[Federal Register Volume 59, Number 97 (Friday, May 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-10971]


[[Page Unknown]]

[Federal Register: May 20, 1994]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 9 and 63

[FRL-4881-9]
RIN 2060-AE00

 

Hazardous Air Pollutants: Regulations Governing Equivalent 
Emission Limitations by Permit

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is promulgating regulations governing the 
establishment of equivalent emission limitations by permit, pursuant to 
section 112(j) of the Clean Air Act (Act), as amended. This rule 
establishes requirements and procedures for owners or operators of 
major sources of hazardous air pollutant(s) (HAP), and permitting 
authorities, to follow in order to comply with section 112(j). After 
the effective date of a title V permit program in a State, each owner 
or operator of a major source in a source category for which the EPA 
was scheduled to, but failed to promulgate a maximum achievable control 
technology (MACT) standard will be required to submit a permit 
application 18 months after the EPA's missed promulgation date. This 
rule establishes requirements for the contents of these applications. 
In addition, the rule contains provisions governing the establishment 
of MACT-equivalent emission limitations by the permitting authority.

EFFECTIVE DATE: The rule and guidance announced herein take effect on 
June 20, 1994.

ADDRESSES: Docket. Supporting information used in developing the 
proposed and final rules contained in Docket Number A-93-32. The docket 
is available for public inspection and copying from 8:30 a.m.-12 p.m. 
and 1:30 p.m.-3:30 p.m., Monday through Friday, at the EPA's Air Docket 
Section, Waterside Mall, room M1500, U.S. Environmental Protection 
Agency, 401 M Street, SW., Washington, DC 20460. A reasonable fee may 
be charged for copying.

FOR FURTHER INFORMATION CONTACT: For information on today's final rule, 
please contact Ms. Katherine Kaufman, Emission Standards Division (MD-
13), U.S. Environmental Protection Agency, Research Triangle Park, 
North Carolina, 27711, telephone (919) 541-0102. For information about 
the guidance document ``MACT Determinations under Section 112(j)'' (EPA 
450/3-92-007a), please contact Ms. Lynn Hutchinson, Emission Standards 
Division (MD-13), U.S. Environmental Protection Agency, Research 
Triangle Park, North Carolina, 27711, telephone (919) 541-5624.

SUPPLEMENTARY INFORMATION: The information presented in this preamble 
is organized as follows:

I. Summary of Final Rule
II. Background Discussion
    A. Clean Air Act Amendments: Section 112
    B. Clean Air Act Amendments: Provisions for Equivalent Emission 
Limitation by Permit.
    C. Implementation Principles
III. Significant Comments and Changes to the Proposed Rule
    A. Sec. 6.50--Applicability
    B. Sec. 6.51--Definitions
    C. Sec. 6.52--Approval Process for New and Existing Emission 
Units
    D. Sec. 6.53--Application Content for a Case-by-Case MACT 
Determination
    E. Sec. 6.54--Preconstruction Procedures for New Emission Units
    F. Sec. 6.55--Maximum Achievable Control Technology (MACT) 
Determinations for Emission Units Subject to Case-by-Case 
Determination of Equivalent Emission Limitations
    G. Sec. 6.56--Requirements for Case-by-Case Determination of 
Equivalent Emission Limitations After Promulgation of a Subsequent 
MACT Standard
IV. Discussion of the Relationship of the Proposed Requirements to 
Other Requirements of the Act
    A. Section 112(g) Requirements for Constructed, Reconstructed, 
and Modified Major Sources; and Subsequent Standards under Section 
112(d) or Section 112(h).
    B. Section 112(l) Delegation Process
    C. Section 112(i)(5) Early Reductions Program
V. Administrative Requirements
    A. Docket
    B. Executive Order 12866
    C. Regulatory Flexibility Act
    D. Paperwork Reduction Act

    This preamble provides an overview of the rule implementing the 
requirements of the section 112(j) program, and a detailed discussion 
of the changes made to the proposed regulation.
    The first section provides an overview of the requirements of the 
regulation being promulgated today.
    The second section provides background information on section 
112(j) in the context of the 1990 amendments to the Act.
    The third section provides a detailed discussion of the 
requirements of the rule, including significant comments as well as 
significant changes made since the proposal.
    The fourth section of this preamble discusses the relationship of 
the requirements of section 112(j) to other requirements of the Act 
under other subsections of section 112 of the Act.
    The fifth section of this preamble demonstrates that the rulemaking 
is consistent with a number of federal administrative requirements.
    This preamble makes use of the term ``State,'' usually meaning the 
State air pollution control agency which will be the permitting 
authority implementing the section 112(j) program. The reader should 
assume that use of the word ``State'' also applies, as defined in 
section 302(d) of the Act, to the District of Columbia and territories 
of the United States, and may also include reference to a local air 
pollution control agency. These agencies can either be the permitting 
authority for the area of their jurisdiction or assist the State or the 
EPA in implementing the section 112(j) program. In some cases, the term 
``permitting authority'' is used and can refer to both State agencies 
and to local agencies (when the local agency directly makes the 
determinations or assists the State in making the determinations). The 
term ``permitting authority'' may also apply to the EPA, in rare cases 
where the EPA is the title V permitting authority responsible for the 
program.
    This preamble makes a number of references to a regulation which 
has not yet been promulgated. That is the rule governing constructed, 
reconstructed, or modified major sources under section 112(g) of the 
Act, which EPA has proposed on April 1, 1994, in the Federal Register 
at 59 FR 15504.

I. Summary of Final Rule

    Today's rule implements the requirements of section 112(j) of the 
Clean Air Act, as amended in 1990. Section 112(j) establishes 
requirements for regulation of major sources of hazardous air 
pollutants in the event that EPA lags more than 18 months behind 
schedule in issuing a control technology standard for an industry.
    Section 112 requires EPA to set MACT standards for all categories 
of major sources of hazardous air pollutants. Specifically, the Act has 
required EPA to issue a schedule for regulating all source categories 
within 2, 4, 7, or 10 years of enactment. The source category schedule 
for standards was published on December 3, 1993 (58 FR 63941).
    Section 112(j) is triggered on the date 18 months after the 
deadline listed in the final schedule for a source category, if the EPA 
has failed to promulgate a MACT standard for that source category by 
that date. These deadlines are displayed in Table 1. Upon this 18-month 
deadline, the owner or operator of each major source with emission 
units in that category must apply for a case-by-case MACT determination 
by the title V permitting authority. There are four possible section 
112(j) deadlines, as displayed in Table 1 below.

                   Table 1.--Section 112(J) Deadlines                   
------------------------------------------------------------------------
 MACT standard deadline  Section 112(j) deadline         Comments       
------------------------------------------------------------------------
2-year standards:        May 15, 1994 [but not    The EPA has           
 November 15, 1992.       before effective date    promulgated the 2-   
                          of Title V permit        year standards. This 
                          program].                deadline will not be 
                                                   triggered.           
4-year standards:        May 15, 1996...........  This is the earliest  
 November 15, 1994.                                that section 112(j)  
                                                   could be triggered.  
7-year standards:        May 15, 1999                                   
 November 15, 1997.                                                     
10-year standards:       May 15, 2002                                   
 November 15, 2000.                                                     
------------------------------------------------------------------------

    The EPA has fulfilled its requirements with respect to the 2-year 
MACT standards, so there are essentially three possible dates upon 
which section 112(j) requirements could take effect: (1) May 15, 1996, 
(2) May 15, 1999, and (3) May 15, 2002. Section 112(j) cannot take 
effect before the effective date of a title V permit program in a 
State; the EPA expects that permit programs will be operative in all 
States by May 15, 1996.
    If the deadline for a particular category passes, section 112(j) 
requires that any source associated with that category, that is part of 
a major source, must obtain an ``equivalent emission limitation by 
permit.'' ``By permit'' means that the emission limitation is recorded 
in the title V operating permit. ``Equivalent emission limitation'' 
means a limitation, determined on a case-by-case basis by the 
permitting authority, that is judged to be equivalent to the limit the 
EPA would have established had the federal MACT standard been 
published.
    The rule uses the term ``emission unit'' rather than the term 
``source'' which appears in section 112(j). The term ``source'' is used 
to describe the extent of coverage of standards issued pursuant to 
section 112(d) and section 112(h). The EPA is concerned that if the 
term ``source'' is used in reference to section 112(j), there may be 
potential misperceptions that section 112(j) determinations could 
constrain the EPA's definition of ``source'' in a subsequent 
rulemaking.

A. Requirements for Existing Emission Units

    For emission units in existence at major source plant sites as of 
the section 112(j) deadline, today's rule contains some important 
clarifications of the Act. The statute is clear that applicants must 
submit an application by the section 112(j) deadline, and that the 
title V permitting process must be followed in establishing permit 
conditions within an 18-month time frame thereafter. Within this 
overall framework, the statute is less prescriptive regarding: (1) The 
contents of the permit application, (2) the process that is used within 
the 18-month permit issuance time frame to establish equivalent 
emission limitations, and (3) the nature of the terms and conditions 
that must be established in the permit.
    Section 6.52 is intended to provide further clarity to the permit 
review process. The requirements for permit application content are 
listed in Sec. 6.53. Principles governing the establishment of MACT 
emission limitations, including the nature of the terms and conditions, 
are outlined in Sec. 6.55, and in a more detailed guidance document 
titled: ``MACT Determinations under Section 112(j)'' (EPA 450/3-92-
007a), which EPA is making available today.

B. Requirements for New Emission Units

    For new emission units subject to the requirements of section 
112(j), today's rule provides a number of important statutory 
interpretations, and provides a clarification of the minimum 
administrative requirements of the Act.
    When newly constructed emission points are added to an existing 
major source plant site, those emission points could be considered as 
either: (1) An addition to an existing ``emission unit'' for which an 
existing source level of control would be required, or (2) an entirely 
new ``emission unit'' for which new source MACT would be required. 
Today's rule contains a definition of ``emission unit'' which gives 
broad discretion to the permitting authority to determine whether a 
given emission point or points should be treated as ``new.''
    Another important clarification in the rule is the date which 
triggers new source requirements. Today's rule defines as ``new'' an 
emission unit for which construction commences after the section 112(j) 
deadline or after proposal of a section 112 (d) or (h) MACT standard, 
whichever comes first.
    Section 112(j) of the statute does not mandate a preconstruction 
review for new emission units subject to section 112(j). However, the 
EPA recognizes that there are important reasons for permitting 
authorities and affected source owners and operators to follow a 
preconstruction or pre-operation review process. The rule contains, as 
Sec. 6.54, an optional preconstruction or pre-operation review process 
that can be used for this purpose.

C. Relationship to Subsequently Promulgated MACT Standards

    The Act provides for a compliance extension when an emission unit 
covered by a case-by-case MACT emission limitation under section 112(j) 
is later affected by a subsequent federal MACT standard promulgated 
pursuant to section 112(d) or section 112(h) of the Act. This provision 
is addressed in Sec. 6.56 of today's rule.

II. Background Discussion

A. Clean Air Act Amendments: Section 112

    The Clean Air Act Amendments of 1990 [Pub. L. 101-549] contain 
major changes to section 112 of the Act pertaining to the control of 
HAP emissions. Section 112(b) includes a HAP list that is composed of 
189 chemicals, including 172 specific chemicals and 17 compound 
classes. Section 112(c) requires publication of a list of source 
categories and subcategories of major sources emitting these HAPs, and 
also requires the listing of area sources that the EPA determines 
warrant regulation. Section 112(d) requires promulgation of emission 
standards for each listed source category or subcategory according to a 
schedule set forth in section 112(e).

B. Clean Air Act Amendments: Provisions for Equivalent Emission 
Limitation by Permit

1. General Requirements of Section 112(j)
    The amendments to section 112 include new section 112(j). This 
section is entitled ``Equivalent Emission Limitation by Permit.'' 
Subsection 112(j)(2) of the Act provides that section 112(j) applies if 
EPA misses a deadline for promulgation of a standard under section 
112(d) established

in the source category schedule for standards: In the event that the 
Administrator fails to promulgate a standard for a category or 
subcategory of major sources by the date established pursuant to 
subsection (e) (1) and (3), and beginning 18 months after such date 
(but not prior to the effective date of a permit program under title 
V), the owner or operator of any major source in such category or 
subcategory shall submit a permit application.

    Subsection 112(j)(3) requires the owner or operator to submit a 
permit application 18 months after the missed promulgation deadline:

    By the date established by paragraph (2), the owner or operator 
of a major source subject to this subsection shall file an 
application for a permit.

Subsection 112(j)(3) also requires EPA to establish requirements for 
permit applications, including content and criteria for the reviewing 
agency to determine completeness. In addition, subsection 112(j)(3) 
provides that if the reviewing agency deems the application incomplete, 
or disapproves the application, then the applicant has up to 6 months 
to revise and resubmit the application.
    Subsection 112(j)(5) establishes a requirement for case-by-case 
MACT determinations:

    The permit shall be issued pursuant to title V and shall contain 
emission limitations for the hazardous air pollutants subject to 
regulation under this section and emitted by the source that the 
Administrator (or the State) determines, on a case-by-case basis, to 
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).

    Subsection 112(j)(5) 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).

    Finally, subsection 112(j)(5) 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.
    In the event that EPA promulgates a given MACT standard for the 
applicable source category before the permit application is approved, 
the permit must reflect this promulgated standard, rather than the 
case-by-case MACT determination. The source is required to comply with 
this standard by the date provided under subsection(i). In this case, 
the owner or operator of an existing source has no more than 3 years to 
comply, and the owner or operator of a new source must comply 
immediately upon startup, except that a new source that commenced 
construction or reconstruction between proposal and promulgation of the 
MACT standard may elect to comply with the proposed standard for 3 
years in lieu of the promulgated MACT standard, if the promulgated MACT 
standard is more stringent than the proposal.
    In the event that EPA promulgates a given MACT standard after the 
permit containing case-by-case emission limits is issued, section 
112(j)(6) allows a longer compliance period:

    If the Administrator promulgates a standard under subsection (d) 
* * * after the date on which the permit has been issued, 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 after such standard is promulgated or 8 years after the 
date on which the source is first required to comply with the 
emissions limitation established by paragraph (5), whichever is 
earlier.

C. Implementation Principles

    In designing guidance for case-by-case MACT determinations, the 
EPA's thinking is guided primarily by the need for section 112(j) 
standards to be substantively equivalent to section 112(d) MACT 
standards. Subsection 112(j)(5) requires that a case-by-case MACT 
determination 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),'' and subsection 112(j)(6) requires 
eventual compliance with subsequently promulgated section 112(d) 
standards. Consistency in standard-setting will smooth a major source's 
eventual transition from compliance with section 112(j) to compliance 
with section 112(d), making implementation of toxics control easier on 
both States and industry.
    The EPA's other major goal in establishing section 112(j) 
requirements is to achieve and maintain consistency across section 112 
programs. The EPA intends for administrative and operational 
requirements under section 112(j) to be consistent with the 
requirements of section 112(g) rules for construction, reconstruction, 
and modification of major sources (proposed at 59 FR 15504 on April 1, 
1994, as Sec. 63.40 through 63.49 of subpart B) and with the general 
provisions for section 112 (published at 59 FR 12408 on March 16, 1994, 
as subpart A of this part). Section IV. A. of this preamble discusses 
likely overlapping requirements and major substantive differences 
across these programs.

III. Significant Comments and Changes to the Proposed Rule

    This section of the preamble is organized by each topic area in 
subpart B, and contains a detailed discussion of the principal 
regulatory issues and changes made in the final rule, particularly in 
response to public comments. It also discusses some comments that did 
not result in regulatory changes.

A. Section 63.50--Applicability

1. Section 63.50(a)--Applicability
    Paragraph 63.50(a) of today's rule indicates that the intent of the 
rule is to implement section 112(j) of the Act. This paragraph 
indicates that section 112(j) applies to the owner or operator of a 
major source of HAPs after the ``effective date of a Title V program'' 
in each State, but not before May 15, 1994.
    (a) Effective date of title V. The meaning of ``effective date of a 
Title V program'' is indicated in the final regulations for 
implementation of title V of the Act. Under these regulations, States 
were required to submit a permit program for review by the EPA on or 
before November 15, 1993. The EPA is required to approve or disapprove 
the permit program within one year after receiving the submittal. The 
EPA's program approval date is termed the ``effective date.''
    The effective date of title V permit programs is defined in section 
502(h) of the Act, which says ``The effective date of a permit program, 
or partial or interim program, approved under * * * [Title V] * * * 
shall be the date of promulgation.'' This language refers to two types 
of title V programs: One type where the EPA ``approves'' the title V 
program under 40 CFR part 70 and another type where the EPA 
``promulgates'' a program. Programs ``approved'' by the EPA under part 
70 will be developed by the State or local area and submitted to the 
EPA for approval. The language in section 502(h) of the Act makes these 
programs immediately effective upon EPA approval. Programs 
``promulgated'' by the EPA are anticipated to be rare, and they occur 
only where a State failed to submit a program, submitted a program that 
EPA could not approve, or has failed to adequately administer an 
approved program. For example, the EPA is required by section 502(d)(3) 
of the Act to promulgate and administer a title V program if, by 
November 1995, the EPA has not approved the State program. The language 
in section 112(j), because it refers to the effective date of a title V 
program in any State (and not by any State), means that the program 
will apply to both the EPA ``approved'' and ``promulgated'' programs.
    The title V regulations provide for approval of ``interim'' and 
``partial'' programs in certain limited circumstances. The EPA believes 
that, because partial programs must ensure compliance with ``all 
requirements established under section 112 applicable to `major 
sources' and `new sources','' and interim programs must ``substantially 
meet the requirements of [title V],'' an interim or partial program 
would trigger the requirements of section 112(j) for those sources 
covered by the interim program.
    (b) Major source. Section 112(j) applies only to an owner or 
operator of a major source. Section 112(a)(1) of the Clean Air Act 
defines major source as any stationary source or group of stationary 
sources located within a contiguous area and under common control that 
emits or has the potential to emit considering controls, in the 
aggregate, 10 tons per year or more of any hazardous air pollutant or 
25 tons per year or more of any combination of hazardous air 
pollutants. The requirements of section 112(j) apply to all sources 
that comprise a major source, but do not apply to nonmajor sources--
i.e. ``area sources.''
    The determination of whether a source is major is based on the 
source's ``potential to emit'', which is defined in subpart A of this 
part. A source's potential to emit is based on its capacity to emit 
hazardous air pollutants considering federally enforceable limits on 
that capacity. If a source's potential to emit is equal to or greater 
than 10 tons/yr of a single HAP, or 25 tons/yr of any combination of 
HAPs, the source is a major source. The EPA is currently developing a 
rule to further define a source's potential to emit for section 112 
standards. This rule will also provide ways for an owner or operator of 
a source to establish voluntary, federally-enforceable restrictions to 
limit the source's potential to emit below the major source threshold. 
This rule will also address the requirements for major sources that 
subsequently reduce their emissions to less than major amounts. If a 
source meets conditions in subpart A of this part for limiting its 
potential to emit to below the major source threshold within the 
timeframe established in the potential to emit rule, then it will not 
be subject to the provisions of section 112(j) as long as the source 
maintains its emission status.
2. Section 63.50(b)--Relationship to State and Local Requirements
    Many State and local regulatory agencies maintain regulatory 
programs that involve toxic air pollutant reviews for stationary 
sources. This paragraph clarifies that the requirements of section 
112(j) do not pre-empt any requirements of these programs that are at 
least as stringent as today's rule.
3. Section 63.50(c)--Retention of State Permit Program Approval
    Some States may not currently have specific legislative or 
administrative authority sufficient to establish the case-by-case 
emission limitations required by section 112(j). Paragraph 63.50(c) 
requires that States obtain such statutory authority as a condition of 
retaining their part 70 permit program approval.

B. Section 6.51--Definitions

1. Terms Defined in the General Provisions
    A number of terms used in the proposed rule are defined for all of 
40 CFR Part 63 in subpart A of this Part. The terms defined in subpart 
A include:

    * * * Administrator
    * * * Area source
    * * * Effective date
    * * * Federally enforceable
    * * * Hazardous air pollutant
    * * * Major source
    * * * Permit program
    * * * Potential to emit
    * * * Relevant standard
    * * * Title V permit

    The Subpart A General Provisions include a definition of 
``federally enforceable'' which lists the types of limitations and 
conditions that are considered federally enforceable. The preamble to 
Subpart A outlines a set of principles that States and sources should 
follow in order to ensure practicable enforceability. The EPA believes 
that Subpart B should ensure that the case-by-case determinations are 
practicably enforceable in the same way that Subpart A does for section 
112(d) and section 112(h) MACT standards. Therefore, the EPA refers the 
reader to the discussion of ``practicable enforceability'' in the 
preamble to Subpart A for a discussion of the kinds of requirements 
that the EPA would consider sufficient to ensure practicable 
enforceability for case-by-case MACT determinations. In addition, a 
more detailed discussion of the elements necessary to ensure federal 
enforceability is contained in section III.E. of this preamble.
2. Terms Related to Maximum Achievable Control Technology
    Definitions for the following terms related to levels of control 
technology are included in Sec. 63.51 of today's rule:

    * * * Maximum Achievable Control Technology
    * * * Control Technology
    * * * Maximum Achievable Control Technology (MACT) Floor
    * * * Maximum Achievable Control Technology (MACT) Emission 
Limitation for Existing Sources
    * * * Maximum Achievable Control Technology (MACT) Emission 
Limitation for New Sources
    The basis for all of these definitions is statutory language 
contained in section 112(d) of the Act. The term ``maximum achievable 
control technology'' appears only in section 112(g) of the Act, and 
does not appear elsewhere in section 112. There is, however, 
considerable legislative history indicating that this term refers to 
the level of control required by section 112(d) emission standards. 
This term was used in this context in the House Bill, H.R. 3030. For 
purposes of the definitions in today's rule, the EPA assumes that 
``maximum achievable control technology'' is a reference to the 
``maximum degree of reduction in emissions'' language contained in 
section 112(d)(3). The minimum control technology requirements of 
section 112(d), often referred to as the ``MACT floor'' are cited a 
number of times in today's rule. To avoid repeating these requirements 
each time, the regulation includes a definition of ``MACT floor.''
3. Terms Affecting the Extent of Coverage by Maximum Achievable Control 
Technology
    The following terms are used to describe equipment subject to a 
MACT determination:

    * * * Emission point
    * * * Emission unit
    * * * Emission limitation
    * * * New emission unit

    An ``emission point,'' in this regulation, is defined narrowly to 
refer to any individual point of release to the atmosphere. However, an 
individual MACT determination will often be made at once for a number 
of emission points. The term ``emission unit'' is used to refer to the 
collection of all emission points considered when a MACT determination 
is made. The term ``emission limitation'' retains the meaning given to 
it in section 302(k) of the Act.
    New emission unit. The term new emission unit refers to an emission 
unit for which construction or reconstruction is commenced after the 
section 112(j) deadline for a relevant standard, or after proposal of a 
relevant standard under section 112(d) or section 112(h) of the Act, 
whichever comes first. For the purposes of section 112(j), new emission 
units are those emission units that trigger new source MACT 
requirements (see discussion of the definition of ``emission unit'' 
below). New source is defined in Clean Air Act section 112(a)(4) as 
follows:

    ``* * * a stationary source the construction or reconstruction 
of which is commenced after the Administrator first proposes 
regulations under this section establishing an emission standard 
applicable to such source.''

Section 112(j) requires States to establish case-by-case MACT 
limitations where EPA has failed to promulgate a relevant standard, and 
there may be instances when a section 112(j) MACT limitation is 
required for a source category for which a standard has not yet been 
proposed under section 112(d). Since section 112(j)(5) refers 
explicitly to case-by-case standards for new sources, the EPA has 
determined that the Act did not intend that the EPA's failure to 
propose a standard implies that no sources in that source category, no 
matter what the date of construction, could ever be considered ``new.'' 
At proposal the EPA had selected the section 112(e) scheduled deadline 
as the date, under a section 112(j) case-by-case MACT determination, 
most closely equivalent to the section 112(d) proposal date for the 
purposes of defining ``new emission unit,'' because had EPA met the 
schedule in setting a standard under section 112(d) the proposal could 
not have been any later than the date in the schedule. The EPA 
requested comment on this definition. Three commenters supported the 
proposed definition. However, upon consideration of the practical 
concerns raised by this definition, the EPA has determined that the 
section 112(j) deadline would be a more reasonable date beyond which 
commencing construction of an emission unit would be considered 
``new.''
    The following timeline illustrates the EPA's reasoning:

TR20MY94.002

Under the proposed rule, a source would have needed to know, up to 2 
years or more in advance of the section 112(j) deadline, that the EPA 
was going to miss its scheduled promulgation deadline by 18 months. If 
``new source'' requirements were triggered by the section 112(e) 
deadline, owners and operators would need to know this in order to plan 
what control to build in to their new emission units, and perhaps in 
order to apply for preconstruction review. In addition, if an owner or 
operator plans to construct between the scheduled promulgation date and 
the section 112(j) deadline, and there is a subsequent proposal (as 
illustrated in the timeline), then whether the emission unit will be 
considered new would depend upon a later event--whether the section 
112(j) deadline will pass with no federal MACT standard. The EPA 
believes that it is not reasonable to expect owners and operators to be 
able to predict the likelihood of EPA missing a promulgation deadline 
by 18 months; nor is it reasonable to expect them to make such a 
prediction as much as 2 years before its occurrence.
    Thus, if EPA proposes a MACT standard before the section 112(j) 
deadline, any emission unit for which construction commences after that 
proposal will be considered new. If the section 112(j) deadline is 
reached without EPA having proposed a standard, then an emission unit 
for which construction commences after the section 112(j) deadline will 
be considered new. This approach removes the uncertainty raised by the 
possibility of EPA proposing a MACT standard during the 18 months 
between the section 112(e) schedule deadline and the section 112(j) 
deadline. The EPA believes this to be the most reasonable and equitable 
way to define which emission units are new for purposes of section 
112(j).
    Emission unit definition; applicability to new source MACT. MACT 
determinations must be made on a wide variety of emitting equipment at 
major sources in different source categories. Today's rule defines 
emission unit in a way designed to allow permitting authorities broad 
flexibility in designing case-by-case MACT emission limitations. This 
flexibility is essential because of the variety of source categories, 
diverse in size and complexity, that may be subject to section 112(j). 
A narrower definition of emission unit would make it difficult for 
permitting authorities to tailor MACT determinations to the equipment 
specific to a particular source category. Emission unit as defined in 
this rule is intended to be synonymous with the term ``source'' as used 
in section 112(d). Thus, the State permitting authorities implementing 
section 112(j) will have as much flexibility in defining emission unit 
as EPA has in defining ``source.'' The definition of source used in 
section 112 originated in section 111 a number of years ago. That 
definition--any building, structure, facility, or installation which 
emits or may emit any (hazardous) air pollutant--has been interpreted 
over the years to encompass a broad range of things including 
individual process units, production lines and entire plants.
    The EPA requested comment both on the desirability of requiring or 
not requiring new source MACT on all new emission units, and on the 
question of whether new source MACT should be required only on those 
emission units that are in and of themselves ``major'' at a major 
source.
    An approach the EPA considered, but rejected, would be to require 
new source MACT only on those emission units that are in and of 
themselves ``major'' at a major source--i.e. those emission units at a 
major source which themselves emit at least 10 tons per year or more of 
a single HAP, or 25 tons per year or more of a combination of HAPs. 
This approach generated significant comment. Some commenters disagree 
with this approach and support the approach taken in the rule. Many 
commenters support the alternative approach.
    The EPA agrees with the commenters who support application of new 
source MACT to all constructed and reconstructed emission units. 
Section 112(j) is intended to stand in place of section 112(d) where 
EPA has missed the section 112(e) scheduled date for a category of 
major sources. Under section 112(d), when a MACT standard is written 
for a major source category it will apply to all sources within that 
category. Depending on how the category is defined many of the covered 
sources will be a less than 10 ton portion of a major source. These are 
not area sources.
    Many major sources will be covered by multiple MACT standards, and 
the portion of a major source covered by any one MACT standard may well 
be less than major by itself. In addition, a major source could contain 
several emission units that are all covered by the same MACT standard, 
but are separate sources that in combination exceed 10 or 25 tons but 
do not exceed the major source threshold individually. In contrast, 
area sources in the same category will not be subsets of major sources. 
Section 112(j) does not apply to categories of area sources.
    Other commenters assert that EPA's interpretation runs counter to 
either the Clean Air Act itself, or to the Congressional intent behind 
the language in the Act. For the reasons discussed below and in the 
preamble to the proposed rule (58 FR 37778), the EPA disagrees with 
these commenters.
    Prior to a missed promulgation deadline, through section 112(g) the 
statute clearly requires new source MACT only on constructed or 
reconstructed major sources. Any other equipment added to an existing 
major source would be a modification (unless specifically exempted from 
regulation by section 112(g)), and would be subject to existing source 
MACT levels of control. However, the language of section 112(j) is 
somewhat different from that of section 112(g). Section 112(j), while 
applying only to major sources, does not limit the application of new 
source MACT to new major-emitting equipment, as section 112(g) does.
    The EPA believes that the standards developed through section 
112(j) must anticipate and reflect the likely requirements of section 
112(d) and section 112(h). The basis for the applicability of new 
source MACT selected is the section 112(j)(5) requirement that case-by-
case MACT standards must be:

Emission limitations for the hazardous air pollutants * * * emitted 
by the source that the Administrator (or the State) determines, on a 
case-by-case basis, to 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).

It is the judgment of EPA that section 112(j) case-by-case MACT 
standards must require new source MACT to be applied to those same 
sources, within a covered major source, to which a standard promulgated 
under section 112(d) would apply new source MACT. Therefore, it is 
necessary to determine what entity is considered a new source under 
section 112(d) for the purpose of implementing MACT standards.
    Section 112(a) provides that new source shall mean a ``stationary 
source the construction or reconstruction of which is commenced after 
the Administrator first proposes regulations under this section 
establishing an emission standard applicable to such source.'' Section 
112(a)(3) gives ``stationary source'' the same meaning as under section 
111(a), i.e. any new ``building, structure, facility, or 
installation''; thus the term stationary source clearly is not limited 
to major sources under section 112(a)(3). Section 112(d) requires MACT 
standards to be set for ``sources,'' and ``sources'' can be major, 
area, or portions of a major source. Once there is a section 112(d) 
standard in place, any new source will be required to meet new source 
MACT emission limitations, as defined by the standard. Thus, under 
section 112(j), any new emission unit that is either part, or all, of a 
major source will be required to meet new source MACT.
    If, however, the language of section 112(g) were interpreted as 
dispositive of whether new or existing source MACT must be applied to 
any given increase in emissions, new sources within the definition in 
section 112(a)(4) would escape having to comply with new source MACT 
under section 112(j). If a MACT standard under section 112(d) may 
establish a definition of source that would apply to a portion of a 
``major source,'' then section 112(j) case-by-case MACT determinations 
would not satisfy the requirement that they be ``equivalent to the 
limitation that would apply to such source * * *''
    In addition, under this reading, major sources adding new sources 
that are not major by themselves could avoid new source MACT on those 
new sources. But if MACT is then set under section 112(d) for area 
sources in that category, any new area source would have to meet new 
source MACT, while new parts of a major source would not. This would be 
an anomalous result. Therefore today's rule requires new source MACT on 
all emission units that are constructed or reconstructed at a major 
source plant site.

C. Section 6.52--Approval Process for New and Existing Emission Units

    Existing emission units. Section 6.52 of the rule requires that 
case-by-case MACT determinations for existing emission units be 
established through the title V permit process. The owner or operator 
of an existing major source must submit a permit application for all 
emission units in a source category not later than 18 months after the 
missed promulgation date for that source category. The State must then 
review and approve or disapprove the permit in accordance with the 
procedures and principles set out in Part 70 and in Sec. 63.55 of 
today's rule. Section 63.52(b)(1) of today's rule implements the 
requirement in section 112(j)(4) of the Act that if an owner or 
operator's permit application is deemed incomplete or disapproved by 
the permitting authority, the owner or operator has up to 6 months to 
resubmit and meet the requirements of the permitting authority. The 
final rule clarifies the intent of the Act that the owner or operator 
provide complete information within 6 months of the date the permitting 
authority ``first'' identifies its objections. The addition of the word 
``first'' is intended to clarify that the applicant may not prolong the 
process by resubmitting an incomplete application. In order to ensure 
that the application indeed satisfies this 6-month deadline, applicants 
will probably wish to respond sooner than 6 months.
    For existing emission units, the permitting authority at its 
discretion may require compliance as expeditiously as practicable, but 
no later than 3 years from permit issuance. In addition, the permitting 
authority may allow an extra year, on a case by case basis, when 
necessary for the installation of controls. This approach is consistent 
with section 112(j)(5), which requires the case-by-case MACT standards 
to ensure compliance ``* * * immediately for new sources and, as 
expeditiously as practicable, but not later than the date three years 
after the permit is issued for existing sources or such other 
compliance date as would apply under subsection (i).''
    New emission units. Section 63.52 describes the relationship of the 
MACT review process for new emission units to the operating program 
requirements pursuant to Title V of the Act Amendments. The 
requirements for title V permits, contained in 40 CFR part 70, were 
published on July 21, 1992 (57 FR 32250). For existing emission units, 
the approach to establishing an administrative process for 
determinations under section 112(j) of the Act is to rely on the title 
V review process as the mechanism for establishing MACT requirements. 
For new emission units, however, the EPA believes that reliance on the 
title V permit process may not be sufficient. First, the title V 
requirements clearly do not require a new ``greenfield'' plant to apply 
for an operating permit until 1 year after the plant begins operation. 
Because the title V permit must be issued within 18 months of the 
application, it could be up to 30 months after commencement of 
operation before section 112(j) requirements would be incorporated into 
the permit. Second, the title V requirements do not ensure that a MACT 
determination will be conducted before construction. While in some 
cases permitting authorities with title V programs may require 
preconstruction reviews as part of the operating permit process, this 
will not always be the case.
    Therefore, while for existing emission units the title V permit 
process is sufficiently comprehensive to handle section 112(j) reviews, 
the EPA believes, based upon the above considerations, that when the 
title V process does not occur until after construction has begun, new 
emission units should be subject to preconstruction or at least pre-
operation review. However, the statutory language of section 112(j) 
does not authorize EPA to mandate either process.
    While many commenters also challenged the legality of requiring 
preconstruction review, several others agreed with EPA's reasons, as 
stated in the proposed rule, in support of a preconstruction review. 
Commenters noted that without preconstruction review, owners and 
operators will not know their requirements before startup, making it 
more difficult for them to design equipment with controls that the 
permitting authority is guaranteed to approve. In addition, some 
permitting authorities will be deprived of the authority they need to 
make appropriate new source MACT determinations. In addition, it was 
noted that some permitting authorities will be prohibited from adopting 
preconstruction review programs unless they are federally mandated.
    The EPA believes that most new equipment covered by section 112(j) 
will require some type of State preconstruction permit, for criteria 
pollutants if not for HAP. Although the Act does not mandate the 
communication of section 112(j) requirements until the eventual 
operating permit process, the EPA believes that it would be in the best 
interests of both the owner or operator and the permitting authority to 
resolve section 112(j) issues as part of its upfront review.
    Regardless of the timing for incorporation of section 112(j) new 
source MACT determinations into the operating permit, there are certain 
requirements that apply. The title V permit must be revised or issued 
according to procedures set forth in Sec. 70.7 and 70.8, or issued as a 
general permit. In addition, the permit must incorporate the compliance 
provisions of Sec. 70.6. If, during the EPA's review of the section 
112(j) determination, it becomes apparent that the determination is not 
in compliance with the Act, then EPA must object to the issuance or 
revision of that permit.
    These requirements are obviously satisfied either when part 70 
requires revision to an existing title V permit before construction, or 
when the permitting authority otherwise requires incorporation of 
conditions into a title V permit as a step in the section 112(j) new 
source case-by-case MACT determination process. However, even when 
there is no formal incorporation of conditions into a title V permit 
before operation, subsequent additional title V review may effectively 
be avoided if the State's section 112(g) or optional section 112(j) 
process is ``enhanced'' to include the important title V procedures, 
thereby allowing for later incorporation into the title V permit by 
administrative amendment. (The optional procedures contained in 
Sec. 63.54 of the rule are intended to provide an example of such an 
``enhanced'' process).
    Section 70.7(d) of the operating permits rule defines an 
``administrative amendment'' to include a revision that 
``[i]ncorporates into the part 70 permit the requirements from 
preconstruction review permits authorized under an EPA-approved 
program, provided that such a program meets procedural requirements 
substantially equivalent to those contained in Sec. 70.7 and 70.8 of 
this Part . . . and compliance requirements substantially equivalent to 
those contained in Sec. 70.6 of this part.'' This process of 
``enhancement'' of preconstruction procedures was discussed in the 
preamble to the operating permits rule in the context of existing State 
new source review programs (see 57 Fed. Reg., at 32289), but was not 
discussed in relation to section 112(j) because the procedures 
associated with section 112(j) determinations had not yet been 
articulated. However, the language of Sec. 70.7(d)(v) would allow for 
use of administrative amendments for an enhanced preconstruction review 
process, and the EPA believes such use is clearly within the intent of 
that provision.
    Enhancement of the preconstruction review process may be partial 
only, incorporating some elements of the required part 70 review or 
compliance provisions in the preconstruction review process itself, 
with the remaining elements occurring during the title V process. For 
instance, public review of the MACT determination that meets the 
requirements of Sec. 70.7(h) need not be repeated at the time of 
incorporation into the title V permit. However, for the administrative 
amendment procedures to be available for determinations that have been 
through an enhanced process, the public, EPA and affected States must 
have had the opportunity to review all aspects of the MACT 
determination, including any compliance provisions required under 
Sec. 70.6. Thus, public review during the preconstruction review 
process would not suffice for purposes of title V if the process did 
not specify the application of compliance provisions substantially 
equivalent to those in Sec. 70.6, including monitoring, reporting, 
recordkeeping, and compliance certification.
    Finally, Sec. 6.52(d) of today's rule establishes that new emission 
units must comply with case-by-case MACT determinations at permit 
issuance. This requirement is unchanged from proposal. At proposal the 
EPA solicited comment on the implementation consequences for sections 
section 112(j) and section 112(d) when preconstruction review is not 
required, and on the likely consequences of the lack of an adequate 
enforcement mechanism at the federal level for compliance earlier than 
permit issuance. Commenters noted the need to prevent situations in 
which some sources might have to retrofit in response to subsequent 
rulemaking under section 112(d). Commenters also pointed out the likely 
negative effect on the public of the compliance delays inherent in 
section 112(j) for new emission units, as well as the inability of some 
permitting agencies to adopt requirements more stringent than mandated 
by the federal government.
    In addition, precedent across the board in federal air regulation 
requires new sources to comply with control requirements upon startup. 
The EPA believes that new emission units should undergo preconstruction 
or pre-operation review. However, the EPA believes that the language of 
section 112(j)(5), which specifies that ``[n]o such pollutant may be 
emitted in amounts exceeding an emission limitation contained in a 
permit immediately for new sources,'' does not give the Agency 
authority to require compliance with case-by-case MACT by new emission 
units until a permit is issued.
    The EPA believes that, especially when project lead time is 
sufficient, that the best approach would be for a permitting authority 
to provide for an ``enhanced'' preconstruction review process that 
would assure the source that it would be in compliance with section 
112(j). Because the ``enhanced'' review would yield terms and 
conditions that could be incorporated into the title V permit by 
administrative amendment, ``permit issuance'' would thus be 
accomplished upon startup rather than 12-30 months later. In this case, 
the source would be in compliance with federally enforceable case-by-
case MACT at the time of administrative amendment to its title V 
permit.
    Subsequent changes to a major source. The EPA believes that section 
112(j) emission limitations apply to subsequent changes made at major 
sources already complying with case-by-case MACT limitations under 
section 112(j), when EPA has not promulgated a final standard for the 
source category under section 112(d). The EPA requires, in subpart A of 
this Part, that subsequent changes to a major source already complying 
with a section 112(d) or (h) standard shall comply with established 
MACT emission limitations for the source to which changes are made. 
Therefore requiring subsequent changes to portions of major sources 
already meeting case-by-case MACT emission limitations under section 
112(j) satisfies the section 112(j)(5) statutory requirement that case-
by-case MACT determinations under section 112(j) 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).'' Emission 
limitations governing those changes would be incorporated into a 
source's title V permit according to procedures established pursuant to 
title V.
    The EPA requested comment on this approach, as well as on the 
alternative approach of treating section 112(j) as a one time 
permitting requirement applicable 18 months after EPA fails to set a 
relevant MACT standard. This would require subsequent changes at major 
sources with section 112(j) permits to comply only with section 112(g). 
The EPA received a few comments on this issue, most of which agree with 
EPA's approach, and one which asserts that prior determinations under 
section 112(g) should be deemed to satisfy section 112(j). The EPA 
believes that determinations made under section 112(g) that require 
MACT control should be considered by the permitting agency to be 
sufficient to satisfy the control requirements of section 112(j). 
Therefore the EPA retains the interpretation contained in the proposed 
rule. (See also the discussion of potential differences in section 
112(g) and section 112(j) requirements in section IV. A. of this 
preamble).
    General permits. The EPA recognizes that there are cases for which 
sources would prefer to minimize delays in the process, particularly 
for operations which change relatively frequently, and when the owner 
or operator is willing to control emissions from those changes with 
technologies that could be recognized as best available controls (i.e. 
those controls which achieve ``the emission control that is achieved in 
practice by the best controlled similar source'' (section 112(d)(3) of 
the Act)). General permit procedures, outlined in 40 CFR 70.6(d), could 
be available for such situations.
    The general permit would have application for section 112(j) 
determinations when the permitting authority is able to make a 
presumptive determination of MACT for a given type of source. The 
general permit would have to set forth the controls required by Part 
70. Once the general permit is issued, application of the MACT 
determination to a particular emission unit would involve merely a 
determination that the emission unit falls within the source category 
covered by the general permit. In this way, a single permitting process 
could be used to address the section 112(j) requirements for a number 
of facilities, rather than conducting a separate process for each 
facility. Such a general permit process would not relieve the owner or 
operator from the obligation of submitting an ``application'' by the 
section 112(j) deadline. The EPA envisions, however, that permitting 
authorities could provide guidance to the affected facilities, before 
the section 112(j) deadline, of its intention to use the general permit 
process such that the burdens of the application are minimized.
    As discussed in the preamble to the operating permit regulation, 
general permits may be issued to cover discrete emissions units at 
permitted facilities. 57 Fed. Reg., at 32279. While a general permit 
cannot be used to modify the terms of an existing title V permit, it 
may be issued to cover a change at an existing plant, such as addition 
of a new emission unit, that would otherwise be eligible to apply for a 
new individual permit. In that case, the requirements of the general 
permit could be incorporated into the permit for the facility at permit 
renewal.
    Several commenters agree that using the general permit procedures 
is a good idea, in order to streamline MACT determinations under 
section 112(j). The EPA agrees that general permits could be used both 
for existing and new emission units.
    Area sources that become major sources. Today's rule states that 
section 112(j) requirements apply to all major sources in a source 
category for which EPA has missed its scheduled promulgation deadline. 
Implicit in that requirement is the assumption that the requirements of 
section 112(j) apply to area sources that increase their emissions or 
their potential to emit such that they become major sources after the 
section 112(j) deadline.
    Subpart A of this part, recently promulgated, explicitly 
establishes, for MACT standards under section 112(d) or (h), that area 
sources which increase their emissions, or their potential to emit, 
such that they become major sources after the applicable date of a 
relevant standard, are subject to the requirements of that standard. 
Therefore EPA has added Sec. 63.52(f)(1) to today's rule to clarify 
that the requirements of section 112(j) likewise apply to area sources 
that increase their emissions or their potential to emit such that they 
become major sources after the section 112(j) deadline.
    One commenter requests clarification on the status of area sources 
which, after the section 112(j) deadline, become major sources when EPA 
determines that a ``lesser quantity'' of emissions defines ``major 
source'' for that source category (see section 112(a)(1)). Therefore 
EPA has added Sec. 63.52(f)(2) to today's rule to clarify that the 
requirements of section 112(j) apply to all major sources at the point 
at which they are determined to be ``major sources'' under section 
112(a). These sources are required to submit permit applications within 
6 months of becoming major sources. Given the relative siginificance of 
the regulation these sources, the EPA believes that requiring permit 
applications within 6 months is reasonable.
    As discussed previously, the rule generally treats emission units 
as ``new'' if constructed after the section 112(j) deadline. However, 
in the case where that area source becomes major because the EPA has 
set a lesser quantity emission rate after the section 112(j) deadline 
for the relevant source category, the EPA recognizes that it would be 
inequitable to require new source MACT for such an emission unit at an 
existing area source plant site. It would be difficult for any source 
constructed at an earlier date to immediately meet new source MACT upon 
permit issuance. Such a position would require sources to retrofit to a 
new source MACT level of control, despite the fact that, at the time of 
a MACT proposal or the section 112(j) deadline, those sources would not 
have any reason to anticipate that section 112(j) would appply. 
Therefore today's rule has been clarified to provide that, where a 
source is not subject to section 112(j) on the section 112(j) deadline, 
but becomes subject to section 112(j) at a later date by becoming a 
major source, new source MACT will be limited to those emission units 
for which construction or reconstruction has commenced after the date 
that the source becomes major. This avoids the inequitable outcome of 
requiring such sources to retrofit new source MACT.
    The rule provides two exceptions to this approach. Consistent with 
subpart A (59 FR 12408), if the owner or operator wishes to construct 
or reconstruct an emission unit that would cause the plant site to now 
become a major source, that emission unit would be treated as ``new.'' 
Or, if a source, which has been constructed or reconstructed after the 
section 112(j) deadline and which has been an area source by virtue of 
a limitation on its potential to emit, becomes a major source by virtue 
of a relaxation of its emission limitation, then the emission units 
whose emission limitations increase would be treated as ``new.'' (This 
latter exception is intended to be consistent with subpart A of this 
part, and with provisions in Sec. 52.21(r)(4) in the criteria pollutant 
program). For these reasons, the definition of new source says ``. . . 
except as provided for in Sec. 63.52(f)(1),'' and Sec. 63.52(f)(1) 
clarifies these exceptions.

D. Section 63.53--Application Content for a Case-by-Case MACT 
Determination

    Section 63.53 of today's rule describes the information the owner 
or operator is required to provide with an application for a MACT 
determination. These information requirements are designed to identify 
the emission units to be controlled and to demonstrate that MACT will 
be met.

E. Section 63.54--Preconstruction Procedures for New Emission Units

    Section 112(j), when read together with title V, presents certain 
ambiguities which must be resolved in this rulemaking. Section 112(j) 
requires case-by-case determinations of MACT for new as well as 
existing sources. Section 112(j)(5) directs that case-by-case MACT is 
to 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).'' The timing for application for new sources subject to 
any standard promulgated under section 112(d) is in turn articulated in 
section 112(i)(1), which prohibits the construction of a new major 
source or reconstruction of an existing major source except when there 
has been a determination that the construction or reconstruction will 
meet the MACT standard.
    However, the timing of this determination for new sources under 
section 112(j) is different than the timing required by the statute for 
section 112(d) standards. Section 112(j) requires that the permit 
containing the case-by-case determination of MACT be ``reviewed and 
approved or disapproved according to the provisions of section 505'' 
(section 112(j)(4)) and issued ``pursuant to Title V,'' (section 
112(j)(5)). This conflicts with a requirement for preconstruction or 
pre-operation review for new sources subject to only section 112(j), 
because title V does not give EPA discretion to require applications 
for sources newly subject to the title earlier than 12 months after 
commencing operation. (Section 503(c)). (States may, however, opt to do 
so). Because the Part 70 permit must be issued within 18 months of the 
application, it could be up to 30 months after operation before section 
112(j) requirements would be incorporated into the title V permit.
    While several commenters state that section 112(j) MACT 
determinations should be subject to preconstruction review, a number of 
others argued that section 112(j) contains no authority for 
preconstruction review. A number of commenters addressed the 
relationship of section 112(j) to section 112(g). Several of these 
commenters argued that both sections should be reviewed, and the more 
stringent requirement applied in each case. Other commenters stated 
that the two sections should be applied consistently.
    The EPA agrees that section 112(j) determinations for new sources 
should be subject to preconstruction or pre-operation review. However, 
the Agency acknowledges, as pointed out by other commenters, that 
section 112(j) does not provide the EPA with independent authority to 
require such review. Therefore, in the final rule EPA is not changing 
its proposal that section 112(g) provide the mechanism for review for 
modifications to major sources and construction of new major sources. 
An optional preconstruction review process is provided in this rule for 
the benefit of new emission units not covered by section 112(g).
    As noted above in Section III.C. of this preamble, the EPA believes 
that sources subject to case-by-case MACT determinations should undergo 
upfront review. While in some cases States may require review under the 
Part 70 program to occur in the preconstruction phase (or an 
``enhanced'' preconstruction process deemed equivalent), the Act does 
not authorize EPA to mandate this result. It follows that, while title 
V is sufficiently comprehensive to handle the section 112(j) review 
process for existing emission units, it is not broad enough in its 
mandatory coverage to implement section 112(j) for new emission units. 
EPA believes that the preconstruction or pre-operation review 
requirements for control technology determinations under section 112(g) 
will be applicable to many new sources subject to section 112(j). For 
example, construction of all new major sources, and all new emission 
units constructed as part of a modification to an existing major 
source, would require preconstruction or pre-operation review under 
section 112(g). Permitting authorities also have the option of 
establishing an administrative process for preconstruction or pre-
operation review of new emission units subject to section 112(j), to 
cover those emission units not subject to the requirements of section 
112(g). In addition, section 112(j) requirements should be considered 
for new emission units requiring other preconstruction permits under a 
permit authority's overall air quality program.
    As an alternative to relying on the upfront review procedures of 
section 112(g) for new major sources, EPA had considered relying on the 
language of section 112(i)(1) to require preconstruction review of new 
sources under section 112(j). However, section 112(i)(1) requires 
preconstruction review only for major-emitting sources. Such major-
emitting sources would already be required to undergo preconstruction 
review under the requirements of section 112(g). Therefore adding a 
requirement for preconstruction review under section 112(j) based on 
section 112(i)(1) adds nothing to the process. For this reason EPA 
rejected reliance on section 112(i)(1) authority.
    Section 63.54 of today's rule describes an optional preconstruction 
review process for new emission units not required to undergo upfront 
review under section 112(g). Permitting authorities need not provide 
this additional preconstruction review opportunity. Moreover, since the 
preconstruction review process set forth in Sec. 63.54 is optional, 
permitting authorities may provide for a different process. The 
procedures set forth in Sec. 63.54 contain the elements EPA believes to 
be necessary for an ``enhanced'' review process that can be 
incorporated into the title V permit by administrative amendment. One 
important aspect of such ``enhanced'' procedures is to ensure Federal 
enforceability. In addition to the discussion in this preamble, the 
preamble to subpart A of this part discusses the kinds of requirements 
that the EPA would consider sufficient to ensure federal enforceability 
for MACT determinations under Clean Air Act sections section 112(d) and 
(h); the EPA believes that these same requirements would ensure federal 
enforceability for case-by-case MACT determinations under section 
112(j), and refers the reader to that discussion.
    The EPA believes that the majority of new emission units subject to 
section 112(j) will be subject to section 112(g) preconstruction or 
pre-operation review requirements prior to filing their permit 
applications under Part 70. The overall process for MACT determinations 
contained in Sec. 63.54 of today's rule is shown in Figures 1 and 1a. 
For those sources not subject to review under section 112(g), the 
optional ``enhanced'' review process begins with a MACT application 
consistent with the principles described in Sec. 63.55. The owner or 
operator provides an application for a MACT determination to the 
permitting authority. The contents of this application are outlined in 
Sec. 63.53. This application for a MACT determination is then evaluated 
by the permitting authority according to procedures described in 
Sec. 63.54(b). If approved, the permitting authority would issue a 
Notice of MACT Approval containing the basic elements described in 
Sec. 63.52(c). Provisions dealing with compliance with the requirements 
of the Notice of Approval are described in Sec. 63.54(c) through (g). 
Terms and conditions of this Notice could be incorporated into the 
operating permit by an administrative amendment.

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BILLING CODE 6560-50-C
    The EPA believes that there are substantial implementation 
advantages to upfront review for emission units subject to section 
112(j), as noted above in section III.C. of this preamble. Without such 
review, owners and operators cannot be assured that they will meet a 
``new source MACT'' level of control when submitting a title V permit 
application.
    The preconstruction or pre-operation process outlined in Sec. 63.54 
begins with a completeness determination. Once a complete application 
is received, approval or an intent to disapprove the application is 
required. If an intent to disapprove is issued, the owner or operator 
is given the opportunity to provide further information.
    Section 63.54(b) establishes an administrative process for 
reviewing a request by an owner or operator for a MACT determination. 
The proposed decision to either approve or disapprove the application 
is then subject to public review. (See discussion in the proposed rule 
at 58 FR 37778.) Today's rule would provide for public review through 
issuance of a notice containing all the relevant background information 
about the application and 30 days for the public to comment on whether 
the application should or should not be granted. Section 63.54(d) 
establishes the opportunity for EPA to review and veto the application 
consistent with the requirements of the title V process. In order to 
expedite approval of noncontroversial case-by-case MACT determinations, 
today's rule would allow such determinations to be made final following 
the close of the comment period if no adverse comments have been 
received. If adverse comments are received, a final notice should be 
published either approving or disapproving the application and 
addressing the comments. The EPA envisions that the permitting 
authority would exercise its discretion in determining, where 
warranted, that a public hearing should be held.
    Emission limits that are federally enforceable include limits on 
the allowable capacity of the equipment; requirements for the 
installation, operation and maintenance of pollution control 
technologies; limits on hours of operation; and restrictions on amounts 
of materials combusted, stored, or produced. These limitations or 
conditions should be practicably enforceable and ensure adequate 
testing, monitoring, and recordkeeping to demonstrate compliance with 
the limitations and conditions. These conditions are based on the five 
criteria for Federal enforceability established in 40 CFR parts 51 and 
52 (54 FR 27274). Part of the criteria for conferring Federal 
enforceability to a State or locally established emission limitation 
requires the emission limitation to undergo some public scrutiny and be 
kept in standardized files in EPA's Regional Offices. In addition, the 
emission limitation must be enforceable as a legal and practical 
matter. The preamble to the proposed rule contains a more detailed 
discussion of the kinds of permit conditions the EPA considers 
necessary to establish Federal enforceability.
    The end result of the administrative review process for new 
emission units is a determination set forth in a document that is 
termed a ``Notice of MACT Approval.'' Necessary elements for this 
Notice are provided in paragraph 63.52(c) of today's rule. This Notice 
should contain the emission limitations, notification, operating and 
maintenance, performance testing, reporting, recordkeeping, compliance 
dates, and any other requirements needed to ensure that the case-by-
case MACT emission limitation will be met.
    The Notice of MACT Approval serves to ensure that the new emission 
unit is built with controls that meet the requirements of section 
112(j). If the Notice is approved through an ``enhanced'' process, it 
can be incorporated into the title V permit through administrative 
amendment.

F. Section 63.55--Maximum Achievable Control Technology (MACT) 
Determinations for Emission Units Subject to Case-by-Case Determination 
of Equivalent Emission Limitations

    As discussed previously, Sec. 63.52 requires case-by-case MACT 
determinations after the effective date of a title V permit program in 
a State. MACT determinations will be conducted for all HAP-emitting 
equipment that is located at a major source and is in a source category 
for which the Agency has failed to promulgate a relevant maximum 
achievable control technology (MACT) standard within 18 months of the 
scheduled promulgation date. This section of the preamble discusses 
principles and procedures for making these MACT determinations. These 
include procedures needed to establish a MACT emission limitation and a 
corresponding MACT control technology. In the rule, the overall process 
for MACT determinations is outlined in Sec. 63.55.
    The primary emphasis is on the procedures for case-by-case MACT 
determinations when no applicable MACT standard has been proposed by 
the EPA. The procedures for determinations after MACT standards have 
been proposed are more straightforward.
    Section 63.55 contains general principles that would govern MACT 
determinations under today's rule. In general, the purpose of a case-
by-case MACT determination is to develop technology-based limitations 
for HAP emissions that the Administrator (or a permitting agency to 
whom authority has been delegated) approves as equivalent to the 
emission limitations required for the source category if promulgated 
MACT standards were in effect under section 112(d) or section 112(h) of 
the Act.
    The EPA believes that if a MACT standard has been proposed, but not 
yet promulgated, this proposed standard is the best estimator of the 
Agency's final action, and therefore should be considered in 
establishing a case-by-case MACT emission limitation. Accordingly, 
paragraph 63.55(a)(1) requires that in the absence of a supportable 
alternative, the equivalent emission limitation should be at least as 
stringent any such proposed standard. (Permitting authorities retain 
the option of requiring MACT that is different from EPA's MACT 
determination, provided that the alternative can be supported. An 
example of such a supportable alternative would be the case where a 
permitting authority possesses additional data that would support 
amending EPA's floor finding).
    When no MACT standard has been proposed, the rule requires that the 
case-by-case MACT determination be consistent with the overall 
requirements described in section 112(d) of the Act.
    Section 112(d)(3) of the Act describes the general considerations 
for a MACT determination. A MACT level of control is ``the maximum 
degree of reduction in emissions of the hazardous air pollutants * * * 
that the Administrator, 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 
for new and existing sources in the category or subcategory * * *'' 
This paragraph of the Act continues to describe a number of items that 
might be considered in designing MACT standards such as material 
substitutions, enclosure of processes, capture and control of 
emissions, design and work practice standards, and operational 
standards. This list of items is included in the definition of 
``control technology'' in Sec. 63.51 of today's rule.
    Section 112(d) also imposes certain minimum requirements on the 
determination of ``maximum achievable control technology.'' 
Collectively, these minimum requirements are defined in the rule as the 
``MACT floor.''
    For existing emission units, the MACT floor for the case-by-case 
determination, consistent with section 112(d) of the Act, is an 
emission limitation equal to the average emission limitation achieved 
by the best performing 12 percent of existing sources in the category 
for categories or subcategories with 30 or more sources, or the average 
emission limitation achieved by the best 5 sources for categories with 
fewer than 30 sources.
    In rules currently under development, the EPA is considering two 
interpretations of the statutory language concerning the MACT floor for 
existing sources. One interpretation groups the words ``average 
emission limitation achieved by'' the best performing 12 percent. This 
interpretation places the emphasis on ``average.'' It would correspond 
to first identifying the best performing 12 percent of the existing 
sources, then determining the average emission limitation achieved by 
these sources as a group. Another interpretation groups the words 
``average emission limitation'' into a single phrase and asks what 
``average emission limitation'' is ``achieved by'' all members of the 
best performing 12 percent. In this case, the ``average emission 
limitation'' might be interpreted as the average reduction across the 
HAP emitted by an emission point over time. Under this interpretation, 
the EPA would look at the average emission limits achieved by each of 
the best performing 12 percent of existing sources, and take the 
lowest. This interpretation would correspond to the level of control 
achieved by the source at the 88th percentile if all sources were 
ranked from the most controlled (100th percentile) to the least 
controlled (1st percentile).
    The EPA has proposed to adopt the first interpretation and has 
solicited comment in other rulemakings on its interpretation of ``the 
average emission limitation achieved by the best performing 12 percent 
of existing sources'' (section 112(d)(3)(A) of the Act). The guidance 
document, MACT Determinations under Section 112(j) (EPA-450/3-92-007a), 
explains how a MACT floor might be determined using EPA's proposed 
interpretation. Should the EPA adopt a different methodology for 
determining the MACT floor, the guidance document will be amended to 
explain this approach.
    The MACT floor for existing sources also takes into account sources 
achieving the ``lowest achievable emission rate'' (LAER) as defined for 
the criteria pollutant new source review program under section 171 of 
the Act, and excludes these limitations from the floor calculation for 
sources who have achieved LAER within 18 months before proposal or 
within 30 months before promulgation of a standard. The EPA interprets 
the ``best performing 12 percent'' to mean the best performing 12 
percent of sources in the United States, because all sources in each 
category are in the United States. The phrase ``in the United States'' 
is added to the existing source MACT floor definition in order to 
clarify that territories and possessions of the United States are 
included.
    When a MACT floor has been determined by EPA or the permitting 
authority, the rule requires that the MACT emission limitation achieve 
an equal or greater level of control than that MACT floor. In 
determining whether to require a MACT emission limitation that achieves 
a level of control greater than the MACT floor, the permitting 
authority should consider the costs, non-air quality health and 
environmental impacts and energy requirements of achieving that level 
of control. (See section 112(d)(2) of the Act).
    For new emission units, the MACT floor for a case-by-case MACT 
determination, consistent with section 112(d), is the level of control 
that is achieved in practice by the best controlled similar source. The 
EPA believes that the legislative history of section 112 suggests that 
the ``best controlled similar source'' could be located outside of the 
United States. See, Statement of Senator Durenberger, Cong. Rec. S. 
17239 (October 26, 1990). The definition of MACT floor for new source 
MACT is therefore not restricted to sources in the United States, but 
could instead be based on a technology known to be used in practice on 
a similar source located anywhere.
    The Act states that ``the maximum degree of reduction that is 
deemed achievable for new sources in a category or subcategory shall 
not be less stringent than the emission control that is achieved in 
practice by the best controlled similar source, as defined by the 
Administrator.'' The Act does not specifically define the term ``best 
controlled similar source.'' In addition, unlike for existing sources 
for which the Act states, `` the average emission limitation achieved 
by the best performing 12 percent of the existing sources * * * in the 
category or subcategory for categories or subcategories with 30 or more 
sources,'' the Act does not specifically indicate that the 
determination of the best controlled similar source should be limited 
to sources within that same source category. The guidance document 
``MACT Determinations under Section 112(j)'' provides a detailed 
discussion of the criteria that should be used to determine if a source 
is ``similar.''
    The EPA believes that because the Act specifically indicates that 
existing source MACT should be determined from within the source 
category, and does not make this distinction for new source MACT, that 
Congress intends for transfer technologies to be considered when 
establishing the minimum criteria for new sources. The EPA also 
believes that the use of the word ``similar'' provides additional 
support for this interpretation. The EPA believes that Congress could 
have explicitly restricted the minimum level of control for new 
sources, but did not. The use of the term ``best controlled similar 
source'' rather than ``best controlled source within the source 
category'' suggests that the intent is to require a consideration of 
transfer technologies when appropriate.
    The EPA believes that there will be cases when such technology 
transfers are entirely reasonable. For example, suppose that the best 
controlled tank within a source category did not have state-of-the-art 
controls. Yet, tanks from outside the source category storing similar 
organic liquids use state-of-the-art controls vented to an emission 
control device. The EPA believes that such tanks are clearly 
``similar'' within the language of section 112(d). The EPA also 
believes that the Act does not compel all such technology transfers in 
all cases, and that emission types and the ability to install such 
controls are strong factors in determining when sources should be 
considered similar. For example, within source category X, spray booths 
tend to be uncontrolled due to gas streams with low concentrations and 
relatively high airflows. The EPA does not believe that controls from 
another category should be considered in determining the best 
controlled similar source when emissions from that category's spray 
booths are of high concentration and low airflow. The emissions from 
these sources are clearly not similar. However, if it is 
technologically feasible, these same controls could be considered in 
establishing the new source level of control if consideration is given 
to cost, non-air quality health and environmental impacts and energy 
requirements.

Subcategorization

    When the notice of initial list of categories of sources under 
section 112(c)(1) of the Act was published in the Federal Register (57 
FR 31579), the EPA listed broad categories of major and area sources 
rather than narrowly defined categories. The EPA chose to establish 
broad source categories at the time the source category list was 
developed because there was too little information to anticipate 
specific groupings of similar sources that are appropriate for defining 
MACT floors for the purposes of establishing emission standards. During 
the standard setting process, the EPA may find it appropriate to 
further divide categories to distinguish among classes, types and sizes 
of sources, as the Act provides.
    The lack of subcategorization and broad nature of the source 
category may pose some difficulty in establishing a case-by-case 
emission limitation. The source category list contains categories that 
will regulate more than one process type. It may be appropriate to 
consider all process and emission units as one source when determining 
the MACT floor level of control; or, after gathering information on the 
source category, the EPA may find that, where there are basic 
technological differences between different types of processes or 
emission units, grouping all units into one source category is 
inappropriate and a more accurate and realistic MACT floor finding can 
be made by subcategorizing the industry. Criteria to consider include 
air pollution control differences, process operation (including 
differences between batch and continuous operation), emission 
characteristics, control device applicability and costs, safety, and 
opportunities for pollution prevention.
    Several commenters encouraged EPA to further subcategorize the 
source category list for the purposes of case-by-case MACT 
determinations. While this option may provide for the greatest 
consistency in MACT determinations from all permitting authorities, the 
feasibility of this option is questionable. The EPA did not 
subcategorize source categories because there was insufficient 
information to properly characterize each source category at the time 
the source category list was developed under section 112(c)(1). 
Although additional information may be collected for a given category 
before the section 112(j) deadline, such information may not always be 
sufficient to support subcategorization.
    Information burden/MACT floor finding. A significant issue for this 
rulemaking is how to avoid placing unmanageable information-gathering 
burdens on sources and permitting authorities while ensuring that 
emissions limitations under section 112(j) are equivalent to standards 
that the EPA would have issued. Commenters raised a variety of concerns 
about the resource burden, legality, and sensibility of requiring each 
individual source to provide its own MACT floor determination in its 
permit application.
    Because all section 112(j) MACT determinations occur for a 
particular source category within a limited time frame, the EPA agrees 
that it would be duplicative and burdensome for each individual source 
to initiate a MACT floor finding, and that it would be more efficient 
and consistent for EPA or permitting agencies to determine the MACT 
floor.
    In addition, consistent MACT determinations across sources are in 
the interests of both sources and permitting agencies. MACT 
determinations would be more likely to be at least as stringent as the 
eventual section 112(d) standard if either EPA or the permitting 
agency, as opposed to each individual source, provided the initial 
floor analysis. If the MACT floor is not determined consistently under 
section 112(j), then chances increase that some sources would install 
controls under section 112(j) that do not achieve an emission 
limitation equivalent to eventual section 112(d) requirements. These 
sources would then be required later to retrofit the emission unit with 
different controls when the section 112(d) MACT standard is eventually 
promulgated (once the compliance extension provided for in Sec. 63.56 
has expired).
    If section 112(j) requirements are triggered, the EPA anticipates 
that a substantial amount of information on the source category will 
have been collected, allowing EPA to conduct a MACT floor analysis. 
When it appears that the section 112(j) requirements will take effect, 
the EPA intends to make the findings of this analysis available to the 
public. For example, the floor determination may be readily available 
in EPA-developed Background Information Document (BID). The EPA 
believes that for such cases it would be reasonable to expect that such 
a BID would be taken into consideration in establishing a case-by-case 
MACT emission limitation. Regardless of the format in which the MACT 
floor finding is presented, the EPA expects that its finding would 
include the EPA's view of the definition of source or emission unit, as 
well as a delineation of applicable subcategories. However, nothing in 
today's rule should be read to diminish the discretion of the 
permitting authority to use its own floor finding, if the permitting 
authority can present evidence for a MACT floor finding different from 
that which the EPA has determined. Such evidence could be, for example, 
data provided by affected owners or operators that supports a 
correction to the EPA's MACT floor finding.
    Although the EPA believes that it holds the greatest responsibility 
for making MACT floor findings and MACT determinations available in 
cases where the requirements of section 112(j) are triggered, the EPA 
must still provide for those instances in which a MACT floor 
determination will not be available at the time of the section 112(j) 
deadline. The EPA agrees with commenters who argue, as outlined above, 
that in such cases the burden for making MACT floor findings should 
rest with the permitting agency, not the individual applicant. (In such 
cases, the EPA may still have collected a great deal of information on 
the industry, which the EPA anticipates sharing with permitting 
agencies).
    Section 63.55(a)(3) provides that if neither the EPA nor the 
permitting authority makes a MACT floor finding by the section 112(j) 
deadline, then the source shall submit a permit application, by the 
section 112(j) deadline, that will be considered complete if it 
contains all relevant information on emissions and controls (as set out 
in Sec. 63.53(b)(1)..(9)), but no MACT floor finding or MACT 
determination. Section 63.55(a)(3)(i) adds that the source may choose 
to include a recommended MACT determination in its permit application.
    Section 63.55(b) provides that the source's final permit must 
contain a MACT determination which, based on information ``available to 
or generated by'' the permitting authority, is at least as stringent as 
the MACT floor. In cases where a floor has not been established by the 
section 112(j) deadline by the EPA, the EPA believes that the data 
collected in the permit application process, in combination with 
information already collected by the EPA, can be used to establish 
minimum requirements for permits. The EPA envisions that permitting 
agencies can share information received in these applications, and that 
such information will be reported to EPA's national database. In 
addition, information generated by industry trade groups and the public 
may be of assistance.
    The proposed rule contained a requirement for permitting 
authorities to submit copies to the Administrator of all Notice of MACT 
Approvals or Title V permits within 60 days of issuance. The EPA 
received many comments affirming the need for a mandatory reporting 
requirement to a National database. Commenters believe this is 
necessary to assure that the information used to determine the MACT 
floor is representative of the full range and frequency of controls 
achieved by sources in the category or subcategory. The EPA agrees that 
information should be submitted to the Administrator to facilitate 
information exchange between the permitting agencies making section 
112(j) MACT determinations. However, the EPA believes that this 
information would be most useful if received before issuance of the 
permit or Notice of MACT Approval. Therefore, Sec. 6.55(c) has been 
changed to require owners or operator to provide, to the Administrator, 
an additional copy of any Notice of MACT Approval or title V permit 
submitted to a permitting authority to comply with the requirements of 
this rule.
    The EPA considered requiring that, in each permit application, the 
owner or operator would make a control technology recommendation 
evaluating the impacts of alternative control levels and evaluating 
whether, in its judgement, the recommended control technology achieves 
emission reductions equal to or greater than the MACT floor. The EPA is 
concerned that, while such a requirement would satisfy the requirements 
of the Act, it may be overly burdensome to require each affected owner 
to prepare a separate analysis of costs, environmental impacts, etc., 
needed for such a recommendation.
    In today's rule, owners and operators are strongly encouraged to 
provide such recommendations at the time of the application, but are 
not required to do so. At a minimum, however, the owner or operator is 
required to submit information on HAP emissions and current controls 
for each emission point, as well as any additional information deemed 
necessary by the permitting authority to evaluate control alternatives.
    The EPA wishes to clarify that the requirements in Sec. 63.53 
(b)(8) and (b)(9) to list emission rates is intended as background 
information to enable the permitting authority to identify the 
pollutants requiring MACT controls. The EPA recognizes that there is 
often a significant effort required to obtain precise estimates of HAP 
emission rates and speciation. The EPA does not intend in this 
paragraph to require a greater level of detail than is necessary for 
evaluating applicability and emission control issues.
    The EPA envisions, in cases where a MACT determination has not been 
provided by the Administrator, that a multi-stage process will be 
involved before issuance of the final title V permit. For the first 
stage, affected owners and operators would submit an initial 
application identifying the current level of control and data pertinent 
to the evaluation of control alternatives. Permitting authorities would 
review the application and provide the owner or operator with feedback 
on any additional information required. The owner or operator would be 
required to supply complete information no later than 6 months from the 
date of the initial application. For the second stage, the permitting 
authority would, in tandem with other permitting authorities, determine 
an emission limitation for each application that represents a MACT 
emission limitation for each emission unit. In the last stage, the 
emission limitation would be formally incorporated into the permit 
through the normal title V processes (public review, etc.)

G. Section 63.56--Requirements After Promulgation of a Subsequent 
Standard Under Section 112(d).

    Section 63.56 of today's rule sets out requirements for 
incorporating subsequent standards into an operating permit after the 
owner or operator has submitted a permit application for a section 
112(j) case-by-case MACT determination, or after a case-by-case MACT 
determination has been made under section 112(j). Section 63.56 
implements the specific requirements of subsection 112(j)(6) of the 
Act.
    Section 63.56 provides, as required in the Act, that if the EPA 
promulgates a section 112(d) standard for a source category before 
approval of a section 112(j) permit application for a source in that 
source category, then the permit must reflect the section 112(d) 
standard. New sources must comply upon startup with the section 112(d) 
rule except that, if the MACT standard is more stringent than the 
proposal, sources commencing construction or reconstruction between 
proposal and promulgation may comply with the proposal for 3 years, 
then meet the final MACT standard.
    If EPA promulgates a section 112(d) standard after issuance of a 
section 112(j) permit for a source in the relevant source category, 
then the permit must be revised upon renewal to reflect the section 
112(d) standard. However, the compliance period must be no longer than 
a total of 8 years from the initial section 112(j) compliance date, or 
the section 112(d) promulgation date, whichever is earlier.
    Paragraph 63.56(c) clarifies a permitting authority's 
responsibilities when a case-by-case MACT standard is more stringent 
than a subsequent section 112(d) standard, and a permit containing that 
case-by-case standard has been issued. In that instance, the permitting 
authority is not required to revise the permit to reflect the less 
stringent section 112(d) standard, but may presume that the more 
stringent case-by-case determination satisfies the requirements of both 
section 112(j) and section 112(d). The EPA believes that nothing in 
section 112 of the Clean Air Act requires pre-emption of these more 
stringent State standards. The initial responsibility for determining 
whether a case-by-case MACT determination is more stringent rests with 
the permitting authority. The permitting authority should expect that 
EPA, in reviewing the permit at permit renewal, would look to the 
criteria in subpart E for guidance in approving this determination.

IV. Discussion of the Relationship of Today's Rule to Other 
Requirements of the Act

A. Section 112(g) Requirements for Constructed, Reconstructed, and 
Modified Major Sources; and Subsequent Standards Under Section 112(d) 
or Section 112(h)

    States and sources implementing the requirements of section 112 of 
the Clean Air Act need to understand the potentially complex 
relationships among several interlocking provisions. At proposal the 
EPA requested comment on different interpretations of the relationship 
among the requirements of sections 112 (d), (g) and (j).
Internal Consistency
    As discussed in section II.C. of this preamble, 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 
section 112(d) standards for those same source categories. In addition, 
the Agency desires to rationalize the section 112(j) provisions with 
the section 112(g) provisions requiring case-by-case MACT 
determinations for constructed, reconstructed, and modified major 
sources. While some of the specific substantive requirements of section 
112(g) differ from the substantive requirements of section 112(j) and 
section 112(d), the EPA intends to ensure the greatest possible 
consistency among sections 112 (d), (g), and (j) provisions. This 
discussion outlines EPA's preferred approach in implementing section 
112(g) and achieving a consistent relationship across sections 112(d), 
112(g), and 112(j). EPA recently proposed a rule implementing section 
112(g) and a final determination on the relationship between these 
provisions will be made in that rulemaking.
    One fundamental principal guiding the design of regulations under 
all three provisions is that case-by-case maximum achievable control 
technology requirements under section 112(g) are applicable only until 
the effective date of a section 112(j) or section 112(d) standard for a 
source category. After the effective date of a section 112(j) or a 
section 112(d) MACT standard, any more stringent emission limitations 
required under section 112(j) or section 112(d) supersede the specific 
emission limitations required under section 112(g).
    The EPA considered an alternative approach, i.e. the finding that 
section 112(g) governs all changes and additions of new emission units 
at existing sources whether or not a section 112 (d) or (j) standard 
exists. This issue generated numerous comments. Some commenters argue 
that the requirements of section 112(g) should not be superseded when a 
MACT emission limitation is established under either section 112(j) or 
section 112(d) is promulgated. A few commenters argue that a control 
technology selected for a particular standard under section 112 (j) or 
(d) should not remain fixed, and that the way to continually require 
better controls is through section 112(g). Others argue that because 
section 112(j) does not contain the word ``modification'', that all 
modifications should be handled by section 112(g).
    Many argue that EPA's approach to coordinating sections section 112 
(j), (d), and (g) would result in unnecessary regulatory burdens, such 
as: (1) regulating sources that emit below ``de minimis'' amounts under 
section 112(g) as new sources, (2) stifling technological advance and 
delay needed process changes through over-regulation, and (3) 
subjecting some sources to repeated MACT determinations, and perhaps 
forcing sources to replace controls required under section 112(g) with 
controls required under section 112(j).
    Other commenters endorsed EPA's approach to coordinating section 
112(j), (g), and (d), by asserting that since section 112(j) standards 
will apply to an entire source category, it is important that they be 
established according to a philosophy compatible with section 112(d).
    The EPA recognizes that changes to a source subject to a section 
112(d) MACT standard will be subject to the same control requirements 
that already apply under section 112(d). The EPA believes that section 
112(g) establishes case-by-case MACT to cover those major sources who 
make modifications before a promulgated MACT standard applies. 
Therefore consistency would suggest that similarly, changes to a source 
subject to a case-by-case MACT standard under section 112(j)--which 
acts in place of a section 112(d) standard--should be subject to the 
same control requirements that already apply under section 112(j). 
While under this approach section 112(g) continues to require 
assessment of whether a modification has occurred after a section 
112(d) or section 112(j) standard is in effect, it will not dictate the 
level of control when the requirements of section 112(d) or section 
112(j) are more stringent. The EPA believes that the internal 
consistency of this approach would yield a more consistent application 
of controls on major sources than would prolonging the use of case-by-
case MACT under section 112(g).
    Moreover the EPA does not intend that case-by-case controls applied 
under section 112(j) will result in subjecting sources to repeating and 
conflicting MACT determinations. The EPA expects that case-by-case MACT 
determinations under section 112(j) will require updates to those made 
under section 112(g) only in rare cases.
    A further reason for rejecting the approach that section 112(g) 
control extends to sources covered by more stringent section 112(d) or 
section 112(j) standards is that it leads to the conclusion that many 
new sources within the section 112(a)(4) definition of new source would 
forever escape having to apply a new source MACT level of control.
    Section 112(a)(4) defines a new source as ``a stationary source the 
construction or reconstruction of which is commenced after the 
Administrator first proposes regulations under this section 
establishing an emission standard applicable to such source.'' Thus, 
once a standard has been set under section 112(d), any new source will 
be subject to new source MACT. The MACT standard will define the 
portion of a facility that is considered a ``source'' for the purposes 
of the particular standard. Such source may be either an entire major 
source, or one or more sources within the major source. (Of course a 
MACT standard can also be set for area sources, which are stationary 
sources that are not part of a major source; but as section 112(j) does 
not apply to area sources, that is not relevant here).
    Section 112 (g) applies to construction, reconstruction, or 
modification of major sources, and in many cases will have an effect on 
sources earlier than section 112 (d) or (j) standards. However, section 
112 (g) only requires new source MACT on ``constructed'' major sources, 
and considers any other new emission unit to be a modification of an 
existing major source. As a ``modification,'' such a new emission unit 
will be required to apply for existing source case-by-case MACT 
determination under section 112(g). Therefore if section 112(g) were to 
constrain the application of a subsequent section 112(j) or section 
112(d) standard, many new emission units under the section 112(a)(4) 
definition of ``new source'' would never be required to comply with new 
source MACT.
    In addition, under section 112(g) a new emission unit might not 
even be required to meet an existing source MACT level of control. 
Section 112(g) allows for modifications to either: (1) comply with a 
case-by-case ``existing source'' MACT determination under section 
112(g); (2) offset emissions increases in lieu of applying section 
112(g) existing source MACT requirements; or (3) if its emissions were 
below section 112(g) de minimis levels, not be subject to any control 
requirements at all. The EPA believes that section 112(g) thus provides 
major sources with a great deal of needed flexibility before sections 
112 (d) or (j) standards are set; but that once those standards are in 
place the Act intends that these sources must comply with the specific 
control technology requirements of those standards instead of those of 
section 112(g).
    Finally, the interpretation that section 112(g) governs the control 
requirements on new emission units at major sources to which section 
112 (d) or (j) standards already apply would have some anomalous 
implications. One example would be a new emission unit whose emissions 
are below section 112(g) de minimis levels for a particular hazardous 
air pollutant. If that emission unit were added to a major source, it 
would be exempt from the requirements of section 112(g), but would be 
required to apply new source MACT control under section 112(j). 
However, if that emission unit were not below section 112(g) de minimis 
levels, it would be required to comply with section 112(g). If section 
112(g) requirements limit the application of section 112(j), then the 
source would be required to apply existing source MACT. In this 
instance, a smaller emission unit would be required to control more 
stringently than a larger emission unit.
    Another example of anomalies resulting from this reading of the 
statute would be a section 112(d) standard that sets new source MACT 
for new area sources in a source category. Under this reading, major 
sources adding new sources could avoid new source MACT, but any new 
area source would have to meet new source MACT. Again, a smaller unit 
would be required to control more stringently than a larger emission 
unit.
    Several commenters argue that the requirements of section 112(j) 
should only apply to new and existing major sources once, at the time 
the hammer falls, and that subsequent construction of new major 
sources, or additions to existing major sources should not be subject 
to section 112(j) requirements. These commenters state that such 
subsequent changes should be governed by section 112(g) requirements.
    The EPA does not believe that section 112(j) is only applicable at 
the time that the hammer falls. Section 112(j) is intended to take the 
place of section 112(d) standards, and thus should apply to all sources 
in the relevant category until the section 112(d) standard takes over. 
Thus, a new source constructed after the hammer date, but before a MACT 
standard is promulgated, should be subject to section 112(j) to the 
same extent as a source that is covered by section 112(j) on the date 
the hammer falls.
    The EPA believes that under its preferred approach, the substantive 
control requirements of section 112(g) would be pre-empted by the more 
stringent requirements of a relevant section 112(j) or section 112(d) 
standard. Relying on section 112(g) to cover new emission units after 
the section 112(j) deadline is insufficient because it does not require 
application of the equivalent of section 112(d) standards to all 
sources in the relevant source category.
    Similarly, some commenters argue that if a major source has 
complied with section 112(g), it should have to do no more under 
section 112(j). Under the EPA's preferred approach, in most cases 
compliance with section 112(g) will be sufficient under section 112(j), 
but there are some situations where section 112(j) may require more 
control. For example, an existing major source that has been modified 
and has met case-by-case MACT under section 112(g) may not have 
installed MACT on all emission units in a given source category, 
because some emission units may have offset out of control, and 
emission units below section 112(g) de minimis emission rates will not 
have applied control. Under the EPA's preferred approach, section 
112(j) would require case-by-case MACT on all the emission units within 
the major source that are included in the category for which the 
section 112(j) deadline has passed. However in most cases where 
existing source MACT controls have been applied under section 112(g), 
those controls under section 112(g) will suffice for emission units 
required to install existing source MACT under section 112(j). (There 
may be rare cases where section 112(j) will require new source MACT on 
some emission units that only have to meet existing source MACT under 
section 112(g). For example, an emission unit constructed after 
proposal of a section 112(d) MACT standard, but before the section 
112(j) deadline, would have to meet existing source MACT under section 
112(g) and later new source MACT under section 112(j). This distinction 
will require more stringent control in cases where the permitting 
authority finds new source MACT to be more stringent than existing 
source MACT). Again, this discussion outlines the EPA's preferred 
approach in implementing section 112(g) and achieving a consistent 
relationship across sections 112(d), 112(g), and 112(j). The EPA 
recently proposed a rule implementing section 112(g) and a final 
determination on the relationship between these provisions will be made 
in that rulemaking.
    Administrative consistency. Voluntary administrative procedures for 
new sources under section 112(j), as outlined in Sec. 63.54 of today's 
rule, are intended to be analogous to administrative requirements that 
will be established for modified, constructed, and reconstructed 
sources under section 112(g) of the Act. These requirements were 
proposed in Sec. 63.40 through 63.48 of this subpart, at 59 FR 15504 
(April 1, 1994).
    Figure 1 illustrates the link between the voluntary section 112(j) 
preconstruction review process and the proposed section 112(g) 
administrative requirements. Although the EPA believes that section 
112(j) does not provide authority for an upfront review of all new 
sources, the EPA believes, as a matter of policy, that whether 
preconstruction or pre-operation review is done under the authority of 
section 112(g) or section 112(j), the MACT determination can be 
incorporated directly into the title V permit by administrative 
amendment if the review process contains the elements necessary to make 
it an ``enhanced'' process, as discussed in section III.C. of this 
preamble.
    Before the section 112(j) deadline, such sources will be required 
to make a case-by-case MACT determination under section 112(g). After 
the section 112(j) deadline, these sources will be required to make a 
case-by-case MACT determination under section 112(j). Many of these 
sources may still be subject to preconstruction or pre-operation review 
under section 112(g). Sources applying for approval of a case-by-case 
MACT determination under section 112(g), but who will be subject to 
section 112(j) new source MACT, need to know this before they 
construct, in order to install the right equipment.
    In addition there will be new sources that may not be covered by 
section 112(g), but who may be required to install new source MACT 
under section 112(j). For example, an owner/operator may intend to make 
an offset showing that would avoid a case-by-case MACT determination 
under section 112(g). Or a new unit's emissions may fall below a 
section 112(g) de minimis level for a specific pollutant. In both of 
these cases, the owner or operator should know in advance of the 
section 112(j) deadline that they may be required to install new source 
MACT under section 112(j).
    Therefore, any owner or operator planning to construct a new major 
source, or any existing major source planning to install a new emission 
unit after a scheduled promulgation date for a source category, is 
encouraged to undergo ``enhanced'' preconstruction or pre-operation 
review under section 112(j). This is the only way to satisfy the 
requirements of title V to allow incorporation of section 112(j) MACT 
emission limits in the operating permit by administrative amendment.

B. Section 112(l)  Delegation Process

    Under section 112(l) of the Act, States have the option of 
developing and submitting to the Administrator a program for 
implementing the requirements of section 112, including section 112(j). 
The EPA rule implementing section 112(l) is contained in Sec. 63.90 
through Sec. 63.96 of 40 CFR part 63.
    The EPA believes that section 112(l) approvals do not have a great 
deal of overlap with the section 112(j) provision, because section 
112(j) is designed to use the title V permit process as the primary 
vehicle for establishing requirements. There may be, however, some 
instances where section 112(l) approvals could streamline the process. 
For example, a State may have an existing rule for a source category 
for which it could be demonstrated that all sources are achieving a 
level of control no less stringent than required under the case-by-case 
MACT requirements of section 112(j). The EPA believes that there may be 
advantages in obtaining approval under subpart E for such instances.

C. Section 112(i)(5)  Early Reductions Program

    Section 112(i)(5) of the Act allows EPA to grant a source a 6 year 
compliance extension from a section 112(d) MACT standard if the source 
achieves ``early reductions'' of its emissions. An early reduction is 
defined as a 90 percent reduction in a source's hazardous air pollutant 
emissions (95 percent reduction in a source's particulate emissions) 
before the relevant MACT standard is proposed. The source's commitment 
to achieve early reductions must be federally enforceable, must be 
included in the title V permit, and must be submitted to EPA within 120 
days of establishment of a title V permit program, or, if later, before 
the relevant section 112(d) standard for that source category is 
proposed. These commitments to reduce emissions early become classified 
as alternative emission limitations throughout the 6 year extension 
period. Alternative emission limitations are the ``applicable emission 
requirements'' for the early reduction source.
    However, Sec. 63.52(c) provides that an alternative emission 
limitation established for the purpose of early reduction credit can be 
included as a MACT emission limitation in the permit, so long as the 
reduction was achieved by the date established in the source category 
schedule for standards. This requirement is established pursuant to the 
specific provisions of section 112(j)(5).

V. Administrative Requirements

A. Docket

    The docket for this regulatory action is A-93-32. The docket is an 
organized and complete file of all the information submitted to, or 
otherwise considered by, EPA in the development of this rulemaking. The 
principal purposes of the docket are:
    (1) To allow interested parties a means to identify and locate 
documents so that they can effectively participate in the rulemaking 
process, and
    (2) To serve as the record in case of judicial review. The docket 
is available for public inspection at the EPA's Air Docket, which is 
listed under the ADDRESSES section of this document.

B. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, 10/04/94), 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'' regulatory action as one that 
is likely to lead to a rule that may:
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely and materially affect 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 serous 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 obligation of recipients 
thereof;
    (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.
    Pursuant to the terms of Executive Order 12866, the EPA has 
determined that this action is a ``significant regulatory action'' 
within the meaning of the Executive Order, because it may materially 
affect the environment, public health, and State and local governments. 
For this reason, this action was submitted to the OMB for review. 
Changes made in response to the OMB's suggestions or recommendations 
will be documented in the public record.
    Any written comments from OMB to the EPA and any written EPA 
response to any of those comments will be included in the docket listed 
at the beginning of today's notice under ADDRESSES. The docket is 
available for public inspection at the EPA Air Docket Section, (LE-
131), ATTN: Docket No. A-93-32, U.S. Environmental Protection Agency, 
401 M St., SW., Washington, DC 20460.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et. seq.) requires the 
EPA to consider potential impacts of proposed regulations on small 
entities. If a preliminary analysis indicates that a proposed 
regulation would have a significant economic impact on 20 percent or 
more of small entities, then a regulatory flexibility analysis must be 
prepared.
    Present Regulatory Flexibility Act guidelines indicate that an 
economic impact should be considered significant if it meets one of the 
following criteria: (1) Compliance increases annual production costs by 
more than 5 percent, assuming costs are passed on to consumers; (2) 
compliance costs as a percentage of sales for small entities are at 
least 10 percent more than compliance costs as a percentage of sales 
for large entities; (3) capital costs of compliance represent a 
``significant'' portion of capital available to small entities, 
considering internal cash flow plus external financial capabilities; or 
(4) regulatory requirements are likely to result in closures of small 
entities.
    This regulation does not affect a significant number of small 
businesses, small governmental jurisdictions, or small institutions, 
because this regulation only affects major sources of hazardous air 
pollutants. Pursuant to the provisions of 5 U.S.C. 605(b), I hereby 
certify that today's rule will not have a significant economic impact 
on a substantial number of small entities.

D. Paperwork Reduction Act

    The information collection requirements in this rule have been 
approved by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and has been assigned 
the OMB control no. 2060-0266. An Information Collection Request (ICR) 
document has been prepared by the EPA (ICR No. 1648.01), and a copy may 
be obtained from Sandy Farmer, Information Policy Branch (PM-2136), 
U.S. Environmental Protection Agency, 401 M Street SW., Washington, DC 
20460, or by calling (202) 260-2740.
    This collection of information is estimated to have an average 
annual public reporting burden of approximately 200 hours per 
respondent. This includes time for reviewing instructions, searching 
existing data sources, gathering and maintaining the data needed, and 
completing and reviewing the collection of information.
    Send comments regarding the burden estimate or any other aspect of 
this collection of information, including suggestions for reducing this 
burden to Chief, Information Policy Branch (PM-2136), U.S. 
Environmental Protection Agency, 401 M Street SW., Washington, DC 
20460; and to the Office of Information and Regulatory Affairs, Office 
of Management and Budget, Washington, DC 20503, marked ``Attention: 
Desk Officer for EPA.''

List of Subjects

40 CFR Part 9

    Reporting and recordkeeping requirements.

40 CFR Part 63

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

    Dated: April 29, 1994.
Carol M. Browner,
Administrator.

    For the reasons set out in the preamble, title 40, chapter I, of 
the Code of Federal Regulations is amended as follows:

PART 9--[AMENDED]

    1. The authority citation for part 9 continues to read as follows:

    Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003, 
2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33 
U.S.C. 1251 et seq., 1311, 1313d, 1314, 1321, 1326, 1330, 1344, 1345 
(d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 1971-1975 Comp. 
p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g, 300g-1, 300g-2, 
300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2, 300j-3, 300j-4, 
300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 7542, 9601-9657, 
11023, 11048.

    2. Section 9.1 is amended by adding a new entry to the table under 
the indicated heading to read as follows:


Sec. 9.1   OMB approvals under the Paperwork Reduction Act.

* * * * *

------------------------------------------------------------------------
                  40 CFR citation                      OMB control No.  
------------------------------------------------------------------------
                                                                        
                                  *****                                 
National Emission Standards for Hazardous Air                           
 Pollutants for Source Categories:                                      
63.52-63.56.......................................  2060-0266           
                                                                        
                                  *****                                 
------------------------------------------------------------------------

PART 63--[AMENDED]

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

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

    2. Part 63 is amended by adding a new subpart B, consisting of 
Secs. 63.40 through 63.56 to read as follows:

Subpart B--Requirements for Control Technology Determinations for Major 
Sources in Accordance With Clean Air Act Sections, Sections 112(g) and 
112(j)

Sec.
63.40-63.49  [Reserved]
63.50  Applicability.
63.51  Definitions.
63.52  Approval process for new and existing emission units.
63.53  Application content for case-by-case MACT determinations.
63.54  Preconstruction review procedures for new emission units.
63.55  Maximum achievable control technology (MACT) determinations 
for emission units subject to case-by-case determination of 
equivalent emission limitations.
63.56  Requirements for case-by-case determination of equivalent 
emission limitations after promulgation of a subsequent MACT 
standard.

Subpart B--Requirements for Control Technology Determinations for 
Major Sources in Accordance With Clean Air Act Sections, Sections 
112(g) and 112(j)


Secs. 63.40-63.49  [Reserved]


Sec. 63.50  Applicability.

    (a) General applicability. The requirements of Secs. 63.50 through 
63.56 implement section 112(j) of the Clean Air Act (as amended in 
1990). The requirements of Secs. 63.50 through 63.56 apply in each 
State beginning on the effective date of an approved title V permit 
program in such State. These requirements apply to the owner or 
operator of a major source of hazardous air pollutants which includes 
one or more stationary sources included in a source category or 
subcategory for which the Administrator has failed to promulgate an 
emission standard under this part by the section 112(j) deadline.
    (b) Relationship to State and local requirements. Nothing in 
Secs. 63.50 through 63.56 shall prevent a State or local regulatory 
agency from imposing more stringent requirements than those contained 
in these subsections.
    (c) Retention of State permit program approval. In order to retain 
State permit program approval, a State must, by the section 112(j) 
deadline for a source category, obtain sufficient legal authority to 
establish equivalent emission limitations, to incorporate those 
requirements into a title V permit, and to incorporate and enforce 
other requirements of section 112(j).


Sec. 63.51  Definitions.

    Terms used in Secs. 63.50 through 63.56 of this subpart that are 
not defined below have the meaning given to them in the Act, in subpart 
A of this part.
    Available information means, for purposes of conducting a MACT 
floor finding and identifying control technology options for emission 
units subject to the provisions of this subpart, information contained 
in the following information sources as of the section 112(j) deadline:
    (1) A relevant proposed regulation, including all supporting 
information;
    (2) Background information documents for a draft or proposed 
regulation;
    (3) Any regulation, information or guidance collected by the 
Administrator establishing a MACT floor finding
and/or MACT determination;
    (4) Data and information available from the Control Technology 
Center developed pursuant to section 112(l)(3) of the Act, and
    (5) Data and information contained in the Aerometric Informational 
Retrieval System (AIRS) including information in the MACT database, and
    (6) Any additional information that can be expeditiously provided 
by the Administrator, and
    (7) Any information provided by applicants in an application for a 
permit, permit modification, administrative amendment, or Notice of 
MACT Approval pursuant to the requirements of this subpart.
    (8) Any additional relevant information provided by the applicant.
    Control technology means measures, processes, methods, systems, or 
techniques to limit the emission of hazardous air pollutants including, 
but not limited to, measures which:
    (1) Reduce the quantity, or eliminate emissions, of such pollutants 
through process changes, substitution of materials or other 
modifications;
    (2) Enclose systems or processes to eliminate emissions;
    (3) Collect, capture, or treat such pollutants when released from a 
process, stack, storage or fugitive emissions point;
    (4) Are design, equipment, work practice, or operational standards 
(including requirements for operator training or certification) as 
provided in 42 USC 7412(h); or
    (5) Are a combination of paragraphs (1) through (4) of this 
definition.
    Emission point means any part or activity of a major source that 
emits or has the potential to emit, under current operational design, 
any hazardous air pollutant.
    Emission unit means any building, structure, facility, or 
installation. This could include an emission point or collection of 
emission points, within a major source, which the permitting authority 
determines is the appropriate entity for making a MACT determination 
under section 112(j), i.e., any of the following:
    (1) An emission point that can be individually controlled.
    (2) The smallest grouping of emission points, that, when collected 
together, can be commonly controlled by a single control device or work 
practice.
    (3) Any grouping of emission points, that, when collected together, 
can be commonly controlled by a single control device or work practice.
    (4) A grouping of emission points that are functionally related. 
Equipment is functionally related if the operation or action for which 
the equipment was specifically designed could not occur without being 
connected with or without relying on the operation of another piece of 
equipment.
    (5) The entire geographical entity comprising a major source in a 
source category subject to a MACT determination under section 112(j).
    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 into the title V 
permit by an administrative amendment.
    Equivalent emission limitation means an emission limitation, 
established under section 112(j) of the Act, which is at least as 
stringent as the MACT standard that EPA would have promulgated under 
section 112(d) or section 112(h) of the Act.
    Existing major source means a major source, construction or 
reconstruction of which is commenced before EPA proposed a standard, 
applicable to the major source, under section 112 (d) or (h), or if no 
proposal was published, then on or before the section 112(j) deadline.
    Maximum achievable control technology (MACT) emission limitation 
for existing sources means the emission limitation reflecting the 
maximum degree of reduction in emissions of hazardous air pollutants 
(including a prohibition on such emissions, where achievable) that the 
Administrator, taking into consideration the cost of achieving such 
emission reductions, and any non-air quality health and environmental 
impacts and energy requirements, determines is achievable by sources in 
the category or subcategory to which such emission standard applies. 
This limitation shall not be less stringent than the MACT floor.
    Maximum achievable control technology (MACT) emission limitation 
for new sources means the emission limitation which is not less 
stringent than the emission limitation achieved in practice by the best 
controlled similar source, and which reflects the maximum degree of 
reduction in emissions of hazardous air pollutants (including a 
prohibition on such emissions, where achievable) that the 
Administrator, 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 sources in 
the category or subcategory to which such emission standard applies.
    Maximum Achievable Control Technology (MACT) floor means:
    (1) For existing sources:
    (i) The average emission limitation achieved by the best performing 
12 percent of the existing sources in the United States (for which the 
Administrator has emissions information), excluding those sources that 
have, within 18 months before the emission standard is proposed or 
within 30 months before such standard is promulgated, whichever is 
later, first achieved a level of emission rate or emission reduction 
which complies, or would comply if the source is not subject to such 
standard, with the lowest achievable emission rate (as defined in 
section 171 of the Act) applicable to the source category and 
prevailing at the time, in the category or subcategory, for categories 
and subcategories of stationary sources with 30 or more sources; or
    (ii) The average emission limitation achieved by the best 
performing five sources in the United States (for which the 
Administrator has or could reasonably obtain emissions information) in 
the category or subcategory, for a category or subcategory of 
stationary sources with fewer than 30 sources;
    (2) For new sources, the emission limitation achieved in practice 
by the best controlled similar source.
    New emission unit means an emission unit for which construction or 
reconstruction is commenced after the section 112(j) deadline, or after 
proposal of a relevant standard under section 112(d) or section 112(h) 
of the Clean Air Act (as amended in 1990), whichever comes first, 
except that, as provided by Sec. 63.52(f)(1), an emission unit, at a 
major source, for which construction or reconstruction is commenced 
before the date upon which the area source becomes a major source, 
shall not be considered a new emission unit if, after the addition of 
such emission unit, the source is still an area source.
    New major source means a major source for which construction or 
reconstruction is commenced after the section 112(j) deadline, or after 
proposal of a relevant standard under section 112(d) or section 112(h) 
of the Clean Air Act (as amended in 1990), whichever comes first.
    Permitting authority means the permitting authority as defined in 
part 70 of this chapter.
    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. The applicable date for categories of major sources is contained 
in the source category schedule for standards.
    Similar source means an emission unit that has comparable emissions 
and is structurally similar in design and capacity to other emission 
units such that the emission units could be controlled using the same 
control technology.
    Source category schedule for standards means the schedule for 
promulgating MACT standards issued pursuant to section 112(e) of the 
Act.
    United States means the United States, its possessions and 
territories.


Sec. 63.52  Approval process for new and existing emission units.

    (a) Application. (1) Except as provided in Sec. 63.52(a)(3), if the 
Administrator fails to promulgate an emission standard under this part 
on or before an applicable section 112(j) deadline for a source 
category or subcategory, the owner or operator of an existing major 
source that includes one or more stationary sources in such category or 
subcategory, shall submit an application for a title V permit or 
application for a significant permit modification, whichever is 
applicable, by the section 112(j) deadline.
    (2) If the Administrator fails to promulgate an emission standard 
under this part on or before an applicable section 112(j) deadline for 
a source category or subcategory, the owner or operator of a new 
emission unit in such source category or subcategory shall submit an 
application for a title V permit or application for a significant 
permit modification or administrative amendment, whichever is 
applicable, in accordance with procedures established under title V.
    (3) (i) The owner or operator of an existing major source that 
already has a title V permit requiring compliance with a limit that 
would meet the requirements of section 112(j) of the Act, shall submit 
an application for an administrative permit amendment, by the section 
112(j) deadline, in accordance with procedures established under title 
V.
    (ii) The owner or operator of a new emission unit that currently 
complies with a federally enforceable alternative emission limitation, 
or has a title V permit that already contains emission limitations 
substantively meeting the requirements of section 112(j), shall submit 
an application for an administrative permit amendment confirming 
compliance with the requirements of section 112(j), in accordance with 
procedures established under title V, and not later than the date 30 
days after the date construction or reconstruction is commenced.
    (4) In addition to meeting the requirements of Sec. 63.52(a)(2), 
the owner or operator of a new emission unit may submit an application 
for a Notice of MACT Approval before construction, pursuant to 
Sec. 63.54.
    (b) Permit review. (1) Permit applications submitted under this 
paragraph will be reviewed and approved or disapproved according to 
procedures established under title V, and any other regulations 
approved under title V in the jurisdiction in which the emission unit 
is located. In the event that the permitting authority disapproves a 
permit application submitted under this paragraph or determines that 
the application is incomplete, the owner or operator shall revise and 
resubmit the application to meet the objections of the permitting 
authority not later than six months after first being notified that the 
application was disapproved or is incomplete.
    (2) If the owner or operator has submitted a timely and complete 
application for a title V permit, significant permit modification, or 
administrative amendment required by this paragraph, any failure to 
have this permit will not be a violation of the requirements of this 
paragraph, 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.
    (c) Emission limitation. The permit or Notice of MACT Approval, 
whichever is applicable, shall contain an equivalent emission 
limitation (or limitations) for that 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 permit or 
Notice of MACT Approval 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 permit or Notice will contain an emission standard or 
emission limitation to control the emissions of hazardous air 
pollutants. The MACT emission limitation will be determined by the 
permitting authority and will 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. Such 
emission limitation will be established consistent with the principles 
contained in Sec. 63.55.
    (2) The permit or Notice will specify any notification, operation 
and maintenance, performance testing, monitoring, reporting and 
recordkeeping requirements. The permit or Notice will include the 
following information:
    (i) In addition to the MACT emission limitation required by 
paragraph (c)(1) of this section, additional emission limits, 
production limits, operational limits or other terms and conditions 
necessary to ensure federal 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, Sec. 63.52(e), and, at the discretion 
of the permitting authority, to subpart A of this part;
    (iii) A statement requiring the owner or operator to comply with 
all requirements contained in subpart A of this part deemed by the 
permitting authority to be applicable;
    (iv) A compliance date(s) by which the owner or operator shall be 
in compliance with the MACT emission limitation, and all other 
applicable terms and conditions of the Notice.
    (d)(1) Compliance date. The owner or operator of an existing major 
source subject to the requirements of this paragraph shall comply with 
the emission limitation(s) established in the source's title V permit. 
In no case will such compliance date exceed 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), or unless otherwise specified in section 
112(i), or in subpart D of this part.
    (2) The owner or operator of a new emission unit subject to the 
requirements of this paragraph shall comply with a new source MACT 
level of control immediately upon issuance of the title V permit for 
the emission unit.
    (e) Enhanced monitoring. In accordance with section 114(a)(3) of 
the Act, monitoring shall be capable of detecting deviations from each 
applicable emission limitation or other standard with sufficient 
reliability and timeliness to determine continuous compliance over the 
applicable reporting period. Such monitoring data may be used as a 
basis for enforcing emission limitations established under this 
subpart.
    (f) Area sources that become major sources. (1) After the effective 
date of this subpart, the owner or operator of a new or existing area 
source that increases its emissions of, or 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 for a title 
V permit or application for a significant permit modification, or 
administrative amendment, whichever is applicable, by the date that 
such source becomes a major source.
    (i) If an existing area source becomes a major source by the 
addition of an emission unit or as a result of reconstructing, that 
added emission unit or reconstructed emission unit shall comply with 
all requirements of this subpart that affect new emission units, 
including the compliance date for new emission units established in 
Sec. 63.52(d).
    (ii) If an area source, constructed after the section 112(j) 
deadline, becomes a major source solely by virtue of a relaxation in 
any federally enforceable emission limitation, established after the 
section 112(j) deadline, on the capacity of an emission unit or units 
to emit a hazardous air pollutant, such as a restriction on hours of 
operation, then that emission unit or units shall comply with all 
requirements of this subpart that affect new emission units, on or 
before the date of such relaxation.
    (2) 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, then 
the owner or operator of such major source shall submit an application 
for a title V permit or application for a significant permit 
modification, or administrative amendment, whichever is applicable, on 
or before the date 6 months from the date that such source becomes a 
major source. If an existing area source becomes a major source as a 
result of the Administrator establishing a lesser quantity emission 
rate, then any emission unit, at that source, for which construction or 
reconstruction is commenced before the date upon which the source 
becomes major shall not be considered a new emission unit.


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

    (a) MACT Demonstration. Except as provided by Sec. 63.55(a)(3), an 
application for a MACT determination shall demonstrate how an emission 
unit will obtain the degree of emission reduction that the 
Administrator or the State has determined is at least as stringent as 
the emission reduction that would have been obtained had the relevant 
emission standard been promulgated according to the source category 
schedule for standards for the source category of which the emission 
unit is a member.
    (b) MACT Application. The application for a MACT determination 
shall contain the following information:
    (1) The name and address (physical location) of the major source;
    (2) A brief description of the major source, its source category or 
categories, a description of the emission unit(s) requiring a MACT 
determination pursuant to other requirements in this subpart, and a 
description of whether the emission unit(s) require new source MACT or 
existing source MACT based on the definitions established in 
Sec. 63.51;
    (3) For a new emission unit, the expected date of commencement of 
construction;
    (4) For a new emission unit, the expected date of completion of 
construction;
    (5) For a new emission unit, the anticipated date of startup of 
operation;
    (6) The hazardous air pollutants emitted by each emission point, 
and an estimated emission rate for each hazardous air pollutant.
    (7) Any existing federally enforceable emission limitations 
applicable to the emission point.
    (8) The maximum and expected utilization of capacity of each 
emission point, and the associated uncontrolled emission rates for each 
emission point;
    (9) The controlled emissions for each emission point in tons/year 
at expected and maximum utilization of capacity, and identification of 
control technology in place;
    (10) Except as provided in Sec. 63.55(a)(3), the MACT floor as 
specified by the Administrator or the permitting authority.
    (11) Except as provided in Sec. 63.55(a)(3), recommended emission 
limitations for the emission unit(s), and supporting information, 
consistent with Sec. 63.52(c) and Sec. 63.55(a).
    (12) Except as provided in Sec. 63.55(a)(3), a description of the 
control technologies that will apply to meet the emission limitations 
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 
emission points to which the control technologies will be applied;
    (13) Except as provided in Sec. 63.55(a)(3), parameters to be 
monitored and frequency of monitoring to demonstrate continuous 
compliance with the MACT emission limitation over the applicable 
reporting period.
    (14) Any other information required by the permitting authority 
including, at the discretion of the permitting authority, information 
required pursuant to subpart A of this part.


Sec. 63.54  Preconstruction review procedures for new emission units.

    (a) Review process for new emission units. (1) If the permitting 
authority requires an owner or operator to obtain or revise a title V 
permit before construction of the new emission unit, or when the owner 
or operator chooses to obtain or revise a title V permit before 
construction, the owner or operator shall follow the administrative 
procedures established under title V before construction of the new 
emission unit.
    (2) If an owner or operator is not required to obtain or revise a 
title V permit before construction of the new emission unit (and has 
not elected to do so), but the new emission unit is covered by any 
preconstruction or pre-operation 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 section 112(g) are satisfied. If the 
new emission unit 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 (h) of this section, or an equivalent permit 
review process, before construction or operation of the new emission 
unit.
    (3) Regardless of the review process, the MACT determination shall 
be consistent with the principles established in Sec. 63.55. The 
application for a Notice of MACT Approval or a title V permit, permit 
modification, or administrative amendment, whichever is applicable, 
shall include the documentation required by Sec. 63.53.
    (b) Optional administrative procedures for preconstruction or pre-
operation review for new emission units. The permitting authority may 
provide for an enhanced review of section 112(j) MACT determinations 
that provides for review procedures and compliance requirements 
equivalent to those set forth in paragraphs (b) through (h) of this 
section.
    (1) The permitting authority will notify the owner or operator in 
writing as to whether the application for a MACT determination is 
complete or whether additional information is required.
    (2) The permitting authority will approve an applicant's proposed 
control technology, or the permitting authority will notify the owner 
or operator in writing of its intention to disapprove a control 
technology.
    (3) The owner or operator may present in writing, within a time 
frame specified by the permitting authority, additional information, 
considerations, or amendments to the application before the permitting 
authority's issuance of a final disapproval.
    (4) The permitting authority will issue a preliminary approval or 
issue a disapproval of the application, taking into account additional 
information received from the owner or operator.
    (5) A determination to disapprove any application will be in 
writing and will specify the grounds on which the disapproval is based.
    (6) Approval of an applicant's proposed control technology will be 
set forth in a Notice of MACT Approval (or the equivalent) as described 
in Sec. 63.52(c).
    (c) Opportunity for public comment on Notice of MACT Approval. The 
permitting authority will provide opportunity for public comment on the 
preliminary Notice of MACT Approval prior to issuance, including, at a 
minimum,
    (1) Availability for public inspection in at least one location in 
the area affected of the information submitted by the owner or operator 
and of the permitting authority's tentative determination;
    (2) A period for submittal of public comment of at least 30 days; 
and
    (3) A notice by prominent advertisement in the area affected of the 
location of the source information and analysis specified in 
Sec. 63.52(c). The form and content of the notice will be substantially 
equivalent to that found in Sec. 70.7 of this chapter.
    (4) An opportunity for a public hearing, if one is requested. The 
permitting authority will give at least 30 days notice in advance of 
any hearing.
    (d) Review by the EPA and Affected States. The permitting authority 
will 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 
the region in which the new source would be located. The permitting 
authority will provide EPA with a review period for the final notice of 
at least 45 days, and will not issue a final Notice of MACT approval 
unless EPA objections are satisfied.
    (e) Effective date. The effective date for new sources under this 
subsection shall be the date a Notice of MACT Approval is issued to the 
owner or operator of a new emission unit.
    (f) Compliance date. New emission units shall comply with case-by-
case MACT upon issuance of a title V permit for the emission unit.
    (g) 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(e), under title V, and at the discretion of the permitting 
authority, under subpart A of this part. The permitting authority will 
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.
    (h) Equivalency under Section 112(l). If a permitting authority 
requires preconstruction review for new source MACT determinations 
under this subpart, such requirement shall not necessitate a 
determination under subpart E of this part.


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

    (a) Requirements for emission units subject to case-by-case 
determination of equivalent emission limitations. The owner or operator 
of a major source submitting an application pursuant to Sec. 63.52 or 
Sec. 63.54 shall include elements specified in Sec. 63.53, taking into 
consideration the following requirements:
    (1) When the Administrator has proposed a relevant emission 
standard for the source category pursuant to section 112(d) or section 
112(h) of the Act, then the control technologies recommended by the 
owner or operator under Sec. 63.53(b)(12), when applied to the emission 
points recommended by the applicant for control, shall be capable of 
achieving all emission limitations and requirements of the proposed 
standard unless the application contains information adequate to 
support a contention that:
    (i) different emissions limitations represent the maximum 
achievable control technology emission limitations for the source 
category, or
    (ii) requirements different from those proposed by EPA will be 
effective in ensuring that MACT emissions limitations are achieved.
    (2) When the Administrator or the permitting authority has issued 
guidance or distributed information establishing a MACT floor finding 
for the source category or subcategory by the section 112(j) deadline, 
then the recommended MACT emission limitations required by 
Sec. 63.53(b)(11) must be at least as stringent as the MACT floor, 
unless the application contains information adequately supporting an 
amendment to such MACT floor.
    (3)(i) When neither the Administrator nor the permitting authority 
has issued guidance or distributed information establishing a MACT 
floor finding and MACT determination for a source category or 
subcategory by the section 112(j) deadline, then the owner or operator 
shall submit an application for a permit or application for a Notice of 
MACT Approval, whichever is applicable, containing the elements 
required by Sec. 63.53(b) (1) through (9) and (14), by the section 
112(j) deadline.
    (ii) The owner or operator may recommend a control technology that 
either achieves a level of control at least as stringent as the 
emission control that is achieved in practice by the best controlled 
similar source, or obtains at least the maximum reduction in emissions 
of hazardous air pollutants that is achievable considering costs, non 
air quality health and environmental impacts, and energy requirements.
    (4) The owner or operator may 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 a hazardous air pollutant (HAP) or HAPs 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.
    (b) Requirements for permitting authorities. The permitting 
authority will determine whether the permit application or application 
for a Notice of MACT Approval is approvable. If approvable, the 
permitting authority will establish hazardous air pollutant emissions 
limitations equivalent to the limitation that would apply if an 
emission standard had been issued in a timely manner under subsection 
112 (d) or (h) of the Act. The permitting authority will establish 
these emissions limitations consistent with the following requirements 
and principles:
    (1) Emission limitations will be established for all emission units 
within a source category or subcategory for which the section 112(j) 
deadline has passed.
    (2) Each emission limitation for an existing emission unit will 
reflect the maximum degree of reduction in emissions of hazardous air 
pollutants (including a prohibition on such emission, 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 emission units in the category or subcategory for which the section 
112(j) deadline has passed. This limitation will not be less stringent 
than the MACT floor, and will be based upon available information and 
information generated by the permitting authority before or during the 
application review process, including information provided in public 
comments.
    (3) Each emission limitation for a new emission unit will not be 
less stringent than the emission limitation achieved in practice by the 
best controlled similar source, and must reflect the maximum degree of 
reduction in emissions of hazardous air pollutants (including a 
prohibition on such emissions, where achievable) that the permitting 
authority, taking into consideration the cost of achieving such 
emission reduction, and any non-air quality health and environmental 
impacts and energy requirements, determines is achievable. This 
limitation will be based at a minimum upon available information and 
information provided in public comments.
    (4) When the Administrator has proposed a relevant emissions 
standard for the source category pursuant to section 112(d) or section 
112(h) of the Act, then the equivalent emission limitation established 
by the permitting authority shall ensure that all emission limitations 
and requirements of the proposed standard are achieved, unless the 
permitting authority determines based on additional information that:
    (i) Different emissions limitations represent the maximum 
achievable control technology emission limitations for the source 
category; or
    (ii) Requirements different from those proposed by EPA will be 
effective in ensuring that MACT emissions limitations are achieved.
    (5) When the Administrator or the permitting authority has issued 
guidance or collected information establishing a MACT floor finding for 
the source category or subcategory, the equivalent emission limitation 
for an emission unit must be at least as stringent as that MACT floor 
finding unless, based on additional information, the permitting 
authority determines that the additional information adequately 
supports an amendment to the MACT floor. In that case, the equivalent 
emission limitation must be at least as stringent as the amended MACT 
floor.
    (6) The permitting authority will 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 a hazardous air pollutant (HAP) or HAPs 
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.
    (7) Nothing in this subpart will prevent a State or local 
permitting authority from establishing an emission limitation more 
stringent than required by Federal regulations.
    (c) Reporting to National Data Base. The owner or operator shall 
submit additional copies of its application for a permit, permit 
modification, administrative amendment, or Notice of MACT Approval, 
whichever is applicable, to the EPA by the section 112(j) deadline for 
existing emission units, or by the date of the application for a permit 
or Notice of MACT Approval for new emission units.


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

    (a) If the Administrator promulgates an emission standard that is 
applicable to one or more emission units within a major source before 
the date a permit application under this paragraph is approved, the 
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 an 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 revise the permit upon its next renewal to 
reflect the promulgated standard. The permitting authority will 
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 permit, whichever is earlier.
    (c) Notwithstanding the requirements of paragraph (a) or (b) of 
this section, if the Administrator promulgates an emission standard 
that is applicable to a source after the date a permit application 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 level of control required by the 
emission limitation in the permit is at least as stringent as that 
required by the promulgated standard.

[FR Doc. 94-10971 Filed 5-19-94; 8:45 am]
BILLING CODE 6560-50-P