[Federal Register Volume 61, Number 59 (Tuesday, March 26, 1996)]
[Proposed Rules]
[Pages 13125-13129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7277]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[FRL-5446-8]


Proposed Requirements for Control Technology Determinations for 
Major Sources in Accordance With Clean Air Act (Act) Section 112(g)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of reopening of comment period; notice of availability 
of draft rule.

SUMMARY: The EPA is reopening the comment period for the proposed rule 
implementing section 112(g) of the Act and is announcing the 
availability of a revised draft of the proposal. Section 112(g) 
establishes requirements for owners or operators who intend to 
construct, reconstruct, or modify a major source of hazardous air 
pollutants (HAP). When no emission standard has been promulgated under 
section 112(d) of the Act, determinations concerning such sources must 
be made on a case-by-case basis. Today's notice announces the 
availability of a revised draft of the proposed rule which implements 
section 112(g)(2)(B) of the Act with respect to constructed or 
reconstructed major sources, and requests comment on the revised draft. 
The EPA does not intend at this time to issue a rule implementing the 
provisions of section 112(g) which concern modifications.

DATES: The revised draft of the proposed rule will be available in the 
public docket and on the EPA electronic bulletin board on the date this 
document is signed. Comments concerning this document or the revised 
draft rule must be received by EPA on or before April 25, 1996.
ADDRESSES: The revised draft rule and other information pertaining to 
the proposed rule are contained in Docket Number A-91-64. The docket is 
available for public inspection and copying from 8:30 a.m. to 12:00 
p.m. and 1:00 p.m. to 3:00 p.m., Monday through Friday, at the EPA's 
Air Docket Section, Waterside Mall, Room M1500, EPA, 401 M Street, 
Southwest, Washington, DC 20460. A reasonable fee may be charged for 
copying. The draft rule is also available on the Office of Air Quality 
Planning and Standards (OAQPS) electronic bulletin board, the 
Technology Transfer Network (TTN), under Clean Air Act, Title III, 
Recently Signed Rules. For information on how to access the TTN, please 
call (919) 541-5384 between the hours of 1:00 p.m. and 5:00 p.m. 
eastern standard time.
    Comments concerning this notice or the revised draft rule should be 
submitted (in duplicate if possible) to: Central Docket Section (6102), 
EPA, Attn: Air Docket No. A-91-64, Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Ms. Gerri Pomerantz, telephone (919) 
541-2371, or Ms. Kathy Kaufman, telephone (919) 541-0102, Information 
Transfer and Program Integration Division (MD-12), OAQPS, EPA, Research 
Triangle Park, NC, 27711.

SUPPLEMENTARY INFORMATION: The information in this notice is organized 
as follows:

I. Background and Major Differences between the Proposed Rule and 
Draft Final Rule
II. Definition of ``Construct a Major Source''
III. Review of Applications for a maximum achievable control 
technology (MACT) Determination
IV. Extensions of Compliance Date for Subsequent Emission Standards

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I. Background and Major Differences Between the Proposed Rule and 
Draft Final Rule

    In designing a program to implement MACT requirements under section 
112(g), the EPA is guided by the need to balance several, often 
competing, goals. Given a complex statutory mandate, the EPA has the 
difficult task of designing a rule that is simultaneously 
environmentally protective, maintains consistency across Agency 
programs, minimizes the administrative burden on sources and States, 
provides flexibility to sources, and maintains enforceability--yet is 
not overly complex. The EPA's task is to create a coherent regulatory 
whole that strikes the right balance among a broad set of goals.
    Section 112(g) is primarily a transitional program designed to 
operate until MACT standards issued under section 112(d) are in effect 
for all categories of major sources of HAP. To date, the EPA has issued 
17 MACT standards covering 29 categories of major sources of HAP 
emissions, and has proposed five additional MACT standards covering 18 
source categories. The EPA is currently developing all of the MACT 
standards that are due to be completed in 1997, as well as several of 
the standards due to be completed in 2000.
    The EPA has concluded that the greatest benefits to be derived from 
section 112(g) would be from the control of major source construction 
and reconstruction in the period before these MACT standards go into 
effect. Therefore the EPA has determined that today's draft rule should 
implement only that portion of section 112(g) which requires new source 
MACT determinations for constructed and reconstructed major sources, 
but not that portion which requires existing source MACT determinations 
for modifications of existing sources. The EPA requests comment on this 
approach.
    Under this approach, sources of toxic air pollution will be 
controlled at the time of construction or reconstruction, when controls 
are most cost-effective to install. This is a major streamlining and 
simplification step that will focus section 112(g) implementation where 
it will provide the greatest reduction in emissions to the environment, 
certainty to the regulated community, and reduce the overall 
administrative burden on both regulators and the regulated community.
    The EPA's decision to implement only the construction and 
reconstruction provisions of section 112(g) is premised in part on the 
Agency's ability to issue the remaining MACT standards under section 
112(d) in a timely way, and also in part on the assumption that where 
there are existing State air toxics programs that address 
modifications, they will continue to operate as they do currently. If 
there were substantial delays in issuance of MACT standards, or radical 
changes to existing State programs, increased exposure to emissions 
from unregulated sources of HAP could occur and threaten public health 
and the environment. If such delays were to occur, the EPA would 
reconsider whether to move forward to cover modifications under section 
112(g).
    The EPA believes that Congress's basic goal in adopting section 
112(g) of the Act was to make use of the opportunity for environmental 
protection that exists when major sources of HAP undergo changes that 
would lead to significant emission increases. The opportunity to 
evaluate emission control technologies, or other beneficial ways to 
bring about environmental improvements, generally exists because the 
environmental improvements are more efficient when built as part of the 
initial design.
    The EPA also recognizes that it is critical to the success of the 
program to ensure that its provisions are enforceable and provide the 
greatest possible incentive for compliance. At the same time, the EPA 
recognizes the need to minimize administrative delays and grant sources 
and permitting authorities the flexibility to seek environmentally 
beneficial alternative means of control.
    Finally, the program must be as consistent as possible with other 
Federal air pollution control programs, and must be simple enough to 
ensure smooth implementation. Today's draft rule eliminates much of the 
complexity inherent in the portion of section 112(g) which covers 
modifications to existing sources. Among other things, under this 
simpler approach, it will not be necessary to proceed with development 
of de minimis emission values or the hazard ranking system necessary to 
support offset determinations. It will also not be necessary to address 
the multitude of issues and concerns, raised in the proposed rule, 
associated with defining the types of operations that would be 
considered ``modifications.''

II. Definition of ``Construct a Major Source''

    Today's draft rule does require additional discussion to clarify 
the conditions under which a stationary source would require a new 
source MACT determination; i.e., what criteria must be met for new 
equipment to be considered construction or reconstruction of a major 
source. The new equipment which would meet these criteria is referred 
to as the ``affected source.'' The EPA intends that either a major 
source constructed on a greenfield site, or a new major-emitting 
stationary source with a discrete function at an existing plant site, 
such as a new discrete process or production unit, should be considered 
construction of a major source, and thus require a new source MACT 
determination. The stationary source must also itself be inherently 
major-emitting; the EPA does not intend that a new process unit causing 
increased emissions at another unit downstream should be covered by 
today's draft rule. The EPA requests comment on this overall approach.
    Figure (1) illustrates how the definition of ``construct a major 
source'' works.

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    If the stationary source is constructed on a greenfield site and is 
major-emitting, then the stationary source is an affected source under 
section 112(g), and must apply new source MACT. If the stationary 
source is being constructed at an existing plant site, then several 
other criteria will determine whether it is to be considered an 
affected source under section 112(g), and must apply new source MACT.
    Box (i) (the box labels refer back to the sections of the 
``construct a major source'' definition in the draft rule) asks: Will 
the stationary source be controlled by existing emission control 
equipment which the permitting authority has determined represents one 
of the best technologies for control of HAP? If a new source can be 
incorporated into such existing control technology without any 
reduction in the degree of control of HAP, the new source would not be 
considered ``construction'' under section 112(g)(2)(B). The state 
permitting authority will be responsible for determining whether these 
criteria apply, using those procedures it deems most appropriate.
    The general purpose of this exclusion from the definition of 
``construct a major source'' is to assure that facilities which have 
previously installed good control equipment with presently unutilized 
capacity will not be precluded from fully utilizing such equipment by 
any marginal differences in control effectiveness between such 
equipment and that required by new source MACT. Existing controls 
should be deemed satisfactory only where they are representative of the 
best technologies presently in use and the addition of new sources to 
existing control equipment will not impair its overall effectiveness. 
The rule also explicitly recognizes that some facilities have 
previously installed such controls to comply with a best available 
control technology (BACT) determination (that controls the HAP emitted 
by the stationary source) under the prevention of significant 
deterioration (PSD) program, a lowest-achievable emission rate (LAER) 
determination under the new source review (NSR) program, or a toxics-
best available control technology (T-BACT) determination under a State 
or local air toxics control program. The EPA requests comment on this 
exclusion.
    The EPA notes that the definition of a ``green-field site'' in the 
draft rule includes developed sites which do not presently emit major 
source quantities of HAP. EPA therefore requests comment concerning 
whether the exclusion for new sources that use existing emission 
controls should be applied to area sources that are within the 
definition of a ``green-field site.''
    Box (ii) asks: Is the new stationary source an integral component 
of a larger process or production unit? If the source is a discrete 
process unit or production unit as defined in the rule, and emissions 
from the source exceed the major source threshold, it meets the 
definition of an ``affected source'' under section 112(g) and is 
subject to new source MACT control. The EPA requests comment on this 
exclusion.
    What does it mean to be an integral component of a larger process 
or production unit? Today's rule defines ``integral component of a 
larger process or production unit'' to be a stationary source or group 
of stationary sources whose function, and the function of the process 
unit or production unit, are interdependent. In other words, the 
stationary source is the kind of component upon which the functioning 
of the process or production unit relies, and vice versa. Equipment 
which is an integral component of a process or production unit is part 
of the functioning of the overall process or production unit. Under the 
proposed definition, equipment which is not an integral component 
itself comprises a process or production unit.
    The EPA acknowledges that there is some room for judgment in 
determining if a stationary source is an integral component of a larger 
unit. Each individual determination should be based on answers to the 
following questions: Is the new stationary source a component critical 
to the function of the larger process or production unit? Could the 
stationary source stand alone as an individually functioning unit if 
constructed elsewhere? Could the stationary source be reasonably 
controlled independently of the larger process? Reference documents 
such as AP-42 1 describe examples of different groupings of 
stationary sources that should be considered to be separately-
controlled processes, as well as those stationary sources, contained 
within such processes, which should be considered integral components. 
Examples in these reference documents, where relevant, should be used 
to define a process or production unit.

    \1\  U.S. EPA, AP-42, ``Compilation of Air Pollutant Emission 
Factors,'' 5. ed., January 1995.
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    The following examples should help illustrate where section 112(g) 
should and should not apply. The EPA requests comment on these 
examples.
    1. An electronics manufacturing facility replaces individual 
manufacturing equipment such as etching, plating, or photolithography 
equipment with next generation etching, plating or photolithography 
equipment. This equipment change would not trigger section 112(g), 
because the individual etching or plating or photolithography equipment 
is the kind of component upon which the functioning of the larger 
production process relies. Therefore the function of the new stationary 
source (the new etching, plating, or photolithography equipment) and 
the larger production process are interdependent.
    2. An aluminum reduction plant has several potlines. Each potline 
consists of many pots, which are controlled using a common dry 
scrubbing system. The company replaces a few pots on each line. This 
equipment change would not trigger section 112(g), because the 
individual pots are the kind of component upon which the functioning of 
the larger production process relies. Therefore the function of the new 
stationary source (the new pots) and the larger production process are 
interdependent.
    3. A chemical plant builds a new distillation column, to be added 
to a series of distillation columns, the emissions from which are 
collected at the end of the series and vented to a carbon absorber. 
This equipment change would not trigger section 112(g), because the 
individual distillation columns are the kind of component upon which 
the functioning of the larger production process relies. Therefore the 
function of the new stationary source (the new distillation column) and 
the larger production process are interdependent.
    4. A composites manufacturer adds additional vacuum and/or in-mold 
coating capability to an existing mold, in order to improve surface 
quality. This equipment change would not trigger section 112(g), 
because the additional components of the mold are the kind of 
components upon which the functioning of the larger production process 
relies. Therefore the function of the new stationary source (the new 
components of the mold) and the larger production process are 
interdependent.
    5. A glass manufacturer adds a new glass furnace and associated 
process line which will emit HAPs in amounts above the major source 
threshold. This is an example of a stationary source which is not an 
integral component of a process or production unit, because it is 
itself a production or process unit. Therefore the new furnace meets 
the definition of ``affected source'' under section 112(g) and should 
be controlled with new source MACT.
    6. A composites manufacturer adds a new large molding line which 
will emit

[[Page 13129]]
HAPs in amounts above the major source threshold. This is an example of 
a stationary source which is not an integral component of a process or 
production unit, because the molding line is itself a separately 
functioning process unit. Therefore the molding line meets the 
definition of ``affected source'' under section 112(g) and should be 
controlled with new source MACT.
    7. An auto parts manufacturer adds a new automobile surface coating 
line (i.e., from body shop to trim shop) which will emit HAPs in 
amounts above the major source threshold. This is an example of a 
stationary source which is not an integral component of a process or 
production unit, because the line is itself a separately functioning 
process unit, as described in AP-42. Therefore the coating line meets 
the definition of ``affected source'' under section 112(g) and should 
be controlled with new source MACT.
    8. An existing chemical plant builds a new nitric acid plant onsite 
which will emit HAPs in amounts above the major source threshold. This 
is an example of a stationary source or group of stationary sources 
which is not an integral component of a process or production unit. 
Therefore the nitric acid plant meets the definition of ``affected 
source'' under section 112(g) and should be controlled with new source 
MACT.
    9. A manufacturer replaces an entire process which is similar to an 
entire process as it is described in AP-42. This is an example of a 
stationary source or group of stationary sources which is not an 
integral component of a process or production unit. Therefore the 
process meets the definition of ``affected source'' under section 
112(g) and should be controlled with new source MACT, provided that it 
will emit HAPs in amounts above the major source threshold.

III. Review of Applications for a MACT Determination

    Today's draft rule contains three options for preconstruction 
review procedures for constructed and reconstructed major sources. The 
permitting authority has discretion to prescribe those procedures to be 
used in making a case-by-case MACT determination for constructed or 
reconstructed major sources (except that the owner or operator of the 
source may elect to use the part 70 or part 71 permitting process). The 
proposed rule allowed use of either the part 70 or 71 permitting 
process or a process, described in the proposed rule and in today's 
draft rule, culminating in issuance of a ``Notice of MACT Approval.'' 
Today's draft rule adds one more option, designed to provide 
flexibility to the permitting authority and the source. Proposed 
section 63.43(c)(2)(ii) provides that if a permitting authority 
establishes, or has already established, preconstruction review 
procedures for sources to follow, then these procedures may be used in 
lieu of any procedures prescribed by today's draft rule. The permitting 
authority's prescribed procedures may have been developed for other 
purposes beyond implementation of section 112(g), so long as they 
provide for public participation in the case-by-case MACT determination 
and ensure that a final MACT determination will be made prior to 
construction or reconstruction. The draft rule also provides that a 
final case-by-case MACT determination issued pursuant to any of these 
procedures will be deemed federally enforceable. The permitting 
authority need not obtain delegation under 40 CFR Part 63 subpart E in 
order to adopt its own review procedures for a case-by-case MACT 
determination. The EPA requests comment on this new provision.
    The EPA also requests comment specifically on the presumption, in 
section 63.43(d)(iv), that the constructed or reconstructed major 
source should comply with the emission limitation set out in a relevant 
proposed MACT standard or presumptive MACT determination made by the 
EPA. The EPA believes that sources would be well-advised to comply with 
such emission limitations, as those limitations would be most likely to 
be consistent with the requirements of the eventual MACT standard.

IV. Extensions of Compliance Date for Subsequent Emission Standards

    The EPA anticipates that new source MACT requirements adopted with 
respect to construction or reconstruction of a particular source under 
section 112(g)(2)(B) will normally be at least as stringent as any 
subsequent requirements for existing sources adopted as part of a MACT 
standard issued under section 112(d). However, should a subsequently 
promulgated MACT standard impose more stringent requirements, EPA 
believes that it may be appropriate in some instances for EPA to 
establish a later compliance date for those sources which have acted in 
reliance on a prior case-by-case MACT determination. The draft rule 
expressly provides that EPA may establish separate compliance dates for 
facilities which have notified EPA of such determinations in a timely 
manner. Specifically, EPA may establish, in the MACT standard, a later 
compliance date for those sources which have installed controls 
pursuant to section 112(g), and have provided the EPA with data on 
their section 112(g) control determination by the end of the public 
comment period on the subsequent Federal standard.
    The EPA requests comment on this approach, and on whether such 
sources should be required to inform EPA, before proposal of the 
subsequent MACT standard, that they have installed section 112(g) 
controls.
    In those instances where the subsequent MACT standard does not 
establish a compliance date for sources subject to a prior case-by-case 
MACT determination, the present draft rule retains the provision from 
the original proposal authorizing the permitting authority to grant up 
to eight years of additional time for the affected source to comply 
with the subsequent MACT standard. The EPA has previously explained 
that the structure of section 112 as a whole supports such a 
construction of section 112(g), and a source may also be afforded up to 
8 years to comply with a MACT standard in instances where a prior 
emission limitation has been established by permit under section 
112(j). The EPA requests comment on these provisions and this 
interpretation.

    Dated: March 18, 1996.
Mary D. Nichols,
Assistant Administrator.
[FR Doc. 96-7277 Filed 3-25-96; 8:45 am]
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