emissions of
hazardous air pollutants from that source.
* * * * *
(3) After the effective date of any relevant standard promulgated
by the
[[Page 16348]]
Administrator under this part, no person may:
(i) Construct a new affected source that is major-emitting and
subject to such standard;
(ii) Reconstruct an affected source that is major-emitting and
subject to such standard; or
(iii) Reconstruct a major source, such that the source becomes an
affected source that is major-emitting and subject to the standard,
without obtaining written approval, in advance, from the Administrator
in accordance with the procedures specified in paragraphs (d) and (e)
of this section.
(4) After the effective date of any relevant standard promulgated
by the Administrator under this part, an owner or operator who
constructs a new affected source that is not major-emitting or
reconstructs an affected source that is not major-emitting that is
subject to such standard, or reconstructs a source such that the source
becomes an affected source subject to the standard, shall notify the
Administrator of the intended construction or reconstruction. The
notification shall be submitted in accordance with the procedures in
Sec. 63.9(b).
(5) [Reserved]
(6) After the effective date of any relevant standard promulgated
by the Administrator under this part, equipment added (or a process
change) to an affected source that is within the scope of the
definition of affected source under the relevant standard shall be
considered part of the affected source and subject to all provisions of
the relevant standard established for that affected source.
* * * * *
(d) * * *
(1) * * *
(i) An owner or operator who is subject to the requirements of
paragraph (b)(3) of this section shall submit to the Administrator an
application for approval of the construction or reconstruction. The
application shall be submitted as soon as practicable before actual
construction or reconstruction begins. The application for approval of
construction or reconstruction may be used to fulfill the initial
notification requirements of Sec. 63.9(b)(5). The owner or operator may
submit the application for approval well in advance of the date actual
construction or reconstruction begins in order to ensure a timely
review by the Administrator and that the planned date to begin will not
be delayed.
(ii) * * *
(B) A notification of intention to construct a new major affected
source or make any physical or operational change to a major affected
source that may meet or has been determined to meet the criteria for a
reconstruction, as defined in Sec. 63.2 or in the relevant standard;
* * * * *
(E) The expected date of the beginning of actual construction or
reconstruction;
* * * * *
(G) [Reserved]
* * * * *
(2) Application for approval of construction. Each application for
approval of construction shall include, in addition to the information
required in paragraph (d)(1)(ii) of this section, technical information
describing the proposed nature, size, design, operating design
capacity, and method of operation of the source, including an
identification of each type of emission point for each type of
hazardous air pollutant that is emitted (or could reasonably be
anticipated to be emitted) and a description of the planned air
pollution control system (equipment or method) for each emission point.
The description of the equipment to be used for the control of
emissions shall include each control device for each hazardous air
pollutant and the estimated control efficiency (percent) for each
control device. The description of the method to be used for the
control of emissions shall include an estimated control efficiency
(percent) for that method. Such technical information shall include
calculations of emission estimates in sufficient detail to permit
assessment of the validity of the calculations.
(3) * * *
(vi) If in the application for approval of reconstruction the owner
or operator designates the affected source as a reconstructed source
and declares that there are no economic or technical limitations to
prevent the source from complying with all relevant standards or other
requirements, the owner or operator need not submit the information
required in paragraphs (d)(3)(iii) through (d)(3)(v) of this section.
* * * * *
(f) * * *
(1) Preconstruction review procedures that a State utilizes for
other purposes may also be utilized for purposes of this section if the
procedures are substantially equivalent to those specified in this
section. The Administrator will approve an application for construction
or reconstruction specified in paragraphs (b)(3) and (d) of this
section if the owner or operator of a new affected source or
reconstructed affected source, who is subject to such requirement,
demonstrates to the Administrator's satisfaction that the following
conditions have been (or will be) met:
(i) The owner or operator of the new affected source or
reconstructed affected source has undergone a preconstruction review
and approval process in the State in which the source is (or would be)
located and has received a federally enforceable construction permit
that contains a finding that the source will meet the relevant
promulgated emission standard, if the source is properly built and
operated; and
(ii) In making its finding, the State has considered factors
substantially equivalent to those specified in paragraph (e)(1) of this
section.
(iii) [Reserved]
(iv) [Reserved]
(2) The owner or operator shall submit to the Administrator the
request for approval of construction or reconstruction under this
paragraph (f)(2) no later than the application deadline specified in
paragraph (d)(1) of this section (see also Sec. 63.9(b)(2)). The owner
or operator shall include in the request information sufficient for the
Administrator's determination. The Administrator will evaluate the
owner or operator's request in accordance with the procedures specified
in paragraph (e) of this section. The Administrator may request
additional relevant information after the submittal of a request for
approval of construction or reconstruction 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 (b)(5);
e. Revising paragraph (b)(7);
f. Revising paragraph (c)(2);
g. Revising paragraph (c)(5);
h. Revising paragraphs (e)(1)(i) through (ii);
i. Removing and reserving paragraph (e)(2):
j. Revising paragraphs (e)(3)(i) introductory text, (e)(3)(i)(A),
(e)(3)(ii), the first three sentences of paragraphs (e)(3)(iii) and
(e)(3)(v), revising paragraphs (e)(3)(iv), (e)(3)(vii)(B),
(e)(3)(vii)(C), (e)(3)(viii) and adding paragraph (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);
[[Page 16349]]
r. Revising paragraphs (i)(6)(i)(B)(1) and (2) and removing and
reserving paragraphs (i)(6)(i)(C) & (D);
s. Revising paragraph (i)(12)(i)
t. Revising paragraph (i)(14); and
u. Adding paragraph (i)(4)(i)(C).
The revisions and additions read as follows:
Sec. 63.6 Compliance with standards and maintenance requirements.
(a) * * *
(1) The requirements in this section apply to owners or operators
of affected sources for which any relevant standard has been
established pursuant to section 112 of the Act and the applicability of
such requirements is set out in accordance with Sec. 63.1(a)(4)
unless--
* * * * *
(b) Compliance dates for new and reconstructed affected sources.
(1) Except as specified in paragraphs (b)(3) and (4) of this section,
the owner or operator of a new or reconstructed affected source for
which construction or reconstruction commences after proposal of a
relevant standard that has an initial startup before the effective date
of a relevant standard established under this part pursuant to section
112(d), (f), or (h) of the Act shall comply with such standard not
later than the standard's effective date.
(2) Except as specified in paragraphs (b)(3) and (4) of this
section, the owner or operator of a new or reconstructed affected
source that has an initial startup after the effective date of a
relevant standard established under this part pursuant to section
112(d), (f), or (h) of the Act shall comply with such standard upon
startup of the source.
(3) * * *
(i) The promulgated standard (that is, the relevant standard) is
more stringent than the proposed standard; for purposes of this
paragraph, a finding that controls or compliance methods are ``more
stringent'' shall include control technologies or performance criteria
and compliance or compliance assurance methods that are different but
are substantially equivalent to those required by the promulgated rule,
as determined by the Administrator (or his or her authorized
representative); and
* * * * *
(4) The owner or operator of an affected source for which
construction or reconstruction is commenced after the proposal date of
a relevant standard established pursuant to section 112(d) of the Act
but before the proposal date of a relevant standard established
pursuant to section 112(f) shall not be required to comply with the
section 112(f) emission standard until the date 10 years after the date
construction or reconstruction is commenced, except that, if the
section 112(f) standard is promulgated more than 10 years after
construction or reconstruction is commenced, the owner or operator
shall comply with the standard as provided in paragraphs (b)(1) and (2)
of this section.
(5) The owner or operator of a new source that is subject to the
compliance requirements of paragraph (b)(3) or (4) of this section
shall notify the Administrator in accordance with Sec. 63.9(d).
* * * * *
(7) When an area source becomes a major source by the addition of
equipment or operations that meet the definition of new affected source
in the relevant standard, the portion of the existing facility that is
a new affected source shall comply with all requirements of that
standard applicable to new sources. The source owner or operator shall
comply with the relevant standard upon startup.
(c) * * *
(2) If an existing source is subject to a standard established
under this part pursuant to section 112(f) of the Act, the owner or
operator shall comply with the standard by the date 90 days after the
standard's effective date, or by the date specified in an extension
granted to the source by the Administrator under paragraph (i)(4)(ii)
of this section, whichever is later.
* * * * *
(5) Except as provided in paragraph (b)(7) of this section, the
owner or operator of an area source that increases its emissions of (or
its potential to emit) hazardous air pollutants such that the source
becomes a major source shall be subject to relevant standards for
existing sources. Such sources shall comply by the date specified in
the standards for existing area sources that become major sources. If
no such compliance date is specified in the standards, the source shall
have a period of time to comply with the relevant emission standard
that is equivalent to the compliance period specified in the relevant
standard for existing sources in existence at the time the standard
becomes effective.
* * * * *
(e) * * *
(1)(i) At all times, including periods of startup, shutdown, and
malfunction, owners or operators shall operate and maintain any
affected source, including associated air pollution control equipment
and monitoring equipment, in a manner consistent with safety and good
air pollution control practices for minimizing emissions to the levels
required by the relevant standards, i.e., meet the emission standard or
comply with the startup, shutdown, and malfunction plan. Determination
of whether such operation and maintenance procedures are being used
will be based on information available to the Administrator which may
include, but is not limited to, monitoring results, review of operation
and maintenance procedures (including the startup, shutdown, and
malfunction plan required in paragraph (e)(3) of this section), review
of operation and maintenance records, and inspection of the source.
(ii) Malfunctions shall be corrected as soon as practicable after
their occurrence in accordance with the startup, shutdown, and
malfunction plan required in paragraph (e)(3) of this section. To the
extent that an unexpected event arises during a startup, shutdown, or
malfunction, an owner or operator shall comply by minimizing emissions
during such a startup, shutdown, and malfunction event consistent with
safety and good air pollution control practices.
* * * * *
(2) [Reserved]
(3) * * *
(i) The owner or operator of an affected source shall develop and
implement a written startup, shutdown, and malfunction plan that
describes, in detail, procedures for operating and maintaining the
source during periods of startup, shutdown, and malfunction, a program
of corrective action for malfunctioning process, and air pollution
control and monitoring equipment used to comply with the relevant
standard. This plan shall be developed by the owner or operator by the
source's compliance date for that relevant standard. The purpose of the
startup, shutdown, and malfunction plan is to--
(A) Ensure that, at all times, owners or operators operate and
maintain affected sources, including associated air pollution control
and monitoring equipment, in a manner consistent with safety and good
air pollution control practices for minimizing emissions to the levels
required by the relevant standards;
* * * * *
(ii) During periods of startup, shutdown, and malfunction, the
owner or operator of an affected source shall operate and maintain such
source (including associated air pollution control and monitoring
equipment) in accordance with the procedures specified in the startup,
shutdown, and malfunction plan developed under paragraph (e)(3)(i) of
this section.
[[Page 16350]]
(iii) When actions taken by the owner or operator during a startup,
shutdown, or malfunction (including actions taken to correct a
malfunction) are consistent with the procedures specified in the
affected source's startup, shutdown, and malfunction plan, the owner or
operator shall keep records for that event which demonstrate that the
procedures specified in the plan were followed. These records may take
the form of a ``checklist,'' or other effective form of recordkeeping
that confirms conformance with the startup, shutdown, and malfunction
plan for that event. In addition, the owner or operator shall keep
records of these events as specified in Sec. 63.10(b), including
records of the occurrence and duration of each startup, shutdown, or
malfunction of operation and each malfunction of the air pollution
control and monitoring equipment. * * *
(iv) If an action taken by the owner or operator during a startup,
shutdown, or malfunction (including an action taken to correct a
malfunction) is not consistent with the procedures specified in the
affected source's startup, shutdown, and malfunction plan, and the
source exceeds the relevant emission standard, then the owner or
operator shall record the actions taken for that event and shall report
such actions within 2 working days after commencing actions
inconsistent with the plan, followed by a letter within 7 working days
after the end of the event, in accordance with Sec. 63.10(d)(5) (unless
the owner or operator makes alternative reporting arrangements, in
advance, with the Administrator.
(v) The owner operator shall maintain at the affected source a
current startup, shutdown, and malfunction plan and shall make the plan
available upon request for inspection and copying by the Administrator.
In addition, if the startup, shutdown, and malfunction plan is
subsequently revised as provided in paragraph (e)(3)(viii) of this
section, the owner or operator shall maintain at the affected source
each previous (i.e., superseded) version of the startup, shutdown, and
malfunction plan, and shall make each such previous version available
for inspection and copying by the Administrator for a period of 5 years
after revision of the plan. If at any time after adoption of a startup,
shutdown, and malfunction plan the affected source ceases operation or
is otherwise no longer subject to the provisions of this part, the
owner or operator shall retain a copy of the most recent plan for 5
years from the date the source ceases operation or is no longer subject
to this part and shall make the plan available upon request for
inspection and copying by the Administrator. * * *
* * * * *
(vii) * * *
(B) Fails to provide for the operation of the source (including
associated air pollution control and monitoring equipment) during a
startup, shutdown, or malfunction event in a manner consistent with
safety and good air pollution control practices for minimizing
emissions to the levels required by the relevant standards; or
(C) Does not provide adequate procedures for correcting
malfunctioning process and/or air pollution control and monitoring
equipment as quickly as practicable.
(viii) The owner or operator may periodically revise the startup,
shutdown, and malfunction plan for the affected source as necessary to
satisfy the requirements of this part or to reflect changes in
equipment or procedures at the affected source. Unless the permitting
authority provides otherwise, the owner or operator may make such
revisions to the startup, shutdown, and malfunction plan without prior
approval by the Administrator or the permitting authority. However,
each such revision to a startup, shutdown, and malfunction plan must be
reported in the semiannual report required by Sec. 63.10(d)(5). If the
startup, shutdown, and malfunction plan fails to address or
inadequately addresses an event that meets the characteristics of a
malfunction but was not included in the startup, shutdown, and
malfunction plan at the time the owner or operator developed the plan,
the owner or operator shall revise the startup, shutdown, and
malfunction plan within 45 days after the event to include detailed
procedures for operating and maintaining the source during similar
malfunction events and a program of corrective action for similar
malfunctions of process or air pollution control and monitoring
equipment. In the event that the owner or operator makes any revision
to the startup, shutdown, and malfunction plan which alters the scope
of the activities at the source which are deemed to be a startup,
shutdown, malfunction, or otherwise modifies the applicability of any
emission limit, work practice requirement, or other requirement in a
standard established under this part, the revised plan shall not take
effect until after the owner or operator has provided a written notice
describing the revision to the permitting authority.
(ix) The title V permit for an affected source shall require that
the owner or operator adopt a startup, shutdown, and malfunction plan
which conforms to the provisions of this part, and that the owner or
operator operate and maintain the source in accordance with the
procedures specified in the current startup, shutdown, and malfunction
plan. However, any revisions made to the startup, shutdown, and
malfunction plan in accordance with the procedures established by this
part shall not be deemed to constitute permit revisions under part 70
or part 71 of this chapter. Moreover, none of the procedures specified
by the startup, shutdown, and malfunction plan for an affected source
shall be deemed to fall within the permit shield provision in section
504(f) of the Act.
(f) * * *
(1) Applicability. The non-opacity emission standards set forth in
this part shall apply at all times except during periods of startup,
shutdown, and malfunction, and as otherwise specified in an applicable
subpart. If a startup, shutdown, or malfunction of one portion of an
affected source does not affect the ability of particular emission
points within other portions of the affected source to comply with the
non-opacity emission standards set forth in this part, then that
emission point shall still be required to comply with the non-opacity
emission standards and other applicable requirements.
(2) * * *
(iii) * * *
(D) The performance test was appropriately quality-assured, as
specified in Sec. 63.7(c).
* * * * *
(3) Finding of compliance. The Administrator will make a finding
concerning an affected source's compliance with a non-opacity emission
standard, as specified in paragraphs (f)(1) and (2) of this section,
upon obtaining all the compliance information required by the relevant
standard (including the written reports of performance test results,
monitoring results, and other information, if applicable) and
information available to the Administrator pursuant to paragraph
(e)(1)(i) of this section.
* * * * *
(h) * * *
(1) Applicability. The opacity and visible emission standards set
forth in this part shall apply at all times except during periods of
startup, shutdown, and malfunction, and as otherwise specified in an
applicable subpart. If a startup, shutdown, or malfunction of one
portion of an affected source does not affect the ability of particular
emission points within other portions of the affected source to comply
with the
[[Page 16351]]
opacity and visible emission standards set forth in this part, then
that emission point shall still be required to comply with the opacity
and visible emission standards and other applicable requirements.
(2) * * *
(iii) * * *
(C) The opacity or visible emission test was conducted and the
resulting data were reduced using EPA-approved test methods and
procedures, as specified in Sec. 63.7(e); and
* * * * *
(i) * * *
(4)(i) * * *
(B) Any request under this paragraph for an extension of compliance
with a relevant standard shall be submitted in writing to the
appropriate authority no later than 120 days prior to the affected
source's compliance date (as specified in paragraphs (b) and (c) of
this section), except as provided for in paragraph (i)(4)(i)(C) of this
section. Nonfrivolous requests submitted under this paragraph will stay
the effect of the rule as to the emission points in question until such
time as the request is granted or denied. A denial will be effective as
of the date of denial. Emission standards established under this part
may specify alternative dates for the submittal of requests for an
extension of compliance if alternatives are appropriate for the source
categories affected by those standards.
(C) An owner or operator may submit a compliance extension request
after the date specified in paragraph (i)(4)(i)(B) of this section
provided the need for the compliance extension arose after that date,
and before the otherwise applicable compliance date, and the need arose
due to circumstances beyond reasonable control of the owner or
operator. This request shall include, in addition to the information
required in paragraph (i)(6)(i) of this section, a statement of the
reasons additional time is needed and the date when the owner or
operator first learned of the problems. Nonfrivolous requests submitted
under this paragraph will stay the effect of the rule as to the
emission points in question until such time as the request is granted
or denied. A denial will be effective as of the original compliance
date.
(ii) * * * Any request for an extension of compliance with a
relevant standard under this paragraph shall be submitted in writing to
the Administrator not later than 90 calendar days after the effective
date of the relevant standard.
* * * * *
(6)(i) * * *
(B) * * *
(1) The date by which on-site construction, installation of
emission control equipment, or a process change is planned to be
initiated; and
(2) The date by which final compliance is to be achieved.
(C) [Reserved]
(D) [Reserved]
* * * * *
(12)(i) The Administrator (or the State with an approved permit
program) will notify the owner or operator in writing of approval or
intention to deny approval of a request for an extension of compliance
within 30 calendar days after receipt of sufficient information to
evaluate a request submitted under paragraph (i)(4)(i) or (i)(5) of
this section. The Administrator (or the State) will notify the owner or
operator in writing of the status of his/her application, that is,
whether the application contains sufficient information to make a
determination, within 30 calendar days after receipt of the original
application and within 30 calendar days after receipt of any
supplementary information that is submitted. The 30-day approval or
denial period will begin after the owner or operator has been notified
in writing that his/her application is complete.
* * * * *
(14) The Administrator (or the State with an approved permit
program) may terminate an extension of compliance at an earlier date
than specified if any specification under paragraph (i)(10)(iii) or
(iv) of this section is not met. Upon a determination to terminate, the
Administrator will notify, in writing, the owner or operator of the
Administrator's determination to terminate, together with:
(i) Notice of the reason for termination; and
(ii) Notice of opportunity for the owner or operator to present in
writing, within 15 calendar days after he/she is notified of the
determination to terminate, additional information or arguments to the
Administrator before further action on the termination.
(iii) A final determination to terminate an extension of compliance
will be in writing and will set forth the specific grounds on which the
termination is based. The final determination will be made within 30
calendar days after presentation of additional information or
arguments, or within 30 calendar days after the final date specified
for the presentation if no presentation 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); and
i. Revising paragraph (f)(3).
The revisions read as follows:
Sec. 63.7 Performance testing requirements.
(a) * * *
(1) The applicability of this section is set out in
Sec. 63.1(a)(4).
(2) If required to do performance testing by a relevant standard,
and unless a waiver of performance testing is obtained under this
section or the conditions of paragraph (c)(3)(ii)(B) of this section
apply, the owner or operator of the affected source shall perform such
tests within 180 days of the compliance date for such source.
(i)--(viii) [Reserved]
* * * * *
(b) * * *
(2) In the event the owner or operator is unable to conduct the
performance test on the date specified in the notification requirement
specified in paragraph (b)(1) of this section, due to unforeseeable
circumstances beyond his or her control, the owner or operator shall
notify the Administrator as soon as practicable and without delay prior
to the scheduled performance test date and specify the date when the
performance test is rescheduled. This notification of delay in
conducting the performance test shall not relieve the owner or operator
of legal responsibility for compliance with any other applicable
provisions of this part or with any other applicable Federal, State, or
local requirement, nor will it prevent the Administrator from
implementing or enforcing this part or taking any other action under
the Act.
(c) * * *
(3) * * *
(ii) * * *
(A) If the owner or operator intends to demonstrate compliance
using the test method(s) specified in the relevant standard or with
only minor changes to those tests methods (see paragraph (e)(2)(i) of
this section), the owner or operator shall conduct the performance test
within the time specified in this section using the specified
method(s);
(B) If the owner or operator intends to demonstrate compliance by
using an alternative to any test method specified in the relevant
standard, the owner or operator is authorized to conduct the
[[Page 16352]]
performance test using an alternative test method after the
Administrator approves the use of the alternative method when the
Administrator approves the site-specific test plan (if review of the
site-specific test plan is requested) or after the alternative method
is approved (see paragraph (f) of this section). However, the owner or
operator is authorized to conduct the performance test using an
alternative method in the absence of notification of approval 45 days
after submission of the site-specific test plan or request to use an
alternative method. The owner or operator is authorized to conduct the
performance test within 60 calendar days after he/she is authorized to
demonstrate compliance using an alternative test method.
Notwithstanding the requirements in the preceding three sentences, the
owner or operator may proceed to conduct the performance test as
required in this section (without the Administrator's prior approval of
the site-specific test plan) if he/she subsequently chooses to use the
specified testing and monitoring methods instead of an alternative.
* * * * *
(4)(i) Performance test method audit program. The owner or operator
shall analyze performance audit (PA) samples during each performance
test. The owner or operator shall request performance audit materials
30 days prior to the test date. Audit materials including cylinder
audit gases may be obtained by contacting the appropriate EPA Regional
Office or the responsible enforcement authority.
* * * * *
(e) * * *
(2) * * *
(i) Specifies or approves, in specific cases, the use of a test
method with minor changes in methodology (see definition in
Sec. 63.90(a)). Such changes may be approved in conjunction with
approval of the site-specific test plan (see paragraph (c) of this
section); or
(ii) Approves the use of an intermediate or major change or
alternative to a test method (see definitions in Sec. 63.90(a)), the
results of which the Administrator has determined to be adequate for
indicating whether a specific affected source is in compliance; or
(iii) Approves shorter sampling times or smaller sample volumes
when necessitated by process variables or other factors; or
* * * * *
(f) * * *
(1) General. Until authorized to use an intermediate or major
change or alternative to a test method, the owner or operator of an
affected source remains subject to the requirements of this section and
the relevant standard.
(2) * * *
(i) Notifies the Administrator of his or her intention to use an
alternative test method at least 60 days before the performance test is
scheduled to begin;
(ii) Uses Method 301 in appendix A to this part to validate the
alternative test method. This may include the use of specific
procedures of Method 301 if use of such procedures are sufficient to
validate the alternative test method; and
* * * * *
(3) The Administrator will determine whether the owner or
operator's validation of the proposed alternative test method is
adequate and issue an approval or disapproval of the alternative test
method. If the owner or operator intends to demonstrate compliance by
using an alternative to any test method specified in the relevant
standard, the owner or operator is authorized to conduct the
performance test using an alternative test method after the
Administrator approves the use of the alternative method. However, the
owner or operator is authorized to conduct the performance test using
an alternative method in the absence of notification of approval/
disapproval 45 days after submission of the request to use an
alternative method and the request satisfies the requirements in
paragraph (f)(2) of this section. The owner or operator is authorized
to conduct the performance test within 60 calendar days after he/she is
authorized to demonstrate compliance using an alternative test method.
Notwithstanding the requirements in the preceding three sentences, the
owner or operator may proceed to conduct the performance test as
required in this section (without the Administrator's prior approval of
the site-specific test plan) if he/she subsequently chooses to use the
specified testing and monitoring methods instead of an alternative.
* * * * *
8. Section 63.8 is amended by:
a. Revising paragraph (a)(1);
b. Revising paragraphs (b)(1)(i) through (ii);
c. Revising paragraphs (b)(2)(i) through (ii);
d. Revising paragraphs (c)(1)(i) through (iii);
e. Revising paragraph (c)(2);
f. Revising paragraph (c)(6);
g. Revising paragraph (f)(1);
h. Revising paragraphs (f)(4)(i) through (ii);
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); and
l. Revising paragraph (g)(5).
The revisions and additions read as follows:
Sec. 63.8 Monitoring requirements.
(a) * * *
(1) The applicability of this section is set out in
Sec. 63.1(a)(4).
* * * * *
(b) * * *
(1) * * *
(i) Specifies or approves the use of minor changes in methodology
for the specified monitoring requirements and procedures (see
Sec. 63.90(a) for definition); or
(ii) Approves the use of an intermediate or major change or
alternative to any monitoring requirements or procedures (see
Sec. 63.90(a) for definition).
* * * * *
(2)(i) When the emissions from two or more affected sources are
combined before being released to the atmosphere, the owner or operator
may install an applicable CMS for each emission stream or for the
combined emissions streams, provided the monitoring is sufficient to
demonstrate compliance with the relevant standard.
(ii) If the relevant standard is a mass emission standard and the
emissions from one affected source are released to the atmosphere
through more than one point, the owner or operator shall install an
applicable CMS at each emission point unless the installation of fewer
systems is--
* * * * *
(c) * * *
(1)(i) The owner or operator of an affected source shall maintain
and operate each CMS as specified in Sec. 63.6(e)(1).
(ii) The owner or operator shall keep the necessary parts for
routine repairs of the affected CMS equipment readily available.
(iii) The owner or operator of an affected source shall develop and
implement a written startup, shutdown, and malfunction plan for CMS as
specified in Sec. 63.6(e)(3).
(2)(i) All CMS shall be installed such that representative measures
of emissions or process parameters from the affected source are
obtained. In addition, CEMS shall be located according to procedures
contained in the applicable performance specification(s).
(ii) Unless the individual subpart states otherwise, the owner or
operator
[[Page 16353]]
shall ensure the read out (that portion of the CMS that provides a
visual display or record) from any CMS required for compliance with the
emission standard is readily accessible on site for operational control
or inspection by the operator of the equipment.
* * * * *
(6) The owner or operator of a CMS installed in accordance with the
provisions of this part and the applicable CMS performance
specification(s) shall check the zero (low-level) and high-level
calibration drifts at least once daily in accordance with the written
procedure specified in the performance evaluation plan developed under
paragraphs (e)(3)(i) and (ii) of this section. The zero (low-level) and
high-level calibration drifts shall be adjusted, at a minimum, whenever
the 24-hour zero (low-level) drift exceeds two times the limits of the
applicable performance specification(s) specified in the relevant
standard. The system must allow the amount of excess zero (low-level)
and high-level drift measured at the 24-hour interval checks to be
recorded and quantified whenever specified. For COMS, all optical and
instrumental surfaces exposed to the effluent gases shall be cleaned
prior to performing the zero (low-level) and high-level drift
adjustments; the optical surfaces and instrumental surfaces shall be
cleaned when the cumulative automatic zero compensation, if applicable,
exceeds 4 percent opacity. The CPMS must be calibrated prior to use for
the purposes of complying with this section. The CPMS must be checked
daily for indication that the system is responding. If the CPMS system
includes an internal system check, results must be recorded and checked
daily for proper operation.
* * * * *
(f) * * *
(1) General. Until permission to use an alternative monitoring
procedure (minor, intermediate, or major changes; see definition in
Sec. 63.90(a)) has been granted by the Administrator under this
paragraph, the owner or operator of an affected source remains subject
to the requirements of this section and the relevant standard.
* * * * *
(4)(i) Request to use alternative monitoring procedure. An owner or
operator who wishes to use an alternative monitoring procedure shall
submit an application to the Administrator as described in paragraph
(f)(4)(ii) of this section. The application may be submitted at any
time provided that the monitoring procedure is not the performance test
method used to demonstrate compliance with a relevant standard or other
requirement. If the alternative monitoring procedure will serve as the
performance test method that is to be used to demonstrate compliance
with a relevant standard, the application shall be submitted at least
60 days before the performance evaluation is scheduled to begin and
must meet the requirements for an alternative test method under
Sec. 63.7(f).
(ii) The application shall contain a description of the proposed
alternative monitoring system which addresses the four elements
contained in the definition of monitoring in Sec. 63.2 and a
performance evaluation test plan, if required, as specified in
paragraph (e)(3) of this section. In addition, the application shall
include information justifying the owner or operator's request for an
alternative monitoring method, such as the technical or economic
infeasibility, or the impracticality, of the affected source using the
required method.
* * * * *
(iv) Application for minor changes to monitoring procedures, as
specified in paragraph (b)(1) of this section, may be made in the site-
specific performance evaluation plan.
(5) Approval of request to use alternative monitoring procedure.
(i) The Administrator will notify the owner or operator of approval
or intention to deny approval of the request to use an alternative
monitoring method within 30 calendar days after receipt of the original
request and within 30 calendar days after receipt of any supplementary
information that is submitted. If a request for a minor change is made
in conjunction with site-specific performance evaluation plan, then
approval of the plan will constitute approval of the minor change.
Before disapproving any request to use an alternative monitoring
method, the Administrator will notify the applicant of the
Administrator's intention to disapprove the request together with--
* * * * *
(g) Reduction of monitoring data.
(1) The owner or operator of each CMS shall reduce the monitoring
data as specified in paragraphs (g)(1) through (5) of this section.
* * * * *
(5) Monitoring data recorded during periods of unavoidable CMS
breakdowns, out-of-control periods, repairs, maintenance periods,
calibration checks, and zero (low-level) and high-level adjustments
shall not be included in any data average computed under this part. For
owners or operators complying with the requirements of
Sec. 63.10(b)(2)(vii)(A) or (B), data averages must include any data
recorded during periods of monitor breakdown or malfunction.
9. Section 63.9 is amended by:
a. Revising paragraph (a)(1);
b. Revising paragraph (b)(2)(iv);
c. Revising the introductory text of paragraph (b)(4);
d. Revising paragraph (b)(4)(i);
e. Revising paragraph (b)(5);
f. Revising paragraph (h)(2)(i)(E);
g. Removing and reserving paragraph (b)(3); and
h. Removing and reserving paragraphs (b)(4)(ii) through (iii).
The revisions and additions read as follows:
Sec. 63.9 Notification requirements.
(a) * * *
(1) The applicability of this section is set out in
Sec. 63.1(a)(4).
* * * * *
(b) * * *
(2) * * *
(iv) A brief description of the nature, size, design, and method of
operation of the source and an identification of the types of emission
points within the affected source subject to the relevant standard and
types of hazardous air pollutants emitted; and
* * * * *
(3) [Reserved]
(4) The owner or operator of a new or reconstructed major affected
source for which an application for approval of construction or
reconstruction is required under Sec. 63.5(d) shall provide the
following information in writing to the Administrator:
(i) A notification of intention to construct a new major-emitting
affected source, reconstruct a major-emitting affected source, or
reconstruct a major source such that the source becomes a major-
emitting affected source with the application for approval of
construction or reconstruction as specified in Sec. 63.5(d)(1)(i); and
(ii) [Reserved]
(iii) [Reserved]
* * * * *
(5) The owner or operator of a new or reconstructed affected source
for which an application for approval of construction or reconstruction
is not required under Sec. 63.5(d) shall provide the following
information in writing to the Administrator:
(i) A notification of intention to construct a new affected source,
reconstruct an affected source, or reconstruct a source such that the
source becomes an affected source, and
(ii) A notification of the actual date of startup of the source,
delivered or
[[Page 16354]]
postmarked within 15 calendar days after that date.
(iii) Unless the owner or operator has requested and received prior
permission from the Administrator to submit less than the information
in Sec. 63.5(d), the notification shall include the information
required on the application for approval of construction or
reconstruction as specified in Sec. 63.5(d)(1)(i).
* * * * *
(h) * * *
(2)(i) * * *
(E) If the relevant standard applies to both major and area
sources, an analysis demonstrating whether the affected source is a
major source (using the emissions data generated for this
notification);
* * * * *
10. Section 63.10 is amended by:
a. Revising paragraph (a)(1);
b. Revising paragraphs (b)(2)(ii) through (b)(2)(v);
c. Revising paragraph (b)(3);
d. Adding paragraph (e)(3)(i)(C); and
The revisions read as follows:
Sec. 63.10 Recordkeeping and reporting requirements.
(a) * * *
(1) The applicability of this section is set out in
Sec. 63.1(a)(4).
* * * * *
(b) * * *
(2) * * *
(ii) The occurrence and duration of each malfunction of the
required air pollution control and monitoring equipment;
(iii) All required maintenance performed on the air pollution
control and monitoring equipment;
(iv) Actions taken during periods of startup, shutdown, and
malfunction (including corrective actions to restore malfunctioning
process and air pollution control and monitoring equipment to its
normal or usual manner of operation) when such actions are different
from the procedures specified in the affected source's startup,
shutdown, and malfunction plan (see Sec. 63.6(e)(3));
(v) All information necessary to demonstrate conformance with the
affected source's startup, shutdown, and malfunction plan (see
Sec. 63.6(e)(3)) when all actions taken during periods of startup,
shutdown, and malfunction (including corrective actions to restore
malfunctioning process and air pollution control and monitoring
equipment to its normal or usual manner of operation) are consistent
with the procedures specified in such plan. (The information needed to
demonstrate conformance with the startup, shutdown, and malfunction
plan may be recorded using a ``checklist,'' or some other effective
form of recordkeeping, in order to minimize the recordkeeping burden
for conforming events);
* * * * *
(3) Recordkeeping requirement for applicability determinations. If
an owner or operator determines that his or her stationary source that
emits (or has the potential to emit, without considering controls) one
or more hazardous air pollutants regulated by any standard established
pursuant to section 112(d) or (f), and that stationary source is in the
source category regulated by the relevant standard, but that source is
not subject to the relevant standard (or other requirement established
under this part) because of limitations on the source's potential to
emit or an exclusion, the owner or operator shall keep a record of the
applicability determination on site at the source for a period of 5
years after the determination, or until the source changes its
operations to become an affected source, whichever comes first. The
record of the applicability determination shall be signed by the person
making the determination and include an analysis (or other information)
that demonstrates why the owner or operator believes the source is
unaffected (e.g., because the source is an area source). The analysis
(or other information) shall be sufficiently detailed to allow the
Administrator to make a finding about the source's applicability status
with regard to the relevant standard or other requirement. If relevant,
the analysis shall be performed in accordance with requirements
established in relevant subparts of this part for this purpose for
particular categories of stationary sources. If relevant, the analysis
should be performed in accordance with EPA guidance materials published
to assist sources in making applicability determinations under section
112, if any. The requirements to determine applicability of a standard
under Sec. 63.1(b)(3) and to record the results of that determination
under paragraph (b)(3) of this section shall not by themselves create
an obligation for the owner or operator to obtain a title V permit.
* * * * *
(e) * * *
(3) * * *
(i) * * *
(C) The CMS data are to be used directly for compliance
determination and the source experienced excess emissions, in which
case quarterly reports shall be submitted. Once a source reports excess
emissions, the source shall follow a quarterly reporting format until a
request to reduce reporting frequency under paragraph (e)(3)(ii) of
this section is approved.
* * * * *
11. Section 63.11 is amended by revising paragraph (a) to read as
follows:
Sec. 63.11 Control device requirements.
(a) Applicability. The applicability of this section is set out in
Sec. 63.1(a)(4).
* * * * *
Subpart B--[Amended]
12. Section 63.50 is amended by revising paragraph (a) and removing
paragraph (c) to read as follows:
Sec. 63.50 Applicability.
(a) General applicability.
(1) The requirements of this section through Sec. 63.56 implement
section 112(j) of the Clean Air Act (as amended in 1990). The
requirements of this section through Sec. 63.56 apply in each State
beginning on the effective date of an approved title V permit program
in such State. The requirements of this section through Sec. 63.56 do
not apply to research or laboratory activities as defined in
Sec. 63.51.
(2) The requirements of this section through Sec. 63.56 apply to:
(i) Owners or operators of affected sources within a source
category or subcategory under this part that are located at a major
source that is subject to an approved title V permit program and for
which the Administrator has failed to promulgate emission standards by
the section 112(j) deadlines. If title V applicability has been
deferred for a source category, then section 112(j) is not applicable
for sources in that category within that State, local or tribal
jurisdiction until those sources become subject to title V permitting
requirements; and
(ii) Permitting authorities with an approved 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;
[[Page 16355]]
h. Amending the definition of available information by revising the
introductory text and paragraphs (2) through (5);
i. Revising the definition of enhanced review;
j. Revising the definition of equivalent emission limitation;
k. Revising paragraphs (1)(i) and (ii) of the definition of maximum
achievable control technology (MACT) floor;
l. Revising the definition of section 112(j) deadline;
m. Revising the definition of similar source;
n. Adding in alphabetical order the definition of new affected
source; and
p. Adding in alphabetical order the definition of research or
laboratory activities.
The revisions and additions read as follows:
Sec. 63.51 Definitions.
Terms used in Secs. 63.50 through 63.56 that are not defined in
this section have the meaning given to them in the Act, or in subpart A
of this part.
Affected source means the collection of equipment, activities, or
both within a single contiguous area and under common control that is
in a section 112(c) source category or subcategory for which the
Administrator has failed to promulgate an emission standard by the
section 112(j) deadline, and that is addressed by an applicable MACT
emission limitation established pursuant to this subpart.
Available information means, for purposes of conducting a MACT
floor finding and identifying control technology options under this
subpart, any information that is available as of the date on which the
first Part 2 MACT application is filed for a source in the relevant
source category or subcategory in the State or jurisdiction; and,
pursuant to the requirements of this subpart, is additional relevant
information that can be expeditiously provided by the Administrator, is
submitted by the applicant or others prior to or during the public
comment period on the section 112(j) equivalent emission limitation for
that source, or information contained in the information sources in
paragraphs (1) through (5) of this definition.
(1) * * *
(2) Relevant background information documents for a draft or
proposed regulation.
(3) Any relevant regulation, information or guidance collected by
the Administrator establishing a MACT floor finding and/or MACT
determination.
(4) Relevant data and information available from the Clean Air
Technology Center developed pursuant to section 112(l)(3) of the Act.
(5) Relevant data and information contained in the Aerometric
Information Retrieval System (AIRS) including information in the MACT
database.
* * * * *
Enhanced review means a review process containing all
administrative steps needed to ensure that the terms and conditions
resulting from the review process can be incorporated using title V
permitting procedures.
Equivalent emission limitation means an emission limitation,
established under section 112(j) of the Act, which is equivalent to the
MACT standard that EPA would have promulgated under section 112(d) or
(h) of the Act.
* * * * *
Maximum achievable control technology (MACT) floor means:
(1) * * *
(i) The average emission limitation achieved by the best performing
12 percent of the existing sources (for which the Administrator has
emissions information), * * *
(ii) The average emission limitation achieved by the best
performing five sources (for which the Administrator has or could
reasonably obtain emissions information) in the category or
subcategory, for categories or subcategories with fewer than 30
sources;
* * * * *
New affected source means the collection of equipment, activities,
or both, that if constructed after the issuance of a section 112(j)
permit for the source pursuant to Sec. 63.52, is subject to the
applicable MACT emission limitation for new sources. Each permit shall
define the term ``new affected source,'' which will be the same as the
``affected source'' unless a different collection is warranted based on
consideration of factors including:
(1) Emission reduction impacts of controlling individual sources
versus groups of sources;
(2) Cost effectiveness of controlling individual equipment;
(3) Flexibility to accommodate common control strategies;
(4) Cost/benefits of emissions averaging;
(5) Incentives for pollution prevention;
(6) Feasibility and cost of controlling processes that share common
equipment (e.g., product recovery devices);
(7) Feasibility and cost of monitoring; and
(8) Other relevant factors.
* * * * *
Research or laboratory activities means activities whose primary
purpose is to conduct research and development into new processes and
products; where such activities are operated under the close
supervision of technically trained personnel and are not engaged in the
manufacture of products for commercial sale in commerce, except in a de
minimis manner; and where the source is not in a source category,
specifically addressing research or laboratory activities, that is
listed pursuant to section 112(c)(7) of the Act.
Section 112(j) deadline means the date 18 months after the date for
which a relevant standard is scheduled to be promulgated under this
part, except that for all major sources listed in the source category
schedule for which a relevant standard is scheduled to be promulgated
by November 15, 1994, the section 112(j) deadline is November 15, 1996,
and for all major sources listed in the source category schedule for
which a relevant standard is scheduled to be promulgated by November
15, 1997, the section 112(j) deadline is December 15, 1999.
Similar source means that equipment or collection of equipment
that, by virtue of its structure, operability, type of emissions and
volume and concentration of emissions, is substantially equivalent to
the new affected source and employs control technology for control of
emissions of hazardous air pollutants that is practical for use on the
new affected source.
* * * * *
14. Section 63.52 is revised to read as follows:
Sec. 63.52 Approval process for new and existing affected sources.
(a) Sources subject to section 112(j) as of the section 112(j)
deadline. The requirements of paragraphs (a)(1) through (3) of this
section apply to major sources that include, as of the section 112(j)
deadline, one or more sources in a category or subcategory for which
the Administrator has failed to promulgate an emission standard under
this part on or before an applicable section 112(j) deadline. Existing
source MACT requirements (including relevant compliance deadlines), as
specified in a title V permit issued to the source pursuant to the
requirements of the subpart, shall apply to such sources.
(1) The owner or operator shall submit an application for a title V
permit or for a revision to an existing title V permit or a pending
title V permit meeting the requirements of Sec. 63.53(a) by the section
112(j) deadline if the owner or operator can reasonably determine that
one or more sources at the major source belong in the category or
subcategory subject to section 112(j).
[[Page 16356]]
(2) If an application was not submitted under paragraph (a)(1) of
this section and if notified by the permitting authority, the owner or
operator shall submit an application for a title V permit or for a
revision to an existing title V permit or a pending title V permit
meeting the requirements of Sec. 63.53(a) within 30 days of being
notified in writing by the permitting authority that one or more
sources at the major source belong to such category or subcategory.
Such written notification shall be issued by the permitting authority
within 120 days of the section 112(j) deadline.
(3) The requirements in paragraphs (a)(3)(i) through (ii) of this
section apply when the owner or operator has obtained a title V permit
that incorporates a case-by-case MACT determination by the permitting
authority under section 112(g) or has submitted a title V permit
application for a revision that incorporates a case-by-case MACT
determination under section 112(g), but has not submitted an
application for a title V permit revision that addresses the emission
limitation requirements of section 112(j).
(i) When the owner or operator has a title V permit that
incorporates a case-by-case MACT determination by the permitting
authority under section 112(g), the owner or operator shall submit an
application meeting the requirements of Sec. 63.53(a) for a title V
permit revision within 30 days of the section 112(j) deadline or within
30 days of being notified in writing by the permitting authority that
one or more sources at the major source belong in such category or
subcategory. Using the procedures established in paragraph (e) of this
section, the permitting authority shall determine whether the emission
limitations adopted pursuant to the prior case-by-case MACT
determination under section 112(g) are substantially as effective as
the emission limitations which the permitting authority would otherwise
adopt pursuant to section 112(j) for the source in question. If the
permitting authority determines that the emission limitations
previously adopted to effectuate section 112(g) are substantially as
effective as the emission limitations which the permitting authority
would otherwise adopt to effectuate section 112(j) for the source, then
the permitting authority shall retain the existing emission limitations
in the permit as the emission limitations to effectuate section 112(j).
The title V permit applicable to that source shall be revised
accordingly. If the permitting authority does not retain the existing
emission limitations in the permit as the emission limitations to
effectuate section 112(j), the MACT requirements of this subpart are
satisfied upon issuance of a revised title V permit incorporating any
additional section 112(j) requirements.
(ii) When the owner or operator has submitted a title V permit
application that incorporates a case-by-case MACT determination by the
permitting authority under section 112(g), but has not received the
permit incorporating the section 112(g) requirements, the owner or
operator shall continue to pursue a title V permit that addresses the
emission limitation requirements of section 112(g). Within 30 days of
issuance of that title V permit, the owner or operator shall submit an
application meeting the requirements of Sec. 63.53(a) for a change to
the existing title V permit. Using the procedures established in
paragraph (e) of this section, the permitting authority shall determine
whether the emission limitations adopted pursuant to the prior case-by-
case MACT determination under section 112(g) are substantially as
effective as the emission limitations which the permitting authority
would otherwise adopt pursuant to section 112(j) for the source in
question. If the permitting authority determines that the emission
limitations previously adopted to effectuate section 112(g) are
substantially as effective as the emission limitations which the
permitting authority would otherwise adopt to effectuate section 112(j)
for the source, then the permitting authority shall retain the existing
emission limitations in the permit as the emission limitations to
effectuate section 112(j). The title V permit applicable to that source
shall be revised accordingly. If the permitting authority does not
retain the existing emission limitations in the permit as the emission
limitations to effectuate section 112(j), the MACT requirements of this
subpart are satisfied upon issuance of a revised title V permit
incorporating any additional section 112(j)requirements.
(b) Sources that become subject to section 112(j) after the section
112(j) deadline and that do not have a title V permit addressing
section 112(j) requirements. The requirements of paragraphs (b)(1)
through (4) of this section apply to sources that do not meet the
criteria in paragraph (a) of this section on the section 112(j)
deadline and are, therefore, not subject to section 112(j) on that
date, but where events occur subsequent to the section 112(j) deadline
that would bring the source under the requirements of this subpart, and
the source does not have a title V permit that addresses the
requirements of section 112(j).
(1) When one or more sources in a category or subcategory subject
to the requirements of this subpart are installed at a major source, or
result in the source becoming a major source due to the installation,
and the installation does not invoke section 112(g) requirements, the
owner or operator shall submit an application meeting the requirements
of Sec. 63.53(a) within 30 days of startup of the source. This
application shall be reviewed using the procedures established in
paragraph (e) of this section. Existing source MACT requirements
(including relevant compliance deadlines), as specified in a title V
permit issued pursuant to the requirements of this subpart, shall apply
to such sources.
(2) The requirements in this paragraph apply when one or more
sources in a category or subcategory subject to this subpart are
installed at a major source, or result in the source becoming a major
source due to the installation, and the installation does require
emission limitations to be established and permitted under section
112(g), and the owner or operator has not submitted an application for
a title V permit revision that addresses the emission limitation
requirements of section 112(j). In this case, the owner or operator
shall apply for and obtain a title V permit that addresses the emission
limitation requirements of section 112(g). Within 30 days of issuance
of that title V permit, the owner or operator shall submit an
application meeting the requirements of Sec. 63.53(a) for a revision to
the existing title V permit. Using the procedures established in
paragraph (e) of this section, the permitting authority shall determine
whether the emission limitations adopted pursuant to the prior case-by-
case MACT determination under section 112(g) are substantially as
effective as the emission limitations which the permitting authority
would otherwise adopt pursuant to section 112(j) for the source in
question. If the permitting authority determines that the emission
limitations previously adopted to effectuate section 112(g) are
substantially as effective as the emission limitations which the
permitting authority would otherwise adopt to effectuate section 112(j)
for the source, then the permitting authority shall retain the existing
emission limitations in the permit as the emission limitations to
effectuate section 112(j). The title V permit applicable to that source
shall be revised accordingly. If the permitting authority does not
retain the existing emission limitations in the permit as the emission
limitations to effectuate
[[Page 16357]]
section 112(j), the MACT requirements of this subpart are satisfied
upon issuance of a revised title V permit incorporating any additional
section 112(j) requirements.
(3) The owner or operator of an area source that, due to a
relaxation in any federally enforceable emission limitation (such as a
restriction on hours of operation), increases its potential to emit
hazardous air pollutants such that the source becomes a major source
that is subject to this subpart, shall submit an application meeting
the requirements of Sec. 63.53(a) for a title V permit or for an
application for a title V permit revision within 30 days after the date
that such source becomes a major source. This application shall be
reviewed using the procedures established in paragraph (e) of this
section. Existing source MACT requirements (including relevant
compliance deadlines), as specified in a title V permit issued pursuant
to the requirements of this subpart, shall apply to such sources.
(4) After the effective date of this subpart, if the Administrator
establishes a lesser quantity emission rate under section 112(a)(1) of
the Act that results in an area source becoming a major source that is
subject to this subpart, then the owner or operator of such a major
source shall submit an application meeting the requirements of
Sec. 63.53(a) for a title V permit or for a change to an existing title
V permit or pending title V permit on or before the date 6 months after
the date that such source becomes a major source. Existing source MACT
requirements (including relevant compliance deadlines), as specified in
a title V permit issued pursuant to the requirements of this subpart,
shall apply to such sources.
(c) Sources that have a title V permit addressing section 112(j)
requirements. The requirements of paragraphs (c)(1) and (2) of this
section apply to major sources that include one or more sources in a
category or subcategory for which the Administrator fails to promulgate
an emission standard under this part on or before an applicable section
112(j) deadline, and the owner or operator has a permit meeting the
section 112(j) requirements, and where changes occur at the major
source to equipment, activities, or both, subsequent to the section
112(j) deadline.
(1) If the title V permit already provides the appropriate
requirements that address the events that occur under paragraph (c) of
this section subsequent to the section 112(j) deadline, then the source
shall comply with the applicable new source MACT or existing source
MACT requirements as specified in the permit, and the section 112(j)
requirements are thus satisfied.
(2) If the title V permit does not contain the appropriate
requirements that address the events that occur under paragraph (c) of
this section subsequent to the section 112(j) deadline, then the owner
or operator shall submit an application for a revision to the existing
title V permit that meets the requirements of Sec. 63.53(a). The
application shall be submitted within 30 days of beginning construction
and shall be reviewed using the procedures established in paragraph (e)
of this section. Existing source MACT requirements (including relevant
compliance deadlines), as specified in a title V permit issued pursuant
to the requirements of this subpart, shall apply to such sources.
(d) Requests for applicability determination or notice of MACT
approval.
(1) An owner or operator who is unsure of whether one or more
sources at a major source belong in a category or subcategory for which
the Administrator has failed to promulgate an emission standard under
this part may, on or before an applicable section 112(j) deadline,
request an applicability determination from the permitting authority by
submitting an application meeting the requirements of Sec. 63.53(a) by
the applicable deadlines specified in paragraphs (a), (b), or (c) of
this section.
(2) In addition to meeting the requirements of paragraphs (a), (b),
and (c) of this section, the owner or operator of a new affected source
may submit an application for a Notice of MACT Approval before
construction, pursuant to Sec. 63.54.
(e) Permit application review.
(1) Within 6 months after an owner or operator submits a Part 1
MACT application meeting the requirements of Sec. 63.53(a), the owner
or operator shall submit a Part 2 MACT application meeting the
requirements of Sec. 63.53(b). Part 2 MACT applications shall be
reviewed by the permitting authority according to procedures
established in Sec. 63.55. The resulting MACT determination shall be
incorporated into the source's title V permit according to procedures
established under title V, and any other regulations approved under
title V in the jurisdiction in which the affected source is located.
(2) Notwithstanding paragraph (e)(1) of this section, the owner or
operator may request either an applicability determination or an
equivalency determination by the permitting authority as provided in
paragraphs (e)(2)(i) and (ii) of this section.
(i) As specified in paragraph (d)(1) of this section, an owner or
operator may request, through submittal of an application pursuant to
Sec. 63.53(a), a determination by the permitting authority of whether
one or more sources at a major source belong in a category or
subcategory for which the Administrator has failed to promulgate an
emission standard under this part. If the applicability determination
is positive, the owner or operator shall comply with the applicable
provisions of this subpart. The owner or operator shall submit a Part 2
MACT application within 6 months of being notified of the positive
applicability determination. If the applicability determination is
negative, then no further action by the owner or operator is necessary.
(ii) As specified in paragraphs (a) and (b) of this section, an
owner or operator may request, through submittal of an application
meeting the requirements of Sec. 63.53(a), a determination by the
permitting authority of whether emission limitations adopted pursuant
to a prior case-by-case MACT determination under section 112(g) that
apply to one or more sources at a major source in a relevant category
or subcategory are substantially as effective as the emission
limitations which the permitting authority would otherwise adopt
pursuant to section 112(j) for the source in question. The process for
determination by the permitting authority of whether the emission
limitations in the prior case-by-case MACT determination are
substantially as effective as the emission limitations which the
permitting authority would otherwise adopt under section 112(j) shall
include the opportunity for full public, EPA, and affected State review
prior to a final determination. If the permitting authority determines
that the emission limitations in the prior case-by-case MACT
determination are substantially as effective as the emission
limitations which the permitting authority would otherwise adopt under
section 112(j), then the permitting authority shall adopt the existing
emission limitations in the permit as the emission limitations to
effectuate section 112(j) for the source in question. If more than 3
years remain on the current title V permit, the owner or operator shall
submit an application for a title V permit revision to make any
conforming changes in the permit required to adopt the existing
emission limitations as the section 112(j) MACT emission limitations.
If less than 3 years remain on the current title V permit, any required
conforming changes shall be made when the permit is renewed. If the
[[Page 16358]]
permitting authority determines that the emission limitations in the
prior case-by-case MACT determination under section 112(g) are not
substantially as effective as the emission limitations which the
permitting authority would otherwise adopt for the source in question
under section 112(j), the owner or operator shall comply with the
applicable provisions of this subpart. The owner or operator shall
submit a Part 2 MACT application within 6 months of being notified of
such a negative determination. A negative determination under this
section constitutes final action for purposes of judicial review under
40 CFR 70.4(b)(3)(x) and corresponding State title V program
provisions.
(3) Within 60 days of submittal of the Part 2 MACT application, the
permitting authority shall notify the owner or operator in writing
whether the application is complete or incomplete. The Part 2 MACT
application shall be deemed complete unless the permitting authority
notifies the owner or operator in writing within 60 days of the
submittal that the Part 2 MACT application is incomplete. A Part 2 MACT
application is complete if it is sufficient to begin processing the
application for a title V permit addressing section 112(j)
requirements.
(4) Following submittal of a Part 1 or Part 2 MACT application, the
permitting authority may request additional information from the owner
or operator. The owner or operator shall respond to such requests in a
timely manner.
(5) If the owner or operator has submitted a timely and complete
application as required by this section, any failure to have a title V
permit addressing section 112(j) requirements shall not be a violation
of section 112(j), unless the delay in final action is due to the
failure of the applicant to submit, in a timely manner, information
required or requested to process the application. Once a complete
application is submitted, the owner or operator shall not be in
violation of the requirement to have a title V permit addressing
section 112(j) requirements.
(f) Permit content. The title V permit shall contain an equivalent
emission limitation (or limitations) for the relevant category or
subcategory determined on a case-by-case basis by the permitting
authority, or, if the applicable criteria in subpart D of this part are
met, the title V permit may contain an alternative emission limitation.
For the purposes of the preceding sentence, early reductions made
pursuant to section 112(i)(5)(A) of the Act shall be achieved not later
than the date on which the relevant standard should have been
promulgated according to the source category schedule for standards.
(1) The title V permit shall contain an emission standard or
emission limitation that is equivalent to existing source MACT and an
emission standard or emission limitation that is equivalent to new
source MACT for control of emissions of hazardous air pollutants. The
MACT emission standards or limitations shall be determined by the
permitting authority and shall be based on the degree of emission
reductions that can be achieved if the control technologies or work
practices are installed, maintained, and operated properly. The permit
shall also specify the affected source and the new affected source. If
construction of a new affected source or reconstruction of an affected
source commences after a title V permit meeting the requirements of
section 112(j) has been issued for the source, the new source MACT
compliance dates shall apply.
(2) The title V permit shall specify any notification, operation
and maintenance, performance testing, monitoring, and reporting and
recordkeeping requirements. In developing the title V permit, the
permitting authority shall consider and specify the appropriate
provisions of subpart A of this part. The title V permit shall also
include the information in paragraphs (f)(2)(i) through (iii) of this
section.
(i) In addition to the MACT emission limitation required by
paragraph (f)(1) of this section, additional emission limits,
production limits, operational limits or other terms and conditions
necessary to ensure practicable enforceability of the MACT emission
limitation.
(ii) Compliance certifications, testing, monitoring, reporting and
recordkeeping requirements that are consistent with requirements
established pursuant to title V and paragraph (h) of this section.
(iii) Compliance dates by which the owner or operator shall be in
compliance with the MACT emission limitation and all other applicable
terms and conditions of the permit.
(A) The owner or operator of an affected source subject to the
requirements of this subpart shall comply with the emission
limitation(s) by the date established in the source's title V permit.
In no case shall such compliance date be later than 3 years after the
issuance of the permit for that source, except where the permitting
authority issues a permit that grants an additional year to comply in
accordance with section 112(i)(3)(B) of the Act, or unless otherwise
specified in section 112(i), or in subpart D of this part.
(B) The owner or operator of a new affected source, as defined in
the title V permit meeting the requirements of section 112(j), that is
subject to the requirements of this paragraph shall comply with a new
source MACT level of control immediately upon startup of the new
affected source.
(g) Permit issuance dates.
(1) Except as specified in paragraph (g)(2) of this section, the
permitting authority shall issue a title V permit meeting section
112(j) requirements within 24 months of the submittal of the Part 1
MACT application, or
(2) The permitting authority shall issue a title V permit meeting
section 112(j) requirements within 18 months of submittal of the
complete Part 2 MACT application from a source owner or operator
receiving a determination under paragraph (e)(2) of this section.
(h) Enhanced monitoring. In accordance with section 114(a)(3) of
the Act, monitoring shall be capable of demonstrating continuous
compliance for each compliance period during the applicable reporting
period. Such monitoring data shall be of sufficient quality to be used
as a basis for directly enforcing all applicable requirements
established 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 with all requirements of
this subpart that are applicable to affected sources, including the
compliance date for affected sources established in paragraph
(f)(2)(iii)(A) of this section.
(2) Owners or operators of new affected sources subject to
paragraph (c)(1) of this section shall comply with all requirements of
this subpart that are applicable to new affected sources, including the
compliance date for new affected sources established in paragraph
(f)(2)(iii)(B) of this section.
15. Section 63.53 is revised to read as follows:
Sec. 63.53 Application content for case-by-case MACT determinations.
(a) Part 1 MACT Application. The Part 1 application for a MACT
determination shall contain the information in paragraphs (a)(1)
through (4) of this section.
(1) The name and address (physical location) of the major source.
(2) A brief description of the major source and an identification
of the relevant source category.
(3) An identification of the types of sources belonging to the
relevant source category.
[[Page 16359]]
(4) An identification of any affected sources 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
the information in paragraphs (b)(i) through (vi) of this section.
(i) For a new affected source, the anticipated date of startup of
operation.
(ii) The hazardous air pollutants emitted by each affected source
in the relevant source category and an estimated total uncontrolled and
controlled emission rate for hazardous air pollutants from the affected
source.
(iii) Any existing Federal, State, or local limitations or
requirements applicable to the affected source.
(iv) For each piece of equipment or activity or source, an
identification of control technology in place.
(v) Information relevant to establishing the MACT floor, and, at
the option of the owner or operator, a recommended MACT floor.
(vi) Any other information reasonably needed by the permitting
authority including, at the discretion of the permitting authority,
information required pursuant to subpart A of this part.
(2) The Part 2 application for a MACT determination may contain the
following information:
(i) Recommended emission limitations for the affected source and
support information consistent with Sec. 63.52(f). The owner or
operator may recommend a specific design, equipment, work practice, or
operational standard, or combination thereof, as an emission
limitation.
(ii) A description of the control technologies that shall be
applied to meet the emission limitation including technical information
on the design, operation, size, estimated control efficiency and any
other information deemed appropriate by the permitting authority, and
identification of the affected sources to which the control
technologies shall be applied.
(iii) Relevant parameters to be monitored and frequency of
monitoring to demonstrate continuous compliance with the MACT emission
limitation over the applicable reporting period.
16. Section 63.54 is amended by:
a. Adding introductory text;
b. Revising paragraph (a)(1) through (2);
c. Revising paragraph (b) introductory text;
d. Revising paragraph (b)(6);
e. Revising paragraph (c)(3);
f. Revising paragraph (d);
g. Removing paragraph (e);
h. Removing paragraph (f);
i. Redesignating paragraph (g) as (e) and revising newly designated
paragraph (e);
j. Redesignating paragraph (h) as (f).
The revisions and addition read as follows:
Sec. 63.54 Preconstruction review procedures for new affected sources.
The requirements of this section apply to an owner or operator who
constructs a new affected source subject to Sec. 63.52(c)(1). The
purpose of this section is to describe alternative review processes
that the permitting authority may use to make a MACT determination for
the new affected source.
(a) Review process for new affected sources.
(1) If the permitting authority requires an owner or operator to
obtain or revise a title V permit before construction of the new
affected source, or when the owner or operator chooses to obtain or
revise a title V permit before construction, the owner or operator
shall follow the procedures established under the applicable title V
permit program before construction of the new affected source.
(2) If an owner or operator is not required to obtain or revise a
title V permit before construction of the new affected source (and has
not elected to do so), but the new affected source is covered by any
preconstruction or preoperation review requirements established
pursuant to section 112(g) of the Act, then the owner or operator shall
comply with those requirements in order to ensure that the requirements
of section 112(j) and (g) are satisfied. If the new affected source is
not covered by section 112(g), the permitting authority, in its
discretion, may issue a Notice of MACT Approval, or the equivalent, in
accordance with the procedures set forth in paragraphs (b) through (f)
of this section, or an equivalent permit review process, before
construction or operation of the new affected source.
* * * * *
(b) Optional administrative procedures for preconstruction or
preoperation review for new affected sources. The permitting authority
may provide for an enhanced review of section 112(j) MACT
determinations for review procedures and compliance requirements
equivalent to those set forth in paragraphs (b) through (f) of this
section.
* * * * *
(6) Approval of an applicant's proposed control technology shall be
set forth in a Notice of MACT Approval (or the equivalent) as described
in Sec. 63.52(f).
(c) Opportunity for public comment on notice of MACT approval. * *
*
* * * * *
(3) A notice by prominent advertisement in the area affected of the
location of the source information and analysis specified in
Sec. 63.52(f). The form and content of the notice shall be
substantially equivalent to that found in Sec. 70.7 of this chapter.
* * * * *
(d) Review by the EPA and affected states. The permitting authority
shall send copies of the preliminary notice (in time for comment) and
final notice required by paragraph (c) of this section to the
Administrator through the appropriate Regional Office, and to all other
State and local air pollution control agencies having jurisdiction in
affected States. The permitting authority shall provide EPA with a
review period for the final notice of at least 45 days and shall not
issue a final Notice of MACT Approval until EPA objections are
satisfied.
(e) Compliance with MACT determinations. An owner or operator of a
major source that is subject to a MACT determination shall comply with
notification, operation and maintenance, performance testing,
monitoring, reporting, and recordkeeping requirements established under
Sec. 63.52(h), under title V, and at the discretion of the permitting
authority, under subpart A of this part. The permitting authority shall
provide the EPA with the opportunity to review compliance requirements
for consistency with requirements established pursuant to title V
during the review period under paragraph (d) of this section.
* * * * *
17. Section 63.55 is revised to read as follows:
Sec. 63.55 Maximum achievable control technology (MACT) determinations
for affected sources subject to case-by-case determination of
equivalent emission limitations.
(a) Requirements for permitting authorities. The permitting
authority shall determine whether the Sec. 63.53(a) Part 1 and
Sec. 63.53(b) Part 2 MACT application is complete or an application for
a Notice of MACT Approval is approvable. In either case, when the
application is complete or approvable, the permitting authority shall
establish hazardous air pollutant emissions limitations equivalent to
the limitations that would apply if an emission standard had been
issued in a timely manner under section 112(d) or (h) of the Act. The
permitting authority shall establish these emissions
[[Page 16360]]
limitations consistent with the following requirements and principles:
(1) Emission limitations shall be established for the equipment and
activities within the affected sources within a source category or
subcategory for which the section 112(j) deadline has passed.
(2) Each emission limitation for an existing affected source shall
reflect the maximum degree of reduction in emissions of hazardous air
pollutants (including a prohibition on such emissions, where
achievable) that the permitting authority, taking into consideration
the cost of achieving such emission reduction and any non-air quality
health and environmental impacts and energy requirements, determines is
achievable by affected sources in the category or subcategory for which
the section 112(j) deadline has passed. This limitation shall not be
less stringent than the MACT floor which shall be established by the
permitting authority according to the requirements of section
112(d)(3)(A) and (B) and shall be based upon available information.
(3) Each emission limitation for a new affected source shall
reflect the maximum degree of reduction in emissions of hazardous air
pollutants (including a prohibition on such emissions, where
achievable) that the permitting authority, taking into consideration
the cost of achieving such emission reduction and any non-air quality
health and environmental impacts and energy requirements, determines is
achievable. This limitation shall not be less stringent than the
emission limitation achieved in practice by the best controlled similar
source which shall be established by the permitting authority according
to the requirements of section 112(d)(3). This limitation shall be
based upon available information.
(4) The permitting authority shall select a specific design,
equipment, work practice, or operational standard, or combination
thereof, when it is not feasible to prescribe or enforce an equivalent
emission limitation due to the nature of the process or pollutant. It
is not feasible to prescribe or enforce a limitation when the
Administrator determines that hazardous air pollutants cannot be
emitted through a conveyance designed and constructed to capture such
pollutant, or that any requirement for, or use of, such a conveyance
would be inconsistent with any Federal, State, or local law, or the
application of measurement methodology to a particular class of sources
is not practicable due to technological and economic limitations.
(5) Nothing in this subpart shall prevent a State or local
permitting authority from establishing an emission limitation more
stringent than required by Federal regulations.
(b) Reporting to national data base. The owner or operator shall
submit additional copies of its Part 1 and Part 2 MACT application for
a title V permit, permit revision, or Notice of MACT Approval,
whichever is applicable, to the EPA at the same time the material is
submitted to the permitting authority.
18. Section 63.56 is revised to read as follows:
Sec. 63.56 Requirements for case-by-case determination of equivalent
emission limitations after promulgation of subsequent MACT standard.
(a) If the Administrator promulgates a relevant emission standard
that is applicable to one or more affected sources within a major
source before the date a permit application under this paragraph (a) is
approved, the title V permit shall contain the promulgated standard
rather than the emission limitation determined under Sec. 63.52, and
the owner or operator shall comply with the promulgated standard by the
compliance date in the promulgated standard.
(b) If the Administrator promulgates a relevant emission standard
under section 112(d) or (h) of the Act that is applicable to a source
after the date a permit is issued pursuant to Sec. 63.52 or Sec. 63.54,
the permitting authority shall incorporate requirements of that
standard in the title V permit upon its next renewal. The permitting
authority shall establish a compliance date in the revised permit that
assures that the owner or operator shall comply with the promulgated
standard within a reasonable time, but not longer than 8 years after
such standard is promulgated or 8 years after the date by which the
owner or operator was first required to comply with the emission
limitation established by the permit, whichever is earlier. However, in
no event shall the period for compliance for existing sources be
shorter than that provided for existing sources in the promulgated
standard.
(c) Notwithstanding the requirements of paragraph (a) or (b) of
this section, the requirements of paragraphs (c)(1) and (2) of this
section shall apply.
(1) If the Administrator promulgates an emission standard under
section 112(d) or (h) that is applicable to an affected source after
the date a permit application under this paragraph is approved under
Sec. 63.52 or Sec. 63.54, the permitting authority is not required to
change the emission limitation in the permit to reflect the promulgated
standard if the permitting authority determines that the level of
control required by the emission limitation in the permit is
substantially as effective as that required by the promulgated standard
pursuant to Sec. 63.1(e).
(2) If the Administrator promulgates an emission standard under
section 112(d) or (h) of the Act that is applicable to an affected
source after the date a permit application under this paragraph is
approved under Sec. 63.52 or Sec. 63.54, and the level of control
required by the promulgated emission standard is less stringent than
the level of control required by any emission limitation in the prior
MACT determination, the permitting authority shall not incorporate any
less stringent emission limitation of the promulgated standard in the
title V permit applicable to such source(s) and shall consider any more
stringent provisions of the prior MACT determination to be applicable
legal requirements when issuing or revising such a title V permit.
[FR Doc. 01-5251 Filed 3-22-01; 8:45 am]
BILLING CODE 6560-50-P