[Federal Register Volume 66, Number 57 (Friday, March 23, 2001)]
[Proposed Rules]
[Pages 16318-16360]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-5251]



[[Page 16317]]

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Part II





Environmental Protection Agency





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40 CFR Part 63



National Emission Standards for Hazardous Air Pollutants for Source 
Categories: General Provisions and Requirements for Control Technology 
Determinations for Major Sources in Accordance With Clean Air Act 
Sections, Sections 112(g) and 112(j); Proposed Rule

Federal Register / Vol. 66, No. 57 / Friday, March 23, 2001 / 
Proposed Rules

[[Page 16318]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[FRL-6949-7]
RIN 2060-AF31


National Emission Standards for Hazardous Air Pollutants for 
Source Categories: General Provisions; and Requirements for Control 
Technology Determinations for Major Sources in Accordance With Clean 
Air Act Sections, Sections 112(g) and 112(j)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed amendments.

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SUMMARY: General Provisions (Subpart A). On March 16, 1994, the EPA 
promulgated General Provisions for national emission standards for 
hazardous air pollutants (NESHAP) and other regulatory requirements 
that are established under section 112 of the Clean Air Act as amended 
in 1990 (CAA or Act) (59 FR 12408). In today's action, we are proposing 
amendments to the General Provisions that would revise and clarify 
several of the current provisions.
    We are proposing these amendments, in part, as a result of 
decisions reached in settlement negotiations conducted between 
petitioners, who filed for review of the General Provisions, and the 
EPA. The proposed amendments also reflect internal EPA discussions on 
issues regarding implementation of the General Provisions.
    Section 112(j) Provisions (Subpart B). In addition, in today's 
action, we are proposing amendments to rules that establish equivalent 
emission limitations by permit under section 112(j) of the Act. The 
``section 112(j)'' rule establishes requirements and procedures for 
owners or operators of major sources of hazardous air pollutants (HAP), 
and permitting authorities, to comply with section 112(j). The section 
112(j) rule was promulgated on May 20, 1994 (59 FR 26429).
    These proposed amendments have been developed in response to 
settlement negotiations conducted between petitioners, who filed for 
review of the section 112(j) rule, and the EPA. The proposed amendments 
also reflect internal EPA discussions regarding implementation of the 
section 112(j) rule.

DATES: Comments. Submit comments on or before May 22, 2001.
    Public Hearing. If anyone contacts us requesting to speak at a 
public hearing by April 2, 2001, a public hearing will be held on April 
23, 2001.

ADDRESSES: Comments. Written comments should be submitted (in duplicate 
if possible) to: Air and Radiation Docket and Information Center 
(6102), Attention Docket Number A-2001-02, Part 63 General Provisions 
(Subpart A) and Section 112(j) Regulations (Subpart B) Litigation 
Settlement Amendments, U.S. Environmental Protection Agency, 1200 
Pennsylvania Ave., NW, Washington, DC 20460. We request a separate copy 
also be sent to the appropriate contact person listed below in the FOR 
FURTHER INFORMATION CONTACT section.
    Public Hearing. If a public hearing is held, it will be held at 
10:00 a.m. on April 23, 2001 in our Office of Administration 
Auditorium, Research Triangle Park, North Carolina, or at an alternate 
site nearby.
    Docket. Docket No. A-2001-02, Part 63 General Provisions (Subpart 
A) and Section 112(j) Regulations (Subpart B) Litigation Settlement 
Amendments, contains information relevant to today's proposed 
rulemaking. This docket is located at the U.S. Environmental Protection 
Agency, 401 M Street, SW, Washington, DC 20460 in room M-1500, 
Waterside Mall (ground floor), and is available for public inspection 
and copying from 8:30 a.m. and 5:30 p.m., Monday through Friday, 
excluding legal holidays. A reasonable fee may be charged for copying.

FOR FURTHER INFORMATION CONTACT: For further information about the 
proposed rule amendments, contact Mr. James Szykman, Emission Standards 
Division (MD-13), U.S. Environmental Protection Agency, Research 
Triangle Park, North Carolina 27711, telephone (919) 541-5469, E-mail 
<a href="/cdn-cgi/l/email-protection#9cefe6e5f7f1fdf2b2f6f5f1dcf9ecfdb2fbf3ea"><span class="__cf_email__" data-cfemail="cdbeb7b4a6a0aca3e3a7a4a08da8bdace3aaa2bb">[email protected]</span></a>; or Mr. Rick Colyer, Emission Standards Division 
(MD-13), U.S. Environmental Protection Agency, Research Triangle Park, 
North Carolina 27711, telephone (919) 541-5262, E-mail 
<a href="/cdn-cgi/l/email-protection#c7a4a8abbea2b5e9b5aea4ac87a2b7a6e9a0a8b1"><span class="__cf_email__" data-cfemail="f695999a8f9384d8849f959db6938697d8919980">[email protected]</span></a>.
    For questions about the public hearing, contact Ms. Dorothy Apple, 
Policy, Planning and Standards Group, Emission Standards Division (MD-
13), U.S. Environmental Protection Agency, Research Triangle Park, 
North Carolina 27711, telephone (919) 541-4487, E-mail 
<a href="/cdn-cgi/l/email-protection#036273736f662d676c716c776b7a436673622d646c75"><span class="__cf_email__" data-cfemail="533223233f367d373c213c273b2a133623327d343c25">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: Comments. Comments and data may be submitted 
by electronic mail (e-mail) to: <a href="/cdn-cgi/l/email-protection#bedf93dfd0da93cc93dad1ddd5dbcafedbcedf90d9d1c8"><span class="__cf_email__" data-cfemail="46276b2728226b346b2229252d23320623362768212930">[email protected]</span></a>. Electronic 
comments must be submitted as an ASCII file to avoid the use of special 
characters and encryption problems and will also be accepted on disks 
in WordPerfect<Register> version 5.1, 6.1 or Corel 8 file format. All 
comments and data submitted in electronic form must note the docket 
number A-2001-02, Part 63 General Provisions (Subpart A) and section 
112(j) Regulations (Subpart B) Litigation Settlement Amendments. No 
confidential business information (CBI) should be submitted by e-mail. 
Electronic comments may be filed online at many Federal Depository 
Libraries.
    Commenters wishing to submit proprietary information for 
consideration must clearly distinguish such information from other 
comments and clearly label it as CBI. Send submissions containing such 
proprietary information directly to the following address, and not to 
the public docket, to ensure that proprietary information is not 
inadvertently placed in the docket: Attention: Mr. Rick Colyer, c/o 
OAQPS Document Control Officer (Room 740B), U.S. Environmental 
Protection Agency, 411 W. Chapel Hill Street, Durham, NC 27701. We will 
disclose information identified as CBI only to the extent allowed by 
the procedures set forth in 40 CFR part 2. If no claim of 
confidentiality accompanies a submission when we receive it, the 
information may be made available to the public without further notice 
to the commenter.
    Public Hearing. Persons interested in presenting oral testimony or 
inquiring as to whether a hearing is to be held should contact Ms. 
Dorothy Apple at least 2 days in advance of the public hearing. Persons 
interested in attending such a public hearing must also contact Ms. 
Apple to verify the time, date, and location of the hearing. The 
address, telephone number, and e-mail address for Ms. Apple are listed 
in the preceding FOR FURTHER INFORMATION CONTACT SECTION. If a public 
hearing is held, it will provide interested parties the opportunity to 
present data, views, or arguments concerning these proposed amendments.
    Docket. The docket is an organized and complete file of all the 
information considered by us in the development of this rulemaking. The 
docket is a dynamic file because material is added throughout the 
rulemaking process. The docketing system is intended to allow members 
of the public and industries involved to readily identify and locate 
documents so that they can effectively participate in the rulemaking 
process. Along with the proposed and promulgated standards and their 
preambles, the contents of the docket will serve as the record in the 
case of judicial review. (See section

[[Page 16319]]

307(d)(7)(A) of the CAA.) The regulatory text and other materials 
related to this rulemaking are available for review in the docket or 
copies may be mailed on request from the Air Docket by calling (202) 
260-7548. A reasonable fee may be charged for copying docket materials.
    Worldwide Web (WWW). In addition to being available in the docket, 
an electronic copy of today's proposed rule amendments will also be 
available on the WWW through the Technology Transfer Network (TTN). 
Following the Administrator's signature, a copy of the rule will be 
posted on the TTN's policy and guidance page for newly proposed or 
promulgated rules http://www.epa.gov/ttn/oarpg. The TTN provides 
information and technology exchange in various areas of air pollution 
control. If more information regarding the TTN is needed, call the TTN 
HELP line at (919) 541-5384.
    Regulated Entities. Categories and entities potentially regulated 
by this action include all section 112 source categories listed under 
section 112(c) of the CAA.

Industry Group: Source Category

Fuel Combustion:
    Combustion Turbines
    Engine Test Facilities
    Industrial Boilers
    Institutional/Commercial Boilers
    Process Heaters
    Reciprocating Internal Combustion Engines
    Rocket Testing Facilities
Non-Ferrous Metals Processing:
    Primary Aluminum Production
    Primary Copper Smelting
    Primary Lead Smelting
    Primary Magnesium Refining
    Secondary Aluminum Production
    Secondary Lead Smelting
Ferrous Metals Processing:
    Coke By-Product Plants
    Coke Ovens: Charging, Top Side, and Door Leaks
    Coke Ovens: Pushing, Quenching, Battery Stacks
    Ferroalloys Production: Silicomanganese and Ferromanganese
    Integrated Iron and Steel Manufacturing
    Iron Foundries Electric Arc Furnace (EAF) Operation
    Steel Foundries
    Steel Pickling--HCl Process Facilities and Hydrochloric Acid 
Regeneration
Mineral Products Processing:
    Alumina Processing
    Asphalt Concrete Manufacturing
    Asphalt Processing
    Asphalt Roofing Manufacturing
    Asphalt/Coal Tar Application--Metal Pipes
    Clay Products Manufacturing
    Lime Manufacturing
    Mineral Wool Production
    Portland Cement Manufacturing
    Refractories Manufacturing
    Taconite Iron Ore Processing
    Wool Fiberglass Manufacturing
Petroleum and Natural Gas Production and Refining:
    Oil and Natural Gas Production
    Natural Gas Transmission and Storage
    Petroleum Refineries--Catalytic Cracking (Fluid and other) 
Units, Catalytic
    Reforming Units, and Sulfur Plant Units
    Petroleum Refineries--Other Sources Not Distinctly Listed
Liquids Distribution:
    Gasoline Distribution (Stage 1)
    Marine Vessel Loading Operations
    Organic Liquids Distribution (Non-Gasoline)
Surface Coating Processes:
    Aerospace Industries
    Auto and Light Duty Truck
    Large Appliance
    Magnetic Tapes
    Manufacture of Paints, Coatings, and Adhesives
    Metal Can
    Metal Coil
    Metal Furniture
    Miscellaneous Metal Parts and Products
    Paper and Other Webs
    Plastic Parts and Products
    Printing, Coating, and Dyeing of Fabrics
    Printing/Publishing
    Shipbuilding and Ship
    Wood Building Products
    Wood Furniture
Waste Treatment and Disposal:
    Hazardous Waste Incineration
    Municipal Landfills
    Off-Site Waste and Recovery Operations
    Publicly Owned Treatment
    Works (POTW) Emissions
    Sewage Sludge Incineration
    Site Remediation
    Solid Waste Treatment, Storage and Disposal Facilities (TSDF)
Agricultural Chemicals Production:
    Pesticide Active Ingredient Production
Fibers Production Processes:
    Acrylic Fibers/Modacrylic Fibers Production
    Rayon Production
    Spandex Production
Food and Agriculture Processes:
    Manufacturing of Nutritional Yeast
    Cellulose Food Casing Manufacturing
    Vegetable Oil Production
Pharmaceutical Production Processes:
    Pharmaceuticals Production
Polymers and Resins Production:
    Acetal Resins Production
    Acrylonitrile-Butadiene-Styrene Production
    Alkyd Resins Production
    Amino Resins Production
    Boat Manufacturing
    Butyl Rubber Production
    Carboxymethylcellulose Production
    Cellophane Production
    Cellulose Ethers Production
    Epichlorohydrin Elastomers Production
    Epoxy Resins Production
    Ethylene-Propylene Rubber Production
    Flexible Polyurethane Foam Production
    Hypalon (tm) Production
    Maleic Anhydride Copolymers Production
    Methylcellulose Production
    Methyl Methacrylate-Acrylonitrile-Butadiene-Styrene Production
    Methyl Methacrylate-Butadiene-Styrene Terpolymers Production
    Neoprene Production
    Nitrile Butadiene Rubber Production
    Nitrile Resins Production
    Non-Nylon Polyamides Production
    Phenolic Resins Production
    Polybutadiene Rubber Production
    Polycarbonates Production
    Polyester Resins Production
    Polyether Polyols Production
    Polyethylene Terephthalate Production
    Polymerized Vinylidene Chloride Production
    Polymethyl Methacrylate Resins Production
    Polystyrene Production
    Polysulfide Rubber Production
    Polyvinyl Acetate Emulsions Production
    Polyvinyl Alcohol Production
    Polyvinyl Butyral Production
    Polyvinyl Chloride and Copolymers Production
    Reinforced Plastic Composites Production
    Styrene-Acrylonitrile Production
    Styrene-Butadiene Rubber and Latex Production
Production of Inorganic Chemicals:
    Ammonium Sulfate Production--Caprolactam By-Product Plants
    Carbon Black Production
    Chlorine Production
    Cyanide Chemicals Manufacturing
    Fumed Silica Production
    Hydrochloric Acid Production
    Hydrogen Fluoride Production
    Phosphate Fertilizers Production
    Phosphoric Acid Manufacturing
    Uranium Hexafluoride Production
Production of Organic Chemicals:
    Ethylene Processes
    Quaternary Ammonium Compounds Production
    Synthetic Organic Chemical
Miscellaneous Processes:
    Benzyltrimethylammonium Chloride Production
    Butadiene Dimers Production
    Carbonyl Sulfide Production
    Cellulosic Sponge Manufacturing
    Chelating Agents Production
    Chlorinated Paraffins
    Chromic Acid Anodizing
    Commercial Dry Cleaning (Perchloroethylene)--Transfer Machines
    Commercial Sterilization Facilities
    Decorative Chromium Electroplating
    Dry Cleaning (Petroleum Solvent)
    Ethylidene Norbornene Production
    Explosives Production
    Flexible Polyurethane Foam Fabrication Operations
    Friction Products Manufacturing
    Halogenated Solvent Cleaners
    Hard Chromium Electroplating
    Hydrazine Production
    Industrial Cleaning (Perchloroethylene)--Dry-to-dry Machines
    Industrial Dry Cleaning (Perchloroethylene)--Transfer Machines
    Industrial Process Cooling Towers
    Leather Tanning and Finishing Operations
    OBPA/1,3-Diisocyanate Production
    Paint Stripping Operations
    Photographic Chemicals Production
    Phthalate Plasticizers Production
    Plywood and Composite Wood Products
    Polyether Polyols Production

[[Page 16320]]

    Pulp and Paper Production
    Rubber Chemicals Manufacturing
    Rubber Tire Manufacturing
    Semiconductor Manufacturing
    Symmetrical Tetrachloropyridine Production
Categories of Area Sources:
    Chromic Acid Anodizing
    Commercial Dry Cleaning (Perchloroethylene)--Dry-to-Dry Machines
    Commercial Dry Cleaning (Perchloroethylene)--Transfer Machines
    Commercial Sterilization Facilities
    Decorative Chromium Electroplating
    Halogenated Solvent Cleaners
    Hard Chromium Electroplating
    Secondary Lead Smelting

This list is not intended to be exhaustive, but rather provides a guide 
for readers regarding entities likely to be regulated by this action. 
To determine whether you are regulated by this action, you should 
examine your source category specific section 112 regulation. If you 
have any questions regarding the applicability of this action to a 
particular entity, consult the person listed in the preceding FOR 
FURTHER INFORMATION CONTACT SECTION.
    Outline. The information presented in this preamble is organized as 
follows:

I. Background
    A. General Provisions
    B. Section 112(j) Provisions
II. Proposed Amendments to the General Provisions
    A. Presumptive Applicability of the General Provisions
    B. Definition of Affected Source
    C. Other Definitions
    D. Prohibited Activities and Circumvention
    E. Preconstruction Review
    F. Startup, Shutdown and Malfunction Plans
    G. Compliance Provisions
    H. Test Methods
    I. Monitoring Requirements
    J. Notification Requirements
    K. Recordkeeping and Reporting Requirements
    L. Lesser Quantity
    M. Clarification and Consistency
III. Proposed Amendments to the Section 112(j) Provisions
    A. Applicability
    B. Definitions
    C. Approval Process
    D. Application Content
    E. Preconstruction Review
    F. Enforcement Liability
    G. MACT Determinations
    H. Case-by-Case MACT Requirements after Promulgation of a 
Subsequent MACT Standard
    I. Section 112(j) Guidelines Document
IV. Additional Issues
    A. Discussion of the Relationship Among Requirements Under 
Section 112(d), (g), and (j)
    B. Potential to Emit
V. Administrative Requirements
    A. Executive Order 12866, Regulatory Planning and Review
    B. Executive Order 13132, Federalism
    C. Executive Order 13084, Consultation and Coordination with 
Indian Tribal Governments
    D. Executive Order 13045, Protection of Children from 
Environmental Health Risks and Safety Risks
    E. Unfunded Mandates Reform Act of 1995
    F. Regulatory Flexibility Act (RFA) as Amended by Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 
et seq.
    G. Paperwork Reduction Act
    H. National Technology Transfer and Advancement Act of 1995

I. Background

A. General Provisions

    Section 112 of the CAA requires us to list categories and 
subcategories of major sources and area sources of HAP and to establish 
NESHAP for the listed source categories and subcategories. Major 
sources of HAP are those that have the potential to emit greater than 
10 tons/yr of any one HAP or 25 tons/yr of any combination of HAP. Area 
sources of HAP are those sources that do not have potential to emit 
greater than 10 tons/yr of any one HAP and 25 tons/yr of any 
combination of HAP. The General Provisions to 40 CFR part 63 establish 
the framework for emission standards and other requirements developed 
pursuant to section 112 of the Act. The General Provisions eliminate 
the repetition of general information and requirements in individual 
NESHAP by consolidating all generally applicable information in one 
location. They include sections on applicability, definitions, 
compliance dates and requirements, monitoring, recordkeeping and 
reporting, among others. In addition, they include administrative 
sections concerning actions that the EPA (or delegated authorities) 
must take, such as making determinations of applicability, reviewing 
applications for approval of new construction, responding to requests 
for extensions or waivers of applicable requirements, and generally 
enforcing national air toxics standards. The General Provisions become 
applicable to a section 112(d) source category rule when the source 
category rule is promulgated and becomes effective.
    The General Provisions to part 63 were developed in a collaborative 
process that included input from industry and other interested parties. 
On August 11, 1993, we proposed the General Provisions in the Federal 
Register (58 FR 42760). We received numerous comments on that proposal 
from industry groups, environmental groups, and State and local 
agencies, and those comments addressed a wide range of issues and 
requirements in the proposed rulemaking. We published our final 
decisions regarding the General Provisions in the Federal Register on 
March 16, 1994 (59 FR 12408). In the preamble to the promulgated rule, 
we discussed major comments on the proposal and our responses to those 
comments. We addressed other comments in the Background Information 
Document (BID) for the promulgated rulemaking (EPA-450/3-91-019b). In 
responding to comments, we made some changes and some clarifications to 
the final package and retained other provisions where the Agency 
believed it was appropriate to do so. On May 16, 1994, six petitioners 
filed for review of the General Provisions. They cited a variety of 
issues raised in comments on the proposed rule whose resolution they 
believed to be inappropriate. In addition, we have identified other 
changes that would clarify the EPA's original intent. The amendments to 
the General Provisions being proposed today constitute the outcome of 
settlement negotiations between the EPA and the petitioners and 
internal Agency discussions.
    The amendments proposed in today's action would have the effect of 
clarifying certain sections of the General Provisions and of altering 
other sections.

B. Section 112(j) Provisions

    The 1990 Amendments to section 112 of the CAA include a new section 
112(j), which is entitled ``Equivalent Emission Limitation by Permit.'' 
Section 112(j)(2) provides that the provisions of section 112(j) apply 
if the EPA misses a deadline for promulgation of a standard under 
section 112(d) established in the source category schedule for 
standards. After the effective date of a title V permit program in a 
State, section 112(j)(3) requires the owner or operator of a major 
source in a source category, for which the EPA failed to promulgate a 
section 112(d) standard, to submit a permit application 18 months after 
the missed promulgation deadline. Section 112(j)(5) also specifies that 
if the applicable criteria for voluntary early reductions established 
under section 112(i)(5) are met, then this alternative emission limit 
satisfies the requirements of section 112(j), provided that the 
emission reductions are achieved by the missed promulgation date.
    The proposed rule implementing section 112(j) of the CAA was 
published on July 13, 1993 (58 FR 37778). The public comments were 
considered, and changes we deemed appropriate were made in developing a 
final rule.

[[Page 16321]]

    On May 20, 1994 (59 FR 26429), we issued a final rule for 
implementing section 112(j). That rule requires major source owners or 
operators to submit a permit application by the date 18 months after a 
missed date on the regulatory schedule. As required under section 
112(j) of the Act, the section 112(j) rule establishes requirements for 
the content of permit applications, contains provisions governing the 
establishment of the maximum achievable control technology (MACT)-
equivalent emission limitations by the permitting authority, includes 
the criteria for the reviewing authority to determine completeness, and 
allows the applicant up to 6 months to revise and resubmit the 
application. As required in subsection 112(j)(5) of the Act, the rule 
also establishes compliance dates:

    No such pollutant may be emitted in amounts exceeding an 
emission limitation contained in a permit immediately for new 
sources and, as expeditiously as practicable, but not later than the 
date 3 years after the permit is issued for existing sources or such 
other compliance date as would apply under subsection (i).

    Several petitioners filed for review of several provisions of the 
section 112(j) rule that they believed needed to be clarified or 
streamlined. The amendments to the section 112(j) rule being proposed 
today constitute the outcome of settlement negotiations between the EPA 
and the litigants. In addition, we have made other clarifying changes 
we consider to be appropriate.

II. Proposed Amendments to the General Provisions

A. Presumptive Applicability of the General Provisions

    We are proposing to amend the presumptive applicability of 40 CFR 
part 63, subpart A (General Provisions). The promulgated rule applies, 
in its entirety (Secs. 63.1 through 63.15), to owners or operators of 
an affected source subject to a relevant subpart established under 40 
CFR part 63, unless otherwise indicated in the subpart. This 
presumption was intended to eliminate the repetition of requirements 
that would be applicable to all owners or operators affected by the 
General Provisions. To date, relevant subparts typically include a 
General Provisions applicability table that delineates the provisions 
that apply and do not apply.
    We recognized concern that potential confusion could result by 
applying the General Provisions presumptively when they are not 
tailored to the circumstances of each relevant subpart. For example, a 
relevant subpart could indicate that all of the monitoring requirements 
of Sec. 63.8 of the General Provisions apply. Some of the requirements 
in Sec. 63.8 are inappropriate for some sources and may confuse an 
owner or operator (e.g., requirements for continuous opacity monitoring 
systems (COMS) in Sec. 63.8 are not appropriate for all sources).
    The objective of the General Provisions, i.e., to avoid repetitive 
redrafting of common provisions in each subpart of the part, is valid 
and should be preserved. Therefore, today we are proposing a revised 
applicability of the General Provisions that would retain the benefits 
and reduce or eliminate the potential for confusion. This proposed 
action would not reduce or narrow the scope of applicable requirements. 
Instead, it would reduce the confusion as to the actual requirements of 
each applicable subpart.
    We have determined that the dual objectives of efficiency and 
clarity can best be met by including in each part 63 subpart a table 
that specifies precisely which subpart A General Provisions are and are 
not included in such subpart. Many existing part 63 subparts already 
include such a table, and this has been very helpful for both the 
regulatory authorities and the regulated community. These tables 
specify applicability down to the subparagraph level of detail so that 
there is no doubt as to the total universe of applicable General 
Provisions. In some instances, we have determined that a general 
provision should apply but that a very minor change to that provision 
is appropriate for a specific standard. In such cases, we may indicate 
in the table that the general provision does apply but with that minor 
change, or we may indicate in the table that the general provision does 
not apply. In the latter case, the appropriate requirement would be set 
out in its entirety in the subpart. Either approach is acceptable 
provided there is no compromise to clarity.
    To streamline part 63 subparts and to avoid imposing conflicting 
requirements on sources subject to more than one part 63 subpart or to 
subparts under other parts, we have often allowed compliance with one 
subpart (sometimes with some changes) to constitute compliance with the 
other(s). We recognize that each subpart incorporates some or all of 
the General Provisions of the part under which it is promulgated. 
Therefore, if a part 63 subpart incorporates portions of other 
subparts, we will clarify the precise extent to which the General 
Provisions that are incorporated in other subparts become incorporated 
in the part 63 subpart in a table of General Provision applicability 
for each part, and we will explicitly state the resolution of any 
conflicts between applicable General Provisions of the various parts. 
It is important to note that, in addition to the changes to the 
presumptive applicability of the General Provisions, today's proposal 
includes changes to a number of other sections of the General 
Provisions (e.g., definitions). The effect of the proposed changes on 
relevant subparts that have already been promulgated depends on the 
manner in which the General Provisions were incorporated into the 
relevant subparts. If a relevant subpart specifically set out General 
Provisions that are subject to today's proposal (i.e., wrote the 
relevant General Provision in the relevant subpart itself), then that 
subpart is not affected since today's proposal pertains only to the 
General Provisions and does not include a proposal to change the 
specific provisions of promulgated subparts.
    However, if a relevant subpart incorporates by reference General 
Provisions that are subject to today's proposal or if the General 
Provisions presumptively applied to a relevant subpart, then the 
changes to the General Provisions being proposed today would apply to 
the extent that the changed provisions are incorporated by reference 
into, or presumptively apply to, the existing relevant subpart. Based 
on an analysis of the potential impact of these proposed changes on 
promulgated subparts, we do not believe they have disrupted the 
integrity of the promulgated subparts. We have not identified any 
conflicts that would result in contradictory or incompatible effects 
from the promulgation of today's proposed amendments. Also, we 
identified no cross-reference conflicts due to adding or deleting 
paragraphs or subparagraphs that were cross-referenced by previously 
promulgated part 63 subparts. However, we are requesting comment on any 
conflicts identified by others that result solely from applying these 
proposed amendments to the General Provisions to promulgated part 63 
subparts.

B. Definition of Affected Source

1. Background on the Term ``Affected Source''
    The General Provisions define the term ``affected source'' to be 
``* * * the stationary source, the group of stationary sources, or the 
portion of a stationary source that is regulated by a relevant standard 
or other requirement established pursuant to section 112 of the Act.'' 
(40 CFR 63.2). We have defined and used this term primarily as

[[Page 16322]]

a means of specifying for each part 63 subpart what equipment or 
activities are affected. In practice, each source-category-specific 
section 112(d) or (h) standard (MACT standard) promulgated to date has 
either directly or implicitly defined affected source to be the 
collection of processes, activities, or equipment to which a specific 
MACT standard applies. Thus, the term ``affected source'' has been 
principally used to define the applicability of MACT standards.
    The term ``affected source'' also serves a second purpose in 
conjunction with other terms and provisions contained in the General 
Provisions; it defines where new source MACT applies under a relevant 
standard. Specifically, the General Provisions define the terms 
``construction'' and ``reconstruction'' with reference to the term 
``affected source'' (40 CFR 63.2) and provide that new source MACT 
applies when construction and reconstruction occur (40 CFR 63.5). For 
example, if an affected source is defined in a relevant standard to be 
an integrated process unit, then new source MACT would be triggered 
under that relevant standard by constructing a new integrated process 
unit or reconstructing an existing integrated process unit, unless that 
relevant standard provides otherwise.
    It is important to note that, while the term ``affected source'' 
currently functions both to define the applicability of relevant 
standards and to specify where new source MACT applies, it has not had 
a significant bearing on the process of determining the MACT floor or 
establishing MACT emission limitations. Specifically, our practice in 
developing MACT standards for source categories or subcategories is to 
organize, as appropriate, the available information for the HAP-
emitting equipment and activities within the category or subcategory 
and to perform the analyses to determine MACT for the category or 
subcategory. Available information leads us to organize equipment and 
activities within source categories into related groups (i.e., tanks, 
process vents, equipment leaks) and to determine the MACT floor and 
MACT for each group. In other situations, we are able to use available 
information collectively for all the HAP-emitting equipment and 
activities within the source category or subcategory in determining the 
MACT floor and MACT. In either situation, we ensure that MACT is at 
least as stringent as the MACT floor for the HAP-emitting equipment and 
activities fulfilling the requirements of CAA section 112(d)(2) and 
(3).
2. Questions Raised by the Petitioners
    The principal concerns of the petitioners regarding the definition 
and use of the term ``affected source'' relate to its role in defining 
the scope of a section 112(c) source category or subcategory covered by 
a MACT standard, determining where new source MACT applies, and certain 
reporting obligations (e.g., notifications and approvals under 
Sec. 63.5). For example, the petitioners contend that new source MACT 
should only be triggered by constructing or reconstructing significant 
collections of equipment. In other words, they believe that new source 
MACT should not be triggered by the installation of small sources, such 
as a single valve or a single reactor that is part of a larger, 
integrated process. Instead, they believe that the applicability of new 
source MACT should be guided by consideration of size, functional 
relationship, and other factors that would prescribe a measure of 
significance in the new source MACT applicability analysis.
    The petitioners' specific concerns relate to the fact that the 
existing definition of ``affected source'' provides, without 
limitation, that the affected source may be defined to be any size, 
even as small as a piece of a stationary source (e.g., a single pump or 
valve). Since ``construction'' and ``reconstruction'' are defined with 
reference to ``affected source,'' the possible result is that new 
source MACT may be prescribed inappropriately for small activities, a 
result that is contrary to the petitioners' legal and practical view as 
to where new source MACT should apply.
    Moreover, the petitioners are concerned that the dual roles of the 
term ``affected source'' (i.e., defining the applicability of relevant 
standards and prescribing where new source MACT applies) are confusing 
and potentially inconsistent. For example, when considering the role of 
``affected source'' in defining the applicability of relevant 
standards, it may be useful to define the term broadly so that all the 
equipment in the section 112(c) source category or subcategory can be 
accommodated within a single unified subpart. However, when considering 
the role of ``affected source'' in determining where new and existing 
source MACT apply, circumstances may dictate that new source MACT 
should apply to a collection of equipment that is smaller than the 
entire collection subject to the subpart. In such a case, the use of 
the one term ``affected source'' for two roles is potentially 
irreconcilable.
3. Discussion of Affected Source
    Although our interpretation of the statute differs from the 
petitioners' interpretation, we agree that new source MACT should be 
applied to units for which new source MACT is reasonable. We believe 
that using tools available under the statute, such as applicability 
cutoffs, subcategorization, and emission averaging, achieves this 
result. However, as a first step toward addressing the petitioners' 
concerns, we and the petitioners reviewed promulgated subparts to 
determine how ``affected source'' was defined and to assess whether new 
source MACT has been applied reasonably to these affected sources.
    We found that our decisions on affected sources have appropriately 
considered the application of MACT to new sources. We believe we have 
reasonably determined when construction of a collection of equipment 
should be subject to new source MACT. Specifically, where we have 
determined that new source MACT should apply to less than the entire 
collection of regulated equipment, the results have not produced the 
kind of unreasonable outcomes that were expressed by the petitioners.
    As noted above, in selecting the affected source(s) for particular 
MACT standards, our primary task is to ensure that MACT is applied to 
all the HAP-emitting equipment within the source category being 
regulated and, therefore, affected by the MACT standards for that 
source category. The collection of equipment evaluated in determining 
MACT (including the MACT floor) is usually the collection of equipment 
used in defining the affected source. Because of the data structures 
for estimating the MACT floor and the interactions of equipment types 
within the source category, we have occasionally performed the MACT 
floor analysis on subsets of all the equipment in the category. While 
available data requires us to evaluate such subsets of equipment, the 
overall result of this evaluation is that MACT can be determined. 
Accordingly, the aggregated collection of equipment would constitute 
the affected source for the MACT standards. For example, MACT for 
equipment leaks of organic chemicals is based on an overall program of 
leak detection and repair that is not practicable for single pieces of 
equipment. Similarly, many process vents are controlled after they are 
brought together by a collection system. Such engineering solutions are 
common throughout the source categories for which MACT standards have 
been or

[[Page 16323]]

are being developed. For such situations, it is necessary to define the 
affected source broadly to address these practical considerations in 
determining and implementing MACT. We have occasionally defined the 
affected source differently for equipment affected by existing source 
MACT and equipment affected by new source MACT. This has resulted from 
the differences in existing source MACT and new source MACT, as well as 
a desire to provide owners with flexibility through emissions averaging 
across a broad array of existing equipment at plant sites. Some source 
categories are essentially comprised of a small number of independent 
HAP-emitting equipment that has no functional interactions at the 
process level and is controlled separately. In such cases, it may be 
reasonable from a MACT implementation perspective to have separate 
affected sources for purposes of focusing new source MACT 
applicability.
    When a MACT standard is based on total emissions from all the 
equipment in a source category, we select an affected source based on 
such equipment. This approach makes sense for industries where a 
categorywide emission standard provides the opportunity and incentive 
for owners and operators to utilize control strategies that are 
significantly more cost effective than if standards were established 
for each emission point within a plant. In selecting such an affected 
source, we ensure that the overall emission reduction is equivalent to 
that obtained through a MACT standard established for each emission 
point within a plant. Examples of where we have adopted this approach 
include the standards for Wood Furniture Operations (40 CFR part 63, 
subpart JJ) and Polymers and Resins II (40 CFR part 63, subpart W).
    In other situations, we have designated all or a portion of the 
collection of equipment within the source category or subcategory as 
the affected source. For example, in the NESHAP for Halogenated Solvent 
Cleaning (degreasing) (part 63, subpart T), the affected source is 
defined as each individual batch vapor, in-line vapor, in-line cold, 
and batch cold solvent cleaning machine that uses specified solvents. 
However, in the Hazardous Organic NESHAP (HON) (part 63, subparts F, G, 
and H), we selected an aggregate of all equipment in the chemical 
manufacturing process units (CMPU) at a major source in the synthetic 
organic chemical manufacturing industry as the affected source for 
existing source MACT. In this case, we developed MACT after evaluating 
equipment in groups (e.g., tanks, process vents, and equipment leaks) 
with the affected source as the aggregated equipment, allowing 
emissions averaging provisions to be implemented. At the same time, we 
selected a major emitting CMPU as the basis for the affected source for 
new source MACT.
    We recognize that an implication of selecting a narrow definition 
of affected source (e.g., a dry cleaning tank and associated equipment) 
is that new source MACT requirements could be triggered more easily 
than if the affected source were defined as a plant or a collection of 
equipment. We believe that this is appropriate where the emission 
reduction and cost impacts are reasonable. For example, under the 
perchloroethylene dry cleaning standards, a new cleaning machine added 
to an existing facility in the source category would be a new source, 
subject to new source MACT. We determined that new source MACT controls 
were readily available and economically feasible for major source dry 
cleaners.
    In most NESHAP promulgated thus far, existing source MACT and new 
source MACT have been determined to be equivalent or only slightly 
different in terms of the emission reduction that must be achieved. 
This is also the case in the degreasing and chrome electroplating 
NESHAP. Thus, as a practical matter, the control requirements for a new 
electroplating tank would have been the same, regardless of whether 
that tank was considered a separate new affected source or an addition 
to an affected source. However, we recognize that there is an 
additional burden on owners and operators attributable to a narrower 
definition of affected source, mainly associated with reporting 
requirements. The General Provisions already address this burden by 
requiring only a routine notification when adding a new nonmajor-
emitting affected source and not the preconstruction review required 
for major new affected sources.
    As indicated in the above discussion, we believe we have followed a 
reasonable decision-making process in developing all NESHAP under 
section 112(d) while appropriately exercising our discretion based on 
industry-specific circumstances. Furthermore, we believe that our 
approach has not resulted in significant inconsistencies in how new 
source MACT is applied and the burden that may be imposed. However, in 
light of concerns raised by the petitioners, we agree that the 
potential for such inconsistencies to arise in future relevant 
standards is greater if the decision-making process is not more 
formally defined. Accordingly, we agreed to clarify the basis for 
selecting affected sources. In addition, we are proposing a minor 
amendment to the General Provisions to address this concern. We are 
proposing that for each future relevant standard we develop, we will 
explicitly define the terms ``affected source'' and ``new affected 
source.'' The use of two terms will clarify the applicability of 
existing source MACT and determine where new source MACT should apply. 
As a general matter, we are proposing that the affected source for a 
particular relevant standard will consist of all existing HAP-emitting 
equipment and activities at a single contiguous site which are within a 
specific section 112(c) source category or subcategory. During the 
standards-setting process, we may find it appropriate, after gathering 
sufficient information, to combine several listed categories into one, 
or to further divide the category into subcategories. This does not 
affect our authority to distinguish among classes, types, and sizes of 
sources in establishing emission standards. The statute and associated 
legislative history afford us substantial latitude in defining an 
affected source, but we are electing to adopt this general approach to 
the affected source definition because it is responsive to the concerns 
articulated by the petitioners, and it will foster greater 
predictability and consistency of regulatory outcomes. As noted above, 
combining disparate types of equipment and activities within a single 
affected source does not preclude a separate assessment of the 
emissions from particular types of equipment or activities. Moreover, a 
standard for a larger affected source may still be a composite of 
sublimits or other elements expressly directed at particular types of 
equipment or activities.
    Although we have decided that it is generally sensible to define an 
affected source broadly, our experience in developing and promulgating 
NESHAP indicates that there will be instances where a broad definition 
will result in significant administrative, practical, or implementation 
problems, and a narrower definition would resolve those problems. Thus, 
today's proposal would allow us to more narrowly define affected source 
in a particular MACT standard, but the MACT standard must be 
accompanied by a justification of why defining the affected source as 
all equipment in the section 112(c) source category or subcategory 
would result in significant administrative, practical, or 
implementation problems, and why the

[[Page 16324]]

narrower definition would resolve the problems.
    Defining the ``new affected source'' for each relevant standard 
will ensure a more formal consideration of the implications of applying 
new source MACT to affected sources potentially subject to new source 
MACT. The ``new affected source'' is a collection of equipment or 
activities that, if constructed, would be required to comply with new 
source MACT. In deciding what will constitute the new affected source 
for MACT applicability purposes, we would consider the following 
factors: (1) Emission reduction impacts of controlling individual 
sources versus groups of sources; (2) cost effectiveness of controlling 
individual equipment; (3) flexibility to accommodate common control 
strategies; (4) cost/benefits of emissions averaging; (5) incentives 
for pollution prevention; (6) feasibility and cost of controlling 
processes that share common equipment (e.g. product recovery devices); 
(7) feasibility and cost of monitoring; and (8) other relevant factors.
    When new source MACT can reasonably be applied considering the 
eight factors in the definition of ``new affected source,'' this 
collection may be different from the affected source. Accordingly, in 
selecting the new affected source, we would have considered whether an 
appropriate basis exists for establishing a definition for the new 
affected source that differs from the affected source definition. In 
selecting the new affected source, we will explain our basis for this 
selection. We will also consider the information and analyses that are 
offered by interested persons.
    The new affected source definition will differ from the affected 
source definition in a particular MACT standard only where a 
distinction is warranted based on the foregoing identified factors. As 
discussed above, the proposal also affords us discretion to define 
affected source as different from all of the equipment in the source 
category or subcategory for a particular MACT standard where warranted 
based on special circumstances. Any exercise of our discretion with 
regard to the affected source definition is distinct from the question 
of the new affected source definition. Thus, even where we define 
affected source differently, we do not intend thereby to alter in any 
way the manner in which the foregoing specified factors will be applied 
to select an appropriate definition for new affected sources.
    We believe that ``new affected sources'' defined in previously 
promulgated NESHAP are consistent with this new process. We are 
proposing the new process to ensure openness to the decisions on where 
to apply new source MACT. For example, in the HON rule, the affected 
source definition broadly encompasses a number of discrete processes at 
a facility. In this situation, it was reasonable to require new source 
MACT when a major-emitting chemical manufacturing process unit is 
constructed. The openness and consideration of relevant factors 
resulted in the reasonable application of new source MACT.
    In setting a MACT standard, we will also consider whether a 
sufficient reason exists for defining ``reconstruction'' differently 
from the definition currently found in the General Provisions. The 
generic definition looks primarily to whether replaced equipment 
exceeds 50 percent of the fixed capital cost of an affected source, but 
also allows for consideration of technical and economic feasibility. We 
propose to amend the General Provisions to allow a different definition 
of ``reconstruction'' for specific MACT standards where warranted by 
technical and economic considerations. For example, we may find that 
because of the functional interrelationship of equipment encompassed by 
the affected source, it is reasonable to provide that new source MACT 
will apply only where 75 percent of the fixed capital cost of the 
source is replaced. We would then codify this definition of 
``reconstruction'' into that specific MACT standard.
    An explicit discussion of this decision-making process and the 
factors considered in developing standards under section 112(d) will 
also guide States in developing section 112(j) MACT determinations. In 
addition, we would also like to clarify that, if a State defines the 
new affected source in a section 112(j) determination as adding a 
major-emitting process or production unit (such as in 40 CFR 63.41), we 
would not object to such an approach.

C. Other Definitions

1. Construction
    We are proposing to clarify in today's amendments the effect of 
relocating an existing source subject to MACT. The issue is whether or 
not a relocated source is ``constructed,'' and thus subject to new 
source MACT. In the Background Information Document for the Promulgated 
General Provisions Regulations for 40 CFR Part 63 (EPA 450/3-91-019b, 
Feb 94), which contains our response to comments for the part 63 
General Provisions, we stated our intended outcome on the issue of 
relocation. In general, we stated that when an existing source 
relocates and no other changes are made to the source, the source 
retains its existing source status. Changes to the source means any 
changes to the source's process or control equipment, method of 
operation, or emissions. The source would be subject to new source 
requirements if, in the process of relocating, the source was 
reconstructed, i.e., significant replacement of components.
    However, the definition of construction in the General Provisions 
does not lead to our intended outcome. The definition states that 
construction is ``* * * the on-site fabrication, erection, or 
installation of an affected source.''
    We are proposing to amend the definition of construction in 
Sec. 63.2 by adding: ``Construction does not include the removal of all 
equipment comprising an affected source from an existing location and 
reinstallation of such equipment at a new location. However, removal 
and reinstallation of an affected source will be construed as 
reconstruction if it satisfies the criteria for reconstruction as set 
forth below.'' Adding this language to the definition of construction 
will achieve our original intent.
2. Major Source
    We are proposing to clarify the definition of a ``major source'' in 
the General Provisions, specifically pertaining to the effect of a 
public right of way through a major source. If a source would be a 
major source, except for the fact that it is intersected by a public 
right of way, such as a public road, it will still be considered a 
major source. However, if the sources would be considered separate 
plant sites without the public right of way, then the public right of 
way in and of itself does not create a single (possibly major) source.
    The following examples illustrate this clarification. Suppose a 
plant site is a major source and a public road is built that intersects 
the plant site. Even though the public road may divide the plant site 
into two potentially nonmajor sources, the plant site will still be 
considered a major source because the source was considered a single 
plant site before the public right of way was built.
    Suppose a nonmajor source, located along a public road, decides to 
build a new nonmajor source directly across the road. Even though the 
public road divides these two potentially nonmajor sources, they will 
be considered a single major source as long as the two sources are 
under common control and together

[[Page 16325]]

equal more than the major source threshold.
    Finally, suppose a nonmajor source located along a public road 
decides to build a new nonmajor source down the road from the nonmajor 
source (the two sources are on tracts of land that are offset along the 
public right of way, such that they do not touch). If, without the 
public road (public right of way), there would be two noncontiguous 
plant sites and not a single plant site, the public right of way in and 
of itself would not create a major source. Therefore, both plant sites 
are considered nonmajor sources.
3. Working Day
    We propose to add a definition for ``working day'' to clarify 
timeline requirements expressed in working days within the General 
Provisions. For example, Sec. 63.6(e)(3) (startup, shutdown and 
malfunction plan requirements) requires that an owner or operator 
record actions taken during a startup, shutdown, or malfunction that 
are inconsistent with a startup, shutdown and malfunction plan within 2 
working days after commencing the inconsistent actions. We are 
proposing to add a definition to clarify that a ``working day'' is any 
day on which Federal government offices (or State government offices 
for a State that has obtained delegation under section 112(l)) are open 
for normal business. Saturdays, Sundays, and official Federal (or where 
delegated, State) holidays would not constitute a ``working day.''
4. Compliance Plan
    We are proposing to delete the ``compliance plan'' definition from 
the General Provisions. Representatives of sources have commented that 
compliance plans were required under title V and not under section 112 
of the CAA. We assessed and agreed that there would not be an adverse 
or unintended effect from its deletion.
5. Part 70 Permit
    We are proposing to delete the definition of ``part 70 permit'' 
because the definition of ``title V permit'' is more generic and 
deletion is consistent with other streamlining efforts in this proposal 
to remove unnecessary references to other authorities.

D. Prohibited Activities and Circumvention

    We are proposing to delete Sec. 63.4(b)(3) and create a new 
Sec. 63.4(c) that clarifies our position on ``fragmentation.'' Section 
63.4(b)(3) of the General Provisions prohibits circumvention of 
relevant standards by fragmenting an operation. Some have suggested 
that dividing production between various manufacturing facilities to 
reduce the potential to emit below regulatory thresholds at one or more 
facilities and, thus, avoid control requirements or permitting 
obligations, should be considered a legitimate compliance strategy. The 
prohibition against fragmentation is intended to prevent dividing an 
operation within the same facility among various owners and, thus, 
avoid applicability where there is no real change in control. Merely 
changing the name of the owner of a portion of a facility to a new 
corporate entity which is nonetheless still under common control should 
not be a compliance strategy that would legitimately avoid compliance.
    Sources also cannot phase reconstruction activities to avoid 
applicable new source requirements. While we do not intend to 
circumscribe legitimate business or compliance strategies, we are 
proposing that activities that are fragmented or phased to stay within 
the 50 percent of fixed capital cost criteria in item (1) of the 
definition of ``reconstruction'' in Sec. 63.2 shall be considered 
together for applying that criteria. Periodic replacement of equipment 
to maintain production to meet product demands should not be aggregated 
for determining whether reconstruction has occurred. To illustrate, if 
a process modernization project involves a new reactor, heat exchange 
system, separation devices and storage vessels, and separate contracts 
are awarded for various portions of the project, limiting each one to 
less than 50 percent of the replacement cost of a comparable new 
affected source, these contracts should be considered together in 
applying that 50 percent criteria. However, if the same process unit 
were expanded, debottlenecked, or upgraded over time by replacing these 
various components, the projects should not be considered together to 
determine whether the 50 percent of fixed capital cost is eventually 
exceeded since the projects were not phased (or fragmented) to avoid 
new source MACT.

E. Preconstruction Review

    We are also proposing to amend the requirements for preconstruction 
review. We are proposing to amend the title of Sec. 63.5 to more 
accurately reflect the contents of the section. The proposed title is 
``Preconstruction Review and Notification Requirements.'' The following 
paragraphs discuss the more substantive proposed amendments.
1. Preconstruction Review Applicability
    Under the current General Provisions, owners or operators of 
sources that commence construction or reconstruction after the proposal 
date of a relevant standard, but do not start up before the effective 
date of such standard, are required to undergo preconstruction review. 
We recognize that this requirement could cause costly delays as the 
owner or operator may be forced to cease construction or delay startup 
until a preconstruction review is completed.
    We have concluded that sources commencing construction prior to the 
effective date of a relevant standard should not have to undergo 
preconstruction review under the General Provisions. We are proposing 
to amend Sec. 63.5(a) of the General Provisions to exempt these sources 
from the requirement for preconstruction review. Thus, only sources 
that commence construction or reconstruction after the effective date 
of a relevant standard would be required to undergo such 
preconstruction review. However, regardless of whether preconstruction 
review is required, sources that commence construction or 
reconstruction after the proposal date of a relevant standard are 
subject to new source MACT requirements, and they must be in compliance 
at startup, or by the promulgation date of the NESHAP, if startup 
occurs prior to the promulgation date.
    Similarly, we are proposing to amend Sec. 63.5(a) to require 
preconstruction notification only for nonmajor-emitting affected 
sources that commence construction or reconstruction after the 
effective date (even though all affected sources commencing 
construction and reconstruction after proposal must meet new source 
MACT). The owners or operators of these sources, while not subject to 
preconstruction review, are subject to notification requirements. We 
are proposing to revise the related notification requirements in 
Sec. 63.9(b)(5) to allow the source to request a reduction in the 
information required in the application to construct or reconstruct 
(Sec. 63.9(b)(5)(iii)). This flexibility should reduce the burden on 
smaller sources to comply with the notification requirements. However, 
in the event the permitting authority grants the source permission to 
not submit portions or all of the standard information, the source 
would still be required to keep this information on file and available 
for inspection.
    We note that some owners and operators will be otherwise required 
to apply for and obtain a case-by-case

[[Page 16326]]

MACT determination under section 112(g) before commencing construction 
or reconstruction of a process or production unit. The proposed 
revisions of the preconstruction review requirements in the General 
Provisions do not alter in any way the obligation of an owner or 
operator to meet the separate requirements established by the EPA under 
section 112(g).
2. State Preconstruction Review
    We evaluated the State preconstruction review requirements and 
recognized that owners or operators may object to another approval 
process when a source has already gone through a similar State 
preconstruction review process. We are proposing to allow States that 
have taken delegation of the General Provisions and of a relevant 
subpart to use their preconstruction review procedures to meet the 
preconstruction review requirements of Sec. 63.5 when they are 
substantially equivalent (Sec. 63.5(f)(1)).
    Under this proposal, we would allow owners or operators of affected 
sources to notify the Regional Office of a State's finding that their 
preconstruction review program requirements are substantially 
equivalent to the General Provision's preconstruction review 
requirements.This proposed change would allow States with existing 
programs for review of new sources for toxics to utilize their programs 
as long as they are ``substantially equivalent'' to those required 
under Sec. 63.5 of the General Provisions. For an owner or operator of 
an affected source, it would also eliminate the burden of having to go 
through two similar preconstruction review procedures. This proposed 
change provides flexibility and reduces the potential burden for both 
the permitting authority and owners and operators of affected sources.

F. Startup, Shutdown, and Malfunction Plans

1. Incorporation in Title V Permit
    The current General Provisions include a requirement that an 
affected source's startup, shutdown, and malfunction (SSM) plan ``be 
incorporated by reference into the source's title V permit.'' Some of 
the litigants, as well as some others in the regulated community, have 
expressed concern that this language could be construed to require 
permit revision procedures to be followed each time that an SSM plan is 
revised. We believe that it would be unduly burdensome and 
inappropriate to require that permit revision procedures be utilized 
each time an affected source revises its SSM plan.
    We are proposing to delete the current language concerning 
``incorporation by reference,'' replacing it with new language stating 
that the title V permit for an affected source must require that the 
owner or operator adopt a SSM plan and operate and maintain the source 
in accordance with the procedures specified in the plan. The new 
language makes it clear that, unless the permitting authority provides 
otherwise, an affected source may make appropriate revisions to a SSM 
plan without prior approval by the Administrator or the permitting 
authority. Further, because there are no requirements for prior review 
and approval of a SSM plan, permit revision procedures are not required 
in connection with revising the SSM plan, and the permit shield in CAA 
section 504(f) does not apply to the contents of a SSM plan.
    In developing the new language, it became apparent that the current 
General Provisions do not adequately describe the procedures to be 
followed when an affected source revises its SSM plan. Accordingly, we 
are proposing to add new language requiring each affected source to 
report each revision to its SSM plan in the semiannual report required 
by Sec. 63.10(d)(5). Moreover, the proposed language would require 
prior written notice to the permitting authority if an affected source 
intends to revise its SSM plan in a manner which would alter the scope 
of the activities that are deemed to be a startup, shutdown, or 
malfunction, or would otherwise modify the applicability of MACT 
requirements to the source.
    Petitioners also expressed concern that the SSM plans must be 
submitted with the permit application because they are voluminous and 
may contain confidential information. Extracting the confidential 
business information parts of the plan for public submission would be a 
burdensome and needless exercise. If the permit writer deems it 
appropriate, then the SSM plan must be submitted. Additionally, the 
title V program requires the permit writer to make publicly available 
all parts of the permit, including plans, under 40 CFR 
70.4(b)(3)(viii), which also limits confidential matters to those 
specified in CAA section 114(c). Thus, to minimize the unnecessary 
production of the SSM plan, the permit authority must require that the 
SSM plan be made publicly available only if requested by any person. 
However, if no person seeks a copy of the SSM plan, then there is no 
need for a source to submit it.
    The source must develop, operate, maintain, and report according to 
such a plan. The owner or operator of an affected source must keep a 
copy of the SSM plan on record and available for inspection upon 
request by the Administrator. The Administrator may also request a copy 
of the SSM plan with confidential business information removed to 
provide to interested members of the public. In addition, the owner or 
operator is required to report on a semiannual basis that actions taken 
in response to SSM events were consistent with the SSM plan. If the 
owner or operator takes actions inconsistent with the SSM plan and the 
source exceeds the relevant emission standards, the owner or operator 
must report such actions periodically. An initial report is required 
within 2 working days after commencing actions inconsistent with the 
plan, and a followup letter is required within 7 working days after the 
end of the startup, shutdown, or malfunction event. We believe that the 
reporting and recordkeeping requirements associated with the SSM plan 
will ensure that owners and operators comply with the intent of the 
plan.
2. Enforceability of Operation and Maintenance Requirements
    Section 63.6(e) of the General Provisions establishes the 
requirement for good operation and maintenance of air pollution control 
and monitoring equipment. We do not see this requirement as exposing a 
source to enforcement liability every time a source fails to follow an 
instruction in an owner's manual that has a zero or negligible impact 
on actually minimizing emissions. For example, if a control equipment 
manufacturer recommends that lubricants be changed on a regular 
schedule, and the source is late in making the change, we are not 
suggesting that this is inconsistent with good air pollution control 
practices for minimizing emissions. Vendor specifications are not 
necessarily the best or only indication of good operating practices. 
Where appropriate, sources may alter their operation and maintenance 
practices to accommodate their actual situation. We expect to use this 
section to control bad practices where there is an indication of an 
actual increase in emissions or a significant risk of the same.
    We do not intend to seek double penalties for situations that 
involve simultaneous violations of the good operations and maintenance 
requirements and any otherwise applicable emission standard, including 
work practice requirements. We may

[[Page 16327]]

allege both violations in the alternative, but do not intend to seek 
double penalties. If a source has proof that it has complied with the 
emissions standard, then there should be no allegation of bad operation 
and maintenance during such period.
    We are proposing to amend Sec. 63.6(e)(1)(i) to clarify the 
``general duty'' of owners or operators to ``operate and maintain any 
affected source, including associated air pollution control and 
monitoring equipment, in a manner consistent with safety and good air 
pollution control practices for minimizing emissions to the levels 
required by the relevant standards.'' However, this general duty does 
not require a source to reduce emissions below the level required by 
the standard. Furthermore, when the source is in a period such that the 
SSM plan applies, this general duty would not necessarily require the 
source to meet the standard so long as the source is in compliance with 
the plan.
    We are proposing to amend language in Sec. 63.6(e)(1)(ii) of the 
General Provisions by adding language to recognize that there will 
inevitably be situations at facilities that were not contemplated when 
the SSM plan was developed. Because there is no protocol in the SSM 
plan for such a situation, it would be impossible for a source to 
follow the plan. During such circumstances, a source must do the best 
it can, consistent with safety and good air pollution control 
practices, to minimize emissions, relying on its best engineering 
judgment, expertise and familiarity with the equipment, as well as on 
the protocols for similar malfunctions that are in the SSM plan, if 
any. Conversely, compliance with an inadequate or improperly developed 
SSM plan is no defense for failing to minimize emissions.
    We also acknowledge that there may be situations that cannot be 
prevented by owners or operators through better design or preventive 
maintenance. Some petitioners commented that there may be instances 
that require an owner or operator to bypass emission control devices 
until emissions can be vented to other control equipment to avert 
personal injury, equipment failure, or property damages. It was always 
our intent to consider safety in addition to good air pollution control 
practices when operating and maintaining affected sources. Therefore, 
where appropriate, we are proposing to clarify this intent in the 
General Provisions.
    As noted in the regulatory text, where such unusual situations 
arise, a report justifying the procedure followed must be filed. If the 
Administrator or designee responds to this report by requiring a 
revision to the SSM plan, then the source must do so. The incident may 
be minor in its consequences or unlikely to arise again, in which case 
the Administrator may determine that it is not necessary to revise the 
SSM plan. However, sources are not excused from exerting best efforts 
to minimize emissions merely because there is no protocol listed in the 
SSM plan for the unique circumstances. Failure to minimize emissions is 
a violation of operation and maintenance requirements established under 
section 112 of the CAA.
3. Report Submittal Requirements
    We have identified reporting requirements in the current General 
Provisions that establish different timelines for related reporting 
requirements associated with the SSM plans. In order to facilitate 
reporting for the owner or operator, we are proposing to amend these 
timelines to make them consistent with each other.
    Section 63.8(c)(1)(ii) requires that for those malfunctions (or 
other events) that affect the continuous monitoring system (CMS), the 
owner or operator must report actions not consistent with the SSM plans 
if the relevant standard is exceeded, within 24 hours after commencing 
actions inconsistent with the plan. A followup report is required 
within 2 weeks after commencing actions inconsistent with the plan. 
Section 63.6(e)(3)(iv) requires that an owner or operator who takes an 
action inconsistent with the SSM plan report such actions within 2 days 
after commencing such actions. This must be followed by a letter within 
7 working days after the end of the event.
    We have considered these provisions and agree that it is reasonable 
to require these reports on the same schedule. We are proposing to 
revise the requirements in Sec. 63.8(c)(1) to ensure that SSM 
monitoring reports are filed consistently with the timeframes of 
reports required in Sec. 63.6(e)(3)(iv), which would require an initial 
report within 2 working days and a followup report within 7 working 
days. Consistency in these provisions should have the effect of 
simplifying reporting requirements for owners and operators.
4. Applicability of the Startup, Shutdown and Malfunction Plan
    We are proposing to clarify that the SSM plan includes procedures 
for operating and maintaining both air pollution control devices and 
monitoring equipment. Although the intent of coverage of the plan is 
explicitly stated at the beginning of Sec. 63.6, we recognize that it 
is unclear that the provisions also apply to monitoring equipment in 
other parts of the section. Therefore, we are proposing to clarify 
where necessary that the SSM plan provisions apply to monitoring 
equipment, as well as control device equipment.
5. Routine Maintenance
    We recognize that routine maintenance of air pollution control 
devices is essential to ensure that control devices function properly 
on a long-term basis and achieve the emissions reductions that they can 
achieve. Many facilities can plan and schedule the routine maintenance 
in conjunction with scheduled downtime of the process equipment that 
generates the streams being treated by the air pollution control 
device. In these instances, no compliance issues are raised by the 
outage of the control device for planned routine maintenance. We 
believe that this is the case for the majority of facilities that have 
emission sources subject to MACT standards.
    However, we also recognize that there are times when planned 
routine maintenance of an air pollution control device cannot be 
scheduled to coincide with scheduled downtime of the process equipment. 
In these instances, the facility would have to shutdown the process 
equipment or install redundant air pollution controls. In some 
circumstances, shutdown to perform planned routine maintenance and 
subsequent startup would generate greater emissions than allowing some 
level of emissions to continue to be emitted from the source, either at 
a reduced control efficiency or uncontrolled.
    We believe that relevant standards should incorporate flexibility 
as necessary to assure that emission control equipment is properly 
maintained without causing inappropriate disruptions of source 
operations or unnecessary increases in HAP emissions. There is no 
uniform approach to this issue which will be appropriate for every MACT 
standard. We encourage affected sources to suggest potential allowances 
for routine maintenance in each instance where it would be helpful for 
the relevant standard to expressly address this issue. We will consider 
all such suggestions, incorporate provisions addressing routine 
maintenance into MACT standards where we conclude that flexibility is 
appropriate, and explain our decision not to incorporate such 
provisions in circumstances where we conclude that it is not 
appropriate.

[[Page 16328]]

G. Compliance Provisions

1. Compliance Extensions
    The petitioners requested us to provide additional opportunities 
for owners and operators to request compliance extensions under CAA 
section 112(i)(3). The General Provisions require an owner or operator 
to make such requests 12 months before the compliance date for a 
relevant standard. The petitioners pointed out that events could happen 
within the 12-month period before a compliance date that would warrant 
a compliance extension.
    In general, we anticipate that most sources will have ample time to 
achieve compliance given the 3-year compliance period for many 
requirements. The compliance extension under section 112(i)(3) is 
available for adding controls and other compliance measures requiring 
time beyond that which we anticipated in establishing the compliance 
date for NESHAP. For example, other compliance measures may include 
obtaining or implementing technology hardware or software systems and 
process changes to accommodate pollution prevention or other emission 
reduction measures.
    Such a compliance extension is not appropriate for the failure of 
an owner or operator to properly plan and carry out the installation by 
the compliance date. However, there may be situations where sources 
acting in good faith to anticipate and fulfill their compliance 
obligations can still not achieve compliance in a timely manner because 
of circumstances or events not entirely of their own making. Work 
stoppages at a control equipment supplier's factory are cited as one 
example of a reason that sources, acting in good faith, might not be 
able to achieve compliance on time. Shortages of skilled design and 
construction engineers who are needed to build new facilities to meet 
relevant standards, as well as shortages of available technology to 
meet the demand from sources who must comply with industry-specific 
MACT requirements, may also contribute to delays in achieving 
compliance. Based on the merits of such requests, we expect to issue 
compliance extensions.
    We are proposing to revise this requirement, which is in 
Sec. 63.6(i)(4)(i)(B), to allow requests up to 120 days before the 
compliance date. We are also proposing to add a new paragraph (C) to 
Sec. 63.6(i)(4)(i) to allow requests during the last 120 days before 
the compliance date, if the need arose during that 120 days and if the 
need was due to circumstances beyond the reasonable control of the 
owner or operator.
    We recognize that there may be some situations where applicants for 
a compliance extension recognize that, for the reasons stated above, 
they are unable to comply, and hence file an extension request shortly 
before the compliance date, as is now provided by the General 
Provisions. Operating affected sources after the compliance date of a 
NESHAP creates a potential enforcement situation for companies which, 
despite their best efforts, are unable to meet the deadlines for MACT 
compliance. As a practical matter, companies may choose to shut down 
operations rather than operate without a compliance extension. For 
sources who act in good faith in filing an extension request, we will 
try to act promptly. In the interim, we intend to use other temporary 
measures to address the situation. In such cases, we intend to be 
receptive to entering administrative consent orders without penalty 
during the pendency of the review if the company complies with such an 
order and cooperates by providing all requested information to us for 
processing the good faith extension request.
    For a standard promulgated under CAA section 112(f), 
Sec. 63.6(i)(4)(ii) requires a source to submit a request for 
compliance extension within 15 days after the effective date of the 
NESHAP. We are proposing to increase the time allowed for a source to 
submit a request for a compliance extension from 15 to 90 calendar days 
after the effective date of a relevant standard promulgated under CAA 
section 112(f). The longer time period appears needed and reasonable to 
allow source owners or operators sufficient time to prepare a complete 
request. We are also proposing to eliminate the requirement in 
Sec. 63.6(i)(4)(i)(B) that establishes a different timeframe for 
sources that include emission points in an emissions average. We 
believe that this specific issue is better dealt with in the respective 
NESHAP.
    We are proposing to delete the interim milestone information 
required in a Sec. 63.6(i)(6) request for a compliance extension under 
Sec. 63.6(i)(4) and direct the focus of the request toward supplying 
information on the date and manner in which final compliance would be 
achieved.
2. Title V Enforcement
    Several sections in the current General Provisions refer to title V 
obligations and general compliance obligations. We are proposing to 
delete these cross references because they are redundant or 
unnecessary. For example, Sec. 63.4(a)(5) requires an owner or operator 
of a source subject to a relevant standard to comply with the 
requirements of that standard regardless of whether a title V permit 
has been issued to the source incorporating the standard. It is clear 
from section 113(b)(2) and (c)(1) that standards promulgated under 
section 112 are enforceable apart from their incorporation into title V 
permits, and nothing in title V or the part 70 operating permits rules 
suggests the contrary. We are also proposing to delete the severability 
clause of Sec. 63.4(c) because it is unnecessary.
    We are proposing to delete Sec. 63.5(b)(5), which states that no 
person may operate without complying with the General Provisions and 
the relevant standard unless that person has obtained a compliance 
extension or exemption under Sec. 63.6. We believe the Sec. 63.6 
requirements are sufficient to define compliance obligations.
3. Area Sources That Become Major
    We are proposing to revise Sec. 63.6(b)(7) and (c)(5) of the 
General Provisions. These paragraphs address the compliance timing 
requirements that result when an area source subsequently increases 
emissions, thus becoming a major source after 1 or more applicable 
NESHAP have been proposed. These sections establish the timing 
requirements when a subsequently affected source at the former area 
source is considered a new source or an existing source under the 
relevant standard.
    The current General Provisions require new source MACT for area 
sources that become major after the effective date of the relevant 
standard, regardless of when the portion of the source affected by the 
standard (the affected source) actually commenced construction 
(including those that commenced construction long before the proposal 
date of the NESHAP). This would cause affected sources to unnecessarily 
retrofit new source control measures on existing equipment not designed 
to accommodate such measures. We are proposing to revise 
Sec. 63.6(b)(7) and (c)(5) to require new source MACT only on affected 
sources that commenced construction or reconstruction after the 
proposal date of the NESHAP. Those affected sources must comply with 
new source MACT upon startup. Affected sources at former area sources 
that become major that have not constructed or reconstructed after the 
proposal date of the NESHAP would be subject only to existing source 
MACT, and would comply by the date

[[Page 16329]]

specified in the standard for existing area sources that become major, 
or if no such compliance date is specified, be given the same amount of 
time to comply as specified for existing sources in the standard. These 
revisions are consistent with the definition of new source in section 
112(a)(4) of the CAA, which defines a new source as one that commences 
construction or reconstruction after the Administrator first proposes 
NESHAP under section 112 establishing an emission standard applicable 
to such a source. Such a source would be able to reasonably anticipate 
control requirements and construct the source to include such controls 
as Congress intended in the CAA.

H. Test Methods

1. Performance Test Dates
    We are proposing to streamline the performance test date 
requirements of Sec. 63.7(a)(2). As currently written, the section 
outlines several different scenarios for establishing performance test 
dates. However, all are tied to a 180-day period of some triggering 
event, usually the compliance date. Upon review, these multiple 
scenarios add more confusion than clarity, and we propose to replace 
them with a blanket requirement that sources conduct their performance 
tests with 180 days of the compliance date. Section 63.7(a)(2)(i) 
through (viii) would be reserved as a result. However, we would retain 
Sec. 63.7(a)(2)(ix) to address the scenario where a relevant standard 
is promulgated that is more stringent than the proposed standard.
2. Alternative Test Methods
    We propose to amend Sec. 63.7(c)(3)(ii)(B) to ensure that a request 
to use an alternative test method does not delay the performance test 
process. If amended, the section would authorize the owner or operator 
to conduct the performance test using an alternative method in the 
absence of notification of approval after submitting the site-specific 
test plan or the request to use an alternative method. The performance 
test would then be conducted within 60 days after authorization to 
conduct the test. A source owner or operator's decision to proceed with 
using an alternative method in the absence of a notification that the 
method is approved would not preclude the owner or operator's legal 
responsibility to comply with the applicable provisions of the relevant 
standard. We are also proposing conforming amendments in Sec. 63.7(f), 
use of an alternative test method, to implement this approach.
3. Approval of Alternative Test Methods and Monitoring Requirements
    In 1998, we issued guidance regarding delegation of the 40 CFR part 
63 General Provisions authorities to State and local air pollution 
control agencies (Memorandum from John S. Seitz, Director, Office of 
Air Quality Planning and Standards, to Regional Air Division Directors, 
July 10, 1998). In our September 14, 2000, promulgation of revisions to 
40 CFR part 63, subpart E (65 FR 55810), we have codified this 
guidance. We are now proposing a number of revisions to Secs. 63.7 and 
63.8 of the General Provisions, which cover performance testing and 
monitoring requirements, to harmonize these sections with the 1998 
guidance and subpart E rulemaking, particularly in regard to 
Administrator approval of alternative test methods and monitoring 
requirements. The specific revisions and sections affected are 
explained below.
    First, the 1998 guidance and subpart E rulemaking introduced a new 
category of changes or alternatives to test methods and monitoring 
referred to as ``intermediate changes.'' Because this new category 
modifies the major alternative category previously referred to in 
Secs. 63.7 and 63.8, we are proposing to revise Secs. 63.7(e)(2)(i) and 
(ii), 63.7(f)(1), 63.8(b)(1)(i) and (ii), and 63.8(f)(1) to cite the 
definitions for minor, intermediate, and major changes to test methods 
and monitoring requirements in Sec. 63.90(a).
    Second, we have noted recent confusion in distinguishing test 
methods from monitoring for the purposes of deciding who has the 
delegated authority for approving alternatives; consequently, we are 
proposing revisions to the language in Sec. 63.8(f)(4)(iv) and (5)(i) 
to clarify this difference.
    Third, we have also noticed significant inconsistencies regarding 
the instruments for requesting and granting approval of intermediate 
and major changes to test methods, in specific, the combination of the 
site-specific test plan/test plan approval versus a letter of request 
coupled with an official letter of approval. In consideration of the 
significance of approvals of major and intermediate changes on the 
compliance decision, and a level of documentation appropriate to the 
decision itself, we believe that only an official letter should be used 
to approve intermediate and major changes to test methods. Also, the 
potential delegated authorities for approval of test plans versus those 
for approval of intermediate or major changes to test methods are often 
not the same. We are, therefore, proposing revisions to 
Sec. 63.7(c)(3)(ii), 63.7(e)(2)(i), and (e)(3) to clarify that major 
and intermediate changes to test methods cannot be requested through 
test plans nor approved in the course of test plan approval. To 
parallel this approach for monitoring, we are proposing the addition of 
language to Sec. 63.8(f)(4)(iv) to allow requests for minor changes to 
monitoring to be submitted in the site-specific performance evaluation 
plan and for these changes, where appropriate, to be approved in 
conjunction with approval of this plan.
    In addition, we are updating the information in Sec. 63.7(c)(4)(i) 
regarding contacts for requesting performance audit materials. We are 
also clarifying the requirements for proposing an alternative 
monitoring system by citing in Sec. 63.8(f)(4)(ii) and adding to 
Sec. 63.2 a definition of the basic elements that constitute a 
monitoring system.

I. Monitoring Requirements

1. Combined Emission Streams
    We are proposing to change the requirement that a continuous 
monitoring system be installed on each emission stream that is combined 
prior to release to the atmosphere or on each emission point for mass 
emissions standards. We recognize that there may be cases where a 
blanket requirement that each stream have a CMS may not add compliance 
assurance but would add costs and burden to the owner or operator. 
Therefore, we are proposing a change to Sec. 63.8(b)(2) that would 
allow for the use of a single CMS for monitoring combined emission 
streams, provided that the monitoring is sufficient to demonstrate 
compliance with the relevant standard. This will be evaluated in the 
development of each standard.
    For example, a relevant standard could specify the use of a 
condenser for which compliance could be demonstrated by monitoring and 
maintaining the temperature of the cooling coils below a specified 
level. The compliance temperature level would not be compromised by 
controlling one or more emission streams. Therefore, a single CMS for 
monitoring combined emission streams would be sufficient to demonstrate 
compliance.
    Alternatively, the combination of emission streams for monitoring 
could result in the inadvertent averaging of affected and nonaffected 
sources. For example, if the CMS is designed to monitor the 
concentration of a compound in the stream, a nonaffected source stream 
with a low concentration of the compound would mask a high

[[Page 16330]]

concentration of the compound in the affected stream. Where the 
combined stream might meet the relevant standard, the single affected 
stream would not. In this case, the individual standard requirements 
might override the General Provisions to prevent the ``dilution'' of 
the streams from occurring.
2. Monitor Readouts
    We are clarifying in the proposed amendments the owner or 
operator's obligation regarding the accessibility of readouts from 
monitoring systems required for compliance with emission standards. In 
today's proposed amendments, we are proposing language in 
Sec. 63.8(c)(2) that requires monitor readouts to be ``readily 
accessible on site.'' This phrase ``readily accessible on site'' means 
the monitor readout must be in plain view or in close proximity where 
the operators normally are located when operating such equipment. This 
requirement does not mean that the monitor readout must be in plain 
view of the operator at all times, but that the device is readily or 
reasonably accessible so the operator or an inspector can view the 
readout without unnecessary delay.

J. Notification Requirements

1. Initial Notification Requirements
    We are proposing to reduce the source description information that 
an owner or operator of an affected source subject to a relevant 
standard is required to submit in the initial notification under 
Sec. 63.9(b). The intent of the initial notification is to identify and 
alert the EPA and/or delegated State agencies of those sources for 
which a relevant standard applies.
    We have evaluated and decided that it was both unnecessary for us 
to receive and burdensome for sources to supply information regarding 
the operating design capacity of an affected source and the identity of 
each emission point for each emitted HAP in the initial notification. 
Therefore, we are proposing that the initial notification not require 
that an owner or operator report the operating design capacity of the 
source, and only require that the owner or operator identify the types 
of emission points and HAP emitted in lieu of each emission point for 
each emitted HAP.
    As discussed in section II.E of this preamble, we are proposing to 
revise Sec. 63.9(b)(5) to allow a nonmajor emitting source that is not 
subject to the requirements to submit an application for 
preconstruction review and approval and to request a reduction in the 
information required in the application to construct or reconstruct. 
This flexibility should reduce the burden on smaller sources to comply 
with the notification requirements.
    In general, we propose to streamline the requirements of 
Sec. 63.9(b), initial notifications, to eliminate duplicative or 
unnecessary information (e.g., Sec. 63.9(b)(4)(ii) through (iv)). We 
are proposing to delete Sec. 63.9(b)(3) and revise Sec. 63.9(b)(4) and 
(5) to clarify the applicability and responsibility of sources under 
these requirements. In particular, we would clarify the 
responsibilities of sources that have an initial startup date before 
the effective date of the relevant standard, as well as sources that 
construct or reconstruct after the effective date of the relevant 
standard.
2. Performance Test Notification
    Section 63.7(b) of the General Provisions provides performance test 
notification requirements that we and/or delegated State agencies be 
notified at least 60 calendar days before the scheduled date of the 
performance test. In cases where circumstances did not allow for such 
notice, the requirement was that the notice be submitted within 5 days 
of the date that an affected source intends to conduct the performance 
test.
    Performance tests often are conducted by persons contracted to do 
the work, and an owner or operator may not be able to control when a 
performance test will be performed. We agree that if an owner or 
operator cannot inform the Administrator that it is unable to conduct a 
performance test because of unforeseeable circumstances, the intent of 
the provisions would be met as long as an owner or operator notifies 
the Administrator as soon as practicable and without delay of an intent 
to conduct a performance test. Therefore, we are proposing to amend 
Sec. 63.7(b)(2) accordingly.
3. Area Source Analysis
    We are proposing to eliminate the requirement in 
Sec. 63.9(h)(2)(i)(E) that an owner or operator of an area source 
submit, as part of the Notification of Compliance Status when a 
relevant standard applies to both major and area sources, the analysis 
demonstrating that the source is an area source. After further review, 
we decided that submission of an analysis demonstrating that the source 
is not major is only necessary for enforcement purposes when a relevant 
standard applies to both major and area sources. The proposed change 
would eliminate the need for nonaffected area sources to submit an 
analysis, and the need for affected area sources to submit the analysis 
with their compliance notification. This proposed change does not 
relieve an owner or operator of a source from the responsibility to 
determine whether the source is a major source or an area source. Refer 
to section II.K of this preamble for the discussion on the 
applicability determination recordkeeping requirement for unaffected 
sources.

K. Recordkeeping and Reporting Requirements

1. Recordkeeping Requirement for Unaffected Sources
    The current General Provisions include a requirement in 
Secs. 63.1(b)(3) and 63.10(b)(3) for sources both to determine 
applicability and to keep a record of this determination if the source 
determines that it is not an affected source for a relevant standard. 
In enacting this provision, it was our intent to enable an owner or 
operator of a source in a given source category to document its 
determination that the source is not subject to a NESHAP promulgated 
for that source category. However, an unintended interpretation of the 
General Provisions could be to require owners and operators of any 
source, including facilities not in the source category being 
regulated, to perform applicability determinations each time any NESHAP 
are promulgated. It was not our intent that the General Provisions 
require owners and operators to make a determination that they are not 
subject to every NESHAP that is issued. In this proposal, we are 
clarifying our intent. We are proposing to revise the language in 
Secs. 63.1(b)(3) and 63.10(b)(3) to limit requirements to the sources 
within the source category of the relevant standards. Area sources that 
would be required to retain a certified applicability determination 
include sources that are subject to limitations on the source's 
potential to emit; sources that are specifically excluded from the 
relevant standards (e.g., research and development facilities); and 
sources that are below applicability thresholds established in the 
source category-specific rule (e.g., annual raw material use, 
production thresholds, emissions). If a source has failed to retain the 
documentation of its original determination but can reestablish that 
documentation to the satisfaction of the Administrator and proves that 
it has not been and is not subject to the relevant standard affecting 
the source category, we will consider such a violation to be a low 
enforcement priority.

[[Page 16331]]

    In addition, we are proposing to amend Sec. 63.10(b)(3) to clarify 
that the requirements to determine the applicability of a relevant 
standard under Sec. 63.1(b)(3) and to record the results of that 
determination under Sec. 63.10(b)(3) do not by themselves create an 
obligation for the owner or operator to obtain a title V operating 
permit.
2. Preconstruction Review Application Submittal
    We are proposing to change the submittal requirements for an 
application for approval of construction or reconstruction. The current 
General Provisions require owners or operators of an affected source to 
submit an application for approval of the construction of a new major 
affected source, the reconstruction of a major affected source, or the 
reconstruction of a major source such that the source becomes a major 
affected source subject to the relevant standard. The application 
submittal is required as soon as practicable before the date that 
construction or reconstruction is planned to commence, but no sooner 
than the effective date of a relevant standard. The application 
submittal for an affected source for which construction or 
reconstruction had commenced and initial startup had not occurred 
before the NESHAP effective date is required as soon as practicable 
before startup but no later than 60 days after the effective date.
    The petitioners commented that specified time constraints for 
application submittal were unnecessary because an owner or operator 
would not risk constructing or reconstructing a source without 
receiving approval. We specified timeline submittal requirements to 
ensure that owners or operators proceeded through the preconstruction 
review application process in such a way as to allow us sufficient time 
for review. We agree that it is in an owner's or operator's best 
interest to obtain approval for construction or reconstruction before 
expending time and money, which should provide a sufficient incentive 
for sources to submit applications as early as possible. Therefore, we 
are proposing to require that the application be submitted as soon as 
practicable before construction or reconstruction is planned without 
specifying time constraints (Sec. 63.5(d)(1)(i)). However, even though 
we would not specify time constraints within the relevant standard, we 
would recommend that owners or operators allow us at least 90 days for 
the review process.

L. Lesser Quantity

    The petitioners expressed concern that the definition of ``lesser 
quantity'' in Sec. 63.2 could create serious compliance problems and 
inequities in situations where equipment/operations in more than one 
source category are present at a facility. For example, the petitioners 
have noted that equipment/operation in each of two or more source 
categories at an area source when a relevant section 112 standard is 
adopted would not be subject to the standard, unless the section 112 
standard applied to area sources. However, if a lesser quantity 
determination is subsequently made for a HAP emitted by the equipment/
operations in one of the source categories at the facility such that 
facility became a major source, the other regulated source categories 
would also then become major sources without regard to the HAP they 
emit.
    As part of today's amendments, we are proposing to delete the 
definition of lesser quantity from Sec. 63.2 of the General Provisions. 
It is not our intent by deleting the definition of ``lesser quantity,'' 
to indicate one way or other whether we agree with the litigants' 
concerns. It is our intent that, if a lesser quantity determination 
would affect the major/area source status of sources in categories for 
which a section 112 standard was previously promulgated, we would 
address appropriate applicability and compliance procedures when such a 
determination is made.

M. Clarification and Consistency

    We are proposing other changes to the General Provisions where 
necessary for clarification and consistency. These are not substantive 
changes and do not change the requirements of the General Provisions. 
Instead, these proposed changes would make the General Provisions 
easier to understand and to use. Minor editorial and clarifying changes 
are discussed by way of example in the following paragraphs. More 
substantive changes are addressed in other sections of this preamble.
1. Preconstruction Review and Title V Interaction
    In the current General Provisions, several paragraphs under 
Sec. 63.5 (e.g., paragraphs (b)(3), (4), and (5)) include the phrase 
``whether or not an approved permit program is effective in the State 
in which an affected source is (or would be) located.'' The intent of 
this phrase is to indicate that the preconstruction review provisions 
that are included in the General Provisions are established pursuant to 
section 112(i) of the CAA. These preconstruction review provisions do 
not rely upon a title V permit program for implementation; rather, they 
are completely independent and are implemented solely through the 
General Provisions. Consequently, this phrase does not affect the 
requirements for preconstruction review; it merely distinguishes those 
requirements from other requirements that may subsequently come into 
place under an approved title V program. Upon review, we have 
determined that this phrase may be confusing to owners or operators who 
must comply with the relevant standard or to State and local agencies 
required to implement the relevant standard. Therefore, we are 
proposing to delete this phrase from the General Provisions.
2. Continuous vs. Continuous Parameter Monitoring Systems
    We are proposing clarifying changes to Sec. 63.8(c)(6) to identify 
those requirements that are for continuous parameter monitoring systems 
(CPMS) versus those that apply to CMS. The change is intended to avoid 
possible confusion by the owner or operator as to which provisions 
apply when the requirements are not clearly delineated in a relevant 
standard.
3. Applicability of Standards Developed Under the CAA
    We are proposing to clarify in Sec. 63.1(a)(3) that the 
Administrator can specify in a relevant standard that an affected 
source subject to other provisions under the CAA need only comply with 
the provisions of that standard. This clarification reflects what is 
already being done in relevant standards. We do this in relevant 
standards so that an owner or operator of an affected source subject to 
other standards under the CAA is not burdened with the need to 
determine the ``more stringent'' requirements for compliance purposes 
or to duplicate recordkeeping and reporting for each standard. Both the 
HON and petroleum refineries NESHAP specify in the applicability 
section the requirements that would apply when there are overlapping 
requirements with other standards developed under the CAA. For example, 
in the Petroleum Refineries NESHAP (60 FR 43244), we specified that 
after the compliance dates for that NESHAP, a storage vessel that is 
part of an existing source that is subject to 40 CFR part 60, subpart 
Kb, would only be required to comply with 40 CFR part 60, subpart Kb.

[[Page 16332]]

4. Unnecessary Additional Information
    We are proposing to delete unnecessary additional information from 
the General Provisions. For example, we are proposing to delete 
Sec. 63.1(a)(7) and (8) because they discuss the content of 40 CFR part 
63, subparts D and E, and do not provide information or requirements 
relevant for compliance with the General Provisions.
5. Actual Emissions or Control Efficiency Data
    We are proposing to eliminate the requirement in Sec. 63.5(d)(2) to 
submit ``actual'' emissions or control efficiency data with the 
Notification of Compliance Status when a relevant standard does not 
require this information to demonstrate compliance. We believe that 
this requirement as stated can cause confusion because it is often not 
feasible or required that ``actual'' emissions or control efficiency 
data be submitted for ``affected sources'' to demonstrate compliance.
6. Commence Versus Begin Actual Construction
    Section 63.5(d) of the current General Provisions contains 
requirements for new and reconstructed affected sources. The 
petitioners commented that the use of the term ``commence 
construction'' as a trigger for submittal of the application was 
inappropriate. Similarly, they commented that the expectation that the 
notification of intent to construct a new major affected source include 
``the expected commencement date of the construction or 
reconstruction'' was inappropriate. The General Provisions define 
``commenced'' in such a way that an owner or operator would be 
obligated to submit an application for construction or reconstruction 
if they enter into a contractual obligation to undertake and complete a 
construction or reconstruction. Petitioners explained that such 
contractual obligations may be in place, but actual construction plans 
or design information necessary for completion of an application may be 
unknown.
    We evaluated those places within the current General Provisions, 
Sec. 63.5(d), where petitioners commented that the use of the terms 
``commence'' or ``commencement'' are inappropriate. We are proposing to 
amend the regulatory language to specify the beginning of actual 
construction rather than the commencement of construction. This 
proposal reflects our original intent and addresses the petitioners' 
concerns.
7. Consistency With Statutory Language
    In some cases, the current General Provisions contain terminology 
that is inconsistent with what is in the CAA. We have corrected 
inconsistent language where appropriate. For example, Sec. 63.1(a)(3) 
contains language inconsistent with the parallel language of section 
112(d)(7) of the CAA. We are proposing parallel regulatory language to 
match that of the CAA.
8. Use of Alternative Test Methods
    We are proposing to amend Sec. 63.7(f)(2)(ii) to clarify that the 
use of defined aspects of Method 301 procedures may be sufficient to 
validate the data and the test method used to obtain the data. 
Currently, the language implies that a complete Method 301 validation 
would be required to make this demonstration in all cases, which was 
not our intent.
    Method 301 establishes acceptance criteria as well as a 
demonstration procedure for test method development and validation and 
alternative method demonstrations. Such criteria and procedures did not 
exist before Method 301; therefore, the many emission test methods in 
the United States and abroad did not have a standard procedure 
underlying their validation. Method 301 defines how good a proposed 
method is in terms of bias and precision either standing alone or 
compared to an existing (reference) method.
    During the proposal and promulgation of Method 301, we recognized 
that other acceptable validation procedures for demonstrating a 
method's acceptance (precision and bias) do exist, e.g., ASTM. We 
acknowledged this in Sections 1.1.1 and 12 of Method 301, which allow 
different validation approaches under certain conditions, including 
other reasonable statistical approaches, ruggedness testing of method 
modifications, similar exhaust matrix demonstrations, etc.

III. Proposed Amendments to the Section 112(j) Provisions

    We are proposing to clarify and correct the existing rules (59 FR 
26429) (part 63, subpart B, Secs. 63.50 through 63.56) promulgated May 
20, 1994, implementing section 112(j) of the CAA to better address 
timing and applicability issues. A key point of clarification is how 
and when new source MACT and the associated new affected source are 
defined. The current rules establish the section 112(j) hammer date as 
the date for determining whether new source MACT should apply and what 
it should be. However, because this date could occur before a source 
had received a title V permit containing MACT emission limitation 
requirements for new sources, sources would be left to ``guess'' at 
what new source MACT would be. If the source didn't guess correctly, 
and new source MACT were different than anticipated at the commencement 
of construction, it may incur significant rebuilding expense or delays 
to accommodate new MACT controls when finally issued in a title V 
permit. Although we considered this difficulty in knowing the exact 
nature of new source MACT, and discussed it extensively in the 
promulgation preamble (59 FR 26435), the petitioners pointed out that 
our solution was unworkable.
    With these amendments, we are proposing an alternative remedy to 
the timing requirements associated with new source MACT determinations. 
As discussed in section III.C of this preamble, we propose to change 
the new source MACT applicability date to the date on which an affected 
source is issued a title V permit containing requirements establishing 
new and existing source MACT for that affected source. From this date 
onward, future changes at the facility can be made with knowledge of 
what new source MACT is for that facility. This change in the 
applicability date also affects area sources (i.e., nonmajor sources) 
that become major sources. For example, an existing area source (in a 
category or subcategory for which the section 112(j) permit hammer date 
has passed) that increases emissions such that the source becomes a 
major source would be subject to existing source MACT because the new 
source MACT applicability date has not yet been established for the 
source.
    The other major clarification we are proposing today is the 
creation of a two-part MACT application process. Part 1 would be a 
brief informational submittal, followed by a substantive application 
for MACT requirements, or Part 2. We discuss this process in more 
detail in section III.D of this preamble.

A. Applicability

    We are proposing several changes to clarify Sec. 63.50 
applicability requirements. We have reorganized Sec. 63.50(a) to 
clarify that the section 112(j) program places obligations on source 
owners and operators (Sec. 63.50(a)(2)(i)) and on permitting 
authorities (Sec. 63.50(a)(2)(ii)). We also propose to exempt research 
or laboratory activities whose primary purpose is to conduct research 
and development into new processes and products. This proposed 
exemption (Sec. 63.50(a)(1)) would remain until research and 
development activities are listed as a source category for regulation 
pursuant to section 112(c)(7) of the

[[Page 16333]]

CAA. We propose to add a definition to Sec. 63.51 for research or 
laboratory facilities, which is discussed in more detail in section 
III.B of this preamble.
    We are proposing to amend Sec. 63.50(a)(2)(i) to clarify that only 
equipment or activities within the relevant source category or 
subcategory located at major sources are affected by the regulatory 
requirements implementing section 112(j). Currently, the rule could be 
interpreted to apply to emission sources at the facility but outside of 
the relevant category or subcategory, which was not our intent. For 
example, assume that a source is subject to section 112(j) emission 
limitations for operations in a relevant category or subcategory. Other 
operations at the same facility in a different category or subcategory 
would not be subject to section 112(j) emission limitations unless and 
until the section 112(j) deadline for this different category or 
subcategory passes.
    We are also proposing to clarify the relationship of section 112(j) 
applicability to the effective date of the permitting authority's title 
V program in Sec. 63.50(a)(2)(i). In particular, petitioners raised the 
concern that, in the case of a title V program that receives source 
category-limited interim approval, section 112(j) should apply only to 
those sources subject to permitting in that title V program, or should 
apply only to sources located in those geographic areas covered by the 
title V permit program receiving partial approval in a given State. We 
agree that if the approved title V program is limited to specific 
source categories or subcategories, then section 112(j) should not be 
triggered for sources in categories or subcategories not covered by the 
title V program.
    The petitioners objected to the language in Sec. 63.50(b) which 
states that the current rule does not prevent a State or local 
regulatory authority from imposing more stringent requirements than 
those contained in the rule. They contended that limitations 
established under section 112(j) must be equivalent to section 112(d) 
limitations, and that States can only be more stringent as a matter of 
State law. The petitioners interpreted the current language as 
articulating a State's ability to be more stringent than MACT as a 
matter of Federal law.
    We plan to retain the current language. As noted in the 
promulgation preamble (59 FR 26433; May 20, 1994), many State and local 
regulatory authorities maintain regulatory programs that involve air 
toxic pollutant reviews for stationary sources. Section 63.50(b) 
clarifies that section 112(j) does not pre-empt any requirements of 
these programs that are at least as stringent as the current rule. 
However, we are requesting comment on this issue and will consider 
revising Sec. 63.50(b) in the promulgated amendments if further 
clarification is needed.
    Finally, we are proposing to delete Sec. 63.50(c) because the 
requirement that States must have legal authority to incorporate and 
enforce requirements of section 112(j) is found in 40 CFR part 70. 
Deletion of this provision does not remove the obligation of a 
permitting authority to have section 112(j) authority as a prerequisite 
for title V permit program approval.

B. Definitions

    We are proposing to amend several of the Sec. 63.51 definitions for 
clarity and consistency. Other proposed changes are more substantive 
and, in some cases, are needed to implement broader concepts being 
addressed elsewhere in this preamble. For example, we are proposing to 
add or amend several definitions related to the concept of affected 
source as discussed in section II.B of this preamble. We are proposing 
to add definitions of ``affected source'' and ``new affected source'' 
to Sec. 63.51 as they relate to implementation of this concept. We are 
proposing to revise the definition of ``similar source'' to be 
consistent with implementing the new affected source concept. We are 
proposing to define ``similar source'' as ``that equipment or 
collection of equipment that by virtue of its structure, operability, 
type of emissions and volume and concentration of emissions is 
substantially equivalent to the new affected source and employs control 
technology that is practical for use on the new affected source.'' 
``Practical for use'' contemplates that the State permitting authority 
would consider whether the control technology would achieve similar 
efficiencies. We are proposing to delete the definitions of ``emission 
point,'' ``emissions unit,'' ``existing major source,'' ``new emission 
unit,'' and ``new major source'' in Sec. 63.51 for consistency in 
implementing both subparts A and B proposed amendments. Where 
appropriate, we are proposing edits that reflect these proposed 
definition changes when these terms are used.
1. Available Information
    We are proposing to revise the ``available information'' definition 
to specify the type and timing of information that the owner or 
operator must submit in an equivalent MACT determination application 
under the section 112(j) rule. As promulgated, the deadline for 
submission of this information is the section 112(j) deadline, which is 
the date on which the section 112(j) hammer falls. However, consistent 
with proposed changes in Secs. 63.52 and 63.53 to make the permit 
application a two-part process, the substantive information required by 
the permitting authority to make its case-by-case MACT determination is 
now tied to submittal of the Part 2 MACT application.
    As part of the section 112(j) MACT determination process, the 
proposed concept of ``available information'' is used in such a way as 
to limit the introduction of ``new'' information to the MACT 
determination process beyond the date on which the first Part 2 MACT 
application is filed for an equivalent emission limitation for a source 
in the relevant source category or subcategory in the State or 
jurisdiction. This approach of setting a date certain to limit the 
universe of ``available information'' is consistent with the approach 
being proposed in the new source review program. For example, the 
development of a new emission control technology after the date of the 
first Part 2 MACT application would not be considered ``available 
information'' for another source's MACT determination. However, if the 
technology were developed before the first Part 2 MACT application, but 
the information was only brought to the permitting authority's 
attention after that date, this information would be considered 
``available,'' and it could be used in making the MACT determination. 
Also, we propose to add language to the definition of ``available 
information'' to make clear that permitting authorities can and should 
consider information from the public as well as from the applicant. The 
proposed definition would require the permitting authority to consider 
any information submitted by the applicant or others before or during 
the public comment period on the section 112(j) equivalent emission 
limitation.
    We believe that both the States and the sources will have 
substantial incentive to identify and obtain the full body of 
information that should be considered in the case-by-case MACT 
determination as expeditiously as possible. We also note that available 
information includes, among other things, ``additional relevant 
information that can be expeditiously provided by the Administrator'' 
before the date on which the first Part 2 application is filed for a 
source in the relevant source category or subcategory in the State or 
jurisdiction. For example, such available information could include

[[Page 16334]]

relevant information provided on EPA's Air Toxics Home Page before the 
first Part 2 application date. The better supported a section 112(j) 
MACT determination is, the more likely it is that the effects of 
subsequent section 112(d), 112(h), and 112(g) standards on the affected 
source will be minimal.
    We are proposing to move the content of items 6, 7, and 8 of the 
definition to the introductory text of the definition to clarify the 
role and timing of the more general types of ``available'' information 
that may be provided to the permitting authority. The intent of the 
current language is preserved with the change.
2. Research and Development Activities
    We propose to add a definition of ``research or laboratory 
activities'' to clarify proposed language in Sec. 63.50(a)(1) that 
certain research and development activities are exempt from this 
subpart. We would limit this exemption to sources that are not engaged 
in the manufacture of products for commercial sale, except in a de 
minimis manner, and where the source is not subject to a source 
category specifically addressing research or laboratory activities that 
is listed pursuant to section 112(c)(7) of the CAA. Section 112(c)(7) 
requires the Administrator to establish a separate category covering 
research or laboratory facilities, as necessary to assure the equitable 
treatment of such facilities.
3. Other Definition Changes
    We propose to amend the definition of ``equivalent emission 
limitation.'' We are proposing to replace the phrase ``at least as 
stringent as'' with ``equivalent to'' so that the language in this 
definition is consistent with the language in the CAA. Similarly, the 
proposed definition of ``maximum achievable control technology (MACT) 
floor'' contains minor amendments to ensure consistency with the 
definition in the Act. We are also proposing a minor change to the 
definition of ``section 112(j) deadline'' to clarify that the deadline 
is the date 18 months after the date on which a relevant standard is 
scheduled to be promulgated. We are also proposing to delete the 
definition of ``United States,'' which is considered unnecessary in the 
context of the rule. Finally, we are proposing to amend the definition 
of ``permitting authority'' to clarify that this term means a 
permitting authority under either 40 CFR part 70 or part 71.

C. Approval Process

    We are proposing to expand and modify Sec. 63.52 with proposed new 
paragraphs (a) through (d) to clarify the obligations of owners or 
operators of major sources that include one or more sources in a 
category or subcategory for which the Administrator fails to promulgate 
an emission standard under this part on or before the applicable 
section 112(j) deadline. As discussed in section IV.A of this preamble, 
the purpose of some of these proposed changes is to ensure that 
existing MACT determinations (e.g., those developed under the section 
112(g) program) are given appropriate consideration and weight in the 
section 112(j) MACT determination process.
    We have identified three situations for major sources related to 
the timing of applicability of section 112(j) to a source and related 
to existing requirements in a source's permit that could be affected by 
the section 112(j) rule. Revised Sec. 63.52(a) through (c) address each 
of these situations.
    The first situation, described in proposed Sec. 63.52(a), covers 
major sources that include, as of the section 112(j) deadline, one or 
more sources in a category or subcategory for which the Administrator 
has failed to promulgate an emission standard. Owners or operators of 
these sources would be required to submit a Part 1 MACT application to 
the permitting authority by the section 112(j) deadline if the owner or 
operator can reasonably determine that one or more sources at the major 
source belong to a category or subcategory that would be subject to the 
section 112(j) MACT requirements. We believe, in most cases, that it 
will be clear to owners or operators which affected sources are subject 
to section 112(j) MACT requirements. However, in a few instances, there 
may be legitimate confusion as to the applicability of the 
requirements. In these cases, proposed Sec. 63.52(a)(2) would require 
the owner or operator to submit a Part 1 MACT application within 30 
days of being notified in writing by the permitting authority that one 
or more sources at the major source belong to a section 112(j) category 
or subcategory.
    The proposed language would require the permitting authority to 
notify the owner or operator within 120 days of the section 112(j) 
deadline that section 112(j) requirements apply to a facility. We 
believe that permitting authorities will have information available at 
the time of the section 112(j) deadline through existing title V 
permits and permit applications, as well as information from the EPA 
and other sources, to identify and notify owners or operators within a 
fairly short time period. The purpose of placing a cap on the 
notification period is to provide major sources with some certainty 
that, if they and the permitting authority both determine that their 
facilities are not subject to section 112(j), then they will not be 
brought into the section 112(j) process months or years after a good-
faith determination was made. We request comment on whether the 120-day 
time period is sufficient for permitting authorities to act.
    Also addressed in proposed Sec. 63.52(a) is the case where an owner 
or operator has a title V permit that addresses the emission limitation 
requirements of section 112(g) by the section 112(j) deadline. Such an 
owner or operator would be required to submit a Part 1 MACT 
application, but additional provisions would allow the owner or 
operator to request a determination that the section 112(g) emission 
limitations already in its permit are ``substantially as effective as'' 
the requirements otherwise adopted under section 112(j) for the source. 
As discussed in section IV.A of this preamble, we believe that MACT 
determinations made under separate programs should be substantially 
equivalent when the same procedures for determining MACT are used. 
Therefore, an affected source with a section 112(g) new source MACT 
determination should, in most cases, already be subject to applicable 
requirements substantially as effective as those that would be required 
under section 112(j). In these cases, the source's title V permit must 
be revised to reflect that the source's continued compliance with the 
section 112(g) MACT determination satisfies the requirements of section 
112(j).
    The second situation, addressed in proposed Sec. 63.52(b), covers 
owners or operators of sources in a category or subcategory affected by 
a section 112(j) deadline, but who were not subject to section 112(j) 
emission limitations at the time of the deadline. Proposed 
Sec. 63.52(b)(1) would address sources that install equipment in a 
category or subcategory subject to section 112(j) requirements, and 
where the installation does not trigger the section 112(g) process 
(i.e., the new equipment is not a major-emitting source). These sources 
may be major sources before the installation, or they may become major 
sources as a result of the installation. In either case, the owner or 
operator must submit a Part 1 MACT application within 30 days after 
startup of the source.
    Proposed Sec. 63.52(b)(2) is similar to proposed Sec. 63.52(a)(3) 
in that it addresses sources that have entered the section 112(g) 
process through installation of a major-emitting source. In the case of 
proposed Sec. 63.52(b)(2), the source installs a major-emitting source

[[Page 16335]]

after the section 112(j) deadline for sources in the same category or 
subcategory. Where the source already has a title V permit addressing 
section 112(g) requirements, the owners or operators of these sources 
would be required to submit a Part 1 MACT application to revise the 
title V permit addressing section 112(g) requirements. The Part 1 MACT 
application must be submitted within 30 days after startup of the 
source. Where the source has applied for but not yet received a title V 
permit addressing section 112(g) requirements, the owners or operators 
of these sources would be required to submit a Part 1 MACT application 
to revise the title V permit to address section 112(j) requirements 
within 30 days after issuance of the title V permit addressing section 
112(g) requirements. Once the Part 1 MACT application is submitted, the 
permitting authority would make an equivalency determination for the 
source as discussed above for sources subject to proposed 
Sec. 63.52(a)(3).
    The relevant provisions of current Sec. 63.52(f), which address 
area (i.e., nonmajor) sources that become major sources, were 
incorporated and expanded in the proposed new Sec. 63.52(b)(3) and (4) 
to consolidate in proposed Sec. 63.52(b) the applicable requirements 
for sources that become subject to section 112(j) after the section 
112(j) deadline. These provisions address the status of area sources 
that become major sources after the section 112(j) deadline either 
through the relaxation of a federally enforceable limitation on 
potential to emit or because the source becomes major because the EPA 
established a lesser quantity emission rate pursuant to section 112(a) 
of the CAA.
    In one case, we are proposing to change the Part 1 MACT application 
submittal date from the current Sec. 63.52(f) provisions. The current 
rule requires the source to comply with the section 112(j) emission 
limitations on or before the date of becoming a major source. Under 
today's proposal, if an area source increases its potential to emit HAP 
such that the source becomes a major source subject to subpart B, due 
to a relaxation in any federally enforceable emission limitation, then 
the owner or operator must submit a Part 1 MACT application within 30 
days after the source becomes a major source. We are proposing this 
change to implement the concept discussed earlier that the resulting 
affected source is subject to existing source MACT and should have 
timing requirements similar to other sources that become subject to 
section 112(j) requirements after the section 112(j) deadline.
    A similar situation exists for area sources that subsequently 
become major due to the establishment of a lesser quantity emissions 
rate under section 112(a) of the CAA for an affected source at the area 
source. Currently, owners or operators of sources in categories or 
subcategories subject to 112(j) requirements must submit a MACT 
application within 6 months of the date such a source becomes a major 
source. We solicit comments on whether this timeline should be 
retained, or whether it would be beneficial to make it more consistent 
with the application deadline requirements for other sources, i.e., 30 
days from the triggering event.
    The third situation is addressed in proposed Sec. 63.52(c). This 
section covers owners or operators of sources who have a title V permit 
that addresses the requirements of section 112(j), and subsequent 
actions occur at the source that trigger section 112(j) requirements. 
In the simplest case, when events such as the addition of a new process 
unit occur, the permit already contains the relevant section 112(j) 
requirements, and the source complies with the permit conditions. In 
other cases, the permit may not contain sufficient requirements to 
address the section 112(j) requirements. For example, a source in a 
given category or subcategory may have a title V permit that addresses 
section 112(j) emission limitations for the production of chemical 
``A.'' If the source then installs a new process unit to produce 
chemical ``B,'' and the new process unit includes equipment that is in 
the same source category but was not previously addressed in the 
source's title V permit, section 112(j) emission limitations would need 
to be developed to address this scenario. In this case, the owner or 
operator must submit a Part 1 MACT application within 30 days after 
beginning construction. In the case where a new affected source is 
constructed after the issuance of the permit, the owner or operator 
must obtain a title V permit revision with applicable limits prior to 
startup of the new affected source.
    We are proposing to add Sec. 63.52(d) to provide a process by which 
the owner or operator of a source could obtain up front determinations 
from the permitting authority. Proposed Sec. 63.52(d)(1) would allow 
the owner or operator to request an applicability determination from 
the permitting authority in the case of uncertainty regarding the 
source's status with respect to section 112(j) requirements. The form 
of the request would be the submission of a Part 1 MACT application. 
Some sources might prefer to obtain an up front determination from the 
permitting authority rather than wait 120 days for the permitting 
authority to notify them of their applicability or in order to have 
documentation of their nonapplicability.
    Proposed Sec. 63.52(d)(2) provides that an owner or operator of a 
new affected source may submit an application for a Notice of MACT 
Approval before construction, under Sec. 63.54. This provision is 
contained in the current rule as Sec. 63.52(a)(4).
    Proposed Sec. 63.52(e) would incorporate the two-part permit 
application process. The rationale and content of each of the two 
applications are discussed in section III.D of this preamble. The 
timing of the submittal of the Part 1 application has already been 
addressed in the proposed changes to Sec. 63.52, paragraphs (a) through 
(d). The focus of proposed Sec. 63.52(e) is the review process for the 
Part 2 MACT application.
    Proposed Sec. 63.52(e)(1) would require submittal of the Part 2 
MACT application within 6 months after submittal of the Part 1 MACT 
application. This timeline is analogous to the current rule, which 
allows a source 6 months to submit a revised application upon 
determination that the original application, submitted at the section 
112(j) deadline, is incomplete. Today's proposal would provide this 6-
month extension as a matter of course in recognition of the fact that 
the Part 1 MACT application is not required to be complete enough to 
support a MACT determination.
    Proposed Sec. 63.52(e)(2) would provide a process by which both 
equivalency determinations and applicability determinations can 
proceed. An owner or operator who requests an applicability 
determination under proposed Sec. 63.52(d)(1) must comply with the 
remaining provisions of this subpart if the permitting authority 
determines the source is subject to section 112(j) requirements. If the 
permitting authority determines the section 112(j) requirements do not 
apply to the source, no further action by the owner or operator is 
necessary.
    Given the importance of the outcome in an equivalency determination 
under proposed Sec. 63.52(a)(3) or (b)(2), the proposed process for an 
equivalency determination includes the opportunity for full public, 
EPA, and affected State review. If the permitting authority determines 
that the existing section 112(g) permit terms and conditions satisfy 
the section 112(j) requirements, the requirements of section 112(j) are 
satisfied once the source's title V permit

[[Page 16336]]

is revised to reflect that the source's continued compliance with the 
section 112(g) MACT determination satisfies the requirements of section 
112(j). If the permitting authority determines that the section 112(g) 
permit terms and conditions are not sufficient to satisfy the section 
112(j) requirements, the source must proceed with submittal of a Part 2 
MACT application.
    Proposed application completeness provisions in Sec. 63.52(e)(3) 
and (4) would provide that if the permitting authority fails to notify 
the source that the application is incomplete, in writing and within 60 
days, the MACT application would be considered complete. A Part 2 MACT 
application is considered complete if the information is sufficient to 
begin or continue processing the application. Similarly, as provided in 
proposed Sec. 63.52(e)(4), a completeness determination should not 
limit the permitting authority's ability to request additional 
information from the source owner or operator; such a request should 
receive a timely response.
    We are proposing minor edits to Sec. 63.52(c)(2) to use more 
generic terms when referring to the title V permit process. The use of 
these terms in this paragraph and throughout the rule is to ensure that 
the rules implementing the section 112(j) provisions of the CAA can be 
used in the context of the title V permitting process under parts 70 
and 71.
    Proposed amended Sec. 63.52(e)(5) would clarify that, given timely 
submittal of a complete application, a failure to receive a permit 
under section 112(j) within 18 months would not be a violation of 
section 112(j).
    We are proposing to retitle Sec. 63.52(d) from ``Emission 
limitation'' to ``Permit content'' to more accurately reflect the 
contents of the section. In addition, we are proposing to clarify 
Sec. 63.52(f) to ensure that the permit contains notification, 
operation and maintenance, performance testing, monitoring, and 
reporting and recordkeeping requirements consistent with the part 63, 
subpart A, General Provisions. In addition, proposed 
Sec. 63.52(f)(2)(i) replaces the term ``Federal enforceability'' with 
``practicable enforceability.'' The former term was borrowed from the 
EPA's June 28, 1989 Federal Register notice (54 FR 27274) on potential 
to emit. There, ``Federal enforceability'' was used as a short-hand 
reference to several attributes, including enforceability as a 
practical matter. Today's change would clarify the intent of this 
provision to ensure achievement of this goal.
    We are proposing clarifications to make the compliance date for a 
new affected source the date of startup of the new affected source, as 
opposed to the date the title V permit is issued, as currently 
promulgated.
    We are proposing Sec. 63.52(f)(1) to implement the requirement for 
the permitting authority to include in each permit implementing section 
112(j) the definition of affected source and new affected source 
arising from each case-by-case MACT determination. As discussed 
elsewhere, delineation of these terms is integral to the proposed 
changes to clarify the approval process for new and existing sources 
under the section 112(j) program.
    We are proposing to add Sec. 63.52(g) to clarify the dates by which 
a permit must be issued. In most cases, that date is within 24 months 
after submittal of the Part 1 MACT application. However, if the 
source's owner or operator requests an applicability or equivalency 
determination under proposed Sec. 63.52(e)(2), the permitting authority 
must issue the permit within 18 months after receiving the Part 2 MACT 
application.
    We propose to redesignate Sec. 63.52(e) as Sec. 63.52(h) and 
clarify its existing position on enhanced monitoring. In particular, we 
expect States to incorporate monitoring, recordkeeping and reporting 
mechanisms and other means of assuring compliance, such as posting all 
compliance reports on a publicly available electronic bulletin board, 
that comport with the enhanced monitoring approach in section 
114(a)(3). This is the approach we endeavor to utilize in the 
development of new MACT standards under section 112(d). In many 
instances, this will require an improvement over existing compliance 
assurance provisions, if the source has such preexisting requirements, 
to provide the superior enforceability contemplated in the MACT 
program.
    We are proposing to add Sec. 63.52(i) to clarify for all affected 
sources which sources must comply with MACT for existing sources versus 
MACT for new sources. The application of new source MACT is limited to 
new affected sources, as defined in the title V permit addressing 
section 112(j) MACT emission limitations for those affected sources. 
This language reflects our proposed approach to implement the concepts 
of ``affected source'' and ``new affected source.''
    For example, as currently promulgated, an existing area source 
could become a major source subject to new source MACT through the 
addition of a single piece or collection of equipment such that the 
source's potential to emit increases by only a small amount (e.g., from 
9.9 tons/year to 10.1 tons/year). We agree with the petitioners that 
the possible costs and burdens faced by a source in this case could be 
unreasonable because the change in status could entail installation of 
new source MACT on existing equipment. Therefore, we are proposing to 
limit new source MACT to sources that become major emitters because 
they add a new affected source as defined by Sec. 63.51; new source 
MACT would only apply to the new affected source. This approach is also 
consistent with the proposed definition of ``new affected source.''

D. Application Content

    We are proposing to delete current Sec. 63.53(a) because it is 
redundant given the provisions in Sec. 63.55, which address MACT 
determinations for affected sources subject to case-by-case 
determination of equivalent emission limitations.
    We are proposing to revise and move Sec. 63.53(b) and proposing to 
add new Sec. 63.53(b) to reflect the proposed change from a single MACT 
permit application due on the section 112(j) deadline to a 2-part MACT 
permit application due over a 6-month time period, as discussed in the 
previous section. However, the majority of currently required 
information is included in proposed new Sec. 63.53(a) and (b).
    Proposed Sec. 63.53(a) describes the required content of the Part 1 
MACT application, which includes basic information such as name, 
address, a brief description of the relevant major source, and an 
identification of the relevant source category and types of emission 
units belonging to the relevant source category. Sources for which a 
section 112(g) determination has been made should identify any relevant 
equipment or activities as well. The purpose of allowing the more 
streamlined Part 1 application at the section 112(j) deadline rather 
than a complete permit application is in acknowledgment that the source 
may require more time to compile the detailed information required for 
the permitting authority to make a MACT floor determination, and that 
the determination process is an iterative one with the permitting 
authority. The Part 1 application content is analogous to the 
Sec. 63.9(b) initial notification content.
    Proposed Sec. 63.53(b) describes the contents of the Part 2 MACT 
application and lists additional relevant process, pollutant, and 
control information. Proposed Sec. 63.53(b) incorporates the ``affected 
source'' language, where applicable. Requirements for new affected 
sources to report the expected

[[Page 16337]]

date of commencement of construction and the expected date of 
completion of construction were deleted because this information is 
irrelevant to the overall application review process. We are also 
proposing to add the phrase ``in the relevant source category'' in 
Sec. 63.53(b)(1)(ii) to clarify that information is not required for 
HAP emissions from source categories other than the relevant source 
categories. We are also proposing to add the phrase ``estimated total 
uncontrolled and controlled emission rate'' to clarify that information 
on both uncontrolled and controlled emission rates is needed.
    Proposed Sec. 63.53(b)(1)(iii) language includes the phrase 
``Federal, State, or local limitations or requirements'' to clarify the 
universe of potentially applicable requirements that could be 
considered by the permitting authority. Current Sec. 63.53(b)(8), which 
includes a request for detailed capacity utilization information, would 
be eliminated because we believe this information would not be 
generally available at the time the permit application is due. However, 
the requirement to include information on uncontrolled emissions would 
be incorporated into the proposed Sec. 63.53(b)(1)(ii) language. 
Similarly, we are proposing to delete the language regarding controlled 
emissions at maximum capacity from Sec. 63.53(b)(9), but other required 
information would be retained in proposed Sec. 63.53(b)(1)(iv) such as 
the requirement to include identification of control technology in 
place.
    We are proposing to delete the current Sec. 63.53(b)(10) 
requirement to include the MACT floor because the floor determination 
will be made by the permitting authority, thereby obviating the mandate 
for the source to report information on the floor to the permitting 
authority. This change is consistent with proposed changes to 
Sec. 63.55, discussed in section III.F of this preamble. While a MACT 
floor determination is not required of the owner or operator, proposed 
Sec. 63.53(b)(1)(v) would allow the owner or operator the option of 
recommending a MACT floor.
    The information currently required in promulgated Sec. 63.53(b)(11) 
through (13) would be retained in proposed Sec. 63.53(b)(2), but only 
as optional information to be provided at the source's discretion. 
Proposed Sec. 63.53(b)(1)(vi) mirrors the current Sec. 63.53(b)(14) 
language allowing the permitting authority to request any other 
information reasonably needed in the permit application. The 
information provided under Sec. 63.53(b)(1)(vi) is subject to the 
confidential business information protections provided under the CAA.

E. Preconstruction Review

    We are proposing clarifying language to the introduction of 
Sec. 63.54 to emphasize that the purpose of the section is to describe 
alternative review processes that the permitting authority may select 
from to make a MACT determination for new affected sources. We believe 
that preconstruction review, although optional in the context of 
section 112(j), is a useful tool for States and sources in making case-
by-case MACT determinations for new affected sources. Therefore, we do 
not want to preclude the ability of the States to employ existing 
preconstruction review programs or to develop ``enhanced'' review 
programs using the Sec. 63.54(b) optional administrative procedures for 
sources subject to the section 112(j) provisions.
    We are proposing to delete Sec. 63.54(e) and (f) because language 
in proposed Sec. 63.52(f)(2)(iii) addresses the issues raised by these 
sections.

F. Enforcement Liability

    Petitioners raised several questions regarding exposure to 
enforcement liability that relate to sources which have not been 
clearly identified as sources within the particular source category 
that are subject to section 112(j) requirements. We hope that all such 
questions of applicability for a source will be clarified before the 
section 112(j) permit application is due so that these issues will not 
arise. However, there may initially be a lack of clarity, and it is 
also possible that some applicability issues may not be resolved before 
a final section 112(d) MACT standard is issued. Accordingly, certain 
hypothetical situations are discussed below in order to provide 
guidance regarding our intent in implementing section 112(j).
    The first situation involves a source that the permitting authority 
has identified in the section 112(j) process as not being a source 
covered by section 112(j). If a subsequently promulgated section 112(d) 
MACT standard clarifies that this source is indeed covered, does the 
source face liability for not complying with section 112(j) previously? 
We have concluded that such a source would not face any liability so 
long as it came into compliance with the section 112(d) standard as 
required, since it had no regulatory duty under section 112(j), and 
provided that the permitting authority actually identified the source 
in the section 112(j) process as not being a source covered by section 
112(j).
    A second situation involves a source that obtains assurance from 
the appropriate officials within the permitting authority that the 
source is not in the section 112(j) source category and is, thus, not 
covered by section 112(j). If a citizen disagrees and sues arguing that 
the source should be in the source category, what liability exposure 
does the source face? It is our position that the source should face no 
liability in such a circumstance, provided that the source did obtain 
assurances from the appropriate officials within the permitting 
authority that it is not in the section 112(j) source category. The 
source is only obligated to abide by the requirements under section 
112(j) as articulated by the permitting authority. If a citizen wishes 
to assert that the section 112(j) applicability criteria are 
inappropriate, then the remedy is to convince or force the permitting 
authority to modify its regulatory requirements.
    A third concern involves a situation where the permitting authority 
or EPA has not clearly defined the source category and the source does 
not submit an application by the deadline. If, however, the permitting 
authority later determines that the source is in the section 112(j) 
source category and, thus, an application is due, what enforcement 
liability does the source face for failing to submit the application by 
the deadline? Again, in all instances involving the section 112(j) 
program, either the permitting authority or the EPA should identify the 
source category with sufficient specificity to eliminate any such 
problem. But in case such a situation should arise, it is unreasonable 
to assert that a source is liable if the source was not provided 
sufficient notice that an application was due. In other words, the 
permitting authority and the EPA are responsible for defining the 
section 112(j) source category with sufficient clarity so that a source 
can reasonably determine whether it falls within that source category. 
Absent such clarity and adequate notice--provided within the original 
source category description, in subsequent EPA documents (either in the 
Federal Register or on EPA's Air Toxics Home Page, provided that 
specific notice is made in the Federal Register to the availability of 
such a document on the Air Toxics Home Page) or through subsequent 
notification by the permitting authority pursuant to proposed 
Sec. 63.52(a)(2)--a source should not be liable for failing to submit a 
section 112(j) application. On the other hand, a source would be liable 
for failing to submit a section 112(j)

[[Page 16338]]

application if the section 112(j) source category was clearly defined.

G. MACT Determinations

    In today's action, we are proposing to delete Sec. 63.55(a) because 
it is redundant given the other changes proposed today, and it results 
in an unintended presumptive effect on the section 112(j) standard 
development process. For example, the contents of current 
Sec. 63.55(a)(3) and (4) are found largely in the proposed Part 2 
application requirements although the information may now be supplied 
on an optional basis unless specifically requested by the permitting 
authority. This movement from a requirement to an optional submission 
reflects the concept that the MACT determination process is iterative, 
and that the responsibility for determining MACT lies with the 
permitting authority.
    We are proposing to delete Sec. 63.55(a)(1) because it suggests 
that a proposed relevant emission standard is a presumptive MACT 
determination. While a proposed relevant standard should be given 
serious consideration in the MACT determination process, there have 
been instances where key elements of a proposed MACT standard change 
significantly between proposal and promulgation. Similarly, retaining 
the language in Sec. 63.55(a)(2) would result in the presumptive use of 
any ``guidance or distributed information establishing a MACT floor 
finding for the source category or subcategory by the section 112(j) 
deadline.'' We agree that the quality of information embraced by this 
provision could vary widely and may not have been developed with the 
benefit of public notice and comment.
    Proposed Sec. 63.55(a) contains new language to ensure that there 
are no gaps in the MACT determination process between obtaining the 
application and making the determination. We are proposing to revise 
Sec. 63.55(a)(2) and (3) to clarify that the MACT determination will be 
established according to the requirements of section 112(d)(3) of the 
CAA and based on available information. The revisions to the definition 
of ``available information,'' discussed in section III.B of this 
preamble, would ensure that the permitting authority has the needed 
information to make the MACT determination. The proposed deletion of 
the explicit consideration of ``information provided in public 
comments'' would eliminate redundant information. The section 112(j) 
process already requires the inclusion of provisions for notice and 
public comment. We are proposing to delete Sec. 63.55(b)(4) and (5) 
consistent with deleting related requirements regarding the presumptive 
use of proposed rules and other MACT floor guidance in the current 
Sec. 63.55(a)(1) and (2).

H. Case-by-case MACT Requirements After Promulgation of a Subsequent 
MACT Standard

    Section 63.56 describes the case-by-case handling of requirements 
for determining equivalent emission limitations after promulgation of a 
subsequent MACT standard. We are proposing to amend Sec. 63.56(a) to 
clarify the relevance of emission standards to affected sources. We are 
proposing to revise Sec. 63.56(b) to clarify that the subsequently 
promulgated MACT standard will be incorporated into the title V permit 
upon its renewal. Section 63.56(b) would also assure affected sources 
that the period for compliance for existing sources would be no shorter 
than the time provided in the promulgated MACT standard.
    We are proposing to amend the introductory text to Sec. 63.56(c) by 
revising Sec. 63.56(c)(1) and adding Sec. 63.56(c)(2). Section 
63.56(c)(1) would clarify that the permitting authority does not need 
to change the emission level in the permit to the promulgated MACT 
standard level of control if the level of control in the permit is 
substantially as effective as the level of control in the promulgated 
MACT standard. This language implements the concepts discussed in 
section IV.A of this preamble. We are proposing to add Sec. 63.56(c)(2) 
to state that the permitting authority must not incorporate any less 
stringent emission limitation of the promulgated standard in the title 
V permit and may consider more stringent terms due to the requirements 
of section 112(d) and (h). This section precludes the possibility of 
sources being required to change previously approved control 
technologies when the ``new'' standard is found to be as substantially 
as effective as the previous MACT determination, but it also precludes 
sources from changing controls in the case the ``new'' standard is less 
stringent than the previous MACT determination. Taken together, 
Sec. 63.56(c)(1) and (2) maintains the status quo of previous MACT 
determinations that are found to be substantially as effective as a 
subsequent MACT.

I. Section 112(j) Guidelines Document

    We have published a guidance document titled ``Guidelines for MACT 
Determinations under Section 112(j),'' EPA 453/R-94-026, May 1994. The 
purpose of the document is to give permitting authorities additional 
guidance in making MACT determinations based on the principles 
established in proposed Sec. 63.55. We have revised this document to 
incorporate relevant clarifications and revisions proposed today. The 
draft revised document is available on the TTN (SUPPLEMENTARY 
INFORMATION). Comments on the draft revised document should be 
submitted together with comments on today's proposed rule changes. The 
guidance document contains procedures for evaluating whether a control 
technology is consistent with the minimum requirements established in 
section 112(d) of the CAA. Because section 112(j)(5) requires that 
case-by-case MACT determinations be ``equivalent to the limitation that 
would apply to such source if an emission standard had been promulgated 
in a timely manner under subsection (d),'' we believe that 
consideration of this guidance document is a crucial component of the 
section 112(j) case-by-case MACT determination process.

IV. Additional Issues

A. Discussion of the Relationship Among Requirements Under Section 
112(d), (g), (h), and (j)

1. Background and Summary of Issue
    One area of concern the petitioners identified involves the 
substantive relationship between a case-by-case MACT emission 
limitation issued under section 112(j) and a MACT standard subsequently 
issued under section 112(d) or (h). Petitioners are also concerned 
regarding the relationship between a case-by-case MACT determination 
under section 112(g) and a subsequently issued case-by-case MACT 
emission limitation under section 112(j), or MACT standard under 
section 112(d) or (h). In general, the petitioners believe that 
compliance with a case-by-case MACT determination should constitute 
compliance with a subsequent case-by-case MACT determination or MACT 
standard.
    Throughout the development of the section 112 program, we have 
maintained as one of our primary goals consistency among the different 
section 112 requirements of the CAA. As stated in the final section 
112(j) rule, ``EPA's primary goal is to create as much consistency as 
possible between case-by-case MACT determinations under section 112(j) 
and implementation of subsequent 112(d) standards * * * the agency 
intends to ensure the greatest possible consistency among section 
112(d), (g), and (j) provisions.''
    In general, we do not disagree with the petitioners in that if the 
four MACT standard setting provisions of the CAA

[[Page 16339]]

are appropriately implemented, they will be based on substantially 
similar types of information concerning emission controls and will 
reflect similar regulatory policies concerning the feasibility of 
further emission reductions. However, we do not agree that it would be 
appropriate to conclude that a previous case-by-case MACT limitation 
automatically satisfies subsequent section 112 MACT requirements.
    With respect to the subsequent applicability of a section 112(d) or 
(h) standard or a section 112(j) MACT determination to a source for 
which a section 112(g) MACT determination has been made, this issue is 
resolved by the section 112(g) regulations and accompanying preamble, 
promulgated on December 27, 1996 at 61 FR 68399. Consistent with that 
Federal Register action, a source that receives a case-by-case MACT 
determination under section 112(g) must comply with the subsequent 
case-by-case MACT determination or MACT standard, although the source 
may have a period of up to 8 years to achieve such compliance. The 
subsequent case-by-case MACT determination or MACT standard may 
stipulate that compliance with the prior case-by-case MACT constitutes 
compliance with the subsequent determination or standard.
    In general, we believe that requiring a source that has received a 
case-by-case MACT determination under section 112(g) to comply with 
subsequently adopted MACT requirements will not result in any 
inappropriate regulatory burden. This is primarily because we have 
required the implementation of section 112(g) only with respect to 
construction or reconstruction of major sources of HAP, and the 
resultant case-by-case determination would require new source MACT. 
Even though any section 112(g) MACT determination will incorporate MACT 
for new sources, the major source in question will likely be considered 
an existing source by the time of issuance of any subsequent MACT 
limitation for the source under section 112(j) or MACT standard 
applicable to the source under section 112(d) or (h).
    We note that any case-by-case MACT limitation adopted for a source 
under section 112(j) will normally be made by the same permitting 
authority that would have issued any prior case-by-case MACT 
determination for the same source under section 112(g). We believe that 
it is appropriate to afford the permitting authority some discretion to 
consider the substantive adequacy of existing section 112(g) 
requirements when it makes a subsequent decision concerning the 
emission limitations required by section 112(j).
    We believe that the concerns petitioners expressed are most 
significant in the context of a potential transition from a case-by-
case MACT determination made by the permitting authority under section 
112(j) for an individual source to a generally applicable MACT standard 
adopted by the EPA under section 112(d) or (h). Although the statutory 
criterion for establishing the subsequent standard under section 112(d) 
or (h) may be identical to the criterion governing the issuance of the 
case-by-case MACT determination under section 112(j), in practice there 
may be differences in the conclusions reached by the permitting 
authority and the EPA. Such differences could easily arise due to 
differing data bases, differing approaches to analysis of the same 
data, or differences in the form of the standard adopted. Thus, unless 
the permitting authority has some measure of discretion to reconcile 
the different regulatory outcomes, the potential exists for sources 
subject to a case-by-case MACT determination to be forced to take 
action to respond to control, monitoring, recordkeeping, and reporting 
requirements that differ from those required by a subsequent case-by-
case MACT or generally applicable MACT standard, even though the 
results of the case-by-case requirements do not differ from the 
standard in any consequential way. We see this as an irrational outcome 
that would undermine effective and efficient environmental policy, and 
we do not believe that Congress intended substantial additional burdens 
to be imposed (e.g., capital investments in new emission controls) 
regardless of the significance of the resultant impact on actual 
emission reductions.
    Accordingly, we are proposing two basic clarifications in which 
sequential MACT requirements under section 112(d), (g), (h), and (j) 
will be implemented by the responsible permitting authority. First, the 
permitting authority would adopt a prior case-by-case new source MACT 
determination for a process or production unit under section 112(g) as 
its case-by-case MACT limitation under section 112(j) for the same 
process or production unit if the permitting authority determines that 
the prior requirements are ``substantially as effective'' in 
controlling HAP emissions as the requirements which the permitting 
authority would otherwise have adopted under section 112(j). Similarly, 
if the permitting authority determines that the controls required by a 
prior case-by-case MACT limitation for a source under section 112(j) 
are ``substantially as effective'' in controlling HAP emissions as a 
MACT standard governing that same source subsequently promulgated under 
section 112(d) or (h), the permitting authority would construe 
compliance with the prior section 112(j) emission limitation as 
compliance with the promulgated standard and revise the operating 
permit accordingly. As explained below, we and the petitioners 
evaluated several approaches to define quantitatively the criterion 
``substantially as effective'' and concluded that it is appropriate to 
leave it qualitative with substantial discretion vested in the 
permitting authority. Also as explained below, this discretion will be 
tempered by use of the title V process to ensure public, EPA, and 
affected State review of the permitting authorities' conclusions.
2. Legal Authority and Statutory Limitations
    We believe that our authority to implement a policy that allows the 
permitting authority to use the ``substantially as effective'' test is 
supported by both the language of section 112(j) and the Alabama Power 
de minimis doctrine. The language in section 112(j) implies a measure 
of statutory flexibility with regard to this issue. The language in 
section 112(j)(6) states, ``* * * the Administrator (or the State) 
shall revise such permit upon the next renewal to reflect the standard 
promulgated by the Administrator providing such source a reasonable 
time to comply, but no longer than 8 years * * *'' We believe that this 
language requires the Administrator or State to consider the subsequent 
section 112(d) standard in revising the source's permit.
    The de minimis doctrine set forth in Alabama Power Co. v. Costle, 
636 F.2d 323 (D.C. Cir. 1979), allows the EPA to promulgate a 
``categorical exemption . . . as an exercise of agency power inherent 
in most statutory regimes'' if: (1) ``Congress has (not) been 
extraordinarily rigid,'' id. at 361; and (2) ``the burdens of 
regulation (would) yield a gain of trivial or no value,'' id., ``in the 
sense of furthering goals of the statute,'' Sierra Club v. EPA, 719 
F.2d 436, 462 (D.C. Cir. 1983). We believe that both tests are met 
here. With respect to the first criterion, nothing in the language of 
section 112 (g) or (j), or the implementing regulations precludes the 
proposed approach. Under the second criterion, as explained above, the 
intent is that the permitting authority would be afforded discretion to 
find prior requirements to be ``substantially as effective'' as new 
requirements, unless

[[Page 16340]]

the new requirements would result in meaningful emission reductions 
over those achieved by the case-by-case determination.
    Invocation of the de minimis doctrine is appropriate here for two 
reasons. First, the MACT requirements that are the subject of the 
comparison may not be in the same form, meaning it cannot strictly be 
said that compliance with one would necessarily entail compliance with 
the other. Today's proposal would allow a somewhat broader basis for 
analysis, one that focuses on the effect on emissions of the different 
determinations rather than strict compliance with specific control, 
monitoring, recordkeeping, and reporting requirements.
    Secondly, the ``substantially as effective'' test contemplates that 
in some instances the prior MACT determination may not reduce HAP 
emissions as much as a subsequent case-by-case MACT determination or 
MACT standard. As the difference in emission reduction effectiveness 
increases between the prior and subsequent MACT requirements, it will 
be increasingly difficult for the permitting authority to find that the 
prior requirements satisfy the test of ``substantially as effective.''
3. Other Factors Considered
    In addition to considering whether such a policy is supported by 
the Act, we considered several other factors in reevaluating our policy 
on this issue. These factors included: (1) The anticipated outcome 
among section 112 (d), (g), (h), and (j) requirements; (2) issues 
associated with quantifying exact equivalency; and (3) the public's 
input into source specific decisions.
    To a large extent, we consider the MACT process replicable; that 
is, when the same question is asked, whether in the context of section 
112 (g), (j), (d), or (h), the outcome will more often than not be 
substantially the same with the same environmental result.
    We anticipate that in the vast majority of cases, section 112(g) 
new source MACT determinations will result in a level of control 
equivalent to or better than the level of control required by a 
subsequent section 112(j) case-by-case emission limitation or 
subsequent section 112 (d) or (h) MACT standard. In most cases, the 
process or production units required to meet new source MACT under 
section 112(g) will be subject to existing source MACT requirements 
under any subsequent 112(j) MACT limitation or promulgated subsequent 
section 112 (d) or (h) MACT standard. New source MACT under section 
112(g) should rarely, if ever, be less stringent than existing source 
MACT under a section 112 (d) or (h) MACT standard or section 112(j) 
MACT emission limitation. We believe it is appropriate to afford the 
permitting authority some discretion to promote consistency in 
sequential case-by-case determinations under section 112 (g) and (j), 
but consider that appropriately made section 112(g) MACT determinations 
will rarely, if ever, present any potential conflict with subsequent 
MACT requirements.
    We believe there are cases where two properly conducted MACT 
analyses could arrive at somewhat different conclusions. This situation 
is most likely to occur in source categories with relatively few 
sources that also exhibit some variability in their operations. Another 
scenario is where there is a significant body of data comprising the 
information to be considered in the MACT floor analyses and MACT 
analyses, and different regulators arrive at different conclusions. For 
example, a different outcome could be reached if one regulator bases a 
decision on the mean performance of a group of sources and another 
regulator uses the median performance. Similarly, different rounding 
techniques and other analytical decisions could result in somewhat 
different outcomes.
    However, in most cases, the MACT determinations for emission 
limitations under section 112(j) and MACT standards under section 112 
(d) and (h) should result in outcomes that are substantially 
equivalent. We believe that sufficient communication channels and 
information exist, such as MACT partnerships and the MACT database, 
that any required case-by-case determinations under section 112(j) 
should not be made ignorant of existing information. Although the 
availability of controls may change over time, we do not foresee a long 
period of time elapsing between adoption of any necessary section 
112(j) MACT emission limitations and subsequent promulgation of a 
generally applicable MACT standard.
    We evaluated several issues associated with determining equivalency 
among section 112 (d), (g), (h), and (j) MACT emission limitations. As 
a result, we concluded that the level of quantitative analysis required 
to show exact equivalency among standards that are different in such 
areas as the form, applicability, test methods, or technology can be a 
very difficult and resource intensive process. In addition, as noted 
above, we believe that exact equivalency is not required by the CAA or 
the Alabama Power de minimis doctrine.
    Some examples will illustrate how different forms of a standard and 
different emission limits can still result in equivalent outcomes on a 
source-specific basis. The first example relies on the nature of flares 
as a control technology and the fact that we have determined that 
flares provide at least 98 percent efficient destruction of emission 
streams, provided that the flares and emission streams meet the flare 
specification criteria found at Sec. 63.11(b) of the General 
Provisions. For example, the flares must be steam-assisted, air-
assisted, or non-assisted, operated at all times, and operated with a 
flame present at all times. Flares must only be used with the net 
heating value of the gas being combusted at 11.2 megaJoules per 
standard cubic meter (MJ/scm) (300 British thermal units per standard 
cubic foot (BTU/scf)) or greater if the flare is steam-assisted or air-
assisted; or with the net heating value of the gas being combusted at 
7.45 MJ/scm (200 BTU/scf) or greater if the flare is non-assisted. 
Flares must also be designed to satisfy specific exit velocity 
constraints.
    At least two scenarios could occur where a case-by-case MACT 
determination could appear to be less stringent on paper, but in 
reality would be ``substantially as effective'' as a subsequent MACT 
standard. For example, a MACT standard applicable to a given source 
could be an equipment standard requiring use of flares to ensure at 
least a 98 percent emission reduction. However, a case-by-case MACT 
could have required at least a 95 percent emission reduction, but 
examination of the individual source's permit revealed that the 
affected emission stream is ducted to a flare. It would be relatively 
simple to determine if the actual flare and emission stream would meet 
the flare specifications. If they meet the flare specifications, the 
``difference'' in required control efficiencies is moot, because the 
design and operation of the control technology would drive the true 
performance level. Alternatively, the source could have elected to send 
the emission stream to an incinerator. Review of the incinerator 
design, combined with performance test data, would allow the permitting 
authority to determine whether the actual reductions are likely to 
achieve at least 98 percent efficiency.
    The second example is based on the fact that the performance of 
some controls is variable and highly dependent on how they are 
operated. For example, condensation systems can be designed and 
operated to meet a fairly wide range of emission reduction scenarios. 
Condensation systems are

[[Page 16341]]

often selected as control devices because it is desirable to recover a 
product in the emission stream. The cost of operating the condensation 
system is largely driven by the temperature reduction necessary to 
condense the solvent-laden air to the dew point and the cost of 
purifying the condensate to obtain a usable product. To compare a case-
by-case MACT determination based on a condensation system to a 
subsequent MACT standard requiring a specific level of control would 
require an engineering analysis of the system design, characterization 
of the emission stream, and the evaluation of test data. Depending on 
the outcome of this site-specific analysis, a finding that the initial 
MACT determination is ``substantially as effective'' as a subsequent 
MACT standard is entirely possible.
    Given issues associated with quantifying exact equivalency, we see 
it as beneficial to focus the decision regarding the adequacy of a past 
MACT emission limitation on the actual emission reductions associated 
with that limitation, rather than on strict compliance with differing 
requirements. By evaluating the actual effect from both sets of 
requirements, the decision is focused on the practical benefit to the 
environment rather than an exercise in paperwork.
    We are concerned about ensuring sufficient public input into 
decisions made concerning the substantive adequacy of a prior MACT 
emission limitation to satisfy subsequent requirements. Case-by-case 
MACT emission limitations under section 112(j) and MACT standards 
promulgated under sections 112 (d) and (h), and the implementation of 
these requirements through issuance of title V operating permits, all 
involve a process in which the public may participate. However, the 
issues in these proceedings are broader than whether a source's section 
112(g) case-by-case MACT determination should be adopted under section 
112(j), or a source's section 112(j) MACT emission limitation satisfies 
subsequent section 112 (d) or (h) requirements. Therefore, we believe 
it is necessary to assure that any determination by a permitting 
authority under the ``substantially as effective'' criterion will be 
adopted and implemented only after public and EPA review.
    We believe that the permit review process in title V provides the 
best vehicle to satisfy this concern without adding additional burden 
to the source or the permitting agency. The proposal, therefore, would 
require that any such determination be made through a title V 
permitting action that involves all the elements required at permit 
issuance. The part 70 process should provide sufficient review by the 
public, EPA, and affected States to ensure that the test of 
``substantially as effective'' is applied in a manner consistent with 
our stated legal and policy rationale.
4. Proposed Solution
    We are proposing in today's amendments two basic clarifications to: 
(1) The process in which a case-by-case MACT determination under 
section 112(g) is replaced by a case-by-case MACT emission limitation 
under section 112(j), and (2) the process in which a generally 
applicable MACT standard promulgated under section 112 (d) or (h) is 
implemented for a source subject to a prior case-by-case MACT emission 
limitation under section 112(j).
    We are proposing to amend Sec. 63.1(e) of the General Provisions 
and Secs. 63.52(a)(3), (b)(2), (e)(2)(ii), and 63.56(c)(1) of the 
section 112(j) rule. First, the permitting authority would adopt a 
prior case-by-case MACT determination for a process or production unit 
under section 112(g) as its case-by-case MACT limitation for the same 
process or production unit under section 112(j), if it determines that 
the prior requirements are ``substantially as effective'' in 
controlling HAP emissions as the requirements which the permitting 
authority would otherwise have adopted under section 112(j). Second, if 
the permitting authority determines that the requirements of a prior 
case-by-case MACT emission limitation for a source under section 112(j) 
are ``substantially as effective'' in controlling HAP emissions as a 
MACT standard subsequently promulgated under section 112 (d) or (h), 
the permitting authority would construe compliance with the prior 
emission limitation as compliance with the promulgated standard and 
revise the operating permit accordingly. In either case, the 
determination by the permitting authority would be subject, consistent 
with parts 70 and 71, to both public and EPA review (including EPA's 
opportunity to object) through its incorporation in the source's title 
V permit. If the source's current MACT determination is not 
``substantially as effective'' as the new MACT requirements, then any 
permit must assure compliance with the subsequent MACT requirements.
    In today's amendments, we are proposing that ``substantially as 
effective'' not be defined in a rigid manner, given the multitude of 
factors that go into determining MACT. Rather, permitting authorities 
must have sufficient latitude to make judgments--both qualitative and 
quantitative--as to whether a particular case-by-case MACT 
determination applies air pollution control requirements in a manner 
that achieves the overall environmental results of the particular 
section 112(d) standard.
    The ``substantially as effective'' approach is based on the 
practicalities of developing MACT requirements in accordance with the 
statutory language and structure of section 112. Section 112 provides 
criteria for establishing MACT along with a minimum level of 
stringency, but is not so rigid as to consistently yield the same exact 
result by different decision makers. Section 112(d)(2) makes clear that 
MACT must be determined based on all relevant technical, economic and 
other factual circumstances of the particular manufacturing operations 
encompassed by a source category or subcategory (``* * * shall require 
the maximum degree of reduction in emissions * * * that the 
Administrator, taking into consideration the cost of achieving such 
emission reduction, and any nonair quality health and environmental 
impacts and energy requirements * * *''). Section 112(d)(3) addresses 
the minimum level of stringency required for new source standards (``* 
* * shall not be less stringent than the emission control that is 
achieved in practice by the best controlled similar source'') and for 
existing source standards (``* * * shall not be less stringent, and may 
be more stringent than * * * the average emission limitation achieved 
by the best performing 12 percent of the existing sources * * * for 
categories or subcategories with 30 or more sources, or * * * the 
average emission limitation achieved by the best performing sources * * 
* for categories or subcategories with fewer than 30 sources''). In 
those instances where we have made a clear determination in a final 
section 112(d) or (h) standard regarding the applicable MACT floor for 
a category, a positive ``substantially as effective'' finding can be 
made if the permitting authority determines that a prior case-by-case 
MACT limitation under section 112(j) is ``substantially as effective'' 
in controlling HAP emissions, and the actual emission reductions 
achieved are consistent with the MACT floor determination.
    While we do not intend to establish any mandatory criteria that 
would govern the ``substantially as effective'' determination by the 
permitting authority, we believe that it could be useful to establish 
some analytic benchmarks to guide the permitting authority in 
exercising its discretion. It

[[Page 16342]]

should be recognized at the outset that no one of these benchmarks 
would necessarily be dispositive on the ``substantially as effective'' 
judgment by the permitting authority, and other factors also might need 
to be considered depending on the particular manufacturing operation in 
question.
    One benchmark is the difference in control equipment requirements 
and efficiencies between the two MACT requirements. On one hand, in 
those cases where a section 112(j) review leads to a decision not to 
further limit emissions, and a subsequently issued MACT standard 
requires significant emission reductions, there is little latitude to 
construe the prior section 112(j) outcome as ``substantially as 
effective'' as the promulgated standard. On the other hand, a 
difference in requirements such as types of control equipment and/or 
control efficiency levels would not preclude a ``substantially as 
effective'' judgment. For example, such a judgment might be reasonable 
where the section 112(j) determination: (1) Reflects a different 
compliance approach as compared with the section 112(d) standard, (2) 
mandates control equipment different from the section 112(d) standard 
that has benefits in terms of ``other nonair quality health and 
environmental impacts and energy requirements,'' or (3) combines 
control equipment requirements with work practices and/or pollution 
prevention measures not prescribed by the section 112(d) standard.
    Another benchmark could be capital investments to comply with MACT 
requirements following the issuance of the prior case-by-case MACT 
determination. Such a benchmark would afford the permitting authority 
some latitude in those situations where a source has made significant 
expenditures in good-faith reliance on a case-by-case MACT 
determination. We believe that requiring the source to undertake such 
expenditures to meet subsequent section 112(d) MACT requirements, 
particularly where the differences in resultant control of HAP 
emissions are not significant, would be irrational. Arguably, this 
concern is not presented in instances where a source has not made any 
capital expenditures to come into compliance with the previous case-by-
case MACT determination and would not be economically disadvantaged 
compared to other sources that must implement new controls.
    We request comment on the ``substantially as effective'' approach 
and these benchmarks for evaluating a source's ``substantially as 
effective'' claim, and on our decision reflected in today's proposal to 
proceed with a flexible test that affords permitting authorities the 
latitude to exercise reasonable judgments--both quantitative and 
qualitative--in accordance with the statutory language and structure.
5. Timing and Implementation Issues
    Another issue is when the ``hand-off'' occurs among the various 
section 112 program requirements. As discussed above, promulgated MACT 
standards replace section 112(j) and (g) determinations. Once section 
112(d) or (h) requirements have been established for a given category 
or subcategory of sources, no subsequent actions under section 112(j) 
or (g) will be required because the section 112(d) or (h) requirements 
establish the requirements for that particular affected source. Of 
course, section 112(j) or (g) requirements could eventually be 
triggered for other operations at the facility in different categories 
or subcategories for which a section 112(d) or (h) standard has not 
been issued.
    Because the length of time required to obtain a title V permit 
addressing section 112(j) emission limitations could be up to 24 months 
after the section 112(j) hammer date, and because process or production 
units meeting the section 112(g) threshold could be constructed after 
that date, we believe it is essential that section 112(g) MACT 
determinations continue to be made, even in cases where the source is 
in a category or subcategory for which the section 112(j) deadline has 
passed. Such sources would first obtain a MACT determination under the 
section 112(g) requirements, and then obtain a determination as to 
whether that MACT determination satisfies the section 112(j) 
requirements. As described above, we believe that, in the majority of 
cases, the section 112(g) requirements will be found to be 
substantially as effective as the section 112(j) requirements, and the 
permitting authority can then adopt the existing section 112(g) 
determination as its case-by-case new source MACT determination under 
section 112(j). In fact, since in this case the section 112(g) and (j) 
determinations would be essentially contemporaneous, the likelihood of 
a meaningful discrepancy would be further reduced. However, since the 
source must obtain the applicable case-by-case determination under 
section 112(g) before actual construction or reconstruction, a timely 
new source MACT determination will be assured.
6. Prohibition of Backsliding
    This final issue concerns language in the existing section 112(j) 
rule, which would give the permitting authority discretion to relax 
applicable emission requirements when the level of control required for 
a source by an emission standard under section 112(d) or (h) is less 
stringent than the level of control required by a prior section 112(j) 
MACT determination for the same source. We have concluded that it is 
inappropriate to permit such ``backsliding'' in instances when more 
stringent emission controls have already been required by the 
permitting authority. Accordingly, we are proposing to amend the 
existing section 112(j) rule to provide that any more stringent 
emission limitations for a source previously adopted by the permitting 
authority under section 112(j) will continue to apply and must be 
retained by the permitting authority when it issues or revises a title 
V permit applicable to the source.

B. Potential to Emit

    We are currently developing a separate rulemaking to address 
several potential-to-emit issues. That proposed rulemaking would amend 
the General Provisions. We will take final action on that separate 
proposal after receiving and considering public comments. Until we take 
final action on that future proposal, any determination of potential to 
emit made to determine a facility's applicability status under a 
relevant part 63 standard should be made according to requirements set 
forth in the relevant standard and in the promulgated General 
Provisions. Any determination of potential to emit should also take 
into consideration two EPA policy guidance memoranda, ``Options for 
Limiting the Potential to Emit (PTE) of a Stationary Source Under 
Section 112 and Title V of the Clean Air Act,'' John S. Seitz and 
Robert I. Van Heuvelen, to Regional Offices, January 25, 1995; and 
``Extension of January 25, 1995 Potential to Emit Transition Policy,'' 
John S. Seitz and Robert I. Van Heuvelen, to Regional Offices, August 
27, 1997. Both of these policy memoranda can be found on EPA's Clean 
Air Act bulletin board under ``title V/policy guidance memos.''

V. Administrative Requirements

A. Executive Order 12866, Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735; October 4, 1993), the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant

[[Page 16343]]

regulatory action'' as one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

B. Executive Order 13132, Federalism

    Executive Order 13132, entitled, ``Federalism (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have Federalism implications.'' 
``Policies that have Federalism implications'' are defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
Government and States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This proposed rule does not have Federalism implications. It will 
not have substantial direct effects on the States, on the relationship 
between the national Government and States, or on the distribution of 
power and responsibilities among the various levels of government, as 
specified in Executive Order 13132. The EPA recognizes that the 
provisions of the existing regulations governing case-by-case 
determinations by permitting authorities under CAA section 112(j), as 
set forth in 40 CFR part 63, subpart B, might be construed to have 
substantial effects on the distribution of responsibilities between the 
Federal Government, States, and localities. However, the revisions to 
the section 112(j) regulations set forth in today's proposal do not 
themselves have such effects. Thus, Executive Order 13132 does not 
apply to this rule.
    Nevertheless, in the spirit of Executive Order 13132 and consistent 
with EPA policy to promote communications between EPA, State, and local 
governments, EPA specifically solicits comment on this proposed rule 
from State and local officials.

C. Executive Order 13084, Consultation and Coordination with Indian 
Tribal Governments

    On November 6, 2000, the President issued Executive Order 13175 (65 
FR 67249) entitled, ``Consultation and Coordination with Indian Tribal 
Governments.'' Executive Order 13175 took effect on January 6, 2001, 
and revokes Executive Order 13084 (Tribal Consultation) as of that 
date. EPA developed this proposed rule, however, during the period when 
EO13084 was in effect; thus, EPA addressed tribal considerations under 
EO13084. EPA will analyze and fully comply with the requirements of EO 
13175 before promulgating the final rule.
    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
Government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to OMB, in a separately identified section of 
the preamble to the rule, a description of the extent of EPA's prior 
consultation with representatives of affected tribal governments, a 
summary of the nature of their concerns, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 13084 
requires EPA to develop an effective process permitting elected 
officials and other representatives of Indian tribal governments ``to 
provide meaningful and timely input in the development of regulatory 
policies on matters that significantly or uniquely affect their 
communities.''
    Today's proposed rule does not significantly or uniquely affect the 
communities of Indian tribal governments. Accordingly, the requirements 
of section 3(b) of Executive Order 13084 do not apply to this action.

D. Executive Order 13045, Protection of Children from Environmental 
Health Risks and Safety Risks

    Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any 
rule that: (1) Is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, EPA must evaluate the environmental health or safety 
effects of the planned rule on children, and explain why the planned 
regulation is preferable to other potentially effective and reasonably 
feasible alternatives that EPA considered.
    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under section 5-501 of the Executive Order has 
the potential to influence the regulation. This rule is not subject to 
Executive Order 13045 because it is based on technology performance and 
not on health or safety risks. Furthermore, this rule has been 
determined not to be ``economically significant'' as defined under 
Executive Order 12866.

E. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures by State, local, and tribal governments, in 
aggregate, or by the private sector, of $100 million or more in any 1 
year. Before promulgating an EPA rule for which a written statement is 
needed, section 205 of the UMRA generally requires EPA to identify and 
consider a reasonable number of regulatory alternatives and adopt the 
least-costly, most cost-effective, or least-burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least-
costly, most cost-effective, or least-burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially

[[Page 16344]]

affected small governments, enabling officials of affected small 
governments to have meaningful and timely input in the development of 
EPA's regulatory proposals with significant Federal intergovernmental 
mandates, and informing, educating, and advising small governments on 
compliance with the regulatory requirements.
    The EPA has determined that this proposed rule does not contain a 
Federal mandate that may result in expenditures of $100 million or more 
for State, local, and tribal governments, in the aggregate, or the 
private sector in any 1 year. Because the regulatory revisions proposed 
here would clarify existing requirements and reduce regulatory burden, 
this action is not a ``significant'' regulatory action within the 
meaning of Executive Order 12866, and it does not impose any additional 
Federal mandate on State, local and tribal governments or the private 
sector within the meaning of the UMRA. Thus, today's proposed rule is 
not subject to the requirements of sections 202, 203, and 205 of the 
UMRA.

F. Regulatory Flexibility Act (RFA) as Amended by Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et 
seq.

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any proposed rule subject to notice and comment 
rulemaking requirements under the Administrative Procedures Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impacts of today's amendments on 
small entities, small entity is defined as: (1) A small business as 
defined in each applicable subpart; (2) a small governmental 
jurisdiction that is a government of a city, county, town, school 
district or special district with a population of less than 50,000; and 
(3) a small organization that is any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.
    This analysis is not necessary for the General Provisions 
amendments, however, because it is unknown at this time which 
requirements from the General Provisions will be applicable to any 
particular source category, whether such category includes small 
businesses, and how significant the impacts of those requirements would 
be on small businesses. Impacts on small entities associated with the 
General Provisions will be assessed when specific emission standards 
affecting those sources are developed. ``Small entities'' will be 
defined in the context of the applicability of those standards.
    Similarly, no analysis is required for the amendments to the 
section 112(j) rule. The rule provides general guidance and procedures 
concerning the implementation of an underlying statutory requirement, 
but it does not by itself impose any regulatory requirements or 
prescribe the specific content of any case-by-case determination which 
might be made under section 112(j). Moreover, because the requirements 
of section 112(j) are only triggered in certain limited circumstances, 
it is not possible at this time to ascertain whether any determinations 
will be made under section 112(j) or whether any small business would 
be subject to such a determination. Finally, we note that we found that 
no regulatory flexibility analysis was required for the existing 
Section 112(j) rule, and the net effect of the proposed amendments to 
that rule will be to reduce potential regulatory burdens.
    Pursuant to the provisions of 5 U.S.C. 605(b), I, hereby, certify 
that this proposed rule will not have a significant economic impact on 
a substantial number of small business entities. Under the RFA, an 
agency is not required to prepare a regulatory flexibility analysis for 
a rule that the agency head certifies will not have a significant 
economic impact on a substantial number of small entities. 
Consequently, a regulatory flexibility analysis is not required and has 
not been prepared.

G. Paperwork Reduction Act

    As required by the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et 
seq., the OMB must clear any reporting and recordkeeping requirements 
that qualify as an information collection request (ICR) under the PRA.
    Approval of an ICR is not required for the General Provisions 
because, for sources affected by section 112 only, the General 
Provisions do not require any activities until source category-specific 
standards have been promulgated or until title V permit programs become 
effective. The actual recordkeeping and reporting burden that would be 
imposed by the General Provisions for each source category covered by 
part 63 will be estimated when a standard applicable to such category 
is promulgated.
    The information collection requirements contained in the proposed 
amendments to the final Section 112(j) rule will be submitted to OMB 
for approval under the provisions of the PRA. The EPA has prepared an 
ICR document (ICR No. 1648.03), and you may obtain a copy from Sandy 
Farmer by mail at Office of Environmental Information, Collection 
Strategies Division (2822), U.S. Environmental Protection Agency, 1200 
Pennsylvania Avenue, NW, Washington, DC 20460, by email at 
<a href="/cdn-cgi/l/email-protection#f39592819e9681dd80929d978ab3968392dd949c85"><span class="__cf_email__" data-cfemail="bddbdccfd0d8cf93cedcd3d9c4fdd8cddc93dad2cb">[email protected]</span></a>, or by calling (202) 260-2740. You may also 
download a copy off the Internet at http://www.epa.gov/icr. The 
information requirements are not effective until OMB approves them.
    The collection of information required by the proposed amendments 
to the final rule has an estimated nationwide recordkeeping and 
reporting burden of 319,305 hours ($40,032,198). The current ICR 1648-
02 for the section 112(j) regulations was approved and covers the 
period from November 15, 1999 to November 15, 2001. The burden hours 
per occurrence for respondents has not changed. However, ICR 1648-02 
spanned the period in which the section 112(j) rule would apply to any 
of the source categories covered by the MACT standards scheduled for 
promulgation by 1997. This ICR spans the period in which the section 
112(j) rule would apply to any of the source categories covered by the 
MACT standards scheduled for promulgation by 2000, which is a different 
set of source categories. Therefore, because the number of respondents 
is different for this ICR, the burden estimated represents an increase 
of 299,562 hours from the currently approved ICR.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to (1) review instructions; (2) develop, acquire, install, and 
utilize technology and systems for the purposes of collecting, 
validating, and verifying information, processing and maintaining 
information, and disclosing and providing information; (3) adjust the 
existing ways to comply with any previously applicable instructions and 
requirements; (4) train personnel to be able to respond to a collection 
of information; (5) search data sources; (6) complete and review the 
collection of information; and (7) transmit or otherwise disclose the 
information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

[[Page 16345]]

H. National Technology Transfer and Advancement Act of 1995

    Under section 12(d) of the National Technology Transfer and 
Advancement Act (NTTAA) of 1995 (Pub. L. 104-113), all Federal agencies 
are required to use voluntary consensus standards (VCS) in their 
regulatory and procurement activities unless to do so would be 
inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, business practices) 
developed or adopted by one or more voluntary consensus bodies. The 
NTTAA requires Federal agencies to provide Congress, through annual 
reports to OMB, with explanations when an agency does not use available 
and applicable voluntary consensus standards.
    These rules do not involve technical standards. Therefore, EPA is 
not considering the use of any VCS.
    The proposed amendments to the General Provisions do not include 
any technical standards; they consist primarily of revisions to the 
generally applicable procedural and administrative requirements that 
the General Provisions overlay on NESHAP. The proposed amendments to 
the section 112(j) rule, which establishes requirements and procedures 
for owner/operators of major sources of HAP and permitting authorities 
to follow if the EPA misses the deadline for promulgation of a section 
112(d) standard, clarify and amend current procedural and 
administrative provisions to establish equivalent emissions limitations 
by permit. Therefore, section 112(j) is also not a vehicle for the 
application of VCS.

List of Subjects in 40 CFR Part 63

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Hazardous substances, Intergovernmental 
relations, Reporting and recordkeeping requirements.

    Dated: February 23, 2001.
Christine T. Whitman,
Administrator.
    For the reasons cited in the preamble, part 63, title 40, chapter I 
of the Code of Federal Regulations is proposed to be amended as 
follows:

PART 63--[AMENDED]

    1. The authority citation for part 63 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart A--[Amended]

    2. Section 63.1 is amended by:
    a. Revising paragraphs (a)(3) and (4);
    b. Removing and reserving paragraphs (a)(7) and (8);
    c. Removing and reserving paragraphs (a)(13) through (14);
    d. Removing and reserving paragraph (b)(2);
    e. Revising paragraph (b)(3);
    f. Revising paragraphs (c)(1), (c)(2) introductory text and 
(c)(2)(iii)
    g. Removing and reserving paragraph (c)(4); and
    h. Revising paragraph (e);
    The revisions read as follows:


Sec. 63.1  Applicability.

    (a) * * *
    (3) No emission standard or other requirement established under 
this part shall be interpreted, construed, or applied to diminish or 
replace the requirements of a more stringent emission limitation or 
other applicable requirement established by the Administrator pursuant 
to other authority of the Act (section 111, part C or D or any other 
authority of this Act), or a standard issued under State authority. The 
Administrator may specify in a specific standard under this part that 
facilities subject to other provisions under the Act need only comply 
with the provisions of that standard.
    (4)(i) Each relevant part 63 standard shall identify explicitly 
whether each provision in this subpart A is or is not included in such 
relevant standard.
    (ii) If a relevant part 63 standard incorporates the requirements 
of part 60, part 61 or other part 63 standards, the relevant part 63 
standard shall identify explicitly the applicability of each 
corresponding part 60, part 61, or other part 63 subpart A (General) 
provision.
    (iii) The General Provisions in this subpart A do not apply to 
regulations developed pursuant to section 112(r) of the amended Act, 
unless otherwise specified in those regulations.
* * * * *
    (7) [Reserved]
    (8) [Reserved]
* * * * *
    (13) [Reserved]
    (14) [Reserved]
    (b) * * *
    (2) [Reserved]
    (3) An owner or operator of a stationary source who is in the 
relevant source category and who determines that the source is not 
subject to a relevant standard or other requirement established under 
this part shall keep a record as specified in Sec. 63.10(b)(3).
    (c) * * *
    (1) If a relevant standard has been established under this part, 
the owner or operator of an affected source shall comply with the 
provisions of that standard and of this subpart as provided in 
paragraph (a)(4) of this section.
    (2) Except as provided in Sec. 63.10(b)(3), if a relevant standard 
has been established under this part, the owner or operator of an 
affected source may be required to obtain a title V permit from a 
permitting authority in the State in which the source is located. 
Emission standards promulgated in this part for area sources pursuant 
to section 112(c)(3) of the Act will specify whether--
* * * * *
    (iii) If a standard fails to specify what the permitting 
requirements will be for area sources affected by such a standard, then 
area sources that are subject to the standard will be subject to the 
requirement to obtain a title V permit without any deferral.
* * * * *
    (4) [Reserved]
* * * * *
    (e) If the Administrator promulgates an emission standard under 
section 112(d) or (h) of the Act that is applicable to a source subject 
to an emission limitation by permit established under section 112(j) of 
the Act, and the requirements under the section 112(j) emission 
limitation are substantially as effective as the promulgated emission 
standard, the owner or operator may request the permitting authority to 
revise the source's title V permit to reflect that the emission 
limitation in the permit satisfies the requirements of the promulgated 
emission standard. The process by which the permitting authority 
determines whether the section 112(j) emission limitation is 
substantially as effective as the promulgated emission standard shall 
include, consistent with part 70 or 71 of this chapter, the opportunity 
for full public, EPA, and affected State review (including the 
opportunity for EPA's objection) prior to the permit revision being 
finalized. A negative determination by the permitting authority 
constitutes final action for purposes of review and appeal under the 
applicable title V operating permit program.
    3. Section 63.2 is amended by:
    a. Revising the definition of Affected source;
    b. Revising the definition of Commenced;
    c. Revising the definition of Construction;
    d. Revising paragraph (2) in the definition of Effective date;

[[Page 16346]]

    e. Revising the definition of Equivalent emission limitation;
    f. Revising paragraph (6) in the definition of Federally 
enforceable;
    g. Revising the first sentence in the definition of Malfunction;
    h. Revising the definition of New source;
    i. Revising the introductory text in the definition of 
Reconstruction;
    j. Amending the definition of Relevant standard by revising the 
first sentence of paragraph (4) and redesignating the flush paragraph 
to the end of paragraph (4) and revising the last sentence of newly 
designated text in paragraph (4).
    k. Revising the definition of Shutdown;
    l. Revising the definition of Startup;
    m. By adding in alphabetical order definitions for Monitoring, New 
affected source, and Working day; and
    n. By removing definitions for Compliance plan, Lesser quantity, 
and Part 70 permit.
    The revisions and additions read as follows:


Sec. 63.2  Definitions.

* * * * *
    Affected source, for the purposes of this part, means the 
collection of equipment, activities, or both within a single contiguous 
area and under common control that is included in a section 112(c) 
source category or subcategory for which a section 112(d) standard or 
other relevant standard is established pursuant to section 112 of the 
Act. Each relevant standard will define the ``affected source,'' which 
will be the definition above unless a different definition is warranted 
based on a published justification as to why the definition above would 
result in significant administrative, practical, or implementation 
problems and why the different definition would resolve those problems. 
The term ``affected source,'' as used in this part, is separate and 
distinct from any other use of that term in EPA regulations such as 
those implementing title IV of the Act. Affected source may be defined 
differently for part 63 than affected facility and stationary source in 
parts 60 and 61, respectively.
* * * * *
    Commenced means, with respect to construction or reconstruction of 
an affected source, that an owner or operator has undertaken a 
continuous program of construction or reconstruction or that an owner 
or operator has entered into a contractual obligation to undertake and 
complete, within a reasonable time, a continuous program of 
construction or reconstruction.
* * * * *
    Construction means the on-site fabrication, erection, or 
installation of an affected source. Construction does not include the 
removal of all equipment comprising an affected source from an existing 
location and reinstallation of such equipment at a new location. 
However, removal and reinstallation of an affected source will be 
construed as reconstruction if it satisfies the criteria for 
reconstruction set forth below.
* * * * *
    Effective date means: * * *
    (2) With regard to an alternative emission limitation or equivalent 
emission limitation determined by the Administrator (or a State with an 
approved permit program), the date that the alternative emission 
limitation or equivalent emission limitation becomes effective 
according to the provisions of this part.
* * * * *
    Equivalent emission limitation means any maximum achievable control 
technology emission limitation or requirements which are applicable to 
a major source of hazardous air pollutants and are adopted by the 
Administrator (or a State with an approved permit program) on a case-
by-case basis, pursuant to section 112(g) or (j) of the Act.
* * * * *
    Federally enforceable * * *
    (6) Limitations and conditions that are part of an operating permit 
where the permit and the permitting program pursuant to which it was 
issued meet all of the following criteria:
    (i) The operating permit program has been submitted to and approved 
by EPA into a State Implementation Plan (SIP) under section 110 of the 
Clean Air Act;
    (ii) The SIP imposes a legal obligation that operating permit 
holders adhere to the terms and limitations of such permits and 
provides that permits which do not conform to the operating permit 
program requirements and the requirements of EPA's underlying 
regulations may be deemed not ``federally enforceable'' by EPA;
    (iii) The operating permit program requires that all emission 
limitations, controls, and other requirements imposed by such permits 
will be at least as stringent as any other applicable limitations and 
requirements contained in the SIP or enforceable under the SIP, and 
that the program may not issue permits that waive, or make less 
stringent, any limitations or requirements contained in or issued 
pursuant to the SIP, or that are otherwise ``federally enforceable'';
    (iv) The limitations, controls, and requirements in the permit in 
question are permanent, quantifiable, and otherwise enforceable as a 
practical matter; and
    (v) The permit in question was issued only after adequate and 
timely notice and opportunity for comment for EPA and the public.
* * * * *
    Malfunction means any sudden, infrequent, and not reasonably 
preventable failure of air pollution control and monitoring equipment, 
process equipment, or a process to operate in a normal or usual manner. 
* * *
    Monitoring means the collection and use of measurement data or 
other information to control the operation of a process or pollution 
control device relative to assuring compliance with applicable 
requirements. Monitoring is composed of four elements:
    (1) Indicator(s) of performance--the parameter or parameters you 
measure or observe for demonstrating proper operation of the pollution 
control measures or compliance with the applicable emissions limitation 
or standard. Indicators of performance may include direct or predicted 
emissions (including opacity) measurements, operational parametric 
values that correspond to process or control device (and capture 
system) efficiency or emissions rates, and recorded findings of 
inspection of work practice activities or design characteristics. 
Indicators may be expressed as a single maximum or minimum value, a 
function of process variables (e.g., within a range of pressure drops), 
a particular operational or work practice status (e.g., a damper 
position, completion of a waste recovery task), or an interdependency 
between two or more variables.
    (2) Measurement techniques--the means by which you gather and 
record information of or about the indicators of performance. The 
components of the measurement technique include the detector type, 
location and installation specifications, inspection procedures, and 
quality assurance and quality control measures. Examples of measurement 
techniques include continuous emission monitoring systems, continuous 
opacity monitoring systems, continuous parametric monitoring systems, 
and manual inspections that include making records of process 
conditions or work practices.
    (3) Monitoring frequency--the number of times you obtain and record 
monitoring data over a specified time

[[Page 16347]]

interval. Examples of monitoring frequencies include at least four 
points equally spaced for each hour for continuous emissions or 
parametric monitoring systems, at least every 10 seconds for continuous 
opacity monitoring systems, and at least once per operating day (or 
week, month, etc.) for work practice or design inspections.
    (4) Averaging time--the period over which you average and use data 
to verify proper operation of the pollution control approach or 
compliance with the emissions limitation or standard. Examples of 
averaging time include a 3-hour average in units of the emissions 
limitation, a 30-day rolling average emissions value, a daily average 
of a control device operational parametric range, and an instantaneous 
alarm.
    New affected source means the collection of equipment, activities, 
or both within a single contiguous area and under common control that 
is included in a section 112(c) source category or subcategory that is 
subject to a section 112(d) or other relevant standard for new sources. 
Each relevant standard will define the term ``new affected source,'' 
which will be the same as the ``affected source'' unless a different 
collection is warranted based on consideration of factors including:
    (1) Emission reduction impacts of controlling individual sources 
versus groups of sources;
    (2) Cost effectiveness of controlling individual equipment;
    (3) Flexibility to accommodate common control strategies;
    (4) Cost/benefits of emissions averaging;
    (5) Incentives for pollution prevention;
    (6) Feasibility and cost of controlling processes that share common 
equipment (e.g., product recovery devices);
    (7) Feasibility and cost of monitoring; and
    (8) Other relevant factors.
    New source means any affected source the construction or 
reconstruction of which is commenced after the Administrator first 
proposes a relevant emission standard under this part establishing an 
emission standard applicable to such source.
* * * * *
    Reconstruction, unless otherwise defined in a relevant standard, 
means the replacement of components of an affected or a previously 
nonaffected source to such an extent that:
* * * * *
    Relevant standard means: * * *
    (4) An equivalent emission limitation established pursuant to 
section 112 of the Act that applies to the collection of equipment, 
activities, or both regulated by such standard or limitation.

* * * Every relevant standard established pursuant to section 112 of 
the Act includes subpart A of this part, as provided by 
Sec. 63.1(a)(4), and all applicable appendices of this part or of other 
parts of this chapter that are referenced in that standard.
* * * * *
    Shutdown means the cessation of operation of an affected source or 
portion of an affected source for any purpose.
* * * * *
    Startup means the setting in operation of an affected source or 
portion of an affected source for any purpose.
* * * * *
    Working day means any day on which Federal Government offices (or 
State government offices for a State that has obtained delegation under 
section 112(l)) are open for normal business. Saturdays, Sundays, and 
official Federal (or where delegated, State) holidays are not working 
days.
    4. Section 63.4 is amended by:
    a. Revising paragraph (a)(1);
    b. Removing paragraphs (a)(3) through (a)(5);
    c. Removing and reserving paragraph (b)(3); and
    d. Revising paragraph (c).
    The revisions read as follows:


Sec. 63.4  Prohibited activities and circumvention.

    (a) * * *
    (1) No owner or operator subject to the provisions of this part 
shall operate any affected source in violation of the requirements of 
this part. Affected sources subject to and in compliance with either an 
extension of compliance or an exemption from compliance are not in 
violation of the requirements of this part. An extension of compliance 
can be granted by the Administrator under this part; by a State with an 
approved permit program; or by the President under section 112(i)(4) of 
the Act.
* * * * *
    (3)-(5) [Reserved]
    (b) * * *
    (3) [Reserved]
    (c) Fragmentation. Fragmentation after November 15, 1990 which 
divides ownership of an operation, within the same facility among 
various owners where there is no real change in control, will not 
affect applicability. Owners and operators shall not use fragmentation 
or phasing of reconstruction activities (i.e., intentionally dividing 
reconstruction into multiple parts for purposes of avoiding new source 
requirements) to avoid becoming subject to new source requirements.
    5. Section 63.5 is amended by:
    a. Revising the section heading;
    b. Revising paragraphs (a)(1) through (2);
    c. Revising paragraph (b)(1);
    d. Revising paragraphs (b)(3) through (4);
    e. Removing and reserving paragraph (b)(5);
    f. Revising paragraph (b)(6);
    g. Revising paragraph (d)(1)(i);
    h. Revising paragraph (d)(1)(ii)(B);
    i. Revising paragraph (d)(1)(ii)(E);
    j. Removing and reserving paragraph (d)(1)(ii)(G);
    k. Revising paragraph (d)(2);
    l. Revising paragraph (d)(3)(vi); and
    m. Revising paragraphs (f)(1) through (f)(2).
    The revisions read as follows:


Sec. 63.5  Preconstruction review and notification requirements.

    (a) * * *
    (1) This section implements the preconstruction review requirements 
of section 112(i)(1). After the effective date of a relevant standard, 
promulgated pursuant to section 112, paragraph (d), (f), or (h) of the 
Act, under this part, the preconstruction review requirements in this 
section apply to owners or operators of new affected sources and 
reconstructed affected sources that are major-emitting as specified in 
this section. New and reconstructed affected sources that commence 
construction or reconstruction before the effective date of a relevant 
standard are not subject to the preconstruction review requirements 
specified in paragraphs (b)(3), (d), and (e) of this section.
    (2) This section includes notification requirements for new 
affected sources and reconstructed affected sources that are not major-
emitting and that are or become subject to a relevant promulgated 
emission standard after the effective date of a relevant standard 
promulgated under this part.
    (b) Requirements for existing, newly constructed, and reconstructed 
affected sources. (1) A new affected source for which construction 
commences after proposal of a relevant standard is subject to relevant 
standards for new affected sources, including compliance dates. An 
affected source for which reconstruction commences after proposal of a 
relevant standard is subject to relevant standards for new sources, 
including compliance dates, irrespective of any change in emissions of 
hazardous air pollutants from that source.
* * * * *
    (3) After the effective date of any relevant standard promulgated 
by the

[[Page 16348]]

Administrator under this part, no person may:
    (i) Construct a new affected source that is major-emitting and 
subject to such standard;
    (ii) Reconstruct an affected source that is major-emitting and 
subject to such standard; or
    (iii) Reconstruct a major source, such that the source becomes an 
affected source that is major-emitting and subject to the standard, 
without obtaining written approval, in advance, from the Administrator 
in accordance with the procedures specified in paragraphs (d) and (e) 
of this section.
    (4) After the effective date of any relevant standard promulgated 
by the Administrator under this part, an owner or operator who 
constructs a new affected source that is not major-emitting or 
reconstructs an affected source that is not major-emitting that is 
subject to such standard, or reconstructs a source such that the source 
becomes an affected source subject to the standard, shall notify the 
Administrator of the intended construction or reconstruction. The 
notification shall be submitted in accordance with the procedures in 
Sec. 63.9(b).
    (5) [Reserved]
    (6) After the effective date of any relevant standard promulgated 
by the Administrator under this part, equipment added (or a process 
change) to an affected source that is within the scope of the 
definition of affected source under the relevant standard shall be 
considered part of the affected source and subject to all provisions of 
the relevant standard established for that affected source.
* * * * *
    (d) * * *
    (1) * * *
    (i) An owner or operator who is subject to the requirements of 
paragraph (b)(3) of this section shall submit to the Administrator an 
application for approval of the construction or reconstruction. The 
application shall be submitted as soon as practicable before actual 
construction or reconstruction begins. The application for approval of 
construction or reconstruction may be used to fulfill the initial 
notification requirements of Sec. 63.9(b)(5). The owner or operator may 
submit the application for approval well in advance of the date actual 
construction or reconstruction begins in order to ensure a timely 
review by the Administrator and that the planned date to begin will not 
be delayed.
    (ii) * * *
    (B) A notification of intention to construct a new major affected 
source or make any physical or operational change to a major affected 
source that may meet or has been determined to meet the criteria for a 
reconstruction, as defined in Sec. 63.2 or in the relevant standard;
* * * * *
    (E) The expected date of the beginning of actual construction or 
reconstruction;
* * * * *
    (G) [Reserved]
* * * * *
    (2) Application for approval of construction. Each application for 
approval of construction shall include, in addition to the information 
required in paragraph (d)(1)(ii) of this section, technical information 
describing the proposed nature, size, design, operating design 
capacity, and method of operation of the source, including an 
identification of each type of emission point for each type of 
hazardous air pollutant that is emitted (or could reasonably be 
anticipated to be emitted) and a description of the planned air 
pollution control system (equipment or method) for each emission point. 
The description of the equipment to be used for the control of 
emissions shall include each control device for each hazardous air 
pollutant and the estimated control efficiency (percent) for each 
control device. The description of the method to be used for the 
control of emissions shall include an estimated control efficiency 
(percent) for that method. Such technical information shall include 
calculations of emission estimates in sufficient detail to permit 
assessment of the validity of the calculations.
    (3) * * *
    (vi) If in the application for approval of reconstruction the owner 
or operator designates the affected source as a reconstructed source 
and declares that there are no economic or technical limitations to 
prevent the source from complying with all relevant standards or other 
requirements, the owner or operator need not submit the information 
required in paragraphs (d)(3)(iii) through (d)(3)(v) of this section.
* * * * *
    (f) * * *
    (1) Preconstruction review procedures that a State utilizes for 
other purposes may also be utilized for purposes of this section if the 
procedures are substantially equivalent to those specified in this 
section. The Administrator will approve an application for construction 
or reconstruction specified in paragraphs (b)(3) and (d) of this 
section if the owner or operator of a new affected source or 
reconstructed affected source, who is subject to such requirement, 
demonstrates to the Administrator's satisfaction that the following 
conditions have been (or will be) met:
    (i) The owner or operator of the new affected source or 
reconstructed affected source has undergone a preconstruction review 
and approval process in the State in which the source is (or would be) 
located and has received a federally enforceable construction permit 
that contains a finding that the source will meet the relevant 
promulgated emission standard, if the source is properly built and 
operated; and
    (ii) In making its finding, the State has considered factors 
substantially equivalent to those specified in paragraph (e)(1) of this 
section.
    (iii) [Reserved]
    (iv) [Reserved]
    (2) The owner or operator shall submit to the Administrator the 
request for approval of construction or reconstruction under this 
paragraph (f)(2) no later than the application deadline specified in 
paragraph (d)(1) of this section (see also Sec. 63.9(b)(2)). The owner 
or operator shall include in the request information sufficient for the 
Administrator's determination. The Administrator will evaluate the 
owner or operator's request in accordance with the procedures specified 
in paragraph (e) of this section. The Administrator may request 
additional relevant information after the submittal of a request for 
approval of construction or reconstruction under this paragraph.
    6. Section 63.6 is amended by:
    a. Revising paragraph (a)(1) introductory text;
    b. Revising paragraphs (b)(1) through (b)(2);
    c. Revising paragraph (b)(3)(i);
    d. Revising paragraphs (b)(4) through (b)(5);
    e. Revising paragraph (b)(7);
    f. Revising paragraph (c)(2);
    g. Revising paragraph (c)(5);
    h. Revising paragraphs (e)(1)(i) through (ii);
    i. Removing and reserving paragraph (e)(2):
    j. Revising paragraphs (e)(3)(i) introductory text, (e)(3)(i)(A), 
(e)(3)(ii), the first three sentences of paragraphs (e)(3)(iii) and 
(e)(3)(v), revising paragraphs (e)(3)(iv), (e)(3)(vii)(B), 
(e)(3)(vii)(C), (e)(3)(viii) and adding paragraph (e)(3)(ix);
    k. Revising paragraph (f)(1);
    l. Revising paragraph (f)(2)(iii)(D);
    m. Revising paragraph (f)(3);
    n. Revising paragraph (h)(1);
    o. Revising paragraph (h)(2)(iii)(C);
    p. Revising paragraph (i)(4)(i)(B);
    q. Revising the last sentence of paragraph (i)(4)(ii);

[[Page 16349]]

    r. Revising paragraphs (i)(6)(i)(B)(1) and (2) and removing and 
reserving paragraphs (i)(6)(i)(C) & (D);
    s. Revising paragraph (i)(12)(i)
    t. Revising paragraph (i)(14); and
    u. Adding paragraph (i)(4)(i)(C).
    The revisions and additions read as follows:


Sec. 63.6  Compliance with standards and maintenance requirements.

    (a) * * *
    (1) The requirements in this section apply to owners or operators 
of affected sources for which any relevant standard has been 
established pursuant to section 112 of the Act and the applicability of 
such requirements is set out in accordance with Sec. 63.1(a)(4) 
unless--
* * * * *
    (b) Compliance dates for new and reconstructed affected sources. 
(1) Except as specified in paragraphs (b)(3) and (4) of this section, 
the owner or operator of a new or reconstructed affected source for 
which construction or reconstruction commences after proposal of a 
relevant standard that has an initial startup before the effective date 
of a relevant standard established under this part pursuant to section 
112(d), (f), or (h) of the Act shall comply with such standard not 
later than the standard's effective date.
    (2) Except as specified in paragraphs (b)(3) and (4) of this 
section, the owner or operator of a new or reconstructed affected 
source that has an initial startup after the effective date of a 
relevant standard established under this part pursuant to section 
112(d), (f), or (h) of the Act shall comply with such standard upon 
startup of the source.
    (3) * * *
    (i) The promulgated standard (that is, the relevant standard) is 
more stringent than the proposed standard; for purposes of this 
paragraph, a finding that controls or compliance methods are ``more 
stringent'' shall include control technologies or performance criteria 
and compliance or compliance assurance methods that are different but 
are substantially equivalent to those required by the promulgated rule, 
as determined by the Administrator (or his or her authorized 
representative); and
* * * * *
    (4) The owner or operator of an affected source for which 
construction or reconstruction is commenced after the proposal date of 
a relevant standard established pursuant to section 112(d) of the Act 
but before the proposal date of a relevant standard established 
pursuant to section 112(f) shall not be required to comply with the 
section 112(f) emission standard until the date 10 years after the date 
construction or reconstruction is commenced, except that, if the 
section 112(f) standard is promulgated more than 10 years after 
construction or reconstruction is commenced, the owner or operator 
shall comply with the standard as provided in paragraphs (b)(1) and (2) 
of this section.
    (5) The owner or operator of a new source that is subject to the 
compliance requirements of paragraph (b)(3) or (4) of this section 
shall notify the Administrator in accordance with Sec. 63.9(d).
* * * * *
    (7) When an area source becomes a major source by the addition of 
equipment or operations that meet the definition of new affected source 
in the relevant standard, the portion of the existing facility that is 
a new affected source shall comply with all requirements of that 
standard applicable to new sources. The source owner or operator shall 
comply with the relevant standard upon startup.
    (c) * * *
    (2) If an existing source is subject to a standard established 
under this part pursuant to section 112(f) of the Act, the owner or 
operator shall comply with the standard by the date 90 days after the 
standard's effective date, or by the date specified in an extension 
granted to the source by the Administrator under paragraph (i)(4)(ii) 
of this section, whichever is later.
* * * * *
    (5) Except as provided in paragraph (b)(7) of this section, the 
owner or operator of an area source that increases its emissions of (or 
its potential to emit) hazardous air pollutants such that the source 
becomes a major source shall be subject to relevant standards for 
existing sources. Such sources shall comply by the date specified in 
the standards for existing area sources that become major sources. If 
no such compliance date is specified in the standards, the source shall 
have a period of time to comply with the relevant emission standard 
that is equivalent to the compliance period specified in the relevant 
standard for existing sources in existence at the time the standard 
becomes effective.
* * * * *
    (e) * * *
    (1)(i) At all times, including periods of startup, shutdown, and 
malfunction, owners or operators shall operate and maintain any 
affected source, including associated air pollution control equipment 
and monitoring equipment, in a manner consistent with safety and good 
air pollution control practices for minimizing emissions to the levels 
required by the relevant standards, i.e., meet the emission standard or 
comply with the startup, shutdown, and malfunction plan. Determination 
of whether such operation and maintenance procedures are being used 
will be based on information available to the Administrator which may 
include, but is not limited to, monitoring results, review of operation 
and maintenance procedures (including the startup, shutdown, and 
malfunction plan required in paragraph (e)(3) of this section), review 
of operation and maintenance records, and inspection of the source.
    (ii) Malfunctions shall be corrected as soon as practicable after 
their occurrence in accordance with the startup, shutdown, and 
malfunction plan required in paragraph (e)(3) of this section. To the 
extent that an unexpected event arises during a startup, shutdown, or 
malfunction, an owner or operator shall comply by minimizing emissions 
during such a startup, shutdown, and malfunction event consistent with 
safety and good air pollution control practices.
* * * * *
    (2) [Reserved]
    (3) * * *
    (i) The owner or operator of an affected source shall develop and 
implement a written startup, shutdown, and malfunction plan that 
describes, in detail, procedures for operating and maintaining the 
source during periods of startup, shutdown, and malfunction, a program 
of corrective action for malfunctioning process, and air pollution 
control and monitoring equipment used to comply with the relevant 
standard. This plan shall be developed by the owner or operator by the 
source's compliance date for that relevant standard. The purpose of the 
startup, shutdown, and malfunction plan is to--
    (A) Ensure that, at all times, owners or operators operate and 
maintain affected sources, including associated air pollution control 
and monitoring equipment, in a manner consistent with safety and good 
air pollution control practices for minimizing emissions to the levels 
required by the relevant standards;
* * * * *
    (ii) During periods of startup, shutdown, and malfunction, the 
owner or operator of an affected source shall operate and maintain such 
source (including associated air pollution control and monitoring 
equipment) in accordance with the procedures specified in the startup, 
shutdown, and malfunction plan developed under paragraph (e)(3)(i) of 
this section.

[[Page 16350]]

    (iii) When actions taken by the owner or operator during a startup, 
shutdown, or malfunction (including actions taken to correct a 
malfunction) are consistent with the procedures specified in the 
affected source's startup, shutdown, and malfunction plan, the owner or 
operator shall keep records for that event which demonstrate that the 
procedures specified in the plan were followed. These records may take 
the form of a ``checklist,'' or other effective form of recordkeeping 
that confirms conformance with the startup, shutdown, and malfunction 
plan for that event. In addition, the owner or operator shall keep 
records of these events as specified in Sec. 63.10(b), including 
records of the occurrence and duration of each startup, shutdown, or 
malfunction of operation and each malfunction of the air pollution 
control and monitoring equipment. * * *
    (iv) If an action taken by the owner or operator during a startup, 
shutdown, or malfunction (including an action taken to correct a 
malfunction) is not consistent with the procedures specified in the 
affected source's startup, shutdown, and malfunction plan, and the 
source exceeds the relevant emission standard, then the owner or 
operator shall record the actions taken for that event and shall report 
such actions within 2 working days after commencing actions 
inconsistent with the plan, followed by a letter within 7 working days 
after the end of the event, in accordance with Sec. 63.10(d)(5) (unless 
the owner or operator makes alternative reporting arrangements, in 
advance, with the Administrator.
    (v) The owner operator shall maintain at the affected source a 
current startup, shutdown, and malfunction plan and shall make the plan 
available upon request for inspection and copying by the Administrator. 
In addition, if the startup, shutdown, and malfunction plan is 
subsequently revised as provided in paragraph (e)(3)(viii) of this 
section, the owner or operator shall maintain at the affected source 
each previous (i.e., superseded) version of the startup, shutdown, and 
malfunction plan, and shall make each such previous version available 
for inspection and copying by the Administrator for a period of 5 years 
after revision of the plan. If at any time after adoption of a startup, 
shutdown, and malfunction plan the affected source ceases operation or 
is otherwise no longer subject to the provisions of this part, the 
owner or operator shall retain a copy of the most recent plan for 5 
years from the date the source ceases operation or is no longer subject 
to this part and shall make the plan available upon request for 
inspection and copying by the Administrator. * * *
* * * * *
    (vii) * * *
    (B) Fails to provide for the operation of the source (including 
associated air pollution control and monitoring equipment) during a 
startup, shutdown, or malfunction event in a manner consistent with 
safety and good air pollution control practices for minimizing 
emissions to the levels required by the relevant standards; or
    (C) Does not provide adequate procedures for correcting 
malfunctioning process and/or air pollution control and monitoring 
equipment as quickly as practicable.
    (viii) The owner or operator may periodically revise the startup, 
shutdown, and malfunction plan for the affected source as necessary to 
satisfy the requirements of this part or to reflect changes in 
equipment or procedures at the affected source. Unless the permitting 
authority provides otherwise, the owner or operator may make such 
revisions to the startup, shutdown, and malfunction plan without prior 
approval by the Administrator or the permitting authority. However, 
each such revision to a startup, shutdown, and malfunction plan must be 
reported in the semiannual report required by Sec. 63.10(d)(5). If the 
startup, shutdown, and malfunction plan fails to address or 
inadequately addresses an event that meets the characteristics of a 
malfunction but was not included in the startup, shutdown, and 
malfunction plan at the time the owner or operator developed the plan, 
the owner or operator shall revise the startup, shutdown, and 
malfunction plan within 45 days after the event to include detailed 
procedures for operating and maintaining the source during similar 
malfunction events and a program of corrective action for similar 
malfunctions of process or air pollution control and monitoring 
equipment. In the event that the owner or operator makes any revision 
to the startup, shutdown, and malfunction plan which alters the scope 
of the activities at the source which are deemed to be a startup, 
shutdown, malfunction, or otherwise modifies the applicability of any 
emission limit, work practice requirement, or other requirement in a 
standard established under this part, the revised plan shall not take 
effect until after the owner or operator has provided a written notice 
describing the revision to the permitting authority.
    (ix) The title V permit for an affected source shall require that 
the owner or operator adopt a startup, shutdown, and malfunction plan 
which conforms to the provisions of this part, and that the owner or 
operator operate and maintain the source in accordance with the 
procedures specified in the current startup, shutdown, and malfunction 
plan. However, any revisions made to the startup, shutdown, and 
malfunction plan in accordance with the procedures established by this 
part shall not be deemed to constitute permit revisions under part 70 
or part 71 of this chapter. Moreover, none of the procedures specified 
by the startup, shutdown, and malfunction plan for an affected source 
shall be deemed to fall within the permit shield provision in section 
504(f) of the Act.
    (f) * * *
    (1) Applicability. The non-opacity emission standards set forth in 
this part shall apply at all times except during periods of startup, 
shutdown, and malfunction, and as otherwise specified in an applicable 
subpart. If a startup, shutdown, or malfunction of one portion of an 
affected source does not affect the ability of particular emission 
points within other portions of the affected source to comply with the 
non-opacity emission standards set forth in this part, then that 
emission point shall still be required to comply with the non-opacity 
emission standards and other applicable requirements.
    (2) * * *
    (iii) * * *
    (D) The performance test was appropriately quality-assured, as 
specified in Sec. 63.7(c).
* * * * *
    (3) Finding of compliance. The Administrator will make a finding 
concerning an affected source's compliance with a non-opacity emission 
standard, as specified in paragraphs (f)(1) and (2) of this section, 
upon obtaining all the compliance information required by the relevant 
standard (including the written reports of performance test results, 
monitoring results, and other information, if applicable) and 
information available to the Administrator pursuant to paragraph 
(e)(1)(i) of this section.
* * * * *
    (h) * * *
    (1) Applicability. The opacity and visible emission standards set 
forth in this part shall apply at all times except during periods of 
startup, shutdown, and malfunction, and as otherwise specified in an 
applicable subpart. If a startup, shutdown, or malfunction of one 
portion of an affected source does not affect the ability of particular 
emission points within other portions of the affected source to comply 
with the

[[Page 16351]]

opacity and visible emission standards set forth in this part, then 
that emission point shall still be required to comply with the opacity 
and visible emission standards and other applicable requirements.
    (2) * * *
    (iii) * * *
    (C) The opacity or visible emission test was conducted and the 
resulting data were reduced using EPA-approved test methods and 
procedures, as specified in Sec. 63.7(e); and
* * * * *
    (i) * * *
    (4)(i) * * *
    (B) Any request under this paragraph for an extension of compliance 
with a relevant standard shall be submitted in writing to the 
appropriate authority no later than 120 days prior to the affected 
source's compliance date (as specified in paragraphs (b) and (c) of 
this section), except as provided for in paragraph (i)(4)(i)(C) of this 
section. Nonfrivolous requests submitted under this paragraph will stay 
the effect of the rule as to the emission points in question until such 
time as the request is granted or denied. A denial will be effective as 
of the date of denial. Emission standards established under this part 
may specify alternative dates for the submittal of requests for an 
extension of compliance if alternatives are appropriate for the source 
categories affected by those standards.
    (C) An owner or operator may submit a compliance extension request 
after the date specified in paragraph (i)(4)(i)(B) of this section 
provided the need for the compliance extension arose after that date, 
and before the otherwise applicable compliance date, and the need arose 
due to circumstances beyond reasonable control of the owner or 
operator. This request shall include, in addition to the information 
required in paragraph (i)(6)(i) of this section, a statement of the 
reasons additional time is needed and the date when the owner or 
operator first learned of the problems. Nonfrivolous requests submitted 
under this paragraph will stay the effect of the rule as to the 
emission points in question until such time as the request is granted 
or denied. A denial will be effective as of the original compliance 
date.
    (ii) * * * Any request for an extension of compliance with a 
relevant standard under this paragraph shall be submitted in writing to 
the Administrator not later than 90 calendar days after the effective 
date of the relevant standard.
* * * * *
    (6)(i) * * *
    (B) * * *
    (1) The date by which on-site construction, installation of 
emission control equipment, or a process change is planned to be 
initiated; and
    (2) The date by which final compliance is to be achieved.
    (C) [Reserved]
    (D) [Reserved]
* * * * *
    (12)(i) The Administrator (or the State with an approved permit 
program) will notify the owner or operator in writing of approval or 
intention to deny approval of a request for an extension of compliance 
within 30 calendar days after receipt of sufficient information to 
evaluate a request submitted under paragraph (i)(4)(i) or (i)(5) of 
this section. The Administrator (or the State) will notify the owner or 
operator in writing of the status of his/her application, that is, 
whether the application contains sufficient information to make a 
determination, within 30 calendar days after receipt of the original 
application and within 30 calendar days after receipt of any 
supplementary information that is submitted. The 30-day approval or 
denial period will begin after the owner or operator has been notified 
in writing that his/her application is complete.
* * * * *
    (14) The Administrator (or the State with an approved permit 
program) may terminate an extension of compliance at an earlier date 
than specified if any specification under paragraph (i)(10)(iii) or 
(iv) of this section is not met. Upon a determination to terminate, the 
Administrator will notify, in writing, the owner or operator of the 
Administrator's determination to terminate, together with:
    (i) Notice of the reason for termination; and
    (ii) Notice of opportunity for the owner or operator to present in 
writing, within 15 calendar days after he/she is notified of the 
determination to terminate, additional information or arguments to the 
Administrator before further action on the termination.
    (iii) A final determination to terminate an extension of compliance 
will be in writing and will set forth the specific grounds on which the 
termination is based. The final determination will be made within 30 
calendar days after presentation of additional information or 
arguments, or within 30 calendar days after the final date specified 
for the presentation if no presentation is made.
* * * * *
    7. Section 63.7 is amended by:
    a. Revising paragraphs (a)(1) and (a)(2) introductory text;
    b. Removing and reserving paragraphs (a)(2)(i) through (viii)
    c. Revising paragraph (b)(2);
    d. Revising paragraphs (c)(3)(ii)(A) through (B);
    e. Revising paragraph (c)(4)(i);
    f. Revising paragraphs (e)(2)(i) through (iii)
    g. Revising paragraph (f)(1);
    h. Revising paragraphs (f)(2)(i) through (ii); and
    i. Revising paragraph (f)(3).
    The revisions read as follows:


Sec. 63.7  Performance testing requirements.

    (a) * * *
    (1) The applicability of this section is set out in 
Sec. 63.1(a)(4).
    (2) If required to do performance testing by a relevant standard, 
and unless a waiver of performance testing is obtained under this 
section or the conditions of paragraph (c)(3)(ii)(B) of this section 
apply, the owner or operator of the affected source shall perform such 
tests within 180 days of the compliance date for such source.
    (i)--(viii) [Reserved]
* * * * *
    (b) * * *
    (2) In the event the owner or operator is unable to conduct the 
performance test on the date specified in the notification requirement 
specified in paragraph (b)(1) of this section, due to unforeseeable 
circumstances beyond his or her control, the owner or operator shall 
notify the Administrator as soon as practicable and without delay prior 
to the scheduled performance test date and specify the date when the 
performance test is rescheduled. This notification of delay in 
conducting the performance test shall not relieve the owner or operator 
of legal responsibility for compliance with any other applicable 
provisions of this part or with any other applicable Federal, State, or 
local requirement, nor will it prevent the Administrator from 
implementing or enforcing this part or taking any other action under 
the Act.
    (c) * * *
    (3) * * *
    (ii) * * *
    (A) If the owner or operator intends to demonstrate compliance 
using the test method(s) specified in the relevant standard or with 
only minor changes to those tests methods (see paragraph (e)(2)(i) of 
this section), the owner or operator shall conduct the performance test 
within the time specified in this section using the specified 
method(s);
    (B) If the owner or operator intends to demonstrate compliance by 
using an alternative to any test method specified in the relevant 
standard, the owner or operator is authorized to conduct the

[[Page 16352]]

performance test using an alternative test method after the 
Administrator approves the use of the alternative method when the 
Administrator approves the site-specific test plan (if review of the 
site-specific test plan is requested) or after the alternative method 
is approved (see paragraph (f) of this section). However, the owner or 
operator is authorized to conduct the performance test using an 
alternative method in the absence of notification of approval 45 days 
after submission of the site-specific test plan or request to use an 
alternative method. The owner or operator is authorized to conduct the 
performance test within 60 calendar days after he/she is authorized to 
demonstrate compliance using an alternative test method. 
Notwithstanding the requirements in the preceding three sentences, the 
owner or operator may proceed to conduct the performance test as 
required in this section (without the Administrator's prior approval of 
the site-specific test plan) if he/she subsequently chooses to use the 
specified testing and monitoring methods instead of an alternative.
* * * * *
    (4)(i) Performance test method audit program. The owner or operator 
shall analyze performance audit (PA) samples during each performance 
test. The owner or operator shall request performance audit materials 
30 days prior to the test date. Audit materials including cylinder 
audit gases may be obtained by contacting the appropriate EPA Regional 
Office or the responsible enforcement authority.
* * * * *
    (e) * * *
    (2) * * *
    (i) Specifies or approves, in specific cases, the use of a test 
method with minor changes in methodology (see definition in 
Sec. 63.90(a)). Such changes may be approved in conjunction with 
approval of the site-specific test plan (see paragraph (c) of this 
section); or
    (ii) Approves the use of an intermediate or major change or 
alternative to a test method (see definitions in Sec. 63.90(a)), the 
results of which the Administrator has determined to be adequate for 
indicating whether a specific affected source is in compliance; or
    (iii) Approves shorter sampling times or smaller sample volumes 
when necessitated by process variables or other factors; or
* * * * *
    (f) * * *
    (1) General. Until authorized to use an intermediate or major 
change or alternative to a test method, the owner or operator of an 
affected source remains subject to the requirements of this section and 
the relevant standard.
    (2) * * *
    (i) Notifies the Administrator of his or her intention to use an 
alternative test method at least 60 days before the performance test is 
scheduled to begin;
    (ii) Uses Method 301 in appendix A to this part to validate the 
alternative test method. This may include the use of specific 
procedures of Method 301 if use of such procedures are sufficient to 
validate the alternative test method; and
* * * * *
    (3) The Administrator will determine whether the owner or 
operator's validation of the proposed alternative test method is 
adequate and issue an approval or disapproval of the alternative test 
method. If the owner or operator intends to demonstrate compliance by 
using an alternative to any test method specified in the relevant 
standard, the owner or operator is authorized to conduct the 
performance test using an alternative test method after the 
Administrator approves the use of the alternative method. However, the 
owner or operator is authorized to conduct the performance test using 
an alternative method in the absence of notification of approval/
disapproval 45 days after submission of the request to use an 
alternative method and the request satisfies the requirements in 
paragraph (f)(2) of this section. The owner or operator is authorized 
to conduct the performance test within 60 calendar days after he/she is 
authorized to demonstrate compliance using an alternative test method. 
Notwithstanding the requirements in the preceding three sentences, the 
owner or operator may proceed to conduct the performance test as 
required in this section (without the Administrator's prior approval of 
the site-specific test plan) if he/she subsequently chooses to use the 
specified testing and monitoring methods instead of an alternative.
* * * * *
    8. Section 63.8 is amended by:
    a. Revising paragraph (a)(1);
    b. Revising paragraphs (b)(1)(i) through (ii);
    c. Revising paragraphs (b)(2)(i) through (ii);
    d. Revising paragraphs (c)(1)(i) through (iii);
    e. Revising paragraph (c)(2);
    f. Revising paragraph (c)(6);
    g. Revising paragraph (f)(1);
    h. Revising paragraphs (f)(4)(i) through (ii);
    i. Adding paragraph (f)(4)(iv);
    j. Revising the heading of paragraph (f)(5) and revising paragraph 
(f)(5)(i) introductory text;
    k. Revising paragraph (g)(1); and
    l. Revising paragraph (g)(5).
    The revisions and additions read as follows:


Sec. 63.8  Monitoring requirements.

    (a) * * *
    (1) The applicability of this section is set out in 
Sec. 63.1(a)(4).
* * * * *
    (b) * * *
    (1) * * *
    (i) Specifies or approves the use of minor changes in methodology 
for the specified monitoring requirements and procedures (see 
Sec. 63.90(a) for definition); or
    (ii) Approves the use of an intermediate or major change or 
alternative to any monitoring requirements or procedures (see 
Sec. 63.90(a) for definition).
* * * * *
    (2)(i) When the emissions from two or more affected sources are 
combined before being released to the atmosphere, the owner or operator 
may install an applicable CMS for each emission stream or for the 
combined emissions streams, provided the monitoring is sufficient to 
demonstrate compliance with the relevant standard.
    (ii) If the relevant standard is a mass emission standard and the 
emissions from one affected source are released to the atmosphere 
through more than one point, the owner or operator shall install an 
applicable CMS at each emission point unless the installation of fewer 
systems is--
* * * * *
    (c) * * *
    (1)(i) The owner or operator of an affected source shall maintain 
and operate each CMS as specified in Sec. 63.6(e)(1).
    (ii) The owner or operator shall keep the necessary parts for 
routine repairs of the affected CMS equipment readily available.
    (iii) The owner or operator of an affected source shall develop and 
implement a written startup, shutdown, and malfunction plan for CMS as 
specified in Sec. 63.6(e)(3).
    (2)(i) All CMS shall be installed such that representative measures 
of emissions or process parameters from the affected source are 
obtained. In addition, CEMS shall be located according to procedures 
contained in the applicable performance specification(s).
    (ii) Unless the individual subpart states otherwise, the owner or 
operator

[[Page 16353]]

shall ensure the read out (that portion of the CMS that provides a 
visual display or record) from any CMS required for compliance with the 
emission standard is readily accessible on site for operational control 
or inspection by the operator of the equipment.
* * * * *
    (6) The owner or operator of a CMS installed in accordance with the 
provisions of this part and the applicable CMS performance 
specification(s) shall check the zero (low-level) and high-level 
calibration drifts at least once daily in accordance with the written 
procedure specified in the performance evaluation plan developed under 
paragraphs (e)(3)(i) and (ii) of this section. The zero (low-level) and 
high-level calibration drifts shall be adjusted, at a minimum, whenever 
the 24-hour zero (low-level) drift exceeds two times the limits of the 
applicable performance specification(s) specified in the relevant 
standard. The system must allow the amount of excess zero (low-level) 
and high-level drift measured at the 24-hour interval checks to be 
recorded and quantified whenever specified. For COMS, all optical and 
instrumental surfaces exposed to the effluent gases shall be cleaned 
prior to performing the zero (low-level) and high-level drift 
adjustments; the optical surfaces and instrumental surfaces shall be 
cleaned when the cumulative automatic zero compensation, if applicable, 
exceeds 4 percent opacity. The CPMS must be calibrated prior to use for 
the purposes of complying with this section. The CPMS must be checked 
daily for indication that the system is responding. If the CPMS system 
includes an internal system check, results must be recorded and checked 
daily for proper operation.
* * * * *
    (f) * * *
    (1) General. Until permission to use an alternative monitoring 
procedure (minor, intermediate, or major changes; see definition in 
Sec. 63.90(a)) has been granted by the Administrator under this 
paragraph, the owner or operator of an affected source remains subject 
to the requirements of this section and the relevant standard.
* * * * *
    (4)(i) Request to use alternative monitoring procedure. An owner or 
operator who wishes to use an alternative monitoring procedure shall 
submit an application to the Administrator as described in paragraph 
(f)(4)(ii) of this section. The application may be submitted at any 
time provided that the monitoring procedure is not the performance test 
method used to demonstrate compliance with a relevant standard or other 
requirement. If the alternative monitoring procedure will serve as the 
performance test method that is to be used to demonstrate compliance 
with a relevant standard, the application shall be submitted at least 
60 days before the performance evaluation is scheduled to begin and 
must meet the requirements for an alternative test method under 
Sec. 63.7(f).
    (ii) The application shall contain a description of the proposed 
alternative monitoring system which addresses the four elements 
contained in the definition of monitoring in Sec. 63.2 and a 
performance evaluation test plan, if required, as specified in 
paragraph (e)(3) of this section. In addition, the application shall 
include information justifying the owner or operator's request for an 
alternative monitoring method, such as the technical or economic 
infeasibility, or the impracticality, of the affected source using the 
required method.
* * * * *
    (iv) Application for minor changes to monitoring procedures, as 
specified in paragraph (b)(1) of this section, may be made in the site-
specific performance evaluation plan.
    (5) Approval of request to use alternative monitoring procedure.
    (i) The Administrator will notify the owner or operator of approval 
or intention to deny approval of the request to use an alternative 
monitoring method within 30 calendar days after receipt of the original 
request and within 30 calendar days after receipt of any supplementary 
information that is submitted. If a request for a minor change is made 
in conjunction with site-specific performance evaluation plan, then 
approval of the plan will constitute approval of the minor change. 
Before disapproving any request to use an alternative monitoring 
method, the Administrator will notify the applicant of the 
Administrator's intention to disapprove the request together with--
* * * * *
    (g) Reduction of monitoring data.
    (1) The owner or operator of each CMS shall reduce the monitoring 
data as specified in paragraphs (g)(1) through (5) of this section.
* * * * *
    (5) Monitoring data recorded during periods of unavoidable CMS 
breakdowns, out-of-control periods, repairs, maintenance periods, 
calibration checks, and zero (low-level) and high-level adjustments 
shall not be included in any data average computed under this part. For 
owners or operators complying with the requirements of 
Sec. 63.10(b)(2)(vii)(A) or (B), data averages must include any data 
recorded during periods of monitor breakdown or malfunction.
    9. Section 63.9 is amended by:
    a. Revising paragraph (a)(1);
    b. Revising paragraph (b)(2)(iv);
    c. Revising the introductory text of paragraph (b)(4);
    d. Revising paragraph (b)(4)(i);
    e. Revising paragraph (b)(5);
    f. Revising paragraph (h)(2)(i)(E);
    g. Removing and reserving paragraph (b)(3); and
    h. Removing and reserving paragraphs (b)(4)(ii) through (iii).
    The revisions and additions read as follows:


Sec. 63.9  Notification requirements.

    (a) * * *
    (1) The applicability of this section is set out in 
Sec. 63.1(a)(4).
* * * * *
    (b) * * *
    (2) * * *
    (iv) A brief description of the nature, size, design, and method of 
operation of the source and an identification of the types of emission 
points within the affected source subject to the relevant standard and 
types of hazardous air pollutants emitted; and
* * * * *
    (3) [Reserved]
    (4) The owner or operator of a new or reconstructed major affected 
source for which an application for approval of construction or 
reconstruction is required under Sec. 63.5(d) shall provide the 
following information in writing to the Administrator:
    (i) A notification of intention to construct a new major-emitting 
affected source, reconstruct a major-emitting affected source, or 
reconstruct a major source such that the source becomes a major-
emitting affected source with the application for approval of 
construction or reconstruction as specified in Sec. 63.5(d)(1)(i); and
    (ii) [Reserved]
    (iii) [Reserved]
* * * * *
    (5) The owner or operator of a new or reconstructed affected source 
for which an application for approval of construction or reconstruction 
is not required under Sec. 63.5(d) shall provide the following 
information in writing to the Administrator:
    (i) A notification of intention to construct a new affected source, 
reconstruct an affected source, or reconstruct a source such that the 
source becomes an affected source, and
    (ii) A notification of the actual date of startup of the source, 
delivered or

[[Page 16354]]

postmarked within 15 calendar days after that date.
    (iii) Unless the owner or operator has requested and received prior 
permission from the Administrator to submit less than the information 
in Sec. 63.5(d), the notification shall include the information 
required on the application for approval of construction or 
reconstruction as specified in Sec. 63.5(d)(1)(i).
* * * * *
    (h) * * *
    (2)(i) * * *
    (E) If the relevant standard applies to both major and area 
sources, an analysis demonstrating whether the affected source is a 
major source (using the emissions data generated for this 
notification);
* * * * *
    10. Section 63.10 is amended by:
    a. Revising paragraph (a)(1);
    b. Revising paragraphs (b)(2)(ii) through (b)(2)(v);
    c. Revising paragraph (b)(3);
    d. Adding paragraph (e)(3)(i)(C); and
    The revisions read as follows:


Sec. 63.10  Recordkeeping and reporting requirements.

    (a) * * *
    (1) The applicability of this section is set out in 
Sec. 63.1(a)(4).
* * * * *
    (b) * * *
    (2) * * *
    (ii) The occurrence and duration of each malfunction of the 
required air pollution control and monitoring equipment;
    (iii) All required maintenance performed on the air pollution 
control and monitoring equipment;
    (iv) Actions taken during periods of startup, shutdown, and 
malfunction (including corrective actions to restore malfunctioning 
process and air pollution control and monitoring equipment to its 
normal or usual manner of operation) when such actions are different 
from the procedures specified in the affected source's startup, 
shutdown, and malfunction plan (see Sec. 63.6(e)(3));
    (v) All information necessary to demonstrate conformance with the 
affected source's startup, shutdown, and malfunction plan (see 
Sec. 63.6(e)(3)) when all actions taken during periods of startup, 
shutdown, and malfunction (including corrective actions to restore 
malfunctioning process and air pollution control and monitoring 
equipment to its normal or usual manner of operation) are consistent 
with the procedures specified in such plan. (The information needed to 
demonstrate conformance with the startup, shutdown, and malfunction 
plan may be recorded using a ``checklist,'' or some other effective 
form of recordkeeping, in order to minimize the recordkeeping burden 
for conforming events);
* * * * *
    (3) Recordkeeping requirement for applicability determinations. If 
an owner or operator determines that his or her stationary source that 
emits (or has the potential to emit, without considering controls) one 
or more hazardous air pollutants regulated by any standard established 
pursuant to section 112(d) or (f), and that stationary source is in the 
source category regulated by the relevant standard, but that source is 
not subject to the relevant standard (or other requirement established 
under this part) because of limitations on the source's potential to 
emit or an exclusion, the owner or operator shall keep a record of the 
applicability determination on site at the source for a period of 5 
years after the determination, or until the source changes its 
operations to become an affected source, whichever comes first. The 
record of the applicability determination shall be signed by the person 
making the determination and include an analysis (or other information) 
that demonstrates why the owner or operator believes the source is 
unaffected (e.g., because the source is an area source). The analysis 
(or other information) shall be sufficiently detailed to allow the 
Administrator to make a finding about the source's applicability status 
with regard to the relevant standard or other requirement. If relevant, 
the analysis shall be performed in accordance with requirements 
established in relevant subparts of this part for this purpose for 
particular categories of stationary sources. If relevant, the analysis 
should be performed in accordance with EPA guidance materials published 
to assist sources in making applicability determinations under section 
112, if any. The requirements to determine applicability of a standard 
under Sec. 63.1(b)(3) and to record the results of that determination 
under paragraph (b)(3) of this section shall not by themselves create 
an obligation for the owner or operator to obtain a title V permit.
* * * * *
    (e) * * *
    (3) * * *
    (i) * * *
    (C) The CMS data are to be used directly for compliance 
determination and the source experienced excess emissions, in which 
case quarterly reports shall be submitted. Once a source reports excess 
emissions, the source shall follow a quarterly reporting format until a 
request to reduce reporting frequency under paragraph (e)(3)(ii) of 
this section is approved.
* * * * *
    11. Section 63.11 is amended by revising paragraph (a) to read as 
follows:


Sec. 63.11  Control device requirements.

    (a) Applicability. The applicability of this section is set out in 
Sec. 63.1(a)(4).
* * * * *

Subpart B--[Amended]

    12. Section 63.50 is amended by revising paragraph (a) and removing 
paragraph (c) to read as follows:


Sec. 63.50  Applicability.

    (a) General applicability.
    (1) The requirements of this section through Sec. 63.56 implement 
section 112(j) of the Clean Air Act (as amended in 1990). The 
requirements of this section through Sec. 63.56 apply in each State 
beginning on the effective date of an approved title V permit program 
in such State. The requirements of this section through Sec. 63.56 do 
not apply to research or laboratory activities as defined in 
Sec. 63.51.
    (2) The requirements of this section through Sec. 63.56 apply to:
    (i) Owners or operators of affected sources within a source 
category or subcategory under this part that are located at a major 
source that is subject to an approved title V permit program and for 
which the Administrator has failed to promulgate emission standards by 
the section 112(j) deadlines. If title V applicability has been 
deferred for a source category, then section 112(j) is not applicable 
for sources in that category within that State, local or tribal 
jurisdiction until those sources become subject to title V permitting 
requirements; and
    (ii) Permitting authorities with an approved title V permit 
program.
* * * * *
    13. Section 63.51 is amended by:
    a. Removing the definition of emission point;
    b. Removing the definition of emission unit;
    c. Removing the definition of existing major source;
    d. Removing the definition of new emission unit;
    e. Removing the definition of new major source;
    f. Removing the definition of United States;
    g. Revising the introductory text of this section;

[[Page 16355]]

    h. Amending the definition of available information by revising the 
introductory text and paragraphs (2) through (5);
    i. Revising the definition of enhanced review;
    j. Revising the definition of equivalent emission limitation;
    k. Revising paragraphs (1)(i) and (ii) of the definition of maximum 
achievable control technology (MACT) floor;
    l. Revising the definition of section 112(j) deadline;
    m. Revising the definition of similar source;
    n. Adding in alphabetical order the definition of new affected 
source; and
    p. Adding in alphabetical order the definition of research or 
laboratory activities.
    The revisions and additions read as follows:


Sec. 63.51  Definitions.

    Terms used in Secs. 63.50 through 63.56 that are not defined in 
this section have the meaning given to them in the Act, or in subpart A 
of this part.
    Affected source means the collection of equipment, activities, or 
both within a single contiguous area and under common control that is 
in a section 112(c) source category or subcategory for which the 
Administrator has failed to promulgate an emission standard by the 
section 112(j) deadline, and that is addressed by an applicable MACT 
emission limitation established pursuant to this subpart.
    Available information means, for purposes of conducting a MACT 
floor finding and identifying control technology options under this 
subpart, any information that is available as of the date on which the 
first Part 2 MACT application is filed for a source in the relevant 
source category or subcategory in the State or jurisdiction; and, 
pursuant to the requirements of this subpart, is additional relevant 
information that can be expeditiously provided by the Administrator, is 
submitted by the applicant or others prior to or during the public 
comment period on the section 112(j) equivalent emission limitation for 
that source, or information contained in the information sources in 
paragraphs (1) through (5) of this definition.
    (1) * * *
    (2) Relevant background information documents for a draft or 
proposed regulation.
    (3) Any relevant regulation, information or guidance collected by 
the Administrator establishing a MACT floor finding and/or MACT 
determination.
    (4) Relevant data and information available from the Clean Air 
Technology Center developed pursuant to section 112(l)(3) of the Act.
    (5) Relevant data and information contained in the Aerometric 
Information Retrieval System (AIRS) including information in the MACT 
database.
* * * * *
    Enhanced review means a review process containing all 
administrative steps needed to ensure that the terms and conditions 
resulting from the review process can be incorporated using title V 
permitting procedures.
    Equivalent emission limitation means an emission limitation, 
established under section 112(j) of the Act, which is equivalent to the 
MACT standard that EPA would have promulgated under section 112(d) or 
(h) of the Act.
* * * * *
    Maximum achievable control technology (MACT) floor means:
    (1) * * *
    (i) The average emission limitation achieved by the best performing 
12 percent of the existing sources (for which the Administrator has 
emissions information), * * *
    (ii) The average emission limitation achieved by the best 
performing five sources (for which the Administrator has or could 
reasonably obtain emissions information) in the category or 
subcategory, for categories or subcategories with fewer than 30 
sources;
* * * * *
    New affected source means the collection of equipment, activities, 
or both, that if constructed after the issuance of a section 112(j) 
permit for the source pursuant to Sec. 63.52, is subject to the 
applicable MACT emission limitation for new sources. Each permit shall 
define the term ``new affected source,'' which will be the same as the 
``affected source'' unless a different collection is warranted based on 
consideration of factors including:
    (1) Emission reduction impacts of controlling individual sources 
versus groups of sources;
    (2) Cost effectiveness of controlling individual equipment;
    (3) Flexibility to accommodate common control strategies;
    (4) Cost/benefits of emissions averaging;
    (5) Incentives for pollution prevention;
    (6) Feasibility and cost of controlling processes that share common 
equipment (e.g., product recovery devices);
    (7) Feasibility and cost of monitoring; and
    (8) Other relevant factors.
* * * * *
    Research or laboratory activities means activities whose primary 
purpose is to conduct research and development into new processes and 
products; where such activities are operated under the close 
supervision of technically trained personnel and are not engaged in the 
manufacture of products for commercial sale in commerce, except in a de 
minimis manner; and where the source is not in a source category, 
specifically addressing research or laboratory activities, that is 
listed pursuant to section 112(c)(7) of the Act.
    Section 112(j) deadline means the date 18 months after the date for 
which a relevant standard is scheduled to be promulgated under this 
part, except that for all major sources listed in the source category 
schedule for which a relevant standard is scheduled to be promulgated 
by November 15, 1994, the section 112(j) deadline is November 15, 1996, 
and for all major sources listed in the source category schedule for 
which a relevant standard is scheduled to be promulgated by November 
15, 1997, the section 112(j) deadline is December 15, 1999.
    Similar source means that equipment or collection of equipment 
that, by virtue of its structure, operability, type of emissions and 
volume and concentration of emissions, is substantially equivalent to 
the new affected source and employs control technology for control of 
emissions of hazardous air pollutants that is practical for use on the 
new affected source.
* * * * *
    14. Section 63.52 is revised to read as follows:


Sec. 63.52  Approval process for new and existing affected sources.

    (a) Sources subject to section 112(j) as of the section 112(j) 
deadline. The requirements of paragraphs (a)(1) through (3) of this 
section apply to major sources that include, as of the section 112(j) 
deadline, one or more sources in a category or subcategory for which 
the Administrator has failed to promulgate an emission standard under 
this part on or before an applicable section 112(j) deadline. Existing 
source MACT requirements (including relevant compliance deadlines), as 
specified in a title V permit issued to the source pursuant to the 
requirements of the subpart, shall apply to such sources.
    (1) The owner or operator shall submit an application for a title V 
permit or for a revision to an existing title V permit or a pending 
title V permit meeting the requirements of Sec. 63.53(a) by the section 
112(j) deadline if the owner or operator can reasonably determine that 
one or more sources at the major source belong in the category or 
subcategory subject to section 112(j).

[[Page 16356]]

    (2) If an application was not submitted under paragraph (a)(1) of 
this section and if notified by the permitting authority, the owner or 
operator shall submit an application for a title V permit or for a 
revision to an existing title V permit or a pending title V permit 
meeting the requirements of Sec. 63.53(a) within 30 days of being 
notified in writing by the permitting authority that one or more 
sources at the major source belong to such category or subcategory. 
Such written notification shall be issued by the permitting authority 
within 120 days of the section 112(j) deadline.
    (3) The requirements in paragraphs (a)(3)(i) through (ii) of this 
section apply when the owner or operator has obtained a title V permit 
that incorporates a case-by-case MACT determination by the permitting 
authority under section 112(g) or has submitted a title V permit 
application for a revision that incorporates a case-by-case MACT 
determination under section 112(g), but has not submitted an 
application for a title V permit revision that addresses the emission 
limitation requirements of section 112(j).
    (i) When the owner or operator has a title V permit that 
incorporates a case-by-case MACT determination by the permitting 
authority under section 112(g), the owner or operator shall submit an 
application meeting the requirements of Sec. 63.53(a) for a title V 
permit revision within 30 days of the section 112(j) deadline or within 
30 days of being notified in writing by the permitting authority that 
one or more sources at the major source belong in such category or 
subcategory. Using the procedures established in paragraph (e) of this 
section, the permitting authority shall determine whether the emission 
limitations adopted pursuant to the prior case-by-case MACT 
determination under section 112(g) are substantially as effective as 
the emission limitations which the permitting authority would otherwise 
adopt pursuant to section 112(j) for the source in question. If the 
permitting authority determines that the emission limitations 
previously adopted to effectuate section 112(g) are substantially as 
effective as the emission limitations which the permitting authority 
would otherwise adopt to effectuate section 112(j) for the source, then 
the permitting authority shall retain the existing emission limitations 
in the permit as the emission limitations to effectuate section 112(j). 
The title V permit applicable to that source shall be revised 
accordingly. If the permitting authority does not retain the existing 
emission limitations in the permit as the emission limitations to 
effectuate section 112(j), the MACT requirements of this subpart are 
satisfied upon issuance of a revised title V permit incorporating any 
additional section 112(j) requirements.
    (ii) When the owner or operator has submitted a title V permit 
application that incorporates a case-by-case MACT determination by the 
permitting authority under section 112(g), but has not received the 
permit incorporating the section 112(g) requirements, the owner or 
operator shall continue to pursue a title V permit that addresses the 
emission limitation requirements of section 112(g). Within 30 days of 
issuance of that title V permit, the owner or operator shall submit an 
application meeting the requirements of Sec. 63.53(a) for a change to 
the existing title V permit. Using the procedures established in 
paragraph (e) of this section, the permitting authority shall determine 
whether the emission limitations adopted pursuant to the prior case-by-
case MACT determination under section 112(g) are substantially as 
effective as the emission limitations which the permitting authority 
would otherwise adopt pursuant to section 112(j) for the source in 
question. If the permitting authority determines that the emission 
limitations previously adopted to effectuate section 112(g) are 
substantially as effective as the emission limitations which the 
permitting authority would otherwise adopt to effectuate section 112(j) 
for the source, then the permitting authority shall retain the existing 
emission limitations in the permit as the emission limitations to 
effectuate section 112(j). The title V permit applicable to that source 
shall be revised accordingly. If the permitting authority does not 
retain the existing emission limitations in the permit as the emission 
limitations to effectuate section 112(j), the MACT requirements of this 
subpart are satisfied upon issuance of a revised title V permit 
incorporating any additional section 112(j)requirements.
    (b) Sources that become subject to section 112(j) after the section 
112(j) deadline and that do not have a title V permit addressing 
section 112(j) requirements. The requirements of paragraphs (b)(1) 
through (4) of this section apply to sources that do not meet the 
criteria in paragraph (a) of this section on the section 112(j) 
deadline and are, therefore, not subject to section 112(j) on that 
date, but where events occur subsequent to the section 112(j) deadline 
that would bring the source under the requirements of this subpart, and 
the source does not have a title V permit that addresses the 
requirements of section 112(j).
    (1) When one or more sources in a category or subcategory subject 
to the requirements of this subpart are installed at a major source, or 
result in the source becoming a major source due to the installation, 
and the installation does not invoke section 112(g) requirements, the 
owner or operator shall submit an application meeting the requirements 
of Sec. 63.53(a) within 30 days of startup of the source. This 
application shall be reviewed using the procedures established in 
paragraph (e) of this section. Existing source MACT requirements 
(including relevant compliance deadlines), as specified in a title V 
permit issued pursuant to the requirements of this subpart, shall apply 
to such sources.
    (2) The requirements in this paragraph apply when one or more 
sources in a category or subcategory subject to this subpart are 
installed at a major source, or result in the source becoming a major 
source due to the installation, and the installation does require 
emission limitations to be established and permitted under section 
112(g), and the owner or operator has not submitted an application for 
a title V permit revision that addresses the emission limitation 
requirements of section 112(j). In this case, the owner or operator 
shall apply for and obtain a title V permit that addresses the emission 
limitation requirements of section 112(g). Within 30 days of issuance 
of that title V permit, the owner or operator shall submit an 
application meeting the requirements of Sec. 63.53(a) for a revision to 
the existing title V permit. Using the procedures established in 
paragraph (e) of this section, the permitting authority shall determine 
whether the emission limitations adopted pursuant to the prior case-by-
case MACT determination under section 112(g) are substantially as 
effective as the emission limitations which the permitting authority 
would otherwise adopt pursuant to section 112(j) for the source in 
question. If the permitting authority determines that the emission 
limitations previously adopted to effectuate section 112(g) are 
substantially as effective as the emission limitations which the 
permitting authority would otherwise adopt to effectuate section 112(j) 
for the source, then the permitting authority shall retain the existing 
emission limitations in the permit as the emission limitations to 
effectuate section 112(j). The title V permit applicable to that source 
shall be revised accordingly. If the permitting authority does not 
retain the existing emission limitations in the permit as the emission 
limitations to effectuate

[[Page 16357]]

section 112(j), the MACT requirements of this subpart are satisfied 
upon issuance of a revised title V permit incorporating any additional 
section 112(j) requirements.
    (3) The owner or operator of an area source that, due to a 
relaxation in any federally enforceable emission limitation (such as a 
restriction on hours of operation), increases its potential to emit 
hazardous air pollutants such that the source becomes a major source 
that is subject to this subpart, shall submit an application meeting 
the requirements of Sec. 63.53(a) for a title V permit or for an 
application for a title V permit revision within 30 days after the date 
that such source becomes a major source. This application shall be 
reviewed using the procedures established in paragraph (e) of this 
section. Existing source MACT requirements (including relevant 
compliance deadlines), as specified in a title V permit issued pursuant 
to the requirements of this subpart, shall apply to such sources.
    (4) After the effective date of this subpart, if the Administrator 
establishes a lesser quantity emission rate under section 112(a)(1) of 
the Act that results in an area source becoming a major source that is 
subject to this subpart, then the owner or operator of such a major 
source shall submit an application meeting the requirements of 
Sec. 63.53(a) for a title V permit or for a change to an existing title 
V permit or pending title V permit on or before the date 6 months after 
the date that such source becomes a major source. Existing source MACT 
requirements (including relevant compliance deadlines), as specified in 
a title V permit issued pursuant to the requirements of this subpart, 
shall apply to such sources.
    (c) Sources that have a title V permit addressing section 112(j) 
requirements. The requirements of paragraphs (c)(1) and (2) of this 
section apply to major sources that include one or more sources in a 
category or subcategory for which the Administrator fails to promulgate 
an emission standard under this part on or before an applicable section 
112(j) deadline, and the owner or operator has a permit meeting the 
section 112(j) requirements, and where changes occur at the major 
source to equipment, activities, or both, subsequent to the section 
112(j) deadline.
    (1) If the title V permit already provides the appropriate 
requirements that address the events that occur under paragraph (c) of 
this section subsequent to the section 112(j) deadline, then the source 
shall comply with the applicable new source MACT or existing source 
MACT requirements as specified in the permit, and the section 112(j) 
requirements are thus satisfied.
    (2) If the title V permit does not contain the appropriate 
requirements that address the events that occur under paragraph (c) of 
this section subsequent to the section 112(j) deadline, then the owner 
or operator shall submit an application for a revision to the existing 
title V permit that meets the requirements of Sec. 63.53(a). The 
application shall be submitted within 30 days of beginning construction 
and shall be reviewed using the procedures established in paragraph (e) 
of this section. Existing source MACT requirements (including relevant 
compliance deadlines), as specified in a title V permit issued pursuant 
to the requirements of this subpart, shall apply to such sources.
    (d) Requests for applicability determination or notice of MACT 
approval.
    (1) An owner or operator who is unsure of whether one or more 
sources at a major source belong in a category or subcategory for which 
the Administrator has failed to promulgate an emission standard under 
this part may, on or before an applicable section 112(j) deadline, 
request an applicability determination from the permitting authority by 
submitting an application meeting the requirements of Sec. 63.53(a) by 
the applicable deadlines specified in paragraphs (a), (b), or (c) of 
this section.
    (2) In addition to meeting the requirements of paragraphs (a), (b), 
and (c) of this section, the owner or operator of a new affected source 
may submit an application for a Notice of MACT Approval before 
construction, pursuant to Sec. 63.54.
    (e) Permit application review.
    (1) Within 6 months after an owner or operator submits a Part 1 
MACT application meeting the requirements of Sec. 63.53(a), the owner 
or operator shall submit a Part 2 MACT application meeting the 
requirements of Sec. 63.53(b). Part 2 MACT applications shall be 
reviewed by the permitting authority according to procedures 
established in Sec. 63.55. The resulting MACT determination shall be 
incorporated into the source's title V permit according to procedures 
established under title V, and any other regulations approved under 
title V in the jurisdiction in which the affected source is located.
    (2) Notwithstanding paragraph (e)(1) of this section, the owner or 
operator may request either an applicability determination or an 
equivalency determination by the permitting authority as provided in 
paragraphs (e)(2)(i) and (ii) of this section.
    (i) As specified in paragraph (d)(1) of this section, an owner or 
operator may request, through submittal of an application pursuant to 
Sec. 63.53(a), a determination by the permitting authority of whether 
one or more sources at a major source belong in a category or 
subcategory for which the Administrator has failed to promulgate an 
emission standard under this part. If the applicability determination 
is positive, the owner or operator shall comply with the applicable 
provisions of this subpart. The owner or operator shall submit a Part 2 
MACT application within 6 months of being notified of the positive 
applicability determination. If the applicability determination is 
negative, then no further action by the owner or operator is necessary.
    (ii) As specified in paragraphs (a) and (b) of this section, an 
owner or operator may request, through submittal of an application 
meeting the requirements of Sec. 63.53(a), a determination by the 
permitting authority of whether emission limitations adopted pursuant 
to a prior case-by-case MACT determination under section 112(g) that 
apply to one or more sources at a major source in a relevant category 
or subcategory are substantially as effective as the emission 
limitations which the permitting authority would otherwise adopt 
pursuant to section 112(j) for the source in question. The process for 
determination by the permitting authority of whether the emission 
limitations in the prior case-by-case MACT determination are 
substantially as effective as the emission limitations which the 
permitting authority would otherwise adopt under section 112(j) shall 
include the opportunity for full public, EPA, and affected State review 
prior to a final determination. If the permitting authority determines 
that the emission limitations in the prior case-by-case MACT 
determination are substantially as effective as the emission 
limitations which the permitting authority would otherwise adopt under 
section 112(j), then the permitting authority shall adopt the existing 
emission limitations in the permit as the emission limitations to 
effectuate section 112(j) for the source in question. If more than 3 
years remain on the current title V permit, the owner or operator shall 
submit an application for a title V permit revision to make any 
conforming changes in the permit required to adopt the existing 
emission limitations as the section 112(j) MACT emission limitations. 
If less than 3 years remain on the current title V permit, any required 
conforming changes shall be made when the permit is renewed. If the

[[Page 16358]]

permitting authority determines that the emission limitations in the 
prior case-by-case MACT determination under section 112(g) are not 
substantially as effective as the emission limitations which the 
permitting authority would otherwise adopt for the source in question 
under section 112(j), the owner or operator shall comply with the 
applicable provisions of this subpart. The owner or operator shall 
submit a Part 2 MACT application within 6 months of being notified of 
such a negative determination. A negative determination under this 
section constitutes final action for purposes of judicial review under 
40 CFR 70.4(b)(3)(x) and corresponding State title V program 
provisions.
    (3) Within 60 days of submittal of the Part 2 MACT application, the 
permitting authority shall notify the owner or operator in writing 
whether the application is complete or incomplete. The Part 2 MACT 
application shall be deemed complete unless the permitting authority 
notifies the owner or operator in writing within 60 days of the 
submittal that the Part 2 MACT application is incomplete. A Part 2 MACT 
application is complete if it is sufficient to begin processing the 
application for a title V permit addressing section 112(j) 
requirements.
    (4) Following submittal of a Part 1 or Part 2 MACT application, the 
permitting authority may request additional information from the owner 
or operator. The owner or operator shall respond to such requests in a 
timely manner.
    (5) If the owner or operator has submitted a timely and complete 
application as required by this section, any failure to have a title V 
permit addressing section 112(j) requirements shall not be a violation 
of section 112(j), unless the delay in final action is due to the 
failure of the applicant to submit, in a timely manner, information 
required or requested to process the application. Once a complete 
application is submitted, the owner or operator shall not be in 
violation of the requirement to have a title V permit addressing 
section 112(j) requirements.
    (f) Permit content. The title V permit shall contain an equivalent 
emission limitation (or limitations) for the relevant category or 
subcategory determined on a case-by-case basis by the permitting 
authority, or, if the applicable criteria in subpart D of this part are 
met, the title V permit may contain an alternative emission limitation. 
For the purposes of the preceding sentence, early reductions made 
pursuant to section 112(i)(5)(A) of the Act shall be achieved not later 
than the date on which the relevant standard should have been 
promulgated according to the source category schedule for standards.
    (1) The title V permit shall contain an emission standard or 
emission limitation that is equivalent to existing source MACT and an 
emission standard or emission limitation that is equivalent to new 
source MACT for control of emissions of hazardous air pollutants. The 
MACT emission standards or limitations shall be determined by the 
permitting authority and shall be based on the degree of emission 
reductions that can be achieved if the control technologies or work 
practices are installed, maintained, and operated properly. The permit 
shall also specify the affected source and the new affected source. If 
construction of a new affected source or reconstruction of an affected 
source commences after a title V permit meeting the requirements of 
section 112(j) has been issued for the source, the new source MACT 
compliance dates shall apply.
    (2) The title V permit shall specify any notification, operation 
and maintenance, performance testing, monitoring, and reporting and 
recordkeeping requirements. In developing the title V permit, the 
permitting authority shall consider and specify the appropriate 
provisions of subpart A of this part. The title V permit shall also 
include the information in paragraphs (f)(2)(i) through (iii) of this 
section.
    (i) In addition to the MACT emission limitation required by 
paragraph (f)(1) of this section, additional emission limits, 
production limits, operational limits or other terms and conditions 
necessary to ensure practicable enforceability of the MACT emission 
limitation.
    (ii) Compliance certifications, testing, monitoring, reporting and 
recordkeeping requirements that are consistent with requirements 
established pursuant to title V and paragraph (h) of this section.
    (iii) Compliance dates by which the owner or operator shall be in 
compliance with the MACT emission limitation and all other applicable 
terms and conditions of the permit.
    (A) The owner or operator of an affected source subject to the 
requirements of this subpart shall comply with the emission 
limitation(s) by the date established in the source's title V permit. 
In no case shall such compliance date be later than 3 years after the 
issuance of the permit for that source, except where the permitting 
authority issues a permit that grants an additional year to comply in 
accordance with section 112(i)(3)(B) of the Act, or unless otherwise 
specified in section 112(i), or in subpart D of this part.
    (B) The owner or operator of a new affected source, as defined in 
the title V permit meeting the requirements of section 112(j), that is 
subject to the requirements of this paragraph shall comply with a new 
source MACT level of control immediately upon startup of the new 
affected source.
    (g) Permit issuance dates.
    (1) Except as specified in paragraph (g)(2) of this section, the 
permitting authority shall issue a title V permit meeting section 
112(j) requirements within 24 months of the submittal of the Part 1 
MACT application, or
    (2) The permitting authority shall issue a title V permit meeting 
section 112(j) requirements within 18 months of submittal of the 
complete Part 2 MACT application from a source owner or operator 
receiving a determination under paragraph (e)(2) of this section.
    (h) Enhanced monitoring. In accordance with section 114(a)(3) of 
the Act, monitoring shall be capable of demonstrating continuous 
compliance for each compliance period during the applicable reporting 
period. Such monitoring data shall be of sufficient quality to be used 
as a basis for directly enforcing all applicable requirements 
established under this subpart, including emission limitations.
    (i) MACT emission limitations.
    (1) Owners or operators of affected sources subject to paragraphs 
(a), (b), and (c) of this section shall comply with all requirements of 
this subpart that are applicable to affected sources, including the 
compliance date for affected sources established in paragraph 
(f)(2)(iii)(A) of this section.
    (2) Owners or operators of new affected sources subject to 
paragraph (c)(1) of this section shall comply with all requirements of 
this subpart that are applicable to new affected sources, including the 
compliance date for new affected sources established in paragraph 
(f)(2)(iii)(B) of this section.
    15. Section 63.53 is revised to read as follows:


Sec. 63.53  Application content for case-by-case MACT determinations.

    (a) Part 1 MACT Application. The Part 1 application for a MACT 
determination shall contain the information in paragraphs (a)(1) 
through (4) of this section.
    (1) The name and address (physical location) of the major source.
    (2) A brief description of the major source and an identification 
of the relevant source category.
    (3) An identification of the types of sources belonging to the 
relevant source category.

[[Page 16359]]

    (4) An identification of any affected sources for which a section 
112(g) MACT determination has been made.
    (b) Part 2 MACT Application.
    (1) The Part 2 application for a MACT determination shall contain 
the information in paragraphs (b)(i) through (vi) of this section.
    (i) For a new affected source, the anticipated date of startup of 
operation.
    (ii) The hazardous air pollutants emitted by each affected source 
in the relevant source category and an estimated total uncontrolled and 
controlled emission rate for hazardous air pollutants from the affected 
source.
    (iii) Any existing Federal, State, or local limitations or 
requirements applicable to the affected source.
    (iv) For each piece of equipment or activity or source, an 
identification of control technology in place.
    (v) Information relevant to establishing the MACT floor, and, at 
the option of the owner or operator, a recommended MACT floor.
    (vi) Any other information reasonably needed by the permitting 
authority including, at the discretion of the permitting authority, 
information required pursuant to subpart A of this part.
    (2) The Part 2 application for a MACT determination may contain the 
following information:
    (i) Recommended emission limitations for the affected source and 
support information consistent with Sec. 63.52(f). The owner or 
operator may recommend a specific design, equipment, work practice, or 
operational standard, or combination thereof, as an emission 
limitation.
    (ii) A description of the control technologies that shall be 
applied to meet the emission limitation including technical information 
on the design, operation, size, estimated control efficiency and any 
other information deemed appropriate by the permitting authority, and 
identification of the affected sources to which the control 
technologies shall be applied.
    (iii) Relevant parameters to be monitored and frequency of 
monitoring to demonstrate continuous compliance with the MACT emission 
limitation over the applicable reporting period.
    16. Section 63.54 is amended by:
    a. Adding introductory text;
    b. Revising paragraph (a)(1) through (2);
    c. Revising paragraph (b) introductory text;
    d. Revising paragraph (b)(6);
    e. Revising paragraph (c)(3);
    f. Revising paragraph (d);
    g. Removing paragraph (e);
    h. Removing paragraph (f);
    i. Redesignating paragraph (g) as (e) and revising newly designated 
paragraph (e);
    j. Redesignating paragraph (h) as (f).
    The revisions and addition read as follows:


Sec. 63.54  Preconstruction review procedures for new affected sources.

    The requirements of this section apply to an owner or operator who 
constructs a new affected source subject to Sec. 63.52(c)(1). The 
purpose of this section is to describe alternative review processes 
that the permitting authority may use to make a MACT determination for 
the new affected source.
    (a) Review process for new affected sources.
    (1) If the permitting authority requires an owner or operator to 
obtain or revise a title V permit before construction of the new 
affected source, or when the owner or operator chooses to obtain or 
revise a title V permit before construction, the owner or operator 
shall follow the procedures established under the applicable title V 
permit program before construction of the new affected source.
    (2) If an owner or operator is not required to obtain or revise a 
title V permit before construction of the new affected source (and has 
not elected to do so), but the new affected source is covered by any 
preconstruction or preoperation review requirements established 
pursuant to section 112(g) of the Act, then the owner or operator shall 
comply with those requirements in order to ensure that the requirements 
of section 112(j) and (g) are satisfied. If the new affected source is 
not covered by section 112(g), the permitting authority, in its 
discretion, may issue a Notice of MACT Approval, or the equivalent, in 
accordance with the procedures set forth in paragraphs (b) through (f) 
of this section, or an equivalent permit review process, before 
construction or operation of the new affected source.
* * * * *
    (b) Optional administrative procedures for preconstruction or 
preoperation review for new affected sources. The permitting authority 
may provide for an enhanced review of section 112(j) MACT 
determinations for review procedures and compliance requirements 
equivalent to those set forth in paragraphs (b) through (f) of this 
section.
* * * * *
    (6) Approval of an applicant's proposed control technology shall be 
set forth in a Notice of MACT Approval (or the equivalent) as described 
in Sec. 63.52(f).
    (c) Opportunity for public comment on notice of MACT approval. * * 
*
* * * * *
    (3) A notice by prominent advertisement in the area affected of the 
location of the source information and analysis specified in 
Sec. 63.52(f). The form and content of the notice shall be 
substantially equivalent to that found in Sec. 70.7 of this chapter.
* * * * *
    (d) Review by the EPA and affected states. The permitting authority 
shall send copies of the preliminary notice (in time for comment) and 
final notice required by paragraph (c) of this section to the 
Administrator through the appropriate Regional Office, and to all other 
State and local air pollution control agencies having jurisdiction in 
affected States. The permitting authority shall provide EPA with a 
review period for the final notice of at least 45 days and shall not 
issue a final Notice of MACT Approval until EPA objections are 
satisfied.
    (e) Compliance with MACT determinations. An owner or operator of a 
major source that is subject to a MACT determination shall comply with 
notification, operation and maintenance, performance testing, 
monitoring, reporting, and recordkeeping requirements established under 
Sec. 63.52(h), under title V, and at the discretion of the permitting 
authority, under subpart A of this part. The permitting authority shall 
provide the EPA with the opportunity to review compliance requirements 
for consistency with requirements established pursuant to title V 
during the review period under paragraph (d) of this section.
* * * * *
    17. Section 63.55 is revised to read as follows:


Sec. 63.55  Maximum achievable control technology (MACT) determinations 
for affected sources subject to case-by-case determination of 
equivalent emission limitations.

    (a) Requirements for permitting authorities. The permitting 
authority shall determine whether the Sec. 63.53(a) Part 1 and 
Sec. 63.53(b) Part 2 MACT application is complete or an application for 
a Notice of MACT Approval is approvable. In either case, when the 
application is complete or approvable, the permitting authority shall 
establish hazardous air pollutant emissions limitations equivalent to 
the limitations that would apply if an emission standard had been 
issued in a timely manner under section 112(d) or (h) of the Act. The 
permitting authority shall establish these emissions

[[Page 16360]]

limitations consistent with the following requirements and principles:
    (1) Emission limitations shall be established for the equipment and 
activities within the affected sources within a source category or 
subcategory for which the section 112(j) deadline has passed.
    (2) Each emission limitation for an existing affected source shall 
reflect the maximum degree of reduction in emissions of hazardous air 
pollutants (including a prohibition on such emissions, where 
achievable) that the permitting authority, taking into consideration 
the cost of achieving such emission reduction and any non-air quality 
health and environmental impacts and energy requirements, determines is 
achievable by affected sources in the category or subcategory for which 
the section 112(j) deadline has passed. This limitation shall not be 
less stringent than the MACT floor which shall be established by the 
permitting authority according to the requirements of section 
112(d)(3)(A) and (B) and shall be based upon available information.
    (3) Each emission limitation for a new affected source shall 
reflect the maximum degree of reduction in emissions of hazardous air 
pollutants (including a prohibition on such emissions, where 
achievable) that the permitting authority, taking into consideration 
the cost of achieving such emission reduction and any non-air quality 
health and environmental impacts and energy requirements, determines is 
achievable. This limitation shall not be less stringent than the 
emission limitation achieved in practice by the best controlled similar 
source which shall be established by the permitting authority according 
to the requirements of section 112(d)(3). This limitation shall be 
based upon available information.
    (4) The permitting authority shall select a specific design, 
equipment, work practice, or operational standard, or combination 
thereof, when it is not feasible to prescribe or enforce an equivalent 
emission limitation due to the nature of the process or pollutant. It 
is not feasible to prescribe or enforce a limitation when the 
Administrator determines that hazardous air pollutants cannot be 
emitted through a conveyance designed and constructed to capture such 
pollutant, or that any requirement for, or use of, such a conveyance 
would be inconsistent with any Federal, State, or local law, or the 
application of measurement methodology to a particular class of sources 
is not practicable due to technological and economic limitations.
    (5) Nothing in this subpart shall prevent a State or local 
permitting authority from establishing an emission limitation more 
stringent than required by Federal regulations.
    (b) Reporting to national data base. The owner or operator shall 
submit additional copies of its Part 1 and Part 2 MACT application for 
a title V permit, permit revision, or Notice of MACT Approval, 
whichever is applicable, to the EPA at the same time the material is 
submitted to the permitting authority.
    18. Section 63.56 is revised to read as follows:


Sec. 63.56  Requirements for case-by-case determination of equivalent 
emission limitations after promulgation of subsequent MACT standard.

    (a) If the Administrator promulgates a relevant emission standard 
that is applicable to one or more affected sources within a major 
source before the date a permit application under this paragraph (a) is 
approved, the title V permit shall contain the promulgated standard 
rather than the emission limitation determined under Sec. 63.52, and 
the owner or operator shall comply with the promulgated standard by the 
compliance date in the promulgated standard.
    (b) If the Administrator promulgates a relevant emission standard 
under section 112(d) or (h) of the Act that is applicable to a source 
after the date a permit is issued pursuant to Sec. 63.52 or Sec. 63.54, 
the permitting authority shall incorporate requirements of that 
standard in the title V permit upon its next renewal. The permitting 
authority shall establish a compliance date in the revised permit that 
assures that the owner or operator shall comply with the promulgated 
standard within a reasonable time, but not longer than 8 years after 
such standard is promulgated or 8 years after the date by which the 
owner or operator was first required to comply with the emission 
limitation established by the permit, whichever is earlier. However, in 
no event shall the period for compliance for existing sources be 
shorter than that provided for existing sources in the promulgated 
standard.
    (c) Notwithstanding the requirements of paragraph (a) or (b) of 
this section, the requirements of paragraphs (c)(1) and (2) of this 
section shall apply.
    (1) If the Administrator promulgates an emission standard under 
section 112(d) or (h) that is applicable to an affected source after 
the date a permit application under this paragraph is approved under 
Sec. 63.52 or Sec. 63.54, the permitting authority is not required to 
change the emission limitation in the permit to reflect the promulgated 
standard if the permitting authority determines that the level of 
control required by the emission limitation in the permit is 
substantially as effective as that required by the promulgated standard 
pursuant to Sec. 63.1(e).
    (2) If the Administrator promulgates an emission standard under 
section 112(d) or (h) of the Act that is applicable to an affected 
source after the date a permit application under this paragraph is 
approved under Sec. 63.52 or Sec. 63.54, and the level of control 
required by the promulgated emission standard is less stringent than 
the level of control required by any emission limitation in the prior 
MACT determination, the permitting authority shall not incorporate any 
less stringent emission limitation of the promulgated standard in the 
title V permit applicable to such source(s) and shall consider any more 
stringent provisions of the prior MACT determination to be applicable 
legal requirements when issuing or revising such a title V permit.
[FR Doc. 01-5251 Filed 3-22-01; 8:45 am]
BILLING CODE 6560-50-P


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