[Federal Register Volume 67, Number 66 (Friday, April 5, 2002)]
[Rules and Regulations]
[Pages 16582-16611]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-5861]
[[Page 16581]]
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Part III
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); Final Rule
Federal Register / Vol. 67, No. 66 / Friday, April 5, 2002 / Rules
and Regulations
[[Page 16582]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[FRL-7155-8]
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: Final rule; amendments.
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SUMMARY: 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 (CAA). In today's action, we are promulgating
amendments to the General Provisions that revise and clarify several of
the current provisions.
We are promulgating 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,
as well as internal EPA discussions on issues regarding implementation
of the General Provisions. The promulgated amendments also reflect our
response to public comments.
In a separate action in today's Federal Register, we are also
amending regulations on National Emission Standards for Hazardous Air
Pollutants: Solvent Extraction for Vegetable Oil Production, in a
direct final rule in order to resolve inconsistencies between that rule
and these amendments to the General Provisions.
In addition, in today's action, we are promulgating amendments to
the rule that establishes equivalent emission limitations by permit
under section 112(j) of the CAA. 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.
These 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, as well as internal EPA discussions
regarding implementation of the section 112(j) rule. The promulgated
amendments to the section 112(j) rule also reflect our response to
public comments.
EFFECTIVE DATE: April 5, 2002.
ADDRESSES: Docket No. A-2001-02, Part 63 General Provisions (Subpart A)
and Section 112(j) Regulations (Subpart B) Litigation Settlement
Amendments, contains supporting information used in developing these
amendments. This docket is located at the U.S. EPA, 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. through
5:30 p.m., Monday through Friday, excluding legal holidays. A
reasonable fee may be charged for copying.
FOR FURTHER INFORMATION CONTACT: For information concerning
applicability and rule determinations, contact your State or local
permitting agency representative or the appropriate EPA Regional Office
representative. For further information concerning the development of
these rule amendments, contact Mr. Rick Colyer, U.S. EPA, Office of Air
Quality Planning and Standards, Minerals and Inorganic Chemicals Group,
C504-05, Research Triangle Park, North Carolina, 27711, telephone (919)
541-5262, e-mail [email protected].
SUPPLEMENTARY INFORMATION: Docket. The docket is an organized and
complete file of the record compiled by EPA 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 background information document and
the proposal and promulgation preamble and standards for this
rulemaking, the contents of the docket will serve as the record in the
case of judicial review. (See section 307(d)(7)(A) of the CAA.) All
these materials 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 promulgated 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)
[[Page 16583]]
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 Repair
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 Dry 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
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 the section 112(d) regulation for your source category. 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. Only source categories for which
standards have not been promulgated by May 15, 2002, are affected by
the section 112(j) regulation.
Judicial Review. The amendments to the General Provisions and the
section 112(j) provisions were proposed on March 23, 2001 (66 FR
16318). Today's action announces EPA's final decision on the
amendments. Under section 307(b)(1) of the CAA, judicial review of
these amendments is available only by filing a petition for review in
the U.S. Court of Appeals for the District of Columbia Circuit by June
4, 2002. Under section 307(d)(7)(B) of the CAA, only those objections
to this rule that were raised with reasonable specificity during the
period for public comment may be raised during judicial review.
Moreover, under section 307(b)(2) of the CAA, the requirements that are
the subject of today's final rule may not be challenged separately in
civil or criminal proceedings brought by the EPA to enforce these
requirements.
Outline. The information presented in this preamble is organized as
follows:
I. Background
A. General Provisions
B. Section 112(j) Provisions
II. What significant comments did we consider and what are the major
changes to the proposed amendments to the General Provisions?
A. Comments and Changes in Response to Our Requests for Comments
B. Other Comments and Changes
III. What significant comments did we consider and what are the
major changes to the proposed amendments to the section 112(j)
provisions?
A. Impact of Missing the Section 112(j) Deadline
B. Comments and Changes in Response to our Requests for Comments
C. Other Comments and Changes
IV. What is the section 112(j) process?
A. If I am an owner or operator of a source, what must I do?
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B. If I am the permitting authority for a source subject to
section 112(j), what must I do?
C. What happens when a rule comes out after the hammer date for
a given source category?
V. What are the environmental, energy, cost, and economic impacts of
this rule?
VI. What are the administrative requirements for this rule?
A. Executive Order 12866, Regulatory Planning and Review
B. Paperwork Reduction Act
C. Executive Order 13132, Federalism
D. Executive Order 13175, Consultation and Coordination with
Indian Tribal Governments
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. National Technology Transfer and Advancement Act of 1995
H. Executive Order 13045, Protection of Children from
Environmental Health Risks and Safety Risks
I. Congressional Review Act
J. Executive Order 13211, Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
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 per year of any one HAP or 25 tons per year of any combination
of HAP. Area sources of HAP are those sources that do not have
potential to emit greater than 10 tons per year of any one HAP and 25
tons per year 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(d) of the CAA. 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 standards for
controlling toxic air pollutants. 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. 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 identified other changes that would clarify the EPA's
original intent. On March 23, 2001 (66 FR 16318), we proposed changes
to the General Provisions based on the outcome of settlement
negotiations between the EPA and the petitioners, as well as on other
internal EPA deliberations. We received 27 public comment letters in
response to our proposal. In section II of this preamble, we discuss
our responses to these public comments and the specific changes that
were made to the proposed amendments to reflect our responses. The
amendments to the General Provisions being promulgated today reflect
decisions which we made in connection with settlement negotiations
between the EPA and the petitioners, and our responses to the public
comments on the proposed amendments.
In a separate action, we are promulgating changes to the Vegetable
Oil NESHAP in response to public comments on the proposed amendments to
the General Provisions. These changes are discussed briefly in section
II of this preamble and more extensively in the preamble to the direct
final action on the Vegetable Oil NESHAP.
The amendments finalized with today's action clarify and alter
certain sections of the General Provisions.
B. Section 112(j) Provisions
The 1990 Amendments to section 112 of the CAA included 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 emissions reductions are achieved by the
missed promulgation date.
The rule proposing to implement section 112(j) of the CAA was
published on July 13, 1993 (58 FR 37778). Public comments received on
the proposed rule were considered, and changes we deemed appropriate
were made in developing a final rule.
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 CAA, 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 section 112(j)(5) of the CAA, 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).
[[Page 16585]]
Several petitioners filed for review of several provisions of the
section 112(j) rule that they believed needed to be clarified or
streamlined. On March 23, 2001 (66 FR 16318), we proposed changes to
the section 112(j) rule based on the outcome of settlement negotiations
between the EPA and the petitioners, as well as on other internal EPA
deliberations. We received 27 public comment letters in response to our
proposal. In section III of this preamble, we discuss our responses to
these public comments and the specific changes that were made to the
proposed section 112(j) amendments to reflect those public comments.
The amendments to the section 112(j) rule being promulgated today
reflect decisions which we made in connection with settlement
negotiations between the EPA and the litigants, as well as our response
to the public comments on the proposed amendments.
II. What Significant Comments Did We Consider and What Are the
Major Changes to the Proposed Amendments to the General Provisions?
While we received many comments on the proposed amendments to the
General Provisions, most commenters expressed general support for the
proposed changes. For this reason, the majority of amendments were
promulgated as proposed. A comprehensive summary of public comments and
responses can be found in ``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)--
Background Information for Standards,'' (EPA 453/R-02-002). This
preamble discusses the significant comments received and major changes
made. Additional minor changes and clarifications are discussed in the
Background Information Document (BID) cited above. In the proposed
amendments to the General Provisions, we specifically discussed and
solicited comments on certain issues. In addition, we received comments
on other proposed amendments to the General Provisions.
A. Comments and Changes in Response to Our Requests for Comments
In the proposal preamble, we discussed the presumptive
applicability of the General Provisions, which has been an issue of
concern for industry petitioners. We believe that the presumptive
applicability of the General Provisions serves an important and valid
purpose by eliminating the repetition of common provisions in
individual NESHAP. While we reiterated that the General Provisions do
apply unless specifically overridden, we acknowledged the potential for
confusion regarding the actual requirements for sources when General
Provisions requirements are not tailored to specific source categories.
For several years, we have included a table for most part 63 subparts
that indicates the applicability of each provision of the General
Provisions to a particular subpart. To codify this practice, we
proposed to amend the General Provisions to require individual subparts
to explicitly state which General Provisions requirements are included
in the relevant standard and which are not.
In addition, we requested comment on ``any conflicts * * * that
result solely from applying these proposed amendments to the General
Provisions to promulgated part 63 subparts.'' One commenter identified
such a conflict between the startup, shutdown, malfunction (SSM)
provisions of the Vegetable Oil Production NESHAP and those provisions
in the General Provisions. Specifically, the commenter noted that
proposed 40 CFR 63.6(e)(3)(iv), which requires reporting of actions
inconsistent with the Startup, Shutdown, and Malfunction Plan (SSMP) if
the emissions exceed the relevant standard, does not comport with
subpart GGGG. The Vegetable Oil NESHAP require reporting of such
actions regardless of whether the standard was exceeded. The commenter
also specifically noted that proposed 40 CFR 63.6(e)(3)(viii), the
requirement to report modifications to the SSMP in the semiannual
report, should not apply to sources subject to subpart GGGG, as subpart
GGGG does not require a semiannual report.
We agree that the proposed amendments would have had a substantive
impact on the Vegetable Oil NESHAP. However, the commenter has
misinterpreted the intent of the changes, which was to reduce burden.
We agree with the commenter's assessment that certain SSM
provisions in the proposed amendments are inconsistent with the
promulgated Vegetable Oil NESHAP. We had previously reviewed the
existing rules and did not identify any substantive problems. However,
the Vegetable Oil NESHAP were promulgated after our review and
subsequent proposal of the amendments. We have discussed the
implications with the commenter and as a result, we are amending, in a
separate Federal Register notice, several provisions in the Vegetable
Oil NESHAP related to SSM requirements to eliminate unintended
inconsistencies. The Vegetable Oil NESHAP include specifically tailored
SSM provisions and, thus, sources covered by the Vegetable Oil NESHAP
should look to that rule for their applicable SSM provisions.
Specifically, we are correcting the explanation column of Table 1
of 40 CFR 63.2870 as it applies to 40 CFR 63.6(e) to state, ``implement
your plan as specified in Sec. 63.2852.'' Table 1 also now indicates
specifically that 40 CFR 63.6(e)(3)(iii), (iv), and (viii) do not apply
to Vegetable Oil NESHAP affected sources; this clarifies that not all
of 40 CFR 63.6(e) applies, as the rule was originally promulgated.
We are also amending the first sentence of 40 CFR 63.2861(d) to
clarify that owners or operators must submit an immediate SSM report if
an SSM is handled differently from the procedures in the SSM plan and
the emission standards are exceeded. We are also amending the third
sentence of 40 CFR 63.2852 to clarify that the SSMP does not have to be
incorporated into the title V permit, consistent with the General
Provisions amendments.
These changes will ensure the minimization of emissions at all
times, clarify the SSM requirements, and specify the relationship of
the General Provisions to Vegetable Oil NESHAP affected sources.
B. Other Comments and Changes
1. Substantially Equivalent State Preconstruction Review
We proposed substantive amendments to the preconstruction review
program, which were designed to clarify and streamline existing
requirements. Included in these amendments was a provision that allows
States or local agencies to use preconstruction review procedures used
for other purposes for purposes of 40 CFR 63.5, provided their
procedures are ``substantially equivalent.''
While one commenter generally supported this concept, a few
commenters disagreed with the specific provisions in proposed 40 CFR
63.5(f)(1)(i) and (ii), which they interpreted as requiring each owner
or operator to demonstrate that the State or local agency review is
substantially equivalent to the relevant requirements in 40 CFR 63.5.
The commenters instead believed that EPA should determine which State
or local air permit programs have substantially equivalent
preconstruction review requirements. One commenter noted that if EPA
has
[[Page 16586]]
delegated authority to a State or local agency to implement subpart A
of part 63 and part 70, then EPA has already agreed that the
preconstruction review and approval process is substantially equivalent
to the Federal requirements.
We agree that a State or local agency that has taken delegation of
part 63 standards has already demonstrated that their preconstruction
review process is substantially equivalent to the Federal requirements.
When a State is the delegated authority, the State implements 40 CFR
63.5; we do not require two preconstruction review processes.
The intent of the provisions of 40 CFR 63.5(f) is not to place the
burden on the source to demonstrate equivalency of a State
preconstruction review program. The intent of the provisions is to
allow owners or operators of affected sources to notify the EPA's
Regional Office of a State's finding that their preconstruction review
program requirements are substantially equivalent to the General
Provisions' preconstruction review requirements. We agree that the
proposed language in 40 CFR 63.5(f)(1) could lead to potential
confusion. Therefore, in order to eliminate any potential for
confusion, we have amended 40 CFR 63.5(f)(1) to no longer require that
an owner or operator demonstrate to the Administrator's satisfaction
that the conditions of 40 CFR 63.5(f)(1)(i) and (ii) are met. Instead,
40 CFR 63.5(f)(1) specifies that the Administrator will approve an
application for construction or reconstruction if an owner or operator
meets the conditions of 40 CFR 63.5(f)(1)(i) and (ii). Additionally, 40
CFR 63.5(f)(1)(ii) has been amended to require that an owner or
operator provide a statement from ``the State or other evidence (such
as State regulations) that it considered the factors specified in 40
CFR 63.5(e)(1)'' rather than requiring ``the State (in it's finding)
consider factors substantially equivalent to those specified in
Sec. 63.5(e)(1).''
Paragraph (f)(1) of 40 CFR 63.5 states that preconstruction review
procedures that a State utilizes for other purposes may be utilized if
the procedures are substantially equivalent to those specified in the
General Provisions. We believe this adequately refers to 40 CFR
63.5(e)(1) where the criteria for approval of construction or
reconstruction are described.
Finally, we do not agree with the suggestion that we should
determine which State or local programs have substantially equivalent
preconstruction review requirements. Individual States or local
agencies are in a better position to make such a determination.
2. Revisions to the Startup, Shutdown, and Malfunction Plan
We received several comments regarding SSM and SSMP reporting
requirements. A few commenters opposed the requirement in 40 CFR
63.6(e)(3)(viii) that revisions to the SSMP be reported to the
permitting authority in the semiannual report. Another commenter
considered the new requirements in 40 CFR 63.6(e)(3)(viii) to be
burdensome and duplicative. The commenter believed that the
requirements to submit reports of actions taken that are consistent or
inconsistent with the SSMP, to revise the SSMP, and to keep copies of
superseded SSMP on site were sufficient to ensure that the permitting
authority is kept informed of changes to the SSMP.
One commenter stated that if the owner or operator of a source can
revise the plan without prior approval, it makes no sense to require an
owner or operator to send a file copy to EPA. The commenter expressed
that the requirement for plan revisions to be maintained on site in 40
CFR 63.6(e)(3)(v) should suffice. The commenter suggested that if the
EPA wants a revised SSMP to be submitted, they should provide more
details on how it should be formatted, including how the specific
procedure or methodology relates to a particular SSM event. The
commenter also recommended that the date on the new SSMP be its
effective date. If the EPA only wants a notice that the SSMP has been
revised in the semiannual report, the commenter suggested that 40 CFR
63.6(e)(3)(viii) be revised to state that. The commenter also requested
clarification on what the ``scope of activities'' in 40 CFR
63.6(e)(3)(viii) means.
We disagree with the commenters that the requirements in 40 CFR
63.6(e)(3)(viii) are burdensome. This section requires that EPA be
notified in the semiannual report that revisions were made to the SSMP,
but it does not require that a file copy of the entire revised plan be
submitted.
We also disagree with the suggestion that a clarification in the
rule of the meaning of ``scope of activities'' is necessary. It is the
owner or operator's responsibility to define the specific scope of
activities that the SSMP covers, as this is source-dependent. Moreover,
these provisions are designed to give the source owner or operator
flexibility. Generally, the scope of activities would include all
operations and equipment specified by the owner or operator that should
be included in the SSMP. To the extent that these activities are
changed in the plan, we are requiring that the permitting authority be
notified.
One commenter recommended that we explain how malfunctions that
meet the definition of SSM under 40 CFR 63.2, but are not covered in
the existing SSMP, should be reported. The commenter believed that we
should add language to 40 CFR 63.6(e)(3)(viii) to cover this situation.
Another commenter requested that EPA require that facilities provide
the number and a description of malfunctions that occurred in the
semiannual report. The commenter stated that this information would be
necessary to evaluate a facility's compliance with the SSMP, as regular
site visits are infeasible due to limited resources.
To comply with the rule, sources must either meet the standard or
comply with the SSMP. If a malfunction not covered by the SSMP occurs
and the source meets the standard, there is no need to report. If a
malfunction not covered by the SSMP occurs and the source does not meet
the standard, the deviation must be reported. In any case, when a
malfunction occurs that was not included in the SSMP, the plan should
be revised to include the previously unincluded malfunction.
However, we agree with the commenter who suggested that the number
and description of malfunctions is necessary to evaluate compliance
with the SSMP. Therefore, we have modified the provisions at 40 CFR
63.10(d)(5)(i) to state ``Periodic startup, shutdown, and malfunction
reports. * * * Reports shall only be required if a startup, shutdown,
or malfunction occurred during the reporting period, and they shall
include the number, duration, and a brief description of each startup,
shutdown, and malfunction. * * *'' This change provides the
implementing agency with adequate information without placing an undue
additional burden on the source. The types of malfunctions will already
have been identified in the SSMP so a brief description could consist
of simply identifying which types of malfunctions occurred during the
reporting period, as well as the number and the duration of each.
Also, two commenters requested that we remove the last sentence of
the proposed 40 CFR 63.6(e)(3)(ix), which states that none of the SSMP
procedures fall within the permit shield. The commenter believed the
sentence could be misconstrued to mean that the SSMP is part of the
title V permit and yet ineligible for the permit shield.
[[Page 16587]]
Concerning the applicability of the permit shield, these commenters
have misinterpreted the provisions of the rule. The proposed amendments
to the General Provisions concerning SSM plans were intended in part to
address concerns expressed by the petitioners, who believe that the
language in the current General Provisions requiring that the SSM plan
be ``incorporated by reference into the source's Title V permit'' could
be construed to require that permit revision procedures be followed
whenever an SSM plan is revised. We do not construe the existing
General Provisions in this manner, but we understand the concern
expressed by the petitioners. The amendments indicate that the permit
must require that the owner or operator adopt an SSM plan and then
operate and maintain the source in accordance with the plan, but they
cannot reasonably be construed as requiring that each element of the
SSM plan be made an element of the permit. The provisions within the
SSM plan will not be terms and conditions of the permit except in the
limited instance where a permitting authority elects to incorporate
them. Since the SSM plan is not itself part of the operating permit,
and it can be revised without revision of the permit, the SSM plan is
not eligible for the permit shield.
A few commenters strongly opposed the statements in the proposal
preamble that the SSMP must be submitted to the permitting authority
and made publicly available if someone requests it. One of the
commenters believed it would be burdensome to prepare a SSMP without
Confidential Business Information (CBI) in it. The commenter also
expressed that such a plan would be uninformative without CBI. Two
other commenters stated that they preferred that the rule specifically
state that the permitting agency has the authority to request a copy of
the facility's SSMP and to review and comment on it. One commenter also
preferred that State and local agencies have discretion to approve or
disapprove the SSMP.
We believe that the proposal preamble discussion accurately
reflects 40 CFR 70.4(b)(3)(viii) of the title V permit program, which
requires that the permitting authority has legal authority to: ``Make
available to the public any permit application, compliance plan,
permit, and monitoring and compliance certification report pursuant to
section 503(e) of the Act, except for information entitled to
confidential treatment pursuant to section 114(c) of the Act. The
contents of a part 70 permit shall not be entitled to protection under
section 114(c) of the Act.'' For this reason, we do not agree with the
commenters who oppose the requirements for the SSMP to be made publicly
available if requested. Owners or operators may still identify the
portions of the SSMP that are considered CBI; material claimed as CBI
would not be available for public disclosure except as provided under
the process established by 40 CFR Part 2. We further believe, pursuant
to 40 CFR 70.4(b)(3)(viii), that the authority for permitting agencies
to request a facility's SSMP already exists. Therefore, we do not
believe it is appropriate at the present time to revise the rule as the
commenters requested.
3. Compliance Extension Request 120 Days Before Compliance Date
The proposed amendments to the compliance extension provisions were
met with favor by commenters. Several commenters supported the change
to allow compliance extension requests to be submitted as late as 120
days before the compliance date, rather than 1 year in advance.
One commenter expressed that this change would reduce the number of
compliance extension requests. Another commenter outlined circumstances
that could arise that would necessitate a late request for a compliance
extension (e.g., vendor strikes, acts of God, or damaged equipment).
One commenter specifically supported the proposed provision in 40
CFR 63.6(i)(4)(i)(B) postponing the applicability of MACT standards
until the permitting authority either approves or denies a compliance
extension request. This commenter noted that the proposed compliance
extension revisions were particularly important for sources subject to
40 CFR part 63, subpart EEE, National Emission Standards for Hazardous
Air Pollutants for Hazardous Waste Incinerators. Amendments to the
performance test requirements of Hazardous Waste Incinerators rule have
not been completed. The commenter noted that the amendments would have
had to be promulgated by December 2001 for facilities to complete their
comprehensive performance test plans by the March 2002 deadline. The
ability to apply for a compliance extension would be critical if the
amendments were not final by December 2001.
4. Readily Accessible Readout
The proposed amendments clarified the owner or operator's
obligations with respect to the accessibility of readouts from
monitoring systems required for compliance. Two commenters supported
the requirement for such readouts to be readily accessible. However,
several commenters proposed deleting the requirement that the readout
from the monitoring equipment be ``readily accessible onsite for
operational control or inspection by the operator of the equipment.''
One commenter maintained that the provision was unnecessary because 40
CFR 63.10(b) already requires files of all information to be readily
available. A few of the commenters maintained that this requirement was
technically infeasible, as the readout depends on the configuration of
the source, type of control equipment, frequency, and whether
monitoring data are read in central control booths or computers. One
commenter stated that the optimal location of the readout should be
left to the source. Another commenter stated that if EPA does not
remove the phrase, it should be reworded to change the regulatory text
from ``readout'' to ``indication of operation,'' as audible or visual
alarms may also alert the operator that a problem has occurred with the
continuous monitoring system (CMS). The commenter further suggested
removing the terms ``in plain view'' and ``close proximity,'' as CMS
readouts may be readily accessible but may not meet these requirements.
For example, they may be in the control room but not in the line-of-
sight of an operator, in the process unit operating block but not where
the ``operators are normally operated,'' or operated by a different
process unit and monitoring unit.
We recognize the commenters' concerns with the provisions governing
the availability of information from monitoring equipment. To address
this issue, we have revised 40 CFR 63.8(c)(2)(ii) to refer to ``readout
or other indication of operation.'' This addresses the point that
audible or visual alarms may be in use rather than a ``readout.'' The
terms ``plain view'' and ``close proximity'' were used in the proposal
preamble, although not in the regulatory text, to explain what was
meant by readily accessible and to assure that inspectors would have
easy access to monitoring information. However, we agree with the
commenter that the required information may be readily accessible
although not in plain view. ``Readily accessible'' is the source owner
or operator's responsibility to ensure that monitoring information is
easily available. For this reason, we made no further rule changes to
explain ``readily accessible.''
5. Zero and High Level Calibration Checks
A few commenters suggested that EPA revise 40 CFR 63.8(c)(6) to
clarify that
[[Page 16588]]
the zero and high-level calibration checks only apply to continuous
emission monitoring Systems (CEMS) and continuous opacity monitoring
systems (COMS), not to all CMS. Some continuous parameter monitoring
systems (CPMS), such as thermocouples and weight devices, cannot be
automatically calibrated.
One commenter requested that EPA delete 40 CFR 63.8(c)(6), as
promulgated MACT standards already contain calibration requirements and
daily system checks for CPMS. The commenter cited Secs. 63.118(a)(2)
and 63.152(f) of 40 CFR part 63.
To address the commenters' concern about CPMS that cannot be
automatically calibrated, we have revised 40 CFR 63.8(c)(6) as follows:
``The owner or operator of a CMS that is not a CPMS, which is installed
in accordance with the provisions of this part. . . . '' The
calibration specifications for a CPMS are described in the last
sentence of this paragraph.
We do not agree it is appropriate to delete 40 CFR 63.8(c)(6) as
requested by one of the commenters. Individual standards may change
this as appropriate or necessary, but these monitoring provisions will
remain in the General Provisions.
6. Definition of Affected Source and New Affected Source
We proposed a new process for defining ``affected source'' and
``new affected source'' in future MACT standards. Over the period that
EPA has been promulgating MACT standards, we have typically used the
term ``affected source'' as an indication of the collection of
processes, activities, or equipment to which each MACT standard will
apply. We have adopted a broader or narrower definition of affected
source depending on the nature of particular MACT requirements and the
strategies available for meeting them. In some instances, we have
adopted a definition as narrow as a single machine and in others, we
have defined all processes, activities, and equipment at a source
within the specified category or subcategory as the affected source. A
broader definition of affected source permits emission requirements to
apply to a larger group of processes, activities, and equipment, and
may thereby facilitate more innovative and economically efficient
control strategies.
In those instances where we have previously adopted a broader
definition of affected source, we have sometimes established a narrower
definition of the processes, activities, or equipment to which new
source MACT will apply. In some instances, we believe it is both
practicable and reasonable to apply new source MACT controls to a
narrower set of constructed or reconstructed equipment or activities
and retaining a broad definition would operate to subvert the statutory
intent to require more stringent controls for new sources.
When we have adopted a broader definition of affected source, we
have still determined the MACT floor for the entire affected source by
evaluating emissions and the feasibility of controls separately for
particular types of ``emission units'' within the affected source. This
approach can afford owners and operators the option of demonstrating
separate compliance by individual emission units within the affected
source or by adopting more flexible control strategies and
demonstrating compliance for the affected source as a whole. 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.
In light of this flexibility, we agreed with the industry
petitioners that it would be feasible to adopt a broader definition of
affected source on a more consistent basis. Thus, we proposed to change
the General Provisions to indicate that future MACT standards will
generally adopt a definition of affected source which consists of all
existing HAP-emitting equipment and activities which are at a single
contiguous site and are within a specific category or subcategory. We
do not believe we are required to adopt this policy, but we agree with
the industry petitioners that it will foster greater predictability and
consistency in regulatory outcomes.
We also proposed to permit a narrower definition of affected source
in particular future MACT standards when a broad definition will result
in significant administrative, practical, or implementation problems,
and a narrower definition would resolve these problems. For example, in
some instances, the facilities within a category or subcategory which
must develop appropriate compliance strategies may consider a broader
definition of affected source to be confusing. In other instances, the
facilities may operate dissimilar equipment or processes which do not
emit the same HAP or type of HAP, and a broader definition will have
little or no utility in promoting more flexible or efficient control
strategies. These examples are only illustrative and are not intended
to limit our discretion to adopt a narrower affected source definition
in particular future MACT standards. However, when we adopt a narrower
definition of ``affected source,'' we will identify the specific
problems created by the broader definition and specify why a narrower
definition will resolve them.
We also proposed to develop and adopt a separate definition of
``new affected source'' for each future MACT standard after evaluating
facilities in the category or subcategory according to eight factors.
These eight factors are: (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, (7) feasibility and
cost of monitoring, and (8) other relevant factors. Under this process,
the definition of ``new affected source'' for a particular MACT
standard may be the same as ``affected source'' or it may differ. The
factors which we deem most important in this assessment will differ
from standard to standard. When we deem it appropriate based on our
evaluation of the eight factors to establish a definition of ``new
affected source'' less inclusive than ``affected source,'' we will do
so.
We did not receive any comments opposing the new definitions and
procedures for specifying the affected source and new affected source
for future MACT standards. Accordingly, we have decided to adopt these
definitions and procedures as proposed.
Each future MACT standard subject to these new procedures will
explicitly define ``affected source'' and ``new affected source.'' Any
decision to adopt a narrower definition of affected source or to adopt
a definition of new affected source differing from the definition of
affected source will be explained in the individual standard.
Our proposal made it clear that we only intend to apply this new
approach prospectively. We will not reconsider or revise previously
promulgated MACT standards according to the new definitions and
procedures. However, our proposal did not specify an effective date or
a specific transitional process for implementation of these new
definitions and procedures. We anticipated that there could be
inconsistencies between some of the new General Provisions and
previously promulgated MACT standards, and that a variety of provisions
might need to be solely prospective in application or require some sort
of transitional process. We specifically solicited comment on this
[[Page 16589]]
issue. However, the only other problem in applying the new rule to
existing MACT standards which was identified in comments concerns the
provisions for SSM plans in this rule and in our previously promulgated
vegetable oil MACT rule, which we discuss elsewhere in this preamble.
In selecting an appropriate effective date for the new definitions
and procedures for specifying the affected source and new affected
source, we note that our past practice has been considerably less
uniform than the one we are adopting today. While we believe it is
appropriate to bring greater clarity and consistency to this process in
future MACT standards, we also note that EPA typically begins working
with affected facilities to devise an appropriate structure for MACT
standards well before they are proposed, and that this process is well
advanced for many MACT standards currently under development. We do not
believe it would be practicable to require all such standards to
immediately conform to the new definitions and procedures we are
adopting today. Therefore, we have decided that these new definitions
and procedures will be mandatory only with respect to those MACT
standards which are proposed after June 30, 2002. However, we note that
many standards presently in development already utilize a similar
approach, and that it may also be feasible to adopt a similar approach
for additional standards during the pendency of future rulemakings on
individual MACT standards.
III. What Significant Comments Did We Consider and What Are the
Major Changes to the Proposed Amendments to the Section 112(j)
Provisions?
A comprehensive summary of public comments on the proposed section
112(j) provisions can be found in ``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)--
Background Information for Standards,'' (EPA 453/R-02-002). This
section discusses the significant comments received on and major
changes made to the section 112(j) provisions.
A. Impact of Missing the Section 112(j) Deadline
Several commenters expressed serious concern over the potential
impact of EPA's failure to promulgate the 10-year MACT standards by the
section 112(j) hammer date. Some commenters noted that there would be
significant effort expended to develop the Parts 1 and 2 permit
applications and case-by-case permits and observed that this effort
would be for naught if the standards were issued prior to the permit.
Others offered suggestions on how to extend or delay applications such
that the burden is minimized. All commenters urged EPA to issue the
MACT standards prior to the hammer date to eliminate the impact of
section 112(j).
We appreciate the commenters' concerns, and we are making every
effort to promulgate the remaining MACT standards as soon as possible.
However, we note that the previous permit application extensions for
the 4- and 7-year MACT rules were established because the standards
were to be issued very shortly after the deadline. This is not the
situation now, with a significant number of the 10-year MACT standards
not scheduled for promulgation until well after the deadline. The
intent of the 2-part section 112(j) application process which we
proposed was to alleviate unnecessary burdens by deferring the
collection of the more detailed information necessary for a complete
case-by-case MACT application until after the ``hammer'' date had
passed. However, it is now apparent that the process for submission of
section 112(j) applications as we proposed it will not significantly
alleviate the burden on sources and permitting authorities.
Section 112(j) of the CAA was designed to be a ``backstop'' to our
failure to issue MACT standards. Clearly, we will not complete
promulgation of all MACT standards in the 10-year bin by the section
112(j) deadline of May 15, 2002, and in fact, we will miss the schedule
for numerous source categories. The task to develop MACT standards on
schedule to cover all the listed source categories has been enormous,
and our past schedules projecting issuance by the hammer date have
proved to be unduly optimistic. However, we are still committed to
completing all MACT standards in as timely a manner as practicable.
Although numerous standards will be late, we currently anticipate that
many of the remaining standards in the 10-year bin will be proposed
before the hammer date, and that all standards in that bin will be
promulgated before any case-by-case MACT determinations would be
required under the 24 month timetable for permit issuance which we
proposed (consisting of 6 months for submission of the Part 2
application and 18 additional months for action by the permitting
authority).
We agree with the commenters that a process in which the source
must gather detailed information and then prepare and submit a Part 2
title V permit application and the permitting authorities must then
review each of the submitted applications and prepare for issuance of a
case-by-case MACT determination represents an unnecessary burden if all
MACT standards will be promulgated before any actual permits will be
issued. We conclude that such resources would be better spent preparing
for and implementing the MACT standards when they are promulgated.
Thus, we have decided to revise the proposed rule to extend the amount
of time between the Part 1 and Part 2 section 112(j) application to 24
months which coincides with the time period in which we expect to
promulgate MACT standards for the remaining categories.
As the preamble to our proposal makes clear, we based our proposal
to provide a 6 month period between the Part 1 and Part 2 applications
in part on the concept that every applicant would automatically be
given the maximum extension to supplement an incomplete application
which is explicitly provided for by CAA section 112(j)(4). However, as
one commenter noted, there is another provision in the statute which
may be construed as providing authority to establish an incremental
process for the submission of section 112(j) applications. The hammer
provision in section 112(j)(2) itself establishes the requirement to
submit permit applications ``beginning 18 months after'' the statutory
date for promulgation of a standard. Reading this provision in context,
we believe that the statute can be reasonably construed as authorizing
us to provide a period of time after the hammer date in which the
information necessary for a fully informative section 112(j)
application can be compiled. This alternate construction also makes
more practical sense because it retains the statutory process in which
the permit authority can determine whether or not an application is
complete and provides the applicant the extension of up to 6 months
contemplated by section 112(j)(4). This assures that the time required
to supplement an incomplete application will not be deducted from the
time in which the permitting authority must complete its work.
While we recognize that compilation of the information needed for a
Part 2 application is not likely to take 24 months, we are nevertheless
reluctant to mandate that significant resources be devoted to an
exercise which will ultimately be futile and unproductive. The burden
of compiling a Part 2 application for simple sources containing only a
small number of
[[Page 16590]]
emission points may not be particularly onerous, but the burden on more
complex sources containing numerous sources and emission points could
be significant. The sheer number of affected sources that would have to
submit a Part 2 application by November 15, 2002, under the rule as
proposed is very large, estimated at over 80,000. Such an exercise
would also needlessly divert resources needed for other critical tasks
at already overworked permitting authorities. We do not believe such an
outcome was envisioned or intended by the drafters of section 112(j),
particularly in the circumstance where the Federal MACT standards will
actually be issued prior to the deadline for issuance of the case-by-
case MACT determinations by the permitting authorities.
Accordingly, we have decided to revise our proposal to provide for
a 24-month period between submission of the Part 1 application and
submission of the Part 2 application. The 18-month period for issuance
of the permit after receipt of a complete application which is provided
by the current section 112(j) rule and by section 503(c) of title V
will be retained. We are also restoring the statutory process in which
the permitting authority may review the application for completeness
and grant an extension of up to 6 months to remedy any deficiencies.
We received no adverse comment on requiring that the first portion
(Part 1) of the section 112(j) application be due on the hammer date.
We think that this is the minimum required by the statute. The Part 1
application is very short and simple, and we believe the burden is
minimal. The Part 1 application will also help permitting authorities
to identify sources potentially subject to the upcoming MACT standards.
Sources must note that our decision to extend the time between the Part
1 and Part 2 applications is no excuse for not submitting a Part 1
application if the source can reasonably determine it is in one of the
source categories or subcategories subject to the section 112(j)
requirements. Failure to meet the section 112(j) requirements,
including failure to make a timely Part 1 application, can lead to
enforcement action. If a source is unsure about its applicability, it
should submit a Part 1 application requesting an applicability
determination to the permitting authority, which will then make a
determination of MACT applicability.
B. Comments and Changes in Response to Our Requests for Comments
1. Notification by Permitting Authority Within 120 Days of Section
112(j) Hammer Date
In the preamble to the proposed section 112(j) amendments, we
discussed changes made to clarify obligations for sources and
permitting agencies when the section 112(j) deadline passes. Among the
provisions included was the requirement that an owner or operator
submit a Part 1 permit application within 30 days of being notified by
the permitting agency that one or more sources at the major source
belong to a section 112(j) category or subcategory. The permitting
authority would have been required to make any such notification within
120 days after the section 112(j) deadline. We specifically requested
comment on whether 120 days was sufficient time for permitting
authorities to act.
In response, a few commenters expressed serious concerns about this
requirement. These commenters noted that States do not always have up-
to-date information on sources and that 120 days is not sufficient time
for such notifications. Furthermore, these commenters recommended that
this requirement be deleted because States may choose to identify and
notify affected sources but should not be required to do so. A few
commenters recommended that the final rule specify that owners or
operators of affected sources must submit a title V permit application
whether or not they receive notification.
We agree with the commenters that it is the responsibility of the
affected source to submit a title V permit application regardless of
notification if it can reasonably determine that it falls within a
source category for which a standard has not been promulgated by the
section 112(j) deadline. We believe, in most instances, that the owner
or operator will be able to reasonably determine whether the source is
in the category or subcategory subject to section 112(j) from
provisions specified in the proposed rule for the category or
subcategory. If an owner or operator is unable to make this
determination, they may at their discretion contact the permitting
authority for assistance in making the determination or submit a Part 1
applicability determination request. If there is doubt, the owner or
operator should submit the Part 1 application. Most MACT standards will
be proposed by the section 112(j) deadline of May 15, 2002, and
applicability criteria will be specified in those proposals. In
addition, we are posting applicability criteria on EPA's Air Toxics
Website for all source categories for which MACT standards have not yet
been proposed (see www.epa.gov/ttn/atw/eparules.html). The EPA project
leads may also be directly contacted for additional information. Thus,
owners or operators should know for all source categories whether or
not their sources will be subject to the section 112(j) requirements.
Therefore, we are retaining 40 CFR 63.52(a)(1) as proposed, which
requires an owner or operator to submit an application for a title V
permit or permit revision 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). The obligation is on
the source owner or operator to submit the application. Failure to
submit a Part 1 application when it can reasonably be determined the
source is in an applicable source category would be considered a
violation.
Moreover, we also agree with the commenters that 120 days may not
be sufficient time to notify owners or operators of affected sources
subject to section 112(j) if those sources did not submit a title V
permit application because they could not reasonably determine if they
were part of a source category on which the section 112(j) ``hammer''
fell. As the commenter pointed out, State agencies do not necessarily
have this information and would not be able to identify each and every
affected source within 120 days, especially those in source categories
that contain thousands of sources. We do not want to create an
opportunity to potentially circumvent the requirements of the rule when
the State fails to notify the source owner or operator by a specified
time because it does not have adequate information. Therefore, in the
final rule amendments, we have removed the requirement that the
permitting authority must notify the owner or operator that one or more
sources at the major source belong to such category or subcategory
within 120 days after the section 112(j) deadline. States may still
choose to identify and notify affected sources, and we encourage them
to do so when they have the available information.
The Part 1 application is intentionally brief so that completing it
will not be a complicated, burdensome requirement. If there are
isolated instances where a Part 1 application is erroneously submitted
where none is required, it would be the responsibility of the
permitting authority to notify the owner or operator that the source is
not in a
[[Page 16591]]
category or subcategory subject to section 112(j). In addition,
permitting authorities have the obligation to determine MACT
applicability if requested in a Part 1 application.
2. Prohibition on Backsliding
Several commenters disagreed with EPA's proposed prohibition on
backsliding, which prevents a State from adopting any section 112(d)
emission limitations that are less stringent than the case-by-case MACT
determinations by the permitting authority under section 112(j). The
commenters maintained that this policy is inconsistent with the plain
language of the CAA and prior EPA policy. The commenters stated that
this policy should not be adopted. Instead, one commenter proposed that
the rule be revised to require States to revise permits to conform to
MACT standards issued after other emission limitations have been
adopted. This commenter believed that the prohibition on backsliding
would create unnecessary burden and uncertainty because permitting
authorities and sources would have to spend significant time and
resources to determine when a MACT standard is less stringent. One
commenter maintained that implementing the anti-backsliding policy
would result in uneven requirements for similar industries in different
States and would also require Federal enforcement of regulations that
were not subject to national review.
The current section 112(j) rule does not include any prohibition on
backsliding, and the current 40 CFR 63.56(c) allows the permitting
authority to exercise its discretion in determining whether or not to
retain more stringent provisions from a prior section 112(j) MACT
determination in the operating permit. Similarly, the rule governing
case-by-case MACT determinations under section 112(g) does not contain
any prohibition on backsliding, and 40 CFR 63.44(c) provides that the
permitting authority may exercise its discretion in deciding whether or
not to retain more stringent provisions from a section 112(g) case-by-
case MACT determination as applicable requirements in the operating
permit.
After considering the concerns raised by the commenters, we have
decided that it is best to retain this basic policy in the amended
section 112(j) rule. As reflected by the provisions in the existing
section 112(j) rule, we do not agree with the argument by some
commenters that the statute requires the permitting authority to
backslide, but we do believe that the decision whether or not to retain
any more stringent provisions of a section 112(j) determination as
applicable legal requirements following issuance of a section 112(d)
standard should be committed to the discretion of the permitting
authority that made the case-by-case determination in the first place.
Accordingly, we have amended the proposed language to delete the
prohibition on backsliding and to afford the permitting authority the
discretion to determine whether or not backsliding is appropriate. The
revisions in the language we proposed make it essentially identical to
the language we adopted previously for section 112(g) determinations.
C. Other Comments and Changes
A few commenters strongly encouraged EPA to continue striving to
meet all the section 112(d) or (h) deadlines so that the provisions of
section 112(j) might never be necessary. A few commenters specifically
urged EPA to meet the deadlines for promulgating the section 112(d)
standards for various combustion sources before the ``hammer'' drops
for these standards. One commenter emphasized that meeting the
deadlines for standards would be the most efficient use of EPA
resources with the greatest public benefit and that avoiding use of
section 112(j) should be the EPA's top priority. One commenter hoped
that these provisions might never be implemented, but expressed
concerns about their implementation if they are necessary.
We appreciate the commenters' concerns, and we are making every
effort to meet the statutory deadlines so that section 112(j) is not
triggered. Nevertheless, at this point, it will not be feasible for us
to complete all the MACT standards by the section 112(j) deadline. For
an update on the status of section 112 rulemakings, see our website at
http://www.epa.gov/ttn/atw/eparules.html.
One commenter maintained that most agencies would want to receive
the information listed in 40 CFR 63.53(b)(2) and wondered why EPA had
designated it as an optional part of the Part 2 MACT application.
The information listed in 40 CFR 63.53(b)(2) includes information
about appropriate emission limitations and control technologies to meet
those limitations. While the source owner or operator may choose to
submit this information, it is not their responsibility to conduct the
research and analysis necessary to make MACT determinations. This
responsibility resides with the State or other designated permitting
authority. For this reason, it is appropriate that the information
listed in this paragraph be an optional part of the Part 2 MACT
application.
IV. What Is the Section 112(j) Process?
Since we proposed amendments to section 112(j), we have received
many questions regarding the provisions. The following paragraphs
provide a general overview of the section 112(j) program.
A. If I Am an Owner or Operator of a Source, What Must I Do?
If you are an owner or operator of a major source in a source
category or subcategory for which the statutory deadline for a section
112(d) emission standard is missed by 18 months, you are subject to the
provisions of section 112(j). If you are unsure whether you are subject
to section 112(j), you should review the appropriate proposed MACT rule
to which you may be subject, you should review information on EPA's Air
Toxics Website at http://www.epa.gov/ttn/atw/eparules.html, you may
contact the EPA project lead directly, or you may submit a Part 1 MACT
application to ask the State for an applicability determination. If the
section 112(j) deadline arrives before you can determine your
applicability, you should submit a Part 1 application. In most cases,
even if the section 112(d) emission standard statutory deadline is
missed by 18 months, there will be published proposed standards that
you can refer to that will assist you in determining whether your
source is subject to the provisions of section 112(j).
If you are subject to the provisions of section 112(j), you must
apply for a title V permit or permit revision. The content of the
required applications, details of the application approval process,
timing of submittals, reviews, and permit issuance are specified in
Secs. 63.52 and 63.53 of 40 CFR part 63. The application process is a
two-part process. Part 1 of the permit application requests very basic
information about the affected source; the substantive information
required by the permitting authority to make its MACT determination is
tied to submittal of the Part 2 permit application. The Part 1 permit
application must be submitted to the permitting authority by the
section 112(j) deadline if it can reasonably be determined the source
is in the source category or subcategory, or within 30 days after being
notified in writing by the permitting authority that one or more
sources at the major source belong in a subject category or
subcategory.
The application content for a MACT determination is contained in 40
CFR
[[Page 16592]]
63.53. Information 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 will be considered by the
permitting authority in making its case-by-case MACT determination. The
definition of ``available information'' in 40 CFR 63.51 specifies the
type of information and sources of information available to the
affected source owner or operator for use in completing the
application.
Your Part 1 application for a MACT determination must contain the
following information:
The name and address (physical location) of your source.
A brief description of the major source and an
identification of the relevant source category.
An identification of the types of emission points
belonging to the relevant source category.
An identification of any affected sources for which a
section 112(g) MACT determination has been made.
As mentioned previously, if you are unsure whether you are subject
to section 112(j), you should submit a Part 1 MACT application to ask
the State for an applicability determination. If you have not submitted
a Part 1 MACT application and the permitting authority notifies you
that you are subject to section 112(j), you must submit an application
for a title V permit or for a revision to an existing title V permit or
pending title V permit within 30 days of being notified.
Your Part 2 Application for a MACT determination must contain the
following information:
For new affected sources, the anticipated date of startup
of operation.
The HAP emitted by each affected source in the relevant
source category and an estimated total uncontrolled and controlled
emission rate for HAP from the affected source.
Any existing Federal, State, or local limitations or
requirements applicable to the affected source.
For each affected emission point or group of affected
emission points, an identification of control technology in place.
Information relevant to establishing the MACT floor, and,
at the option of the owner or operator, a recommended MACT floor.
Any other information reasonably needed by the permitting
authority including, at the discretion of the permitting authority,
information required pursuant to subpart A of 40 CFR part 63.
Your Part 2 MACT application may also, but is not required to,
include the following:
Recommended emission limitations for the affected source
and support information consistent with 40 CFR 63.52(f). You may
recommend a specific design, equipment, work practice, or operational
standard, or combination thereof, as an emission limitation.
A description of the control technologies that you would
apply 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.
Relevant parameters to be monitored and frequency of
monitoring to demonstrate continuous compliance with the MACT emission
limitation over the applicable reporting period.
You are required to submit your Part 2 MACT application within 24
months after submittal of your Part 1 MACT application.
B. If I Am the Permitting Authority for a Source Subject to Section
112(j), What Must I Do?
As the permitting authority for a source subject to section 112(j),
you may, but are not required to, notify an owner or operator of a
source of their applicability when you have available information that
allows you to identify subject sources. In such cases, you should
submit the notification prior to the source's Part 1 MACT application
deadline. Sources that can reasonably determine they are subject must
submit a Part 1 application, regardless of any notification (or lack
thereof). You may notify a source that has not submitted a Part 1
application to do so, but your discretion to do this does not relieve
the source of its obligation to submit an application in the absence of
such a notification. You also have the responsibility of notifying
owners or operators of sources that erroneously submit a Part 1 MACT
application (i.e., the source is not subject to section 112(j)) that
they are not subject to section 112(j), as well as notifying owners or
operators of sources of their applicability when requested by an owner
or operator of a source with their Part 1 MACT application.
Once you have received a Part 2 MACT application from a source, you
must notify the owner or operator of the source in writing whether the
application is complete or incomplete within 60 days. If you do not
notify the owner or operator in writing within 60 days after the
submittal, it will be assumed that the application is complete.
Potential sources that would be affected by section 112(j) would be
those categories or subcategories of major sources listed for
regulation under section 112(c) of the CAA for which the statutory
deadline for a section 112(d) emission standard is missed by 18 months.
You should start the affected source identification by first
identifying those source categories and subcategories for which a
section 112(d) emission standard has been missed. Using available
information from the EPA obtained in the rule development process for
subject sources, and other available information (e.g., EPA databases,
State inventories, available literature), you should be able to
identify sources subject to section 112(j) within your jurisdiction.
If you are the permitting authority for a source subject to section
112(j), you must determine case-by-case MACT for the source. You should
use all available information, as described in 40 CFR 63.51. The most
prominent and useful piece of information will be the proposed MACT
rule and its supporting documentation. You can also supplement that
information with whatever other information is available, including
information submitted by the source itself.
Permitting authorities must determine a MACT emission limitation
equivalent to the limitation that would apply had the MACT standard
been promulgated on time. You may conduct an independent analysis to
determine MACT using available information to identify the 12 percent
of the best performing sources (if there are 30 or more sources) or the
best performing 5 (if less than 30 sources). Alternately, you may
simply look to the proposed MACT standard and use the information and
analysis already prepared by EPA. Regardless of the approach adopted to
issue or revise the source's title V permit under section 112(j), you
must determine MACT as an equivalent emission limitation on a case-by-
case basis for each category of sources. Guidance to assist you in your
case-by-case MACT determination is presented in ``Guidelines for MACT
Determinations under Section 112(j) Requirements,'' (EPA 453/R-02-001).
For sources in existence and subject to section 112(j) at the
deadline, sources that become subject to section 112(j) after the
section 112(j) deadline, and sources that make a change subject to
section 112(j) after a permit is issued, you are required to issue a
section 112(j) permit or a revised section 112(j) permit
[[Page 16593]]
with case-by-case MACT within 18 months after receiving a complete Part
2 application.
C. What Happens When a Rule Comes Out After the Hammer Date for a Given
Source Category?
If the EPA promulgates emission standards under section 112(d) for
a source category before the date a permit application is approved by
the permitting authority, the title V permit must contain the
promulgated standards rather than the section 112(j) case-by-case MACT
level of control. If, however, the EPA promulgates emission standards
under section 112(d) for a source after the date a permit application
is approved by the permitting authority, the permitting authority must
incorporate the requirements of the promulgated standards in the title
V permit upon its next renewal. In such cases, the permitting authority
must establish a compliance date in the revised permit that assures
that the owner or operator shall comply with the promulgated standards
within a reasonable time, not to exceed 8 years after the standards are
promulgated. The permitting authority is not required to revise the
emission limit in the permit to reflect the promulgated standards if it
determines that the level of control required by the emission
limitation in the permit is substantially as effective as that required
by the promulgated standards. If the requirements you established in a
case-by-case determination under section 112(j) are more stringent than
the standards promulgated under section 112(d), you may elect to revise
the permit to incorporate the less stringent requirements but you are
not required to do so.
V. What Are the Environmental, Energy, Cost, and Economic Impacts
of This Rule?
The General Provisions do not apply until specific relevant
standards are promulgated. At that time, the impacts of the individual
NESHAP will be analyzed, including the impacts of the General
Provisions requirements.
The section 112(j) rule provides general guidance and procedures
concerning the implementation of an underlying statutory requirement.
We estimate that approximately 84,000 affected sources may have to
prepare and submit a Part 1 permit application. The total estimated
cost of this 1-time event is about $9,000,000. We currently anticipate
no other impacts since we plan to promulgate all the 10-year MACT
standards before the need to submit a Part 2 permit application.
VI. What Are the Administrative Requirements for This Rule?
A. Executive Order 12866, Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), we must
determine whether a regulatory action is ``significant'' and,
therefore, subject to review by the Office of Management and Budget
(OMB) and the requirements of the Executive Order. The Executive Order
defines ``significant 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 the amendments are not a ``significant
regulatory action'' under the terms of Executive Order 12866 and are,
therefore, not subject to OMB review.
B. Paperwork Reduction Act
As required by the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et
seq., the OMB must approve 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 CAA 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 standards applicable to such category
are promulgated.
However, approval of an ICR is required for the section 112(j)
rule. The information collection requirements in today's amendments to
the final section 112(j) rule have been submitted to OMB for approval
under the provisions of the PRA. The EPA has prepared an ICR document
(ICR No. 1648.04), and you may obtain a copy from Sandy Farmer by mail
at Office of Environmental Information, Collection Strategies Division
(2822), U.S. EPA, 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 today's amendments to the
final section 112(j) rule have an estimated nationwide recordkeeping
and reporting burden of 172,480 hours ($8,984,976). This burden is a
short 1-time permit application.
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.
C. Executive Order 13132, Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires the 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 is defined in the Executive
Order to include regulations that have ``substantial direct effects on
the States, on the relationship between the national Government and the
States, or on the distribution of power and responsibilities among the
various levels of government.''
Executive Order 13132 identifies 2 types of rules with Federalism
implications--rules that impose substantial compliance costs, unless
[[Page 16594]]
they are expressly required by statute or there are federal funds
available to cover the costs, and rules that preempt State or local
law. The EPA has interpreted that rules containing ``substantial
compliance costs'' are those that contain a ``significant federal
intergovernmental mandate'' under Section 202 of the Unfunded Mandates
Reform Act (UMRA)--i.e., it is likely to result in the expenditure by
State, local, and Tribal governments in the aggregate of $100 million
or more in any one year. In addition, EPA will conclude a rule also has
Federalism implications if the impacts of the rule on small governments
is likely to equal or exceed 1% of their revenues.
Because these final amendments do not exceed either threshold for
substantial costs described above or preempt State or local law, they
do not have federalism implications and will not have substantial
direct effects on the States, on the relationship between the national
Government and the States, or on the distribution of power and
responsibilities among the various levels of Government, as specified
in Executive Order 13132. Nevertheless, in the spirit of Executive
Order 13132 and consistent with EPA policy to promote communications
between EPA, State and local governments, EPA specifically solicited
comment on the rule amendments from State and local officials.
D. Executive Order 13175, Consultation and Coordination with Indian
Tribal Governments
Executive Order 13175 (65 FR 67249, November 6, 2000) requires EPA
to develop an accountable process to ensure ``meaningful and timely
input by tribal officials in the development of regulatory policies
that have tribal implications.'' ``Policies that have tribal
implications'' are defined in the Executive Order to include
regulations that have ``substantial direct effects on one or more
Indian tribes, on the relationship between the Federal government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal government and Indian tribes.''
These final rule amendments do not have tribal implications. They
will not have substantial direct effects on tribal governments, or on
the relationship between the Federal government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
There are currently no tribal governments that have approved title V
permit programs to which sources would submit permit applications on
May 15, 2002. Accordingly, Executive Order 13175 does not apply to this
action.
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 to 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 objective of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows the 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 the 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 affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA 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 these final amendments do 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. These amendments will clarify existing
requirements and reduce regulatory burden. The EPA has determined that
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 final rule
amendments are not subject to the requirements of sections 202, 203,
and 205 of the UMRA.
F. Regulatory Flexibility Act (RFA), as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et
seq.
The EPA has determined that it is not necessary to prepare a
regulatory flexibility analysis in connection with these final
amendments. The EPA has also determined that these amendments will not
have a significant economic impact on a substantial number of small
entities. For purposes of assessing the impact of today's rule
amendments on small entities, small entities are defined as: (1) A
small business whose parent company has fewer than 1,000 employees; (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; or (3) a small organization that is any not-for-
profit enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of today's final amendments
on small entities, EPA has concluded that this action will not have a
significant economic impact on a substantial number of small entities.
A regulatory flexibility analysis is not necessary for the General
Provisions amendments 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 has been prepared 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 other than
a permit application to the permitting authority or prescribe the
specific content of any case-by-case determination which might be made
under section 112(j). Although the final amendments will not have a
significant economic impact on a substantial number of small entities,
[[Page 16595]]
EPA nonetheless has tried to reduce the impact of the rule amendments
on small entities. We have extended the time between application
deadlines for the Part 1 and Part 2 submittals so that all 10-year MACT
standards would be promulgated before any Part 2 applications are due.
We have also minimized the required information in the Part 1 permit
application. Although we expect some small businesses to be affected by
the section 112(j) permit application requirement, we cannot determine
how many. In any event, the impact would be insignificant. Furthermore,
the net effect of these rule amendments to the existing rule will be to
reduce potential regulatory burdens.
G. National Technology Transfer and Advancement Act of 1995
Section 12(d) of the National Technology Transfer and Advancement
Act (NTTAA) of 1995, (Public Law No. 104-113) (15 U.S.C. 272 note),
directs the EPA to use voluntary consensus standards 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 directs the EPA to provide Congress, through annual reports to
OMB, with explanations when an agency does not use available and
applicable voluntary consensus standards.
The final 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 final amendments to the
section 112(j) rule, which establishes requirements and procedures for
owners or operators of major sources of HAP and permitting authorities
to follow if the EPA misses the deadline for promulgation of section
112(d) standards, 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 voluntary consensus standards.
H. 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, the Agency 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
reasonable alternatives considered by the Agency.
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. The final amendments to the
General Provisions are not subject to Executive Order 13045 because the
provisions provide general technology performance and compliance
guidelines for section 112(d) standards, which are not based on health
or safety risks. Likewise, the final amendments to the section 112(j)
rule are not subject to Executive Order 13045 because they establish
the process for developing case-by-case MACT, and thus are based on
technology performance and not on safety or health risks.
I. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
SBREFA, generally provides that before a rule may take effect, the
agency promulgating the rule must submit a rule report, which includes
a copy of the rule, to each House of the Congress and to the
Comptroller General of the United States. Therefore, we will submit a
report containing the final amendments and other required information
to the U.S. Senate, the U.S. House of Representatives, and the
Comptroller General of the United States prior to publication of the
rule in the Federal Register. A major rule cannot take effect until 60
days after it is published in the Federal Register. These final
amendments are not a ``major rule'' as defined by 5 U.S.C. 804(2), and
therefore will be effective April 5, 2002.
J. Executive Order 13211, Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
The final amendments are not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001) because it
is not a significant regulatory action under Executive Order 12866.
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: March 5, 2002.
Christine Todd Whitman,
Administrator.
For the reasons cited in the preamble, part 63, title 40, chapter I
of the Code of Federal Regulations is 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 (a)(8);
c. Removing paragraphs (a)(13) and (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 standard in this part 63 must 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 40 CFR part 60, part 61 or other part 63 standards, the relevant
part 63 standard
[[Page 16596]]
must 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]
* * * * *
(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 must 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 must 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 must
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;
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); running the undesignated paragraph at
the end of paragraph (4) into pargraph (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,'' as
defined in this paragraph unless a different definition is warranted
based on a published justification as to why this definition 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. This definition of ``affected source,''
and the procedures for adopting an alternative definition of ``affected
source,'' shall apply to each section 112(d) standard for which the
initial proposed rule is signed by the Administrator after June 30,
2002.
* * * * *
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. The
owner or operator of an existing affected source that is relocated may
elect not to reinstall minor ancillary equipment including, but not
limited to, piping, ductwork, and valves. However, removal and
reinstallation of an affected source will be construed as
reconstruction if it satisfies the criteria for reconstruction as
defined in this section. The costs of replacing minor ancillary
equipment must be considered in determining whether the existing
affected source is reconstructed.
* * * * *
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
[[Page 16597]]
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
CAA;
(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 or to verify a work practice standard 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 measurements (including opacity), operational parametric
values that correspond to process or control device (and capture
system) efficiencies or emissions rates, and recorded findings of
inspection of work practice activities, materials tracking, or design
characteristics. Indicators may be expressed as a single maximum or
minimum value, a function of process variables (for example, within a
range of pressure drops), a particular operational or work practice
status (for example, a damper position, completion of a waste recovery
task, materials tracking), or an interdependency between two or among
more than two 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 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.
This definition of ``new affected source,'' and the criteria to be
utilized in implementing it, shall apply to each section 112(d)
standard for which the initial proposed rule is signed by the
Administrator after June 30, 2002. 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
[[Page 16598]]
112(l)) are open for normal business. Saturdays, Sundays, and official
Federal (or where delegated, State) holidays are not working days.
4. Section 63.3 is amended by adding the abbreviation for standard
cubic meter per minute in paragraph (b).
The revisions read as follows:
Sec. 63.3 Units and abbreviations.
* * * * *
(b) * * *
scmm = cubic meter at standard conditions per minute
* * * * *
5. Section 63.4 is amended by:
a. Revising paragraph (a)(1);
b. Removing and reserving paragraphs (a)(3) through (a)(5);
c. Removing 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 must 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]
* * * * *
(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. The owner and operator must 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.
6. Section 63.5 is amended by:
a. Revising the section heading;
b. Revising paragraphs (a)(1) and (2);
c. Revising paragraphs (b)(1), (b)(3) and (4);
d. Removing and reserving paragraph (b)(5);
e. Revising paragraph (b)(6);
f. Revising paragraphs (d)(1)(i), (d)(1)(ii)(B), and (d)(1)(ii)(E);
g. Removing and reserving paragraph (d)(1)(ii)(G);
h. Revising paragraph (d)(2);
i. Revising paragraph (d)(3)(vi); and
j. Revising paragraphs (f)(1) and (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(d), (f), or (h) of the Act, under
this part, the preconstruction review requirements in this section
apply to the owner or operator 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 affected sources 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 Administrator under this part, no person may, without obtaining
written approval in advance from the Administrator in accordance with
the procedures specified in paragraphs (d) and (e) of this section, do
any of the following:
(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.
(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, must notify the
Administrator of the intended construction or reconstruction. The
notification must 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 must 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 must submit to the Administrator an
application for approval of the construction or reconstruction. The
application must 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 must include, in addition to the information
required
[[Page 16599]]
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 must 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 must include an estimated control efficiency
(percent) for that method. Such technical information must 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 meets
the following conditions:
(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.
(ii) Provide a statement from the State or other evidence (such as
State regulations) that it considered the factors specified in
paragraph (e)(1) of this section.
(2) The owner or operator must 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 must 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 (f)(2).
7. Section 63.6 is amended by:
a. Revising paragraph (a)(1) introductory text;
b. Revising paragraphs (b)(1), (b)(2), (b)(3)(i), (b)(4), (b)(5),
and (b)(7);
c. Revising paragraphs (c)(2) and (c)(5);
d. Revising paragraphs (e)(1)(i) and (ii);
e. Removing and reserving paragraph (e)(2);
f. Revising paragraphs (e)(3)(i) introductory text, (e)(3)(i)(A),
(e)(3)(ii), the first three sentences of (e)(3)(iii) and (e)(3)(v),
revising paragraphs (e)(3)(iv), (e)(3)(vii)(B), (e)(3)(vii)(C), adding
paragraph (e)(3)(vii)(D), revising paragraph (e)(3)(viii) and adding
paragraph (e)(3)(ix);
g. Revising paragraphs (f)(1), (f)(2)(iii)(D), and (f)(3);
h. Revising paragraph (h)(1);
i. Revising paragraph (h)(2)(iii)(C);
j. Revising paragraph (i)(4)(i)(B);
k. Revising the last sentence of paragraph (i)(4)(ii);
l. Revising paragraphs (i)(6)(i)(B)(1) and (2) and removing and
reserving paragraphs (i)(6)(i)(C) & (D);
m. Revising paragraph (i)(12)(i);
n. Revising paragraph (i)(14); and
o. 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 the owner or operator
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 must 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 must 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'' must 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 must
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 must
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
[[Page 16600]]
existing facility that is a new affected source must comply with all
requirements of that standard applicable to new sources. The source
owner or operator must 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 must 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 must 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, the owner or operator must 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 must 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 must 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 must 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 must 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, the owner or operator 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 must 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.
(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 must 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 must 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 must record the actions taken for that event and must 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 or operator must maintain at the affected source a
current startup, shutdown, and malfunction plan and must 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 must maintain at the affected source
each previous (i.e., superseded) version of the startup, shutdown, and
malfunction plan, and must 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 must 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 must 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;
(C) Does not provide adequate procedures for correcting
malfunctioning process and/or air pollution control and monitoring
equipment as quickly as practicable; or
(D) Includes an event that does not meet the definition of startup,
[[Page 16601]]
shutdown, or malfunction listed in Sec. 63.2.
(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 must 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 must 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 must 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 must 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 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 must 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 applicability 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 must 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 applicability 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 must 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
[[Page 16602]]
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.
* * * * *
8. 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)(1);
d. Revising the first sentence of paragraph (b)(2);
e. Revising paragraphs (c)(3)(ii)(A) through (B);
f. Revising paragraph (c)(4)(i);
g. Revising paragraphs (e)(2)(i) through (iii);
h. Revising paragraph (f)(1);
i. Revising paragraphs (f)(2)(i) through (ii); and
j. 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 must perform such
tests within 180 days of the compliance date for such source.
(i)--(viii) [Reserved]
* * * * *
(b) * * *
(1) The owner or operator of an affected source must notify the
Administrator in writing of his or her intention to conduct a
performance test at least 60 calendar days before the performance test
is initially scheduled to begin to allow the Administrator, upon
request, to review an approve the site-specific test plan required
under paragraph (c) of this section and to have an observer present
during the test.
(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 must
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. * * *
(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 must 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
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
must analyze performance audit (PA) samples during each performance
test. The owner or operator must 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 of this part to validate the
alternative test method. This may include the use
[[Page 16603]]
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.
* * * * *
9. Section 63.8 is amended by:
a. Revising paragraph (a)(1);
b. Revising paragraphs (b)(1)(i) and (ii);
c. Revising paragraphs (b)(2)(i) and (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 must 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 must maintain
and operate each CMS as specified in Sec. 63.6(e)(1).
(ii) The owner or operator must keep the necessary parts for
routine repairs of the affected CMS equipment readily available.
(iii) The owner or operator of an affected source must develop and
implement a written startup, shutdown, and malfunction plan for CMS as
specified in Sec. 63.6(e)(3).
(2)(i) All CMS must be installed such that representative measures
of emissions or process parameters from the affected source are
obtained. In addition, CEMS must be located according to procedures
contained in the applicable performance specification(s).
(ii) Unless the individual subpart states otherwise, the owner or
operator must ensure the read out (that portion of the CMS that
provides a visual display or record), or other indication of operation,
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 that is not a CPMS, which is
installed in accordance with the provisions of this part and the
applicable CMS performance specification(s), must 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 must 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 shall
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 must be cleaned prior to performing the
zero (low-level) and high-level drift adjustments; the optical surfaces
and instrumental surfaces must 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 (f)(1), 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 must
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 must be submitted at least 60
days before the performance evaluation is scheduled to begin and
[[Page 16604]]
must meet the requirements for an alternative test method under
Sec. 63.7(f).
(ii) The application must 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 must
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 must 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
must not be included in any data average computed under this part. For
the owner or operator 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.
10. Section 63.9 is amended by:
a. Revising paragraph (a)(1);
b. Revising paragraph (b)(2)(iv);
c. Removing and reserving paragraph (b)(3);
d. Revising the introductory text of paragraph (b)(4);
e. Revising paragraph (b)(4)(i);
f. Removing and reserving paragraphs (b)(4)(ii) through (iii).
g. Revising paragraph (b)(5);
h. Revising paragraph (h)(2)(i)(E); and
i. Revising the first sentence of paragraph (h)(2)(ii);
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) must 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) must 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 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 must 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);
* * * * *
(ii) The notification must be sent before the close of business on
the 60th day following the completion of the relevant compliance
demonstration activity (or activities that have the same compliance
date) specified in the relevant standard (unless a different reporting
period is specified in the standard, in which case the letter must be
sent before the close of business on the day the report of the relevant
testing or monitoring results is required to be delivered or
postmarked). * * *
* * * * *
11. 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); and
d. Revising the second sentence of paragraph (d)(5)(i).
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
[[Page 16605]]
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 must 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 must 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) must 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 must 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.
* * * * *
(d) * * *
(5)(i) * * * Reports shall only be required if a startup, shutdown,
or malfunction occurred during the reporting period, and they must
include the number, duration, and a brief description of each startup,
shutdown, or malfunction. * * *
* * * * *
12. 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]
13. Section 63.50 is amended by:
1. Revising paragraph (a);
2. Revising paragraph (b); and
3. Removing and reserving paragraph (c) 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) The owner or operator 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.
(b) Relationship to State and local requirements. Nothing in
Secs. 63.50 through 63.56 shall prevent a State or local regulatory
agency from imposing more stringent requirements, as a matter of State
or local law, than those contained in Secs. 63.50 through 63.56.
(c) [Reserved]
14. Section 63.51 is amended by:
a. Revising the introductory text of this section;
b. Adding in alphabetical order the definition of affected source;
c. In the definition of Available information by revising the
introductory text and paragraphs (2) through (5);
d. Removing the definition of emission point;
e. Removing the definition of emission unit;
f. Revising the definition of enhanced review;
g. Revising the definition of equivalent emission limitation;
h. Removing the definition of existing major source;
i. Revising paragraphs (1)(i) and (ii) of the definition of maximum
achievable control technology (MACT) floor;
j. Adding in alphabetical order the definition of new affected
source;
k. Removing the definition of new emission unit;
l. Removing the definition of new major source;
m. Adding in alphabetical order the definition of research or
laboratory activities.
n. Revising the definition of section 112(j) deadline;
o. Revising the definition of similar source; and
p. Removing the definition of United States;
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
[[Page 16606]]
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).
* * * * *
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 in the United States (for which the
Administrator has emissions information), excluding those sources that
have, within 18 months before the emission standard is proposed or
within 30 months before such standard is promulgated, whichever is
later, first achieved a level of emission rate or emission reduction
which complies, or would comply if the source is not subject to such
standard, with the lowest achievable emission rate (as defined in
section 171 of the Act) applicable to the source category and
prevailing at the time, in the category or subcategory, for categories
and subcategories of stationary sources with 30 or more sources; or
(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 must
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.
* * * * *
15. 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) and (2) 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, must apply to such sources.
(1) The owner or operator must 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).
(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 must 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 after being
notified in writing by the permitting authority that one or more
sources at the major source belong to such category or subcategory.
Permitting authorities are not required to make such notification.
(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 must submit an
application meeting the requirements of Sec. 63.53(a) for a title V
[[Page 16607]]
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 must 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 must 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 must 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 must 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 must 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 must 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 must 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
must 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 must 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
must 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 must 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 must 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 must 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
must 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.
(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, must 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 must 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, must apply to such sources.
(4) On or after April 5, 2002, 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 must
submit an application meeting the requirements of Sec. 63.53(a) for a
title V permit or for a change to an
[[Page 16608]]
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
must 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 must submit an application for a revision to the existing
title V permit that meets the requirements of Sec. 63.53(a). The
application must be submitted within 30 days of beginning construction
and must 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 24 months after an owner or operator submits a Part 1
MACT application meeting the requirements of Sec. 63.53(a), the owner
or operator must submit a Part 2 MACT application meeting the
requirements of Sec. 63.53(b). Part 2 MACT applications must be
reviewed by the permitting authority according to procedures
established in Sec. 63.55. The resulting MACT determination must 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 must comply with the applicable
provisions of this subpart. The owner or operator must submit a Part 2
MACT application within 24 months after 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) must
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 must 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 must
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 must be made when the permit is renewed. If the
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 must comply with the
applicable provisions of this subpart. The owner or operator must
submit a Part 2 MACT application within 24 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 must notify the owner or operator in writing
whether the application is complete or incomplete. The Part 2 MACT
application shall be deemed complete on the date it was submitted
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. In the event that the
permitting
[[Page 16609]]
authority disapproves a permit application or determines that the
application is incomplete, the owner or operator must revise and
resubmit the application to meet the objections of the permitting
authority. The permitting authority must specify a reasonable period in
which the owner or operator is required to remedy the deficiencies in
the disapproved or incomplete application. This period may not exceed 6
months from the date the owner or operator is first notified that the
application has been disapproved or is incomplete.
(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 must 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 must 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 must 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 must 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 must be determined by the
permitting authority and must 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
must 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 must apply.
(2) The title V permit must specify any notification, operation and
maintenance, performance testing, monitoring, and reporting and
recordkeeping requirements. In developing the title V permit, the
permitting authority must consider and specify the appropriate
provisions of subpart A of this part. The title V permit must 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 must 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 must 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 subpart must comply with a new
source MACT level of control immediately upon startup of the new
affected source.
(g) Permit issuance dates.
The permitting authority must issue a title V permit meeting
section 112(j) requirements within 18 months after submittal of the
complete Part 2 MACT application.
(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) The owner or operator of affected sources subject to paragraphs
(a), (b), and (c) of this section must 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) The owner or operator of new affected sources subject to
paragraph (c)(1) of this section must 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.
16. 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 must 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 emission points belonging to
the relevant source category.
(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 must contain
the information in paragraphs (b)(1)(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 affected emission point or group of affected emission
points, 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.
[[Page 16610]]
(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, but is not
required to, 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 would 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 must 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.
17. Section 63.54 is amended by:
a. Revising the section heading and 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); and
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 must 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 must
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 must 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 must be substantially
equivalent to that found in Sec. 70.7 of this chapter.
* * * * *
(d) Review by the EPA and affected States. The permitting authority
must 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 must 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 must 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 must
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.
* * * * *
18. 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 must 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 must
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 must establish these emissions limitations
consistent with the following requirements and principles:
(1) Emission limitations must 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 must
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 must not be
less stringent than the MACT floor
[[Page 16611]]
which must be established by the permitting authority according to the
requirements of section 112(d)(3)(A) and (B) and must be based upon
available information.
(3) Each emission limitation for a new affected source must 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 must not be less stringent than the
emission limitation achieved in practice by the best controlled similar
source which must be established by the permitting authority according
to the requirements of section 112(d)(3). This limitation must be based
upon available information.
(4) The permitting authority must 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 EPA. The owner or operator must 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.
19. 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 must contain the promulgated standard
rather than the emission limitation determined under Sec. 63.52, and
the owner or operator must 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 must incorporate requirements of that standard
in the title V permit upon its next renewal. The permitting authority
must establish a compliance date in the revised permit that assures
that the owner or operator must 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 is approved under Sec. 63.52
or Sec. 63.54, and the level of control required by the promulgated
standard is less stringent than the level of control required by any
emission limitation in the prior MACT determination, the permitting
authority is not required to incorporate any less stringent emission
limitation of the promulgated standard in the title V permit and may in
its discretion consider any more stringent provisions of the MACT
determination to be applicable legal requirements when issuing or
revising such a title V permit.
[FR Doc. 02-5861 Filed 3-29-02; 8:45 am]
BILLING CODE 6560-50-P