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[Federal Register Volume 88, Number 176 (Wednesday, September 13, 2023)]
[Proposed Rules]
[Pages 62711-62725]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-19674]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-HQ-OAR-2022-0441; FRL-8673-02-OAR]
RIN 2060-AV47

Regulatory Requirements for New HAP Additions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The U.S. Environmental Protection Agency (EPA) is proposing to 
amend the General Provisions for National Emission Standards for 
Hazardous Air Pollutants (NESHAP) to address applicability and 
compliance issues resulting from the addition of a compound to the list 
of hazardous air pollutants (HAP) under the Clean Air Act (CAA). This 
action focuses on issues related to newly applicable standards for 
sources that become major sources solely from the addition of a 
compound to the CAA HAP list. This action also includes a discussion of 
the impacts of a newly listed HAP on the federal operating permit 
program.

DATES: 
    Comments: Comments must be received on or before November 13, 2023.
    Public hearing: If anyone contacts us requesting a public hearing 
on or before September 18, 2023, we will hold a virtual public hearing. 
See SUPPLEMENTARY INFORMATION for

[[Page 62712]]

information on requesting and registering for a public hearing.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OAR-2022-0441, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov/ 
(our preferred method). Follow the online instructions for submitting 
comments.
     Email: [email protected]. Include Docket ID No. EPA-
HQ-OAR-2022-0441 in the subject line of the message.
     Fax: (202) 566-9744. Attention Docket ID No. EPA-HQ-OAR-
2022-0441.
     Mail: U.S. Environmental Protection Agency, EPA Docket 
Center, Docket ID No. EPA-HQ-OAR-2022-0441, Mail Code 28221T, 1200 
Pennsylvania Avenue NW, Washington, DC 20460.
     Hand Delivery/Courier: EPA Docket Center, WJC West 
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. 
The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m., 
Monday-Friday (except Federal Holidays).
    Instructions: All submissions received must include the Docket ID 
No. for this rulemaking. Comments received may be posted without change 
to https://www.regulations.gov/, including any personal information 
provided. For detailed instructions on sending comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: For questions about this proposed 
action, contact U.S. EPA, Attn: Susan Miller, Mail Drop: D205-02, 109 
T.W. Alexander Drive, P.O. Box 12055, RTP, North Carolina 27711; 
telephone number: (919) 541-2443; email address: [email protected]. 
For additional information, see https://www.epa.gov/stationary-sources-air-pollution/infrastructure-new-hap-additions.

SUPPLEMENTARY INFORMATION: Participation in virtual public hearing. To 
request a virtual public hearing, contact the public hearing team at 
(888) 372-8699 or by email at [email protected]. If requested, 
the virtual hearing will be held on October 4, 2023. The hearing will 
convene at 11:00 a.m. Eastern Time (ET) and will conclude at 3:00 p.m. 
ET. The EPA may close a session 15 minutes after the last pre-
registered speaker has testified if there are no additional speakers. 
The EPA will announce further details at https://www.epa.gov/stationary-sources-air-pollution/infrastructure-new-hap-additions.
    If a public hearing is requested, the EPA will begin pre-
registering speakers for the hearing no later than 1 business day after 
a request has been received. To register to speak at the virtual 
hearing, please use the online registration form available at https://www.epa.gov/stationary-sources-air-pollution/infrastructure-new-hap-additions or contact the public hearing team at (888) 372-8699 or by 
email at [email protected]. The last day to pre-register to 
speak at the hearing will be September 25, 2023. Prior to the hearing, 
the EPA will post a general agenda that will list pre-registered 
speakers at: https://www.epa.gov/stationary-sources-air-pollution/infrastructure-new-hap-additions.
    The EPA will make every effort to follow the schedule as closely as 
possible on the day of the hearing; however, please plan for the 
hearings to run either ahead of schedule or behind schedule.
    Each commenter will have 4 minutes to provide oral testimony. The 
EPA encourages commenters to submit the text of your oral testimony as 
written comments to the rulemaking docket.
    The EPA may ask clarifying questions during the oral presentations 
but will not respond to the presentations at that time. Written 
statements and supporting information submitted during the comment 
period will be considered with the same weight as oral testimony and 
supporting information presented at the public hearing.
    Please note that any updates made to any aspect of the hearing will 
be posted online at https://www.epa.gov/stationary-sources-air-pollution/infrastructure-new-hap-additions. While the EPA expects the 
hearing to go forward as set forth above, please monitor our website or 
contact the public hearing team at (888) 372-8699 or by email at 
[email protected] to determine if there are any updates. The 
EPA does not intend to publish a document in the Federal Register 
announcing updates.
    If you require the services of a translator or a special 
accommodation such as audio description, please pre-register for the 
hearing with the public hearing team and describe your needs by 
September 20, 2023. The EPA may not be able to arrange accommodations 
without advanced notice.
    Docket. The EPA has established a docket for this rulemaking under 
Docket ID No. EPA-HQ-OAR-2022-0441. All documents in the docket are 
listed in https://www.regulations.gov/. Although listed, some 
information is not publicly available, e.g., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the internet and will be publicly available only in hard 
copy. With the exception of such material, publicly available docket 
materials are available electronically in Regulations.gov or in hard 
copy at the EPA Docket Center, Room 3334, WJC West Building, 1301 
Constitution Avenue NW, Washington, DC. The Public Reading Room is open 
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number for the Public Reading Room is (202) 
566-1744, and the telephone number for the EPA Docket Center is (202) 
566-1742.
    Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-
2022-0441. The EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at https://www.regulations.gov/, including any personal 
information provided, unless the comment includes information claimed 
to be CBI or other information whose disclosure is restricted by 
statute. Do not submit electronically to https://www.regulations.gov 
any information that you consider to be CBI or other information whose 
disclosure is restricted by statute. This type of information should be 
submitted as discussed below.
    The EPA may publish any comment received to its public docket. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e., on the Web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
    The https://www.regulations.gov/ website allows you to submit your 
comment anonymously, which means the EPA will not know your identity or 
contact information unless you provide it in the body of your comment. 
If you send an email comment directly to the EPA without going through 
https://www.regulations.gov/, your email address will be automatically 
captured and included as part of the comment

[[Page 62713]]

that is placed in the public docket and made available on the internet. 
If you submit an electronic comment, the EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any digital storage media you submit. If the EPA 
cannot read your comment due to technical difficulties and cannot 
contact you for clarification, the EPA may not be able to consider your 
comment. Electronic files should not include special characters or any 
form of encryption and be free of any defects or viruses. For 
additional information about the EPA's public docket, visit the EPA 
Docket Center homepage at https://www.epa.gov/dockets.
    Submitting CBI. Do not submit information containing CBI to the EPA 
through https://www.regulations.gov/. Clearly mark the part or all of 
the information that you claim to be CBI. For CBI information on any 
digital storage media that you mail to the EPA, note the docket ID, 
mark the outside of the digital storage media as CBI and identify 
electronically within the digital storage media the specific 
information that is claimed as CBI. In addition to one complete version 
of the comments that includes information claimed as CBI, you must 
submit a copy of the comments that does not contain the information 
claimed as CBI directly to the public docket through the procedures 
outlined in the Instructions section of this document. If you submit 
any digital storage media that does not contain CBI, mark the outside 
of the digital storage media clearly that it does not contain CBI and 
note the docket ID. Information not marked as CBI will be included in 
the public docket and the EPA's electronic public docket without prior 
notice. Information marked as CBI will not be disclosed except in 
accordance with procedures set forth in 40 Code of Federal Regulations 
(CFR) part 2.
    Our preferred method to receive CBI is for it to be transmitted 
electronically using email attachments, File Transfer Protocol (FTP), 
or other online file sharing services (e.g., Dropbox, OneDrive, Google 
Drive). Electronic submissions must be transmitted directly to the 
OAQPS CBI Office at the email address [email protected], and as 
described above, should include clear CBI markings and note the docket 
ID. If assistance is needed with submitting large electronic files that 
exceed the file size limit for email attachments, and if you do not 
have your own file sharing service, please email [email protected] to 
request a file transfer link. If sending CBI information through the 
postal service, please send it to the following address: OAQPS Document 
Control Officer (C404-02), OAQPS, U.S. Environmental Protection Agency, 
Research Triangle Park, North Carolina 27711, Attention Docket ID No. 
EPA-HQ-OAR-2018-0747. The mailed CBI material should be double wrapped 
and clearly marked. Any CBI markings should not show through the outer 
envelope.
    Preamble acronyms and abbreviations. Throughout this document the 
use of ``we,'' ``us,'' or ``our'' is intended to refer to the EPA. We 
use multiple acronyms and terms in this preamble. While this list may 
not be exhaustive, to ease the reading of this preamble and for 
reference purposes, the EPA defines the following terms and acronyms 
here:

1-BP 1-bromopropane
ANPRM advanced notice of proposed rulemaking
CAA Clean Air Act
CBI Confidential Business Information
CFR Code of Federal Regulations
EPA Environmental Protection Agency
HAP hazardous air pollutant(s)
MACT maximum achievable control technology
MSDL Major Source Due to Listing
NESHAP national emission standards for hazardous air pollutants
OMB Office of Management and Budget
PRA Paperwork Reduction Act
PTE potential to emit
UMRA Unfunded Mandates Reform Act

    Organization of this document. The information in this preamble is 
organized as follows below.

I. General Information
    A. What action is the Agency taking?
    B. Does this action apply to me?
    C. What is the statutory authority for this action?
    D. Where can I get a copy of this document and other related 
information?
II. Basis for the Proposed Action
    A. What changes are we proposing?
    B. Are there any concurrent changes to Title V Programs in this 
action?
    C. What is our rationale for the proposed changes?
    1. Are newly listed HAP regulated under NESHAP promulgated 
before the effective date of the listing?
    2. When must a newly listed HAP be included in emission 
estimates and what are the potential regulatory implications?
    3. What standards apply to MSDL facilities?
    4. When does an MSDL facility have to be in compliance with new 
requirements?
    5. Are there any new notification requirements?
III. Solicitation of Additional Comments
    A. Regulatory Changes
    B. Early Input on Future EPA Action to Integrate Newly Listed 
HAP Into the CAA Section 112 Program
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulations and Regulatory Review
    B. Paperwork Reduction Act (PRA)
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act (UMRA)
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations and Executive Order 14096: Revitalizing Our Nation's 
Commitment to Environmental Justice for All

I. General Information

A. What action is the Agency taking?

    Section 112(b) of the CAA established a list of 189 hazardous air 
pollutants (HAP). This provision of the CAA also provides the EPA with 
the authority to modify the list. In response to a petition to the 
Administrator to list 1-bromopropane or 1-BP (also known as n-propyl 
bromide (nPB)), the EPA, for the first time, added a new HAP to the CAA 
section 112(b) HAP list (HAP list) on January 5, 2022. Based on this 
new addition to the HAP list, the EPA determined that there are several 
regulatory implications and issues that must be addressed to fully 
integrate a newly listed HAP into the existing CAA section 112 program. 
This rule, when finalized, will address the immediate regulatory 
effects of adding a pollutant to the HAP list. This proposal addresses 
three specific issues that we identified. The first issue is whether 
already promulgated National Emission Standards for Hazardous Air 
Pollutants (NESHAP) would apply to a newly listed HAP. For example, for 
a NESHAP with a limit for total HAP, owners or operators of sources 
that emit the newly listed HAP and are subject to the limit need to 
understand whether they must include the emissions of the newly listed 
HAP to determine whether the source meets that limit. The second issue 
is the consideration of the permitting implications for facilities that 
become major sources under CAA section 112 solely due to the addition 
of a new pollutant to the HAP list (hereinafter Major Source Due to 
Listing or ``MSDL'' facilities). The third issue for a MSDL facility 
that triggers the applicability of a major source NESHAP is the 
determination of the applicable

[[Page 62714]]

emission standards (in particular, whether the source is subject to the 
standards for new sources or existing sources) and the compliance 
deadlines for those newly applicable NESHAP requirements.
    The EPA is not proposing any changes to the part 70 regulations to 
address the addition of a new pollutant to the CAA section 112 HAP list 
as the current program appropriately covers these issues. However, 
after reviewing the existing NESHAP regulations, the EPA intends to 
clarify the applicability of previously promulgated NESHAP when the EPA 
adds a new pollutant to the HAP list by revising 40 CFR 63.64, subpart 
C. In addition, the EPA is proposing initial notifications, several 
alternatives to address applicable emission standards and compliance 
deadlines for MSDL facilities by revising 40 CFR, subpart A.
    This proposed rulemaking addresses the immediate compliance 
obligations for the regulated community following the addition of a new 
HAP. This is only one part of the overall program to incorporate a new 
HAP into the CAA section 112 regulatory framework. Future actions 
within individual NESHAP will address rule-specific issues, including 
identification of the sources that emit the new HAP; promulgation of 
standards, as warranted, that include the new HAP by either revising 
existing NESHAP standards or establishing new standards, as necessary; 
and identification of engagement and outreach needs with affected 
communities and other entities.
    The actions we are taking regarding section II. are pursuant to our 
authority under CAA section 112. We consider the regulatory provisions 
we are proposing under 40 CFR part 63, subpart A to be severable from 
the regulatory provisions being proposed under 40 CFR part 63, subpart 
C, as these are two separate regulatory requirements, each of which 
would operate independently from the other, when finalized.

B. Does this action apply to me?

    Categories of entities potentially affected by this proposed action 
include sources that emit a pollutant that is added to the HAP list. As 
discussed in more detail in section IV. of this preamble the addition 
of a pollutant to the HAP list can, for those sources who emit that 
pollutant, change the source's potential to emit (PTE) such that an 
area source may become a major source. This change to major source 
status has regulatory implications that may include CAA operating 
permitting obligations and applicability of one or more major source 
NESHAP. This proposed rule addresses these situations.

C. What is the statutory authority for this action?

    The statutory authority for this action is provided by sections 112 
and 301 of the CAA, as amended (42 U.S.C. 7401 et seq.). CAA section 
112(a) provides ``Definitions'' applicable to CAA section 112. A major 
source of HAP is defined under CAA section 112(a) as any ``stationary 
source or group of stationary sources located within a contiguous area 
and under common control that emits or has the potential to emit 
considering controls, in the aggregate, 10 tons per year or more of any 
hazardous air pollutant or 25 tons per year or more of any combination 
of hazardous air pollutants.'' Stationary sources of HAP that are not 
major sources are defined as ``area sources.'' Section 112(b)(3)(A) of 
the CAA allows any person to petition the EPA to modify the CAA section 
112(b)(1) list of HAP by adding or deleting a substance.\1\ Section 
112(d) of the CAA establishes the process for establishing national 
emissions standards for HAP, commonly referred to as NESHAP but also 
frequently referred to as either maximum achievable control technology 
(MACT) standards or generally available control technology (GACT) 
standards. Section 112(i) of the CAA provides the schedule for 
compliance with emission standards. Collectively, these statutory 
provisions and the NESHAP General Provisions codified in 40 CFR part 
63, subpart A, provide the framework for establishing emission 
standards and compliance timing for HAP regulation. These statutory 
provisions also provide the authority for the EPA to establish 
requirements to address the immediate regulatory effects when a 
pollutant is added to the HAP list.
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    \1\ La. Envtl. Action Network v. Envtl. Prot. Agency, 955 F.3d 
1088, 1098 (D.C. Cir. 2020) (``the Act[] specifie[s] processes for 
adding to or subtracting from the statutory list of hazardous air 
pollutants, and its direction to EPA [is] to act within 18 months on 
a petition to modify the list. 42 U.S.C. 7412(b)(3)(A).'')
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D. Where can I get a copy of this document and other related 
information?

    In addition to being available in the docket (Docket ID No. EPA-HQ-
OAR-2022-0441), an electronic copy of this proposal is available on the 
internet. Following signature by the EPA Administrator, the EPA will 
post a copy of this proposed action at https://www.epa.gov/stationary-sources-air-pollution/infrastructure-new-hap-additions. Following 
publication in the Federal Register, the EPA will post the Federal 
Register version of the proposal and key documents at this same 
website. In addition, a copy of the redline/strikeout version of the 
regulatory language showing the possible edits needed to incorporate 
the proposed changes to 40 CFR part 63, subparts A and C is included in 
the docket for this action (Docket EPA-HQ-OAR-2022-0441). Following 
signature by the Administrator, the EPA also will post a copy of this 
document to https://www.epa.gov/stationary-sources-air-pollution/infrastructure-new-hap-additions.

II. Basis for the Proposed Action

    In the 1990 CAA Amendments, Congress established a list of HAP. 
These HAP are associated with a wide variety of adverse health effects, 
including, but not limited to cancer, neurological effects, 
reproductive effects, and developmental effects. The health effects 
associated with various HAP differ depending upon the toxicity of the 
individual HAP and the circumstances of exposure, such as the amount of 
chemical present, the length of time a person is exposed and the stage 
of life at which the person is exposed. Prior to the 1990 CAA 
Amendments, the EPA was required to list HAP for regulation under a 
risk- and health-based approach, which called for a conclusion that a 
HAP could ``cause or contribute to, an increase in mortality, an 
increase in serious irreversible, or incapacitating reversible 
illness.'' CAA section 112(a)(1), Public Law 91-604, 84 Stat. 1676, 
1685 (1970). This approach proved unsatisfactory in achieving the goal 
of improved public health. In the 1990 CAA Amendments, Congress 
dispensed with this provision, listed 189 HAP in CAA section 112(b)(1) 
for regulation under CAA section 112(d), and provided for modifications 
of the HAP list either by petition or on the Administrator's 
determination under CAA sections 112(b)(3)(A) and (B).
    As relevant here, in CAA section 112(b)(3), Congress provided that 
any person may petition the Administrator to modify the list of HAP by 
adding or deleting a pollutant. On January 5, 2022, the EPA published a 
final rule that added 1-BP to the CAA HAP list, with an effective date 
of February 4, 2022 (87 FR 393). This addition came as a result of the 
EPA's determination that the petition we received requesting that we 
list 1-BP as a HAP provided adequate data to support that 1-BP is an 
air pollutant and that emissions, ambient concentrations, 
bioaccumulation or

[[Page 62715]]

deposition of 1-BP are known to cause or may reasonably be anticipated 
to cause adverse effects to human health or adverse environmental 
effects. Before publishing the final rule, EPA published a draft notice 
of its rationale for granting the petition.\2\ (American Forest and 
Paper Ass'n v. E.P.A, 294 F.3d 113, 117 n.3 (D.C. Cir. 2002) (``Section 
112(b) does not contemplate a formal rulemaking and is not among the 
sections enumerated in section 307(d)(1) (although other subsections of 
section 112 are included there).''). This was the first time that a HAP 
was added to the HAP list that Congress created in 1990. While this was 
the first action to add a HAP to the list, the EPA is preparing for 
additional future listings. These listings could come from public 
petitions, as allowed by CAA section 112(b)(3), through action taken by 
the Administrator under CAA section 112(b)(2) of the CAA, or through 
actions or directives from Congress.
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    \2\ 82 FR 2354 at 2356 (January 9, 2017).
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    Prior to listing 1-BP as a HAP, the EPA evaluated whether any 
regulatory changes were warranted to the NESHAP program to ensure the 
effective and efficient implementation of any requirements stemming 
from the addition of a new pollutant to the HAP list. As part of this 
review, the EPA published an advanced notice of proposed rulemaking 
(ANPRM) on June 11, 2021, that sought information about potential 
NESHAP regulatory requirements resulting from the listing of the first 
new HAP, 1-BP, as well as other potential implications of the listing 
of any future HAP (86 FR 31225).
    Based on the EPA's review and the public comments received on the 
ANPRM, the EPA determined that there are several regulatory impacts 
that could ensue when a pollutant is added to the HAP list. As 
described in this document, the EPA considered each of these impacts. 
In some cases, the existing regulatory provisions were sufficient to 
ensure effective and efficient implementation of the newly listed HAP. 
In other cases, the EPA determined that the regulations did not 
adequately address the issues that arise when a pollutant is added to 
the HAP list. Therefore, for those instances, the EPA is proposing in 
this action regulatory language to ensure the effective and efficient 
implementation of a newly listed HAP. The EPA requests comments on 
whether additional changes are needed to fully and clearly implement 
provisions related to a new HAP listing.

A. What changes are we proposing?

    The EPA evaluated several potential issues related to listing a new 
HAP. We reviewed whether a new HAP listing has any impact on NESHAP 
promulgated before the new HAP was added to the list. As discussed 
below, the EPA concluded that the statute does not support a new HAP 
being regulated by such a NESHAP unless and until the EPA first 
evaluates the specific HAP for regulation under CAA section 112 and 
promulgates standards that include the new HAP. In this action, the EPA 
is proposing language to be added to 40 CFR part 63, subpart C to 
clarify this conclusion.
    Another question that arose was the period of time allowed for a 
source to include the newly listed HAP in the source's PTE calculation. 
Based on the existing language in CAA section 112 and the NESHAP 
General Provisions (40 CFR part 63, subpart A), the EPA determined that 
a source must include the new HAP in the source's PTE calculation on 
the effective date of the listing of the new HAP. This requires 
including the new HAP in the evaluation of whether the facility is a 
major source of HAP, or an area source based on the source's PTE 
calculation.
    The addition of the emissions of a newly listed HAP in the 
calculations of the PTE for a facility could change the facility status 
from an area source to a major source per the major and area source 
definitions in CAA section 112. If this occurs, the MSDL facility will 
face new permitting requirements. In addition, the MSDL facility will 
need to evaluate whether, due to its major source status, any of its 
existing emission units are subject to one or more NESHAP that are 
applicable to emission units located at major sources. For example, in 
addition to evaluating the NESHAP applicable to the specific industry, 
the MSDL facility will need to evaluate for purposes of applicability 
NESHAP that regulate multiple industrial sections such as NESHAP for 
industrial boilers or reciprocating engines. If applicable NESHAP are 
identified, the facility would need to evaluate the requirements within 
each applicable NESHAP and determine compliance requirements. Based on 
the rationale discussed in section IV.D., this action proposes 
regulatory language to the NESHAP General Provisions to clarify both 
the applicability and compliance timelines of newly triggered NESHAP 
requirements for MSDL facilities.
    The EPA also evaluated whether there should be any notification 
requirements for facilities that emit a newly listed HAP, including 
requirements for the facility to notify nearby communities. As 
discussed in section II.B., a facility already operating under a title 
V operating permit that triggers applicability of any new NESHAP 
requirements as it becomes a major source (i.e., MSDL) may need to 
apply to modify its permit to include such new applicable NESHAP 
requirements in their permit. MSDL facilities seeking an operating 
permit for the first time would need to modify or submit a permit 
application that addresses all applicable requirements consistent with 
the permitting authority's program. See 40 CFR 70.3(c)(1) and 70.2. A 
facility that becomes newly subject to a major source NESHAP would also 
need to submit the initial notification required by the specific 
applicable NESHAP. This action proposes that initial notifications 
under 40 CFR part 63, subpart A require some minimal additional 
information from sources becoming major due to the inclusion of a newly 
listed HAP in emission calculations.

B. Are there any concurrent changes to Title V Programs in this action?

    Section 502(d)(l) of the CAA, 42 U.S.C. paragraph 766la(d)(1), 
requires each state to develop and submit to the EPA an operating 
permit program to meet the requirements of title V of the CAA and the 
EPA's implementing regulations at 40 CFR part 70 (hereinafter ``title 
V''). All major stationary sources of air pollution and certain other 
non-major sources are required to apply for and operate in accordance 
with title V operating permits that include emission limitations and 
other conditions as necessary to assure compliance with applicable 
requirements of the CAA, including the requirements of the applicable 
implementation plan. 42 U.S.C. paragraphs 7661a(a), 7661b.
    When a pollutant is added to the HAP list, sources that have the 
potential to emit the new HAP must include the HAP in calculating the 
source's potential to emit beginning on the effective date of the 
listing of the new HAP. The inclusion of a new HAP in the source's PTE 
can result in a change in classification of the source from area source 
to major source. A source whose classification changes solely due to 
the addition of a HAP to the HAP list (i.e., MSDL) will need to 
determine what, if any, future permitting action must be taken.
    Since MSDL facilities are, by definition, not major HAP sources 
before the HAP listing action, they would be operating as a non-major 
HAP

[[Page 62716]]

source under a permit or other authorization. As a non-major (e.g., 
area, synthetic area) HAP source, the facility may have a source 
specific permit, but could also be operating under a general permit or 
registration permit. Those MSDL facilities that wish to retain their 
non-major status will need to consider the newly listed HAP when they 
seek to reduce their PTE HAP and (unless they opt to become true area 
for HAP) will need to request enforceable permit terms sufficient to 
reduce the facility's PTE to below HAP major source levels (i.e., 10 
tons of any single HAP and 25 tons of all HAP). Facilities should 
coordinate all changes in classification with their permitting 
authority.
    If an MSDL facility does not elect to reduce its HAP emissions or 
PTE to maintain its area source status, as a major source it would be 
subject to the obligation to obtain a title V operating permit. Under 
the title V operating permit program, the regulations provide that 
``[a] timely application for a source applying for a part 70 permit for 
the first time is one that is submitted within 12 months after the 
source becomes subject to the permit program or on or before such 
earlier date as the permitting authority may establish.'' 40 CFR 
70.5(a)(1)(i). Because permitting authorities can establish more 
stringent deadlines than 12 months, MSDL facilities should check with 
their appropriate title V permitting authority to determine when a 
timely part 70 application is required.
    The EPA is not proposing changes to the title V program or 
regulations; however, some state, local, and tribal title V programs 
may need to initiate a conforming program revision to update their 
implementing regulations, e.g., to include newly listed HAP in their 
HAP definition if their current regulations do not include newly listed 
HAP. The EPA encourages state, local, and tribal programs to evaluate 
whether any regulatory changes are needed to their rules to implement 
newly listed HAP under their approved program and those programs should 
consult with their respective EPA regional permitting contact for the 
program if they have questions. State, local, and tribal programs must 
keep the EPA apprised of regulatory changes they believe are needed to 
their approved part 70. 40 CFR 70.4(i). The EPA has determined that the 
current regulations for state programs (i.e., 40 CFR part 70) and the 
implementing regulations for federal operating permits (40 CFR part 71) 
do not need to be revised concurrently with this action because these 
regulations address permitting requirements in agreement with title V 
of the CAA, including permitting prompted when new HAP are listed. In 
particular, 40 CFR 70.3 and 70.2, require that a state program must 
provide for permitting of, among other major sources, a ``major source 
under section 112 of the Act'' including those with potential to emit a 
HAP or multiple HAP ``which has been listed pursuant to section 112(b) 
of the Act'' above major source thresholds. States and some tribes 
implement title V permitting under their EPA approved programs for 
sources in their jurisdictions. For sources subject to the federal 
operating permits program implemented by the EPA, 40 CFR part 71 
includes similar applicability provisions (see e.g., 40 CFR 71.3 and 
71.2) inclusive of major sources due to listing and other provisions 
required for implementing permitting requirements for covered sources. 
The EPA requests comments on the determination that no edits are 
required to the title V program for this purpose.

C. What is our rationale for the proposed changes?

    This section presents the EPA's proposed rationale for the proposed 
changes to the NESHAP General Provisions (40 CFR part 63, subpart A) 
and our proposed conclusions regarding key issues and questions related 
to listing of new HAP. The issues and questions, along with our 
proposed conclusions and rationale, are discussed individually below.
1. Are newly listed HAP regulated under NESHAP promulgated before the 
effective date of the listing?
    In the June 11, 2021, ANPRM addressing the addition of 1-BP to the 
HAP list, the EPA raised the question of whether an existing NESHAP 
should apply to a newly listed HAP on the effective date of the HAP 
listing. The ANPRM solicited data and comments on the potential 
regulatory impacts of the addition of a HAP to the HAP list.\3\
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    \3\ 86 FR 31225.
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    Because this was the first time the EPA was adding a pollutant to 
the HAP list, the ANPRM discussed several potential issues that could 
result from the addition of a pollutant to the CAA section 112 HAP 
list. One question the EPA raised in the ANPRM was whether a newly 
listed HAP is regulated under any NESHAP that is in existence on the 
effective date of the newly listed HAP. In the ANPRM, the EPA more 
fully discussed this question and provided an example of numeric limits 
in coating rules that are often based on a limitation on the amount of 
organic HAP per unit. The example was whether the addition of new 
pollutant to the HAP list could require counting emissions of the new 
HAP in compliance calculations for many NESHAP for coating operations. 
This is because in most instances these coatings NESHAP typically 
define HAP by a direct reference to the HAP list published in the 1990 
CAA and as modified pursuant to section 112(b). We noted that any 
modifications to the HAP list are included in 40 CFR part 63, subpart 
C. In the ANPRM, the EPA requested comment on whether a newly listed 
HAP should be regulated under previously existing NESHAP.
    On January 5, 2022, the EPA published a final rule that added 1-BP 
to the HAP list (87 FR 393). Based on our consideration of the comments 
on the ANPRM and the EPA's own review of statutory requirements, the 
EPA concluded that a newly listed HAP is not regulated under existing 
NESHAP and stated that the final rule would ``have no direct immediate 
impacts under 40 CFR part 63 on emissions of 1-BP.'' \4\
---------------------------------------------------------------------------

    \4\ 87 FR 395.
---------------------------------------------------------------------------

    The conclusion that existing NESHAP do not regulate a newly listed 
HAP is consistent with CAA section 112. First, CAA section 112(e)(4) 
states that ``no action of the Administrator adding a pollutant to the 
list under subsection (b) or listing a source category or subcategory 
under subsection 112(c) shall be a final agency action subject to 
judicial review, except that any such action may be reviewed under such 
section 7607 [section 307] of this title when the Administrator issues 
emission standards for such pollutant or category.'' This language, by 
establishing two distinct steps, supports the EPA's conclusion that 
previously promulgated NESHAP do not regulate newly listed HAP.\5\ 
Rather it is only after the EPA establishes new standards or revises 
previous standards to include the newly listed HAP (for instance, 
adding a newly listed organic HAP to a standard that covers total 
organic HAP) that the listing of a new HAP is subject to review.
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    \5\ See also Util. Air Regul. Grp. v. E.P.A., No. 01-1074, 2001 
WL 936363, at *1 (D.C. Cir. July 26, 2001)(dismissing challenge to 
listing of coal- and oil-fired electric utility steam generating 
units as a source category under Section 112(c) for lack of 
jurisdiction). ``Section 112(e)(4) of the Clean Air Act provides 
that judicial review of the listing of a source category under 
section 112(c) of the Act is not available until after emission 
standards are issued. See 42 U.S.C. 7412(e)(4).''
---------------------------------------------------------------------------

    Second, having listed the new HAP using the process in CAA section 
112(b), CAA section 112(d) sets out prescriptive procedures for 
establishing emissions standards for major sources. These statutory 
procedures include that a

[[Page 62717]]

standard must be established for each HAP--a process that cannot occur 
until the EPA gathers sufficient information about which sources emit 
the HAP and the emission rate of the HAP.\6\ Moreover, CAA section 
112(d) requires that the MACT floor be based on the emission level 
actually achieved by the best performing sources.\7\ As part of the 
MACT determination, we must also evaluate whether options more 
stringent than the floor are justified under the statute. This task 
thus requires not only the emissions information of the new HAP from 
sources, but a review of information related to the potential emission 
controls and systems of controls that are, or could be, employed to 
reduce the emissions of the newly listed HAP. Because the EPA did not 
consider a pollutant that was not a HAP at the time it established 
existing NESHAP, the statutory process for establishing a standard for 
the new HAP has not been followed; therefore, the conclusion that 
existing NESHAP do not regulate a newly listed HAP is consistent with 
the statute.
---------------------------------------------------------------------------

    \6\ U.S. Sugar Corp. v. EPA, 830 F.3d 579 (D.C. Cir. 2016) 
(``EPA's pollutant-by-pollutant approach [to standard setting] is a 
reasonable interpretation and application of the statute;''); 
National Lime Association v. EPA, 233 F. 3d 625, 634 (D.C. Cir. 
2000). (EPA must set standards under section 112(d) for each listed 
HAP. EPA has a ``clear statutory obligation to set emissions 
standards for each listed HAP.'').
    \7\ Cement Kiln Recycling Coalition v. EPA, 255 F.3d at 86 
(``EPA may not deviate from section 7413(d)(3)'s requirement that 
floors reflect what the best performers actually achieve by claiming 
that floors must be achievable by all sources using MACT 
technology.'').
---------------------------------------------------------------------------

    In summary, the conclusion that a newly listed HAP is not regulated 
by any standards promulgated prior to the HAP being listed is 
consistent with this statutorily required and well-ordered process 
whereby under CAA section 112(b) the EPA lists a new HAP; CAA section 
112(d) requires the EPA to gather information (e.g., inventories and 
ranking of best performers) sufficient to establish new or revised 
standards for the newly listed HAP; and CAA section 112(e) allows for 
review of the listing when the new or revised emission standards is 
finalized.
    The EPA is requesting comment on whether regulatory text should be 
included in either the NESHAP General Provisions, 40 CFR part 63, 
subpart A or in part 63, subpart C, where new HAP are listed, to make 
it clear that a new HAP is not regulated by a previously promulgated 
NESHAP until the NESHAP is reviewed and the inclusion of the new HAP is 
fully evaluated for regulation. A redline/strike out version of 
proposed regulatory language for the preferred options is included in 
the docket for this action.
2. When must a newly listed HAP be included in emission estimates and 
what are the potential regulatory implications?
    While the emissions of a newly listed HAP are not regulated by 
NESHAP promulgated before the HAP was listed, the pollutant listed 
becomes a HAP on the effective date of the listing. On and after the 
effective date of the listing of a new HAP, it must be included in 
calculating the facility's actual emissions and PTE for the purposes of 
determining whether a facility is a major source or area source under 
Part 63.\8\ This is because, under CAA section 112(a)(1) a major source 
is ``any stationary source or group of stationary sources . . . that 
emits or has the potential to emit considering controls, in the 
aggregate, 10 tpy or more of any hazardous air pollutant or 25 tpy or 
more of any combination of hazardous air pollutants.'' \9\ (Emphasis 
added)
---------------------------------------------------------------------------

    \8\ 40 CFR 63.2.
    \9\ ``In the context of the CAA, `any' has an expansive meaning 
that is, `one or some indiscriminately of whatever kind.' '' New 
York v. EPA, 443 F.3d 880, 885 (D.C. Cir. 2006)(citations omitted).
---------------------------------------------------------------------------

    The inclusion of a new HAP could change a facility's status from an 
area source to a major source of HAP. If the sole reason for a 
facility's status change from area to major is the inclusion of the 
newly listed HAP, the facility would be considered a ``major source due 
to listing'' or ``MSDL'' facility. For the reasons discussed below MSDL 
facilities, as a result of becoming major on the effective date of the 
listing of a new HAP, would become subject to any applicable standards 
covering HAP other than the newly listed HAP in existing major source 
NESHAP. The EPA specifically requests comments and data on whether, as 
a result of the listing of a new HAP, there are other sources that are 
directly impacted by the listing of a new HAP.
a. Permitting Impacts for Sources and Programs
    All major sources must operate in agreement with a title V 
operating permit. Consequently, upon listing of a new HAP, MSDL 
facilities will need to determine what, if any, future permitting 
action such as application for an initial title V operating permit or 
permit revision or an application for other type of permit must be 
taken. For example, a source with an individual PTE limit for HAP, 
issued in a minor source permit, would have to ensure the supporting 
data and calculations of actual HAP emissions used to verify the PTE 
limit account for newly listed HAP emissions. Any required permitting 
action depends on the individual situation as governed by the 
permitting authority rules; thus, sources are advised to coordinate 
these actions with the permitting authority with jurisdiction for the 
source. Facilities that wish to operate as area sources of HAP and 
avoid applicability of major source NESHAP requirements could do so at 
any time and must obtain legally and practically enforceable PTE HAP 
restrictions below major source levels available under their permitting 
authority programs. This does not include true area sources, which do 
not need enforceable PTE limits.
    However, if the MSDL facility does not wish to pursue non-major 
source status, as a major source of HAP they will be subject to the 
title V operating permit program. Under the title V operating permit 
program regulations ``A timely application for a source applying for a 
part 70 permit for the first time is one that is submitted within 12 
months after the source becomes subject to the permit program or on or 
before such earlier date as the permitting authority may establish.'' 
70.5(a)(1)(i). Because permitting authorities can establish different 
deadlines, MSDL facilities should check with their appropriate title V 
permitting authority to determine exactly when a timely Part 70 
application is required.
    The title V regulations are inclusive of all listed HAP; however, 
some state, local, and tribal title V programs may need to initiate a 
conforming program revision to update their implementing regulations, 
e.g., to include newly listed HAP in their HAP definition if their 
current regulations do not include newly listed HAP. The EPA encourages 
state, local, and tribal programs to evaluate whether any regulatory 
changes are needed to their rules to implement newly listed HAP under 
their approved program and those programs should consult with their 
respective regional permitting contact for the program if they have 
questions. State, local, and tribal programs must keep the EPA apprised 
of regulatory changes they believe are needed to their approved part 70 
program. 40 CFR 70.4(i).
    Also, the EPA is aware that some permitting authority programs for 
limiting PTE for categories of similar sources such as general permits, 
permits by rule, source registrations currently in use for limiting PTE 
HAP may not be authorized for newly listed HAP and may need revisions. 
The EPA encourages permitting authorities to

[[Page 62718]]

review their programs for issuing PTE limits for HAP sources and ensure 
they have adequate regulatory authority as needed to implement legally 
and practicably enforceable PTE limits that include newly listed HAP.
b. Part 63 NESHAP
    All sources that become MSDL facilities will need to evaluate 
whether any major source NESHAP apply to their operations. In some 
cases, there may be a transition from an area source NESHAP to a major 
source NESHAP for the same source category. For example, an MSDL 
facility may have been subject to the Boiler NESHAP for area sources 
prior to becoming an MSDL facility but would now become subject to the 
Boiler NESHAP for major sources.
    In addition to a larger number of potentially applicable rules, 
NESHAP for major sources tend to be more comprehensive than most area 
source NESHAP, covering more pollutants and emission sources and are 
generally at least as stringent as area source requirements due to 
differing requirements under the CAA.\10\ The EPA recognizes that there 
are some unique questions that arise for MSDL facilities when 
considering the application of a NESHAP that was developed before the 
MSDL facility became a major source. Two main questions that the EPA 
evaluated are: (1) what standards apply to MSDL facilities (whether new 
source or existing source standards apply to MSDL facilities)? and (2) 
what compliance time should be provided for the MSDL facilities?
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    \10\ In particular, CAA section 112(d)(5) allows the EPA to set 
standards for area source categories based on ``generally available 
control technology or management practices,'' which may be less 
stringent than the standards required for major sources under 
sections 112(d) or 112(f).
---------------------------------------------------------------------------

1. What standards apply to MSDL facilities?
    Section 112 of the CAA and its implementing regulations distinguish 
between ``new source'' and ``existing source'' for the purpose of both 
the stringency of the emission standard and the time allowed for 
compliance with applicable standards. Specifically, CAA section 
112(a)(4) defines a new source as a source that commenced construction 
or reconstruction after the Administrator first proposes regulations 
under section 112, while CAA section 112(a)(10) defines an existing 
source as any stationary source other than a new source. The EPA has 
also explained that the phrase ``first proposes'' in CAA section 
112(a)(4) is somewhat ambiguous such that it could be viewed as 
referring to different dates in different circumstances. For example, 
it could be read as the first time the Agency proposes any standards 
for a source category, the first time the Agency proposes standards 
under a particular rulemaking record for a source category, or the 
first time the Agency proposes a particular standard.\11\ The 
determination of whether the standard that applies to a particular 
source is for ``new'' or ``existing'' sources is also important to 
determining the compliance deadline.
---------------------------------------------------------------------------

    \11\ See for example, National Emission Standards for Hazardous 
Air Pollutants for the Portland Cement Manufacturing Industry and 
Standards of Performance for Portland Cement Plants (78 FR 10006, 
10025; February 12, 2013).
---------------------------------------------------------------------------

    Current rules also address cases where, after the initial 
promulgation of a NESHAP, an area source makes the decision to increase 
its emissions such that it becomes a major source. Language is included 
in the NESHAP General Provisions at 40 CFR 63.6(b)(7) and (c)(5), as 
well as in many individual NESHAP, to address the consequences of this 
decision made by an individual facility. In this situation, the EPA has 
determined that the designation of ``new source'' and ``existing 
source'' should remain defined by the dates given in each individual 
NESHAP and that does not change when a source reclassifies from area to 
major source.\12\
---------------------------------------------------------------------------

    \12\ See 85 FR 73854, 73867 (Nov. 19, 2020) (Revisions to 40 CFR 
part 63, subpart A to address the issue of compliance issues for 
sources that make the decision to increase their potential to emit 
and reclassify from area source status to major source status).
---------------------------------------------------------------------------

    However, the NESHAP General Provisions do not address the unique 
situation that arises when a new HAP is listed and an area source 
becomes a major source solely due to the addition of a new HAP when 
calculating the source's PTE (i.e., MSDL facilities).\13\ In this 
action, the EPA is requesting comment on whether to amend the NESHAP 
General Provisions to specifically address this issue. In addressing 
this issue, the EPA has considered two alternatives: (1) as done with 
non-MSDL major sources facilities, determine whether an affected source 
was new or existing based on each specific NESHAP for MSDL facilities, 
or (2) designate all affected sources for newly applicable NESHAP at an 
MSDL facility to be existing affected sources. While the EPA is 
proposing the second option, i.e., all MSDL facilities should be 
considered existing sources, both alternatives are discussed below.
---------------------------------------------------------------------------

    \13\ In 1994 EPA first promulgated the NESHAP General 
Provisions, which are codified in 40 CFR part 63, subpart A, and 
which provide the general framework for establishing emission 
standards and compliance timing for HAP regulations (59 FR 12408; 
March 16, 1994).
---------------------------------------------------------------------------

    Under the first alternative, an MSDL facility would continue to 
refer to each individual NESHAP and compare the date of construction of 
an affected source to the date an individual NESHAP was proposed. Under 
this approach, the determination of ``existing source'' and ``new 
source'' would be the same regardless of when a facility became major 
and regardless of how a facility became major (i.e., through their own 
action or through an EPA action of HAP listing). If the EPA were to 
finalize this alternative, no changes would be made to 40 CFR part 63, 
subpart A, Sec.  63.1 (Applicability). However, the EPA could provide a 
clarifying statement in the current regulatory text with respect to 
MSDL facilities. The EPA requests comments on whether such clarifying 
statements would be necessary or helpful.
    The EPA has some concerns about the potential impacts for MSDL 
facilities that would be considered new sources under this first 
alternative. These concerns center around (1) the lack of notice 
provided to the MSDL that it is becoming subject to major source 
requirements, and (2) the action that created the major source 
requirement was solely from the addition of a new HAP.
    A newly listed pollutant becomes a HAP on the effective date of the 
listing. As defined, a MSDL facility becomes a major source solely due 
to the EPA action to add a new HAP to the HAP list. This accounting is 
required because under CAA section 112(a)(1), a facility must include 
``any hazardous air pollutant'' in calculating the potential to emit 
for the purposes of determining whether it is a major source under this 
section of the Act. Thus, on and after the effective date of the 
listing of a new HAP, a facility must include such HAP in the actual 
emissions and potential to emit calculations.\14\ Within each major 
source of HAP (defined at the facility level) there could be one or 
more affected sources, and where there are more than one affected 
source each one could be either a new or an existing source. Section 
112(a)(4) of the CAA defines a new source as a source that commenced 
construction or reconstruction after the Administrator first proposes 
regulations under this section, while CAA section 112(a)(10) defines an 
existing source as any stationary source other than a new source. As 
previously noted above, ``first proposes'' could be read to mean the 
first time the Agency proposes any

[[Page 62719]]

standards for a source category, the first time the Agency proposes 
standards under a particular rulemaking record for a source category, 
or the first time the Agency proposes a particular standard.\15\ Here, 
the EPA's listing of a new HAP is not the proposal of standards under 
relevant statutory provisions, and as previously explained, existing 
NESHAP do not regulate a newly listed HAP. It also bears note that 
there is no specific period for promulgating standards for newly listed 
HAPs, under CAA section 112(b)(1). Additionally, the CAA distinction 
between new and existing sources is reasonably understood to be 
predicated on some basic principles, including that a new source can 
potentially be held to more stringent compliance requirements than 
existing ones. In some cases, new source requirements are based on the 
ability of these sources to design processes to accommodate air 
pollution control systems.\16\ The facility choosing to construct or 
reconstruct a new affected source can consider the applicable standards 
and other requirements in making both the technical and economic 
decisions that surround the evaluation to construct or not construct 
the emissions unit. Legislative history from the 1990 CAA Amendments 
also suggests that ``the test of section 112(a)(4) as to whether a 
source is commencing construction or reconstruction is physical and 
economic, rather than emissions related.'' S. Rep. No. 229, 101st Cong. 
1st Sess. 1989, 1990 U.S.C.C.A.N. at 3385, 1989 WL 236970.\17\
---------------------------------------------------------------------------

    \14\ CAA sections 112(a)(1); 40 CFR 63.2.
    \15\ See for example, National Emission Standards for Hazardous 
Air Pollutants for the Portland Cement Manufacturing Industry and 
Standards of Performance for Portland Cement Plants (78 FR 10006, 
10025; February 12, 2013).
    \16\ For new sources, ``the maximum degree of reduction in 
emissions that is deemed achievable . . . shall not be less 
stringent than the emission control that is achieved in practice by 
the best controlled similar source.'' CAA section 112(d)(3).
    \17\ ``It does not require increases in emissions or changes in 
the operation of previously existing facilities to be triggered. 
Since there is no threshold of emissions increase, it is not 
possible for an existing source adding new facilities to avoid being 
considered new by `netting out' or reducing so that the increase is 
below some threshold of significance.'' Id.
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    In contrast, a MSDL facility is newly subject to standards that 
were published long before the HAP listing action that resulted in the 
facility exceeding the major source threshold. But when the facility 
was being constructed as an area source, the source had no reason to 
contemplate the applicability of major source NESHAP.\18\ As discussed 
above, notice of the requirements at the time that the facility is 
constructed or reconstructed is a key distinction between ``new'' and 
``existing'' emission standards under CAA section 112 and the NESHAP 
regulations. This is because CAA section 112(a)(4) defines a new source 
as a source that commenced construction or reconstruction after the 
Administrator proposes regulations for the applicable source category. 
The notice of a proposed major source NESHAP allows a source to 
consider the proposed standard when considering the design of or 
constructing a potentially new affected emissions unit. Having this 
notice allows the source to alter the design to eliminate the emissions 
of the regulated HAP or alter the design of the emissions unit to 
ensure that when the emission unit commences operation it can meet the 
``new'' source limit. This is because a MSDL facility that was already 
operating when the EPA lists a new HAP is not aware at the time of 
construction or reconstruction that it would subsequently be subject to 
a major source NESHAP, since no standard applied at that time. 
Therefore, it could be more appropriate to treat such source as an 
existing source.
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    \18\ EPA also notes that the definition of a new affected source 
is made within each emission standard. When making the determination 
as to whether a new or revised emission limit warrants the re-
designation of the new affected source date, the EPA must consider 
several factors.
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    Moreover, a listing action is not subject to the robust public 
notice and comment requirements provided in CAA section 307(d).\19\ The 
EPA acknowledges that the Agency could provide some degree of public 
notice before a new HAP is listed, with one or more documents in the 
Federal Register because ``in most instances, even where there is no 
statutory requirement to take comment, the EPA solicits public comment 
on actions it is contemplating.'' \20\ But these documents would 
typically address the substantive requirements for listing a substance 
as a HAP and would likely provide little or no information on sources 
that would be impacted by the listing decision.\21\ Additionally, such 
notices would also have been published years after a facility 
constructed or reconstructed their affected source at an area source 
facility. Further, where the Agency lists a HAP in response to a 
petition, the Agency would be unable to impose compliance obligations 
for that HAP considering that not all affected sources were involved in 
the listing action and as such would be precluded from challenging the 
listing decision as specified by section 112(e)(4) until the Agency 
promulgates standards for the newly listed HAP.\22\
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    \19\ American Forest and Paper Ass'n v. EPA, 294 F.3d 113, 117 
n.3 (D.C. Cir. 2002) (``CAA section 307(d)(9), however, by its terms 
applies only to `rulemakings' pursuant to the CAA sections 
enumerated in section 307(d)(1), 42 U.S.C. 7607(d)(1). Section 
112(b) does not contemplate a formal rulemaking and is not among the 
sections enumerated in section 307(d)(1) (although other subsections 
of section 112 are included there.'').
    \20\ 68 FR 28198, June 4, 1996.
    \21\ CAA section 112(b)(3)(A) requires the Administrator to 
either grant or deny a petition within 18 months of the receipt of a 
complete petition by publishing a written explanation of the reasons 
for the Administrator's decision. See for example 82 FR 2354, 
January 9, 2017 (draft notice of the rationale for granting 
petitions to add n-propyl bromide to the HAP list); La. Envtl. 
Action Network v. Envtl. Prot. Agency, 955 F.3d 1088, 1098 (D.C. 
Cir. 2020) (``the Act[ ] specifie[s] processes for adding to or 
subtracting from the statutory list of hazardous air pollutants, and 
its direction to EPA [is] to act within 18 months on a petition to 
modify the list. 42 U.S.C. 7412(b)(3)(A).'')
    \22\ ``Section 112(e)(4) of the Clean Air Act provides that 
judicial review of the listing of a source category under section 
112(c) of the Act is not available until after emission standards 
are issued. See 42 U.S.C. 7412(e)(4). This court therefore lacks 
jurisdiction at this time to review the determination of the 
Environmental Protection Agency (``EPA'') that regulation of coal- 
and oil-fired electric utility steam generating units is appropriate 
and necessary, and that such units should be listed as a source 
category under section 112(c).'' See Util. Air Regul. Grp. v. 
E.P.A., No. 01-1074, 2001 WL 936363, at *1 (D.C. Cir. July 26, 
2001). See also, Conference Group, LLC v. Federal Communications 
Commission, 720 F.3d 957 (D.C. Cir. 2013). (Nonparty to adjudication 
lacks standing to challenge merits of adjudication). But see Teva 
Pharma. v. Sebelius, 595 F.3d 1303 (D.C. Cir. 2010) (Allowing 
challenge where there was imminent harm or injury from Agency 
decision).
---------------------------------------------------------------------------

    Further, not only is a MSDL facility not able to plan accordingly 
to meet the ``new'' source standard, but there is also a possibility 
that the source, already in operation, cannot, as a technological 
matter, comply with the standard for new sources. For example, during 
the development of the NESHAP for Polyvinyl Chloride and Copolymers 
Production, the EPA acknowledged that due to the stringency difference 
between the new source and existing source standards that it might not 
be technically possible for an existing source to meet the new source 
standard. In the final rule the EPA modified the definition of existing 
source to ensure that existing sources were not subject to the new 
source standard, which was impossible for them to meet. See 77 FR 22848 
(April 17, 2002).
    Finally, unlike the situation where an area source becomes a major 
source (by increasing its HAP emissions or potential to emit), a MSDL 
facility becomes a major source due to EPA's listing of a new HAP. As 
also previously explained, a MSDL facility has no direct notice as to 
the applicability of the major source NESHAP and more importantly as to 
the applicability of any ``new'' source standard for major

[[Page 62720]]

sources as contemplated under CAA section 112(a)(4). Therefore, the 
MSDL facility cannot develop plans to comply with the standard to which 
it was not subject before it becomes applicable and could potentially 
be in non-compliance immediately upon the effective date of the listing 
of the new HAP in the absence of any changes proposed in this action. 
This would mean that some rules, while not applicable to the facility 
when the rule was proposed, now apply due to the EPA listing action and 
through no action of the facility. Moreover, it is not the promulgation 
of emissions standards under relevant statutory provisions and 
precedent for the newly listed HAP that has resulted in a status 
change. Rather, it is the HAP listing itself. This would mean that some 
rules, while not applicable to the facility when the rule was proposed, 
now apply due to the EPA listing action and through no action of the 
facility.
    These concerns lead the EPA to also favor the alternative option 
where all newly impacted affected sources at MSDL facilities would be 
treated as existing sources.
    Under this preferred option, the EPA would treat affected sources 
at MSDL facilities as existing affected sources because affected 
sources at MSDL facilities that might otherwise be considered ``new'' 
under a NESHAP-specific evaluation are not new sources as contemplated 
under CAA section 112(a)(4) in the circumstance where the source 
becomes a major source due to EPA's listing of a new HAP. First, the 
increase in the facilities' emissions or potential to emit that caused 
the facility to become a major source was caused solely by an EPA 
action to list a HAP and not based on any action by the facility to 
change its method of operation, add new equipment, or change any 
material throughput. Second, the facility was already operating the 
affected sources when the EPA's listing action, which is not the 
promulgation of emissions standards under relevant statutory provisions 
and precedent, resulted in a status change.\23\ When considering the 
construction for these sources, the facility may have evaluated 
applicable requirements that would apply to them as a non-major source. 
Third, these sources were not afforded advance notice to tailor 
construction plans to meet the new source requirements for major 
sources, but instead would be required to develop a compliance strategy 
on already-constructed emission sources.
---------------------------------------------------------------------------

    \23\ Emissions standards ``mean[s] a requirement established by 
the State or the Administrator which limits the quantity, rate, or 
concentration of emissions of air pollutants on a continuous basis, 
including any requirement relating to the operation or maintenance 
of a source to assure continuous emission reduction, and any design, 
equipment, work practice or operational standard promulgated under 
this chapter.'' CAA section 302(k).
---------------------------------------------------------------------------

    In conclusion, the EPA has considered both options discussed above 
and is proposing that all affected facilities at MSDL facilities that 
become subject to major source requirements solely due to the listing 
of a new HAP should be considered existing sources. Under this option, 
regulatory language would be added to 40 CFR part 63, subpart A, Sec.  
63.1(c) applicability requirements and a definition of MSDL would be 
added to Sec.  63.2. The EPA requests comments on all aspects of both 
alternatives presented above, as well as on the proposed selection of 
treating all MSDL facilities as existing sources. All significant 
comments received on issues related to effects of HAP listing on MSDL 
facilities during the public comment period will be considered.
2. When does an MSDL facility have to be in compliance with new 
requirements?
    When an MSDL facility triggers existing source NESHAP requirements 
under our proposed approach described in section II.C.3., there is an 
additional question of the appropriate compliance date. Because the 
NESHAP of concern have already been promulgated, typically many years 
in the past, it is likely that most of the compliance dates will have 
passed for both existing and new affected sources. The EPA understands 
that a past compliance date would indicate that a facility would need 
to be in compliance on the day the NESHAP is triggered; in this case, 
the day the HAP listing is effective. The EPA does not view this 
outcome as necessarily the most practical conclusion flowing from the 
overall intent and reading of CAA section 112 as well as rulemakings 
that implement CAA section 112. As this outcome can create significant, 
immediate compliance issues for facilities that have already been 
constructed, the EPA evaluated several options for establishing 
compliance dates for MSDL facilities.
    The General Provisions, 40 CFR part 63, subpart A, include 
requirements for facilities that increase their emissions (or potential 
to emit) to major source levels. The provision in 40 CFR 63.6 (b)(7) 
provides that new affected sources must comply with all requirements of 
a standard at start-up of the source.\24\ On the other hand, for 
existing sources, the provision in 40 CFR 63.6(c)(5) provides that a 
facility has the amount of time listed in a specific NESHAP for sources 
increasing emissions to major or ``equivalent to the compliance period 
specified in the relevant standard for existing sources in existence at 
the time the standard becomes effective.'' \25\ Several NESHAP include 
the provisions mentioned in 40 CFR 63.6(c)(5) for when an area source 
becomes a major source. Most, but not all, of these provisions tend to 
treat new sources very differently from existing sources, by providing 
time to come into compliance for existing affected sources that become 
major sources, but typically requiring immediate compliance for new 
sources that become major sources.
---------------------------------------------------------------------------

    \24\ For new affected sources, CAA section 112(i) provides that 
compliance with standards promulgated under CAA section 112(d)(2) 
and (3) is on the effective date of the NESHAP or upon startup, 
whichever is later.
    \25\ For existing sources, CAA section 112(i)(3) provides there 
shall be compliance ``as expeditiously as practicable, but in no 
event later than 3 years after the effective date of such standard. 
. . .'' (``Section 112(i)(3)'s 3-year maximum compliance period 
applies generally to any emission standard . . . promulgated under 
[section 112].'' Association of Battery Recyclers v. EPA, 716 F.3d 
667, 672 (D.C. Cir. 2013) (brackets in original)).
---------------------------------------------------------------------------

    The EPA reviewed these provisions for potential applicability to 
MSDL facility compliance times. The EPA determined that the current 
language in 40 CFR 63.6(b)(7), 63.6(c)(5) and the area- to- major 
language in individual NESHAP were not developed with MSDL facilities 
in mind and are therefore not applicable to MSDL facilities. Therefore, 
the EPA is proposing that the NESHAP General Provisions at 40 CFR 
63.6(d) be revised to address the compliance timing for MSDL 
facilities. As individual NESHAP are reviewed, the EPA can assess 
whether additional provisions addressing MSDL facilities are warranted. 
Any NESHAP-specific MSDL provision would supersede provisions 
promulgated in the General Provisions.
    The EPA is considering four possible approaches for establishing 
compliance schedules for MSDL facilities that trigger major source 
NESHAP: (a) Maintain the compliance deadlines in individual NESHAP, 
even past dates, and require all facilities to work with their 
regulatory authority to come into compliance; (b) Establish a 
compliance deadline consistent with time provided to existing sources 
under the applicable individual NESHAP; (c) Provide a single compliance 
timeline for MSDL facilities that have become subject to major source 
requirements, regardless of the times provided in the individual 
NESHAP; and (d) Provide compliance

[[Page 62721]]

deadlines based on the types of emission limitations or requirements.
    Each of these options is discussed in more detail below. While the 
EPA is proposing to provide compliance deadlines based on the types of 
emission limitations or requirements (option d in this list), the EPA 
requests comments on each of the following options and may select any 
of these options in the final rule, depending on comments received and 
the EPA's final analyses.
a. Maintain Compliance Schedules in Individual NESHAP
    Under this alternative, the EPA would make no changes to the NESHAP 
General Provisions (40 CFR part 63, subpart A) and would instead allow 
compliance dates in the individual NESHAP to remain the applicable 
compliance dates. Under this approach an MSDL facility would likely be 
out of compliance with any major source NESHAP that applies on the 
effective date of the listing of a new HAP. This is because the 
majority of major source NESHAP have compliance dates that pre-date the 
effective date of the newly listed HAP.
    This approach would likely lead to the earliest requirements for 
emission reductions by MSDL facilities, as they may alter their 
operations or work practices to either minimize emissions or work with 
their regulatory authority to address their non-compliance status. 
Emission reduction will not include direct emission control 
requirements for the newly listed HAP, as the EPA must first promulgate 
standards for such HAP. It would, however, result in emissions 
reductions of other regulated HAP as the facility complies with the 
applicable NESHAP. As previously discussed, above, this approach is 
predicated on the assumption that facilities are aware of the EPA 
actions that may impact their CAA compliance status since pre-notice is 
provided by the EPA's prior Federal Register documents on potential 
listings.\26\
---------------------------------------------------------------------------

    \26\ CAA section 112(b)(3)(A) merely calls for the Administrator 
to either grant or deny a petition within 18 months of the receipt 
of a complete petition by publishing a written explanation of the 
reasons for the Administrator's decision.
---------------------------------------------------------------------------

b. Provide a Timeline Equivalent to the Time Provided for Initial 
Compliance
    Under this alternative, the EPA is considering whether the 
compliance time provided to MSDL sources for a specific NESHAP should 
be equivalent to the initial time provided to existing affected sources 
in that NESHAP. This approach would acknowledge the source category-
specific evaluation of appropriate compliance time for the specific 
rule.
    The EPA reviewed numerous existing NESHAP and determined that the 
majority of NESHAP provided three years for existing sources to come 
into compliance with the standards. The specific justifications for 
allowing three years for existing sources to comply varied from NESHAP 
to NESHAP but were all predicated on a determination that three years 
was as expeditious as possible for those facilities.
    This option would call for the EPA to include in the NESHAP General 
Provisions regulatory language similar to existing language at 40 CFR 
63.6(c)(5). The regulatory language in the NESHAP General Provisions 
would provide MSDL facilities 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'' and would 
apply in the absence of any MSDL-specific language in individual 
NESHAP.''
    It should be noted that, at present, there are no MSDL-specific 
provisions in any individual NESHAP. Language currently in the General 
Provisions and NESHAP refers only to area sources that become major 
sources through a facility's own action that causes an increase in 
emissions or in their potential to emit. If no MSDL-specific language 
is included in a specific NESHAP, then the time provided by the new 
MSDL language in the General Provision will dictate the requirements.
    As discussed in section II.C.3. (What Standards Apply to MSDL 
Facilities?), the EPA is proposing to define all affected sources at 
MSDL facilities as existing affected sources for the purposes of 
determining the applicable emission standards. If the EPA were to 
instead promulgate the option that would require some sources to meet 
the new source emission limits, the EPA is still proposing to provide 
time for all MSDL facilities to come into compliance under this option. 
In this proposal, the EPA is considering whether providing some amount 
of compliance time--as typically done for existing sources--is 
appropriate for all MSDL sources. Specifically, under this option, all 
MSDL sources (including new sources) would be provided a time period 
equivalent to the time period provided to existing affected sources in 
the specific NESHAP.
    As discussed below, this is not the option that the EPA is 
proposing because we believe the final option in this list best 
balances the EPA's desire to obtain emission reductions as soon as 
practicable, but also allow time required for a facility to effectively 
and efficiently come into compliance with potentially multiple 
requirements; however, the EPA requests comments and supporting 
information on this option.
c. Provide a Single Timeline for all NESHAP Newly Triggered for MSDL 
Facilities
    Under this alternative, the EPA is considering whether a single 
compliance schedule should be provided for any new requirements at an 
MSDL facility when a new HAP is listed. As discussed above, the EPA 
conducted a review of current NESHAP and determined that the 
predominant compliance time provided to any impacted existing affected 
source is 3 years after a rule is promulgated. Based on this review, 
the EPA is considering whether to provide up to three years for all 
MSDL facilities to come into compliance with all newly applicable 
requirements.
    The EPA could consider a set deadline that is less than three 
years. In many instances, the EPA considered the availability of 
resources in assessing the amount of time needed to comply with a 
NESHAP. These resources could include the lack of enough vendors to 
supply the expected air pollution control devices in less than three 
years. The EPA does not expect that a significant number of sources 
that would draw on the same resources (e.g., the same air pollution 
control vendor) will become MSDL sources and solicits comment on 
whether this assumption is reasonable. To the extent that up to three 
years was provided in a specific NESHAP to account for the resource 
drain, it could be reasonable to consider a different set time period 
under this requirement for MSDL affected sources.
    The EPA is aware that an MSDL facility has the potential to trigger 
more than one NESHAP and associated requirements, and these different 
NESHAP could provide for different compliance time periods. The EPA is 
considering whether providing a single date would enable a facility to 
develop a comprehensive strategy to comply with all newly applicable 
major source NESHAP requirements. A single date would also provide 
absolute clarity to all stakeholders as to when compliance was 
required, regardless of the NESHAP subpart that becomes applicable to 
them. Under this option, the EPA could select the longest time period 
allowed in the various regulations (i.e., 3 years after promulgation 
date), the shortest time period (i.e., immediate compliance required 
for new sources), or some time in between. The EPA requests

[[Page 62722]]

comments on the potential for any of these time periods.
    The EPA recognizes that this option would allow some facilities 
more time than was allowed under the original NESHAP. However, this 
option recognizes that a facility may need to develop a compliance 
strategy for multiple NESHAP that may involve different types of 
compliance requirements. For example, a facility may need to design, 
order, install and activate an air pollution control device to comply 
with one NESHAP, and may need to implement operational changes, or work 
practice requirements, for a different NESHAP. Providing the facility 
with the ability to strategize their overall compliance approach might 
be significantly more efficient than requiring separate dates for 
simultaneously triggered requirements.
    This is not the option we are proposing in this document. While 
this approach may be reasonable when considering a facility could have 
multiple new requirements, the EPA believes that the chosen option best 
balances a reasonable time for facilities and the need to not 
unnecessarily delay the implementation of certain practices or 
technologies that would more quickly reduce emissions and associated 
risks. However, the EPA requests comments on this option, including 
whether it should be the selected option and whether a different 
compliance timeframe should be selected, e.g., within 2 years or within 
18 months under this option. In addition, we ask for comment on whether 
the EPA, if it were to promulgate this option, should include 
additional conditions. For example, the EPA could provide an overall 
compliance timeframe of ``no later than 3 years,'' but require that a 
MSDL facility demonstrate that any compliance date after 2 years would 
have to be justified to and approved by the Administrator (or delegated 
authority), unless compliance for a specific requirement required the 
installation of equipment, such as air pollution control devices.
    If the EPA were to finalize regulatory text that included some MSDL 
facilities being required to meet new source requirements, the EPA 
might still provide that all facilities be provided with the identical 
time allowance for compliance. The EPA solicits comments on this 
conclusion, as well as comments on alternatives that should be 
considered.
d. Provide Compliance Deadlines Based on the Types of Emission 
Limitations or Requirements
    As discussed above, the majority of existing NESHAP have provided 
the 3 years to comply, as allowed under CAA section 112(i)(3)(A). 
However, the EPA also has a long-standing history of providing shorter 
periods to ensure that the compliance requirements are consistent with 
statutory requirements. These shorter compliance periods are based, in 
part, on the type of emission standard. Where the emission standard is 
a work practice or does not require installation of add-on emission 
control device, the EPA has, consistent with CAA section 112(i)(3)(A) 
that requires compliance ``as expeditiously as practicable,'' required 
compliance in less than 3 years. For example, in establishing the 1995 
NESHAP for Chromium Emissions from Hard and Decorative Chromium 
Electroplating and Chromium Anodizing Tanks, the EPA stated, ``The EPA 
believes that the 1-year timeframe for decorative chromium 
electroplaters is sufficient because, based on the EPA's survey data, 
80 percent of existing sources already use fume suppressants and very 
few will need to install add-on air pollution control devices.'' (60 FR 
4948; January 25, 1995). In the 1994 NESHAP for Magnetic Tape 
Manufacturing Operations, the EPA provided 2 years to comply unless a 
new control device was needed. (December 15, 1994). In the 2004 Iron 
and Steel NESHAP the EPA required existing iron and steel foundries to 
comply with the scrap selection and inspection program within 1 year of 
the effective date of the final rule because no controls were required, 
and emission reductions would be achieved as expeditiously as 
practicable (69 FR 21906; April 22, 2004).
    Based on the EPA's history of establishing compliance deadlines for 
existing sources based on the type of emission standard, the EPA is 
proposing that the compliance deadline for MSDL facilities should be 
based on the type of emission standard applicable to the facility. For 
example, if the applicable emission standard requires the installation 
of add-on controls the compliance deadline would be longer (e.g., a 2-
year compliance deadline starting from the date the source becomes 
major due to the listing of a new HAP) as compared with an emission 
standard that does not require the addition of controls (e.g., 1 year 
from the date the source becomes major due to listing of a new HAP if 
the emission standard is a work practice). The EPA is requesting 
comment on the appropriate compliance deadline (e.g., from 0 up to 3 
years) depending on the type of emission standard. The EPA acknowledges 
that the CAA allows title V permitting authorities to grant sources, on 
a case-by-case basis, extensions to the compliance time of up to 1 year 
if such time is needed for the installation of controls. See CAA 
section 112(i)(4)(i)(A). Permitting authorities are already familiar 
with, and in many cases have experience with, applying the 1-year 
extension authority under CAA section 112(i)(4)(A) as the provision 
applies to all NESHAP. This option will remain available to MSDL 
facilities.
    In addition to the long-standing compliance deadline 
differentiation based on the type of emission standard, the EPA 
believes that establishing shorter compliance deadlines for MSDL 
facilities is reasonable because some of the reasons for providing the 
full 3 years for existing sources under initial NESHAP will not exist 
for MSDL facilities. For example, during the development of the NESHAP 
for the Industrial, Commercial, and Institutional Boilers and Process 
Heaters, commenters expressed concern about the compliance deadline for 
existing sources stating that a ``large number of sources that will be 
competing for the needed resources and materials from engineering 
consultants, permitting authorities, equipment vendors, construction 
contractors, financial institutions, and other critical suppliers.'' 
(78 FR 7138; January 31, 2013). The EPA does not expect the number of 
MSDL facilities following the listing of a new HAP to be similar to the 
overall number of facilities subject to a NESHAP on its initial 
promulgation and therefore the resource availability concerns are not 
expected.
    Another factor that supported providing the full 3-year compliance 
deadline for initial NESHAP was the learning curve associated with 
implementing standards or installing new controls to an existing 
process. In contrast, MSDL facilities, by definition, only deal with 
facilities triggering already existing NESHAP and some of these NESHAP 
were promulgated over 20 years ago. Therefore, the industry and 
equipment vendors have already experienced, dealt with, and solved many 
of the initial application issues associated with applying a NESHAP 
standard to a source category for the first time. The years of 
experience gained at applying standards and installing controls within 
a source category should reduce the time needed to apply the same 
technology today at MSDL facilities.

[[Page 62723]]

    The EPA is proposing to provide compliance deadlines based on the 
types of emission limitations or requirements for MSDL facilities 
because it provides the optimum balance between acknowledging that some 
time is needed to develop and implement control strategies for newly 
applicable NESHAP requirements and the desire to not unnecessarily 
delay compliance and the resulting emission reductions. The EPA 
requests comments on the use of this approach and specifically the 
proposed compliance deadlines of 2 years for facilities that install 
add-on controls and 1 year for all other standards. The EPA is 
clarifying that no compliance deadline extension will be provided for 
NESHAP that have identical requirements for area and major sources, 
because these facilities would already be complying with the NESHAP 
before becoming an MSDL facility.
    The EPA recognizes that under any of the last three options, there 
could be situations where there is a possible temporal gap in 
regulatory coverage for MSDL facilities that were, prior to their MSDL 
status, subject to an area source NESHAP. For example, a facility that 
was subject to area source NESHAP prior to their MSDL status might not 
be subject to any emissions standard during a compliance deadline 
extension allowed for the newly applicable major source NESHAP.
    The EPA is taking comment on what standard should or can apply 
during this period if a compliance deadline extension is provided. For 
example, one option the EPA is considering is whether a MSDL facility 
might be required, either by their existing permit or by a requirement 
added to this rulemaking, to continue to comply with any pre-existing 
areas source NESHAP until they are in compliance with newly applicable 
major source NESHAP. This gap-filling approach would prevent any 
inadvertent increase in emissions that could occur during this 
compliance extension period.
    The EPA also requests comment and specific examples of how this 
would occur and whether existing area source operating permits would 
remain enforceable until a new major source permit is issued.
3. Are there any new notification requirements?
    The EPA evaluated whether any additional data should be required 
from facilities when a new HAP is listed. Without any changes, there 
are two notifications that would be required under existing NESHAP 
requirements. First, any MSDL facility that requires a title V 
operating permit would need to apply for the permit within 12 months of 
becoming subject to the operating permit requirement. This application 
would likely be required to include substantive data about the newly 
listed HAP, including a description of the emission sources, the 
quantity of emissions, and whether any other requirements were 
triggered by becoming a major source. Presumably this would include the 
identification of any major source NESHAP that is now applicable to the 
facility. As with other title V operating permit requirements, the EPA 
is not proposing to make any changes to the existing language.
    Second, an MSDL facility that triggers one or more major source 
NESHAP would become subject to the requirement to submit an initial 
notification under each newly applicable NESHAP. These requirements are 
specified in each NESHAP and in the General Provisions to part 63, 
including the details of the information that must be included and 
where the notification must be sent. Typically, these notifications are 
required within 180 days of becoming subject to a NESHAP, so would be 
required before the facility is required to submit a title V operating 
permit application, if also required. A permit application would 
typically be allowed to serve as the initial notification, if it is 
submitted within the timeframe required by the NESHAP and includes all 
of the information required by the specific rule. In the absence of 
requirements listed in a specific NESHAP, the initial notification 
content requirements are dictated by the provision in 40 CFR 63.9(b). 
The EPA reviewed the contents of the initial notification requirements 
under 40 CFR 63.9(b) and determined that the content for MSDL 
notifications should be virtually identical to other notifications but 
to provide clarity it warrants a required indication that the facility 
is submitting the notification because it is an MSDL facility.
    To provide this clarity, the EPA is proposing that MSDL facilities 
include in their notification a statement that the facility is a major 
source due to HAP listing (MSDL) if the sole reason that the facility 
became major and triggered NESHAP applicability is the addition of a 
new HAP to 40 CFR subpart C, Sec.  63.64. A red-lined copy of the 
General Provisions, including the proposed notification amendments for 
MSDL facilities is included in the docket for review. See OAR-HQ-OAR-
2022-0441.
    The EPA also considered whether additional information should be 
required from other facilities that emit a newly listed HAP but are 
already subject to major source NESHAP requirements and are not 
required to submit either of the above documents when a new HAP is 
listed. Additional information on HAP usage, HAP emissions, potential 
controls, and other inventory information could aid in the EPA's 
development of the best strategy for regulating a new HAP. However, 
this benefit needs to be weighed against the potential burden for 
developing and submitting this information from facilities that emit 
the newly listed HAP, especially as the facilities could include small 
businesses. The EPA solicits comments on whether additional 
notifications should be required for facilities that emit a newly 
listed HAP but are not triggered to submit an initial notification upon 
the listing. For example, this proposal solicits comment on whether a 
notification should be required from any facility that emits the newly 
listed HAP over some de minimis level. The EPA also asks whether 
additional public notification requirements should be included to 
provide better communication of public health risks by facilities that 
emit a newly listed HAP or if other mechanisms already exist, or will 
exist, to serve this function. If notice is required, we request 
comment on how best to establish a de minimis level, if one is 
recommended, and the basis for the proposed level.

III. Solicitation of Additional Comments

    In addition to soliciting comments on the topics discussed earlier 
in this document, including the applicability of existing source MACT 
requirements for MSDLs and the compliance time allowed for MSDLs, the 
EPA additionally requests comments and information on the following 
questions.

A. Regulatory Changes

    The EPA has developed a redline-strikeout version of sections of 40 
CFR part 63, subparts A and C, that would be revised under the proposed 
changes listed in this document. The draft regulatory language for the 
recommended options is included for review in the docket for this rule. 
See EPA Docket EPA-HQ-OAR-2022-0441. The EPA is requesting comments on 
this language.

B. Early Input on Future EPA Action to Integrate Newly Listed HAP Into 
the CAA Section 112 Program

    While the focus of this proposed rulemaking is on the immediate 
impacts to MSDL facilities, the EPA acknowledges that there are other 
steps

[[Page 62724]]

that must be taken to fully address a newly listed HAP under CAA 
section 112 regulatory framework. Foremost among these steps is the 
regulation and the resulting reduction in emissions of a newly listed 
HAP. However, as discussed above, existing NESHAP do not regulate the 
newly listed HAP unless and until the NESHAP is revised and an emission 
standard is established following the requirements of CAA section 
112(d).
    This proposed rulemaking addresses only one part of the overall 
program to incorporate a new HAP into CAA section 112 regulatory 
framework. Future steps that are not addressed in this rulemaking would 
likely include addressing issues such as how best to develop an 
accurate emissions inventory for the new HAP, identify the sources that 
emit the new HAP, and either revising existing NESHAP standards or 
establishing new standards, as necessary, to incorporate and thereby 
reduce the emissions of the new HAP.
    The EPA is seeking comments on how best to obtain information about 
which sources and source categories emit a newly listed HAP, how much 
these facilities emit, how best to inform the populations surrounding 
these facilities that the facilities that emit a newly listed HAP, and 
how to incorporate meaningful engagement with affected communities in 
future actions.
    The EPA seeks comment on how to best provide outreach to entities 
that could be subject to requirements as an MSDL facility because of an 
addition to the HAP list.

IV. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulations and Regulatory Review

    This action is a significant regulatory action that was submitted 
to the Office of Management and Budget (OMB) for review under Executive 
Order 12866, as amended by Executive Order 14094. Any changes made in 
response to reviewer recommendations have been documented in the 
docket.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the PRA.

C. Regulatory Flexibility Act

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities. This proposed rule 
will not impose any requirements on small entities. Specifically, this 
action proposes a regulatory requirement addressing requirements for 
when a new HAP is added to the CAA section 112 HAP list; any burden 
from the addition of a new HAP is rightfully considered under the 
individual NESHAP that is triggered and not under the actions in this 
document.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or 
more as described in UMRA, 2 U.S.C. 1531-1538, and does not 
significantly or uniquely affect small governments. The action imposes 
no enforceable duty on any state, local or tribal governments or the 
private sector.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the Federal government and the states, or on the distribution of power 
and responsibilities among the various levels of government. This 
action does not impose any requirements on facilities or other parties.
    This action proposes amendments to General Provisions that provide 
requirements for when a new HAP is added to the CAA section 112 HAP 
list.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. It would not impose substantial direct 
compliance costs on tribal governments that have designated facilities 
located in their area of Indian country. This action also will not have 
substantial direct costs or impacts 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. Thus, Executive Order 13175 does 
not apply to the action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because it does not concern an environmental 
health risk or safety risk.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not a ``significant energy action'' because it will 
not have a significant adverse effect on the supply, distribution or 
use of energy. Specifically, this action proposes amendments to General 
Provisions to provide requirements for when a new HAP is added to the 
CAA section 112 HAP list.

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations and 
Executive Order 14096: Revitalizing Our Nation's Commitment to 
Environmental Justice for All

    Executive Order 12898 establishes Federal executive policy on 
environmental justice. Its main provision directs Federal agencies, to 
the greatest extent practicable and permitted by law, to make 
environmental justice part of their mission by identifying and 
addressing, as appropriate, disproportionately high and adverse health 
or environmental effects of their programs, policies and activities on 
minority populations and low-income populations in the U.S. This rule 
would not increase the level of environmental protection for all 
affected populations, and it also will not have any disproportionately 
high and adverse health or environmental effects on any population, 
including any minority, or low-income population. Specifically, this 
action proposes amendments to NESHAP General Provisions to provide 
requirements for when a new HAP is added to the CAA section 112 HAP 
list. These proposed changes would aid in the implementation of updated 
and new

[[Page 62725]]

NESHAP that will occur after a new HAP has been listed.

Michael S. Regan,
Administrator.
[FR Doc. 2023-19674 Filed 9-12-23; 8:45 am]
BILLING CODE 6560-50-P
```