[Federal Register Volume 61, Number 250 (Friday, December 27, 1996)]
[Rules and Regulations]
[Pages 68384-68404]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32236]
[[Page 68383]]
_______________________________________________________________________
Part III
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 63
Hazardous Air Pollutants: Regulations Governing Constructed or
Reconstructed Major Sources; Final Rule
Federal Register / Vol. 61, No. 250 / Friday, December 27, 1996 /
Rules and Regulations
[[Page 68384]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[FRL-5667-8]
RIN 2060-AD06
Hazardous Air Pollutants: Regulations Governing Constructed or
Reconstructed Major Sources
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is promulgating regulations implementing certain
provisions in section 112(g) of the Clean Air Act as amended in 1990
(1990 Amendments). Section 112(g) applies to the owner or operator of a
constructed, reconstructed, or modified major source of hazardous air
pollutants (HAP). After the effective date of this rule, all owners or
operators of major sources that are constructed or reconstructed will
be required to install maximum achievable control technology (MACT)
(unless specifically exempted), provided they are located in a State
with an approved title V permit program. This rule establishes
requirements and procedures for the owners or operators to follow to
comply with section 112(g). This rule also contains guidance for
permitting authorities in implementing section 112(g). When no
applicable Federal emission limitation has been promulgated, the Clean
Air Act (Act) requires the permitting authority (generally a State or
local agency responsible for the program) to determine a MACT emission
limitation on a case-by-case basis. This rule assures that effective
pollution controls will be required for new major sources of air toxics
during the period before EPA can establish a national MACT standard for
a particular industry. This rule establishes procedures for making such
determinations. This rule does not require new source MACT for
modifications to existing sources.
EFFECTIVE DATE: The rule announced herein takes effect on January 27,
1997.
ADDRESSES: Supporting information used in developing the proposed and
final rules are contained in Docket No. A-91-64. The docket is
available for public inspection and copying from 8:00 to 4:00 p.m.,
Monday through Friday, except legal holidays, at the EPA's Air Docket
Section, Waterside Mall, Room M1500, U.S. Environmental Protection
Agency, 401 M Street, South West, Washington, DC 20460. A reasonable
fee may be charged for copying. This 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 and 5:00
p.m. eastern standard time. This rule is also listed on the EPA web
site address, ``http://www.epa.gov/oar''.
FOR FURTHER INFORMATION CONTACT: Dr. Gerri Pomerantz, telephone (919)
541-2317, Mr. Andy Smith, telephone (919) 541-5398, or Ms. Kathy
Kaufman, telephone (919) 541-0102, Information Transfer and Program
Integration Division (MD-12), OAQPS, US EPA, Research Triangle Park,
NC, 27711.
SUPPLEMENTARY INFORMATION: The information presented in this preamble
is organized as follows:
I. Purpose and Summary of Final Rule
A. Purpose of this Rule
B. Summary of this Rule
II. Background
A. The 1990 Amendments: Section 112
B. The 1990 Amendments: Provisions for Constructed and
Reconstructed Major Sources of HAP
C. Streamlined Nature of this Rule
III. Summary and Rationale for Secs. 63.40 Through 63.44 of this
Rule
A. Section 63.40 Applicability
B. Section 63.41 Definitions
C. Section 63.42 Program Requirements Governing Construction or
Reconstruction of Major Sources
D. Section 63.43 MACT Determinations for Constructed and
Reconstructed Major Sources
E. Section 63.44 Requirements for Process or Production Units
Subject to a Subsequently Promulgated MACT Standard or MACT
Requirement
IV. Discussion of the Relationship of the Requirements of this Rule
to Other Requirements of the Act.
A. Relationship of Section 112(g) Implementation to Title V
Program Approval
B. Relationship to Section 112(l) Delegation Process
C. Section 112(i)(5) Early Reductions Program
D. Subpart A ``General Provisions''
V. Administrative Requirements
A. Executive Order 12866
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
D. Unfunded Mandates Reform Act
E. Submission to Congress and the General Accounting Office
This preamble provides an overview of the requirements of the
regulation being promulgated and a detailed discussion of the changes
made from both the proposed and draft final regulations.
Section I of the preamble provides an overview of the requirements
of the regulations being promulgated.
Section II provides background on section 112(g) in the context of
the 1990 Amendments.
Section III provides a detailed discussion of the requirements of
this rule, including significant comments as well as significant
changes made since the proposal and/or draft final rule.
Section IV of the preamble discusses the relationship between the
requirements of this rule and other important Act implementation
activities.
Section V demonstrates that this rule 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 would be the permitting
authority implementing title V of the Act (i.e., 40 CFR Part 70) and
the section 112(g) program. The reader should assume that use of the
term ``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. 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, where the EPA is responsible for the program.
I. Purpose and Summary of Final Rule
A. Purpose of This Rule
The 1990 Amendments require the EPA to issue emissions standards
for all major sources of 188 listed HAP (also known as air toxics).
These pollutants are known or suspected of causing cancer, nervous
system damage, birth defects or other serious health effects. On July
16, 1992, the EPA published an initial list of source categories for
which air toxics emission standards are to be promulgated. By November
2000, EPA must develop for all these categories rules that require the
maximum achievable reduction in emissions, considering cost and other
factors. These rules are generally known as ``maximum achievable
control technology'' (MACT) standards.
In developing the 1990 Amendments, Congress recognized that the EPA
could not immediately issue MACT standards for all industries, and that
as a result there was a potential for significant new sources of toxic
air emissions to remain uncontrolled for some time. Congress also
recognized that, in general, it is most cost-effective to design and
add new air pollution controls at the time
[[Page 68385]]
when facilities are being built or significantly rebuilt.
As a result, section 112(g) of the Act requires MACT-level control
of air toxics when a new major source of HAP is constructed or
reconstructed. The permitting authority must determine MACT for the
facility on a case-by-case basis when EPA has not yet issued a relevant
MACT standard. This gap-filling program assures Americans in every
State that effective pollution controls will be required for new major
sources of air toxics during the period before EPA can establish a
national MACT standard for a particular industry.
Section 112(g) also requires MACT-level control when major sources
are modified. For reasons explained later in this preamble, this rule
does not implement the modifications provision of section 112(g).
B. Summary of This Rule
1. What Sources Must Comply With 112(g)?
This rule implements section 112(g)(2)(B) of the Act by adding new
regulatory sections to 40 CFR Part 63, subpart B. The new sections
appear as Secs. 63.40 through 63.44 of subpart B. These sections impose
new control requirements on ``constructed'' and ``reconstructed'' major
sources of HAP. (The definition of ``major source'' can be found in
section 112(a) of the Act and 40 CFR Part 63 subpart A).
This rule does not apply to any source already covered by a MACT
standard under section 112(d) of the Act. Therefore, sources already
covered by a MACT standard under section 112(d) will not be required to
undergo a review process under section 112(g). (Any section 112(g)
review process already underway when a section 112(d) MACT standard is
promulgated should be terminated.) This change was made to the final
rule in response to comments that indicated that section 112(g) review
would be inappropriate once a MACT standard was promulgated. For those
sources not yet subject to section 112(d), section 112(g) applies to
either (i) a major source constructed on a greenfield site, or to (ii)
a new or reconstructed ``process or production unit'' at an existing
plant site, provided that the ``process or production unit'' emits
hazardous air pollutants in amounts that exceed the major source
threshold. A new process or production unit at an existing major source
must itself be inherently major-emitting; the EPA does not intend that
a new process or production unit causing increased emissions at another
unit downstream be covered by this rule. The definitions of ``construct
a major source,'' ``reconstruct a major source,'' and ``process or
production unit'' are set forth in section 63.41 of this rule and
discussed in detail in section III.B. below.
2. What Must a Source Do To Comply With Section 112(g)?
If equipment additions or overhauls meet the definition of
``construct a major source'' or ``reconstruct a major source,'' then
the owner or operator must demonstrate to the permitting authority that
emissions will be controlled to a level consistent with the ``new
source MACT'' definition in section 112(d)(3) of the Act. A MACT
determination under section 112(g) is referred to as ``case-by-case''
MACT. The requirements and procedures for case-by-case MACT
determinations are contained in section 63.43 of this rule.
If an owner or operator wishes to construct or reconstruct a major
source, then prior to construction or reconstruction, the owner or
operator must apply to the state or local title V permitting authority
for a case-by-case MACT determination under section 112(g). The
application can take different administrative forms, at the permitting
authority's discretion, but must contain basic information about the
source and its potential emissions. The application must also specify
the emission controls that will ensure that new source MACT will be
met. The permitting authority must review and approve (or disapprove)
the application, and provide an opportunity for public comment on the
determination.
3. When Will Section 112(g) Be Effective?
Section 112(g) will be effective in a State or local jurisdiction
on the date that the permitting authority, under title V of the Act,
places its implementing program for section 112(g) into effect.
Permitting authorities have up to 18 months from the date of
publication of this rule in the Federal Register to initiate
implementing programs. After the 18-month transition period, if a State
or local permitting authority is unable to initiate a section 112(g)
program to implement this rule, there are two options for obtaining a
MACT approval: either (1) the EPA will issue section 112(g)
determinations for up to 1 year; or (2) the permitting authority will
make section 112(g) determinations according to procedures specified in
section 63.43 of this rule, and issue a Notice of MACT Approval that
will become final and legally enforceable after the EPA concurs in
writing with the permitting authority's determination. Requirements for
permitting authorities are contained in section 63.42 of this rule.
To place its implementing program into effect, the chief executive
officer of the State or local jurisdiction must certify to the EPA that
its program meets all the requirements set forth in this rule, and
publish a notice stating that the program has been adopted and
specifying its effective date. The program need not be officially
reviewed or approved by the EPA.
4. Do Section 112(g)-regulated Sources Have To Comply With Subsequent
MACT Standards?
Once a section 112(d) MACT standard is issued for a source
category, the source must comply with it by the designated deadline. A
major source regulated under section 112(g) may be granted up to 8
years extra time to comply with a subsequently-promulgated MACT
standard under section 112(d). The EPA may specify, in the MACT
standard, the length of the extension. If the EPA does not so specify,
then the permitting authority may grant such extensions on a case-by-
case basis. The EPA believes that in many cases the section 112(g)
determination will be equivalent to MACT under section 112(d) or
section 112(j), but that this determination should be made on a case-
by-case basis under section 112(d) or section (j).
Regulated entities. Entities potentially regulated by this action
are those which are major sources of HAP under section 112 of the 1990
Amendments. Regulated categories and entities include:
------------------------------------------------------------------------
Examples of regulated
Category entities
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Industry.................................. Industries that use or
manufacture chemicals
listed under section 112.
Federal Government........................ Federal agencies which
handle chemicals listed
under section 112.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine whether
your facility is regulated by this action, you should carefully examine
the applicability criteria of this rule. If you have questions
regarding the applicability of this action to a
[[Page 68386]]
particular entity, contact your state or local air permitting
authority.
II. Background
A. The 1990 Amendments: Section 112 and Section 307
The 1990 Amendments [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 of major
sources emitting these HAP, and of area sources that warrant
regulation. Section 112(d) requires promulgation of emission standards
for each listed source category according to a schedule set forth in
section 112(e).
Under section 307(b)(1) of the Clean Air Act, judicial review of
this final action is available only by filing a petition for review in
the United States Court of Appeals for the District of Columbia Circuit
within 60 days of publication of this rule in the Federal Register.
Under section 307(b)(2) of the Act, the provisions which are the
subject of today's rule will not be subject to judicial review in any
civil or criminal proceedings for enforcement.
B. The 1990 Amendments. Provisions for Constructed, Reconstructed and
Modified Major Sources of HAP
The amendments to section 112 include a new section 112(g). This
section is entitled ``Modifications,'' but it contains control
technology requirements for constructed and reconstructed major sources
as well as major source modifications. For reasons discussed below,
this rule addresses only requirements for constructed and reconstructed
major sources.
1. Statutory Requirements for Constructed and Reconstructed Major
Sources
Section 112(g)(2)(B) contains requirements for constructed and
reconstructed major sources, as follows:
After the effective date of a permit program under title V in
any State, no person may construct or reconstruct any major source
of hazardous air pollutants, unless the Administrator (or the State)
determines that the maximum achievable control technology emission
limitation under this section for new sources will be met. Such
determination shall be made on a case-by-case basis where no
applicable emission limitations have been established by the
Administrator.
This section mandates a more stringent minimum level of control for
``constructed'' and ``reconstructed'' major sources than for
``modified'' sources. In addition, this section mandates the setting of
a case-by-case emission limitation based on a technology determination
for major sources that are constructed or reconstructed after the
effective date of a title V permit program.
C. Streamlined Nature of This Rule
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
21 MACT standards covering 46 categories of major sources of HAP
emissions, and has proposed five additional MACT standards covering
five 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.
Because of the transitional nature of section 112(g), 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 MACT standards go into effect.
Therefore, the EPA has determined that this rule will implement only
that portion of section 112(g) which requires new source MACT
determinations for constructed and reconstructed major sources, and
will not implement that portion which requires existing source MACT
determinations for modifications of existing sources.
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 issue a regulation to cover modifications under
section 112(g).
III. Summary and Rationale for Subsection 63.40 Through 63.44 of This
Rule
This section of the preamble provides a detailed discussion of the
provisions of this rule. It is organized by each topic area in
subsection 63.40 through 63.44 of 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 63.40 Applicability
Section 63.40 describes the timing of the requirements of this rule
and the sources to which section 112(g) applies.
1. Section 63.40(a) Subpart B Applicability
Section 63.40(a) of this rule indicates that the intent of the rule
is to implement section 112(g)(2)(B) of the Act.
2. Section 63.40(b) Overall Requirements
Section 63.40(b) of this rule indicates the overall applicability
of section 112(g) to the owner or operator who constructs or
reconstructs a major source of HAP after the ``effective date of
section 112(g)(2)(b) and the effective date of a title V program'' in
each State. This rule contains an exemption for sources specifically
exempted by promulgated standards in other subparts of 40 CFR 63. The
EPA believes that this exemption is consistent with ``MACT'' because a
MACT evaluation was made in establishing the exemption.
In addition, there will be instances in which a ``presumptive
MACT'' determination has been made for a source category. A presumptive
MACT determination is a preliminary MACT determination made by the EPA,
in consultation with States and other stakeholders, after data on a
source category's emissions and controls have been collected and
analyzed, but before a final MACT standard has been promulgated. The
``presumptive MACT'' determination is intended as preliminary guidance
for States and sources. The EPA believes that the presumptive MACT
determination would thus serve as the best information available on the
eventual MACT standard. Therefore the EPA recommends to sources and
States that applications for section 112(g) determinations use as
guidance any presumptive MACT determinations. Presumptive MACT
determinations can be found on the TTN (referenced above) under Clean
Air Act, Title III, Policy and Guidance or at the EPA web site address
``http://www.epa.gov/oar''.
It should be noted that there may be source categories which have
not yet been listed on the source category list for standards. The
language of section 112(g)(2)(B) of the Act reads: ``no person
[[Page 68387]]
may construct or reconstruct any major source of hazardous air
pollutants'' without a case-by-case MACT determination, and makes no
mention of whether or not the source is in a listed category. (In fact,
the EPA is required to list these categories as it becomes aware of
them.) Therefore, the EPA believes that section 112(g) does apply to
any major source which is not yet in a listed category.
(a) Effective date. Many commenters noted inconsistencies in the
provisions of the draft final rule pertaining to the effective date of
section 112(g), which in different sections referred both to the
adoption of a section 112(g) program in a State or local jurisdiction
by the responsible permitting authority and to the effective date of a
title V permit program in a State. The EPA agrees with the commenters
that these provisions were confusing and inconsistent. Sections 63.41
and 63.42(a) of this rule make it clear that section 112(g)(2)(B) will
take effect in a State or local jurisdiction only after the permitting
authority has been afforded an opportunity to adopt a program to
implement this provision. The effective date of section 112(g)(2)(B) in
a given State or local jurisdiction will be the date on which the
permitting authority places its implementing program into effect or the
date which is 18 months after the date of publication of this rule in
the Federal Register, whichever is earlier. This affords those
permitting authorities which are prepared to implement section
112(g)(2)(B) quickly an opportunity to do so, but also recognizes that
some State permitting authorities will need additional time to take the
necessary steps to plan for and adopt a satisfactory program.
The meaning of ``effective date of a title V permit program'' is
indicated in the final regulations for implementation of title V of the
Act, which are contained in 40 CFR Parts 70 and 71, and which were
published on July 21, 1992 (57 FR 32250) and July 1, 1996 (61 FR
34202), respectively. Under these regulations, States were required to
submit a permit program for review by the EPA on or before November 15,
1993. The EPA was required to approve or disapprove the permit program
within 1 year after receiving the submittal. The EPA's title V 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 effective
date of approval by the Administrator. The effective date of a
permit program, promulgated by the Administrator shall be the date
of promulgation.
This definition is incorporated into the operating permit
regulations as 40 CFR 70.4(g).
If a project does not receive its air quality construction permits
before the effective date of section 112(g), then this rule will be
applicable. The EPA requested comment on other alternatives, such as
grandfathering projects for which a complete application has been
submitted to the permitting authority, or grandfathering projects from
the date of ``onsite fabrication, erection, or installation.'' Some
commenters agreed with the EPA's current approach; however, many
commenters supported grandfathering projects that had applied for, but
not yet received, a permit. The EPA believes the chosen approach
reflects the best option for ensuring adequate controls on sources
seeking to add new equipment, while grandfathering sources which have
already made significant investments in equipment. This approach
assures that if prior to the permit issuance, new approaches to control
HAP emissions are considered appropriate, the source will apply the
latest control technology. This approach is also most consistent with
current Federal policy in the prevention of significant deterioration
program (PSD), in which sources with an approved permit are
grandfathered when the attainment status of the region changes. In the
new source review (NSR) program as well, while sources with a complete
application which might otherwise be considered major modifications are
grandfathered, these modifications do not escape review; they are
treated as minor modifications instead.
(b) Major Source. Section 112(g) applies only to major sources as
defined in section 112(a)(1) of the Act. This definition, from 40 CFR
63, subpart A, (the general provisions of part 63), is as follows:
The term `major source' means 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 definition also allows the EPA to establish a lesser quantity
than 10 or 25 tons to define ``major source'' with respect to
particular HAP where warranted on the basis of potency, persistence,
and other factors. To date, no such lesser quantities have been
established.
As a result of this definition, the section 112(g) requirements do
not apply if the total emissions from an entire ``contiguous area under
common control'' (in general, the entire plant site) do not exceed the
major source level.
An important element of the major source definition is the term
``potential to emit.'' ``Potential to emit'' is based on the source's
capability to emit HAP considering enforceable limitations. Such
limitations include restrictions on capacity, restrictions on the types
of materials used, emission limitations, and other types of
restrictions. A definition of ``potential to emit'' is contained in 40
CFR 63, subpart A (General Provisions), as well as in further guidance
provided by the EPA available on the Technology Transfer Network
(referenced above), under Clean Air Act, Title III, Policy and
Guidance, as well as on the EPA web site address (also reference
above).
3. Section 63.40(c) Exclusion for Steam Generating Units
Section 63.40(c) of this rule clarifies that electric utility steam
generating units are not yet subject to the requirements of section
112(g).
Section 112(n)(1) requires the EPA to perform a study of the
hazards to public health associated with HAP emissions from electric
utility steam generating units. This paragraph states that:
The Administrator shall regulate electric utility steam
generating units under this section, if the Administrator finds such
regulation is appropriate and necessary after considering the
results of the study required by this paragraph. (emphasis added)
The EPA reads the phrase ``under this section'' as a broad
exemption from regulation under section 112, including section 112(g),
pending the results of the utility health hazards study.
4. Section 63.40(d) Relationship to State and Local Requirements
Most state and local regulatory agencies maintain regulatory
programs that involve toxic air pollutant reviews for constructed and
reconstructed sources. Section 63.40(d) clarifies that the requirements
of section 112(g) do not supersede any requirements of these programs
that are more stringent than this rule. Any such State requirements
which are more stringent than the requirements of this rule would not
be federally enforceable under section 112(g).
5. Section 63.40(e) Source Categories Deleted
This rule provides an exclusion for sources in source categories
which have
[[Page 68388]]
been deleted by the EPA from the source category list for standards [57
FR 31576, July 16, 1992]. These sources are excluded because for any
such category the EPA will have determined, in lieu of making a MACT
determination, that MACT should not apply.
6. Section 63.40(f)--Research and Development Facilities
This rule also provides an exclusion for research and development
facilities that meet the specific definition in section 63.41. The
proposed rule requested comment on whether to provide this exclusion,
and the EPA received significant comment in favor of providing it,
based on the potential resource burden of reviewing operations which by
design change frequently and do not produce a product for commercial
use. The title V operating permit program has issued a policy
memorandum aimed at reducing the permit requirements for such
facilities. In the interest of consistency with previous exclusions for
research and development activities and its anticipated use in the
title V program, this rule adopts the definition of research and
development facilities provided in section 112(c)(7) of the Act.
B. Section 63.41 Definitions
1. Terms Defined in the General Provisions
A number of terms used in the rule have already been defined for
all of 40 CFR Part 63 by the General Provisions contained in subpart A.
Readers interested in the definitions and rationale for those terms
should refer to subpart A. Relevant terms defined in the General
Provisions include:
--Act
--Approved permit program
--Capital expenditure
--Federally enforceable
--Hazardous air pollutant
--Major source
--Permit program
--Potential to emit
--Relevant standard
--Title V permit
In the definition of Construct a Major Source, the threshold level
for a major source is a source which emits or has the potential to emit
(PTE) 10 tons/year of any HAP or 25 tons/year of any combination of
HAP. The PTE means the maximum capacity of a source to emit any air
pollutant under its physical and operation design. A source's PTE may
also take into account enforceable requirements for air pollution
control equipment, and enforceable restrictions on operation such as
maximum hours of operation or types of materials consumed.1
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\1\ Currently, there is a requirement in the general provisions
to part 63 that PTE limits must be federally enforceable in order to
be credited. In a 1995 court case (National Mining v. EPA, 59 F. 3d
1351, D.C. Cir. 1995), the court required EPA to reconsider this
requirement. The EPA is currently developing rulemaking amendments
that will address the concerns raised by the court. It is expected
that these rulemaking amendments will be finalized in mid-1998.
The EPA believes that virtually all of the new constructed or
reconstructed sources with a possibility of triggering section
112(g) requirements, and requiring emission limitations in order to
avoid section 112(g), will need to obtain a preconstruction minor
NSR permit from a State and local air quality agency. Because those
minor NSR permits are federally enforceable, the practical
implications of the above-mentioned PTE rulemaking may not be as
pronounced for section 112(g) as for other requirements of part 63.
There may be a few situations where a source seeks to attain
``synthetic area'' status for section 112(g) for a new greenfield
site, or seeks PTE limits to ensure that a newly constructed source
avoids becoming a 10-ton ``affected source'' under section 112(g),
and the limitation issued by a State program is not federally
enforceable. For example, a State's air toxics preconstruction
permitting program that creates limits for non-VOC HAP's such as
methylene chloride may not in some circumstances yield federally
enforceable limits. For any such circumstances that arise before EPA
issues its rulemaking amendments addressing the National Mining
decision, the EPA will accept, for purposes of section 112(g),
limitations that are practicably enforceable by a State and local
air pollution control agency.
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This means that if a source keeps its emissions below the threshold
limits for a major source through enforceable limits, it will not meet
the definition of ``Construct a Major Source'' under section 112(g),
and thus will not have to apply new source MACT. For example, if a
plant to be constructed will have uncontrolled emissions of a HAP of 40
tons/year, it would normally be subject to new source MACT under
section 112(g). The owners are, however, able to install emission
controls achieving a 75 percent reduction in emissions of the HAP in
question. By imposing on themselves this control system and making
their emissions limit and operating conditions enforceable, as a
practical matter they can keep their PTE below the major source
threshold of 10 tons/year. Such a source would not be subject to
section 112(g), even if the 75 percent emissions reduction did not
achieve a ``new source MACT'' level of control.
2. Terms Related to Construction and Reconstruction
The following terms are included in section 63.41:
--Construct A Major Source
--Reconstruct A Major Source
-- Greenfield Site
The definition of ``construct a major source'' in this rule refers
to two types of sources. The first is any ``major-emitting''
construction at a greenfield site (i.e., construction which emits or
has the potential to emit HAP in amounts that would make it a major
source). The other is any construction of a new ``process or production
unit'' at an existing site where the process or production unit is
itself major-emitting. (The definition of ``process or production
unit'' is discussed below in this section.)
It should be noted that a major source ``construction'' or
``reconstruction'' project may require more than one MACT
determination. As outlined in paragraph (3) of the definition, the EPA
believes that MACT determinations consistent with section 112(d) of the
Act may not include combinations of emission points involving more than
one category on a published list of source categories (57 FR 31576).
For example, most types of combustion sources appear as individually
listed categories. As a result, a ``construction'' or
``reconstruction'' involving boilers and other process equipment must
make a separate MACT determination for the boilers.
In response to EPA's request for comments on the exclusion from
section 112(g) for major sources that use existing emission controls,
several issues were raised. Most industry commenters supported the
exclusion, but favored broadening it and wanted the rule to state
clearly that the decision for what constitutes the best control
technology is left to the discretion of the permitting authority.
Industry supported replacing the phrase ``control equipment'' with
``control technology'' to cover pollution prevention approaches.
Environmental groups and several States opposed this exclusion. They
felt the use of the phrase ``one of the best control technologies'' was
too open to interpretation and could be abused. These commenters cited
the following concerns: the statute requires MACT or its equivalent,
the technology determination should be based on recent standards (not
standards used when the controls were originally constructed), all
significant HAP should be controlled by the existing controls, and
public review and comment should be required of the permitting
authority's decision. Several States indicated that review of
applications for this exclusion would be too resource intensive for
their staffs.
The EPA agrees with the comment that the phrase ``one of the best
control technologies'' is too ambiguous and open to varied
interpretation. Nevertheless, the EPA recognizes that many sources will
have previously
[[Page 68389]]
installed controls at the plant site, and that such controls may be
sufficient for case-by-case MACT when new process or production units
are added to them. It is our intent to provide flexibility to the
permitting authority in making case-by-case MACT determinations, but
believe we are obligated to provide guidance as to how those
determinations are evaluated. Consequently, the final rule clarifies
the criteria that must be met for a new major process or production
unit to qualify for this exemption from section 112(g) review.
The definition of ``construct a major source'' excludes such
process or production units, provided the controls meet six specific
criteria.
One criterion is that all HAP that would otherwise be controlled by
a case-by-case MACT determination are controlled by the existing
technology. For example, if a source has previously installed controls
designed for total volatile organic compounds (which may also be HAP),
those controls must achieve a MACT level of control for all of the HAP
in the emission stream that would normally be expected to be controlled
by a MACT determination. (For example, a MACT standard might reasonably
be expected to address all the HAP emitted in a stream except for those
emitted in trace amounts.) In addition, the control efficiency of the
equipment for HAP prior to addition of the new process or production
unit must be maintained after addition of the new equipment.
The definition also requires either that the previously installed
control technology has been reviewed and approved within the last 5
years under another air quality program that requires best available
control technology (BACT), lowest achievable emission rate (LAER), or
State-level toxics BACT (T-BACT) or MACT. Alternatively, the permitting
authority may determine that the previously installed control
technology is equivalent to what would be currently required by another
similar air quality program. Use of the exclusion must be documented in
the title V permit at the time of permit issuance or renewal. These
requirements provide a safeguard that the new process or production
unit will be adequately controlled, even if it does not undergo section
112(g) review.
In addition, an opportunity is required for public review of the
permitting authority's decision to allow use of this exclusion. If any
commenter questions the permitting authority's view that previously
installed controls are adequate for section 112(g) purposes, then the
permitting authority must explain its decision in response to those
comments. In general, the EPA believes that controls that were
constructed in accordance with an earlier determination could be
adequate; however, such previously installed controls may not be
adequate if that same determination, made currently, would be
significantly different. For example, a BACT determination made in 1992
could be significantly different from a determination made in 1997 on
similar equipment if advances in control technology have occurred
during that time.
Finally, the EPA generally does not view this ``good controls''
exclusion under section 112(g) as satisfying MACT for new sources under
section 112(d) or section (j). As such, sources subject to later MACT
determinations pursuant to section 112(d) or section 112(j) may have
additional compliance requirements placed upon them.
3. Terms Related to MACT
Definitions for the following terms related to levels of control
technology are included in section 63.41 of this rule:
--Available information
--MACT
--Control Technology
--MACT Emission Limitation for New Sources
The basis for the MACT definitions is statutory language contained
in section 112(d) of the Act. The term ``MACT'' 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. The term ``MACT'' was used in this context in the House
Bill, H. R. 3030. For purposes of the definitions in this rule, the EPA
assumes that MACT is a reference to the ``maximum degree of reduction
in emissions'' language contained in section 112(d)(3).
The term ``available information'' is used to define the extent of
review for permitting authorities and applicants for case-by-case MACT
determinations. This rule defines ``available information'' to include
information made available by the EPA in the process of setting
emission standards, including but not limited to MACT standards. The
EPA intends that information made publicly available in background or
other documents in the process of developing a ``presumptive MACT'' for
a source category should be considered ``available information.'' In
this rule, information is considered to be ``available'' if it is
available as of the permitting authority's final determination, i.e.,
the date the permitting authority makes the final determination after
receiving all comments. Some commenters argued that information should
only be considered ``available'' if it has been available as of the
date of application for a MACT determination. The EPA believes,
however, that new information presented during a public comment period
should be considered in the MACT determination. The issue of
``available information'' is discussed in more detail in section
III.D.3. below.
4. Terms Affecting Extent of Coverage by MACT
The following terms are used to describe equipment subject to a
MACT determination:
--Affected source
--List of source categories
--Process or production unit
As explained above, the EPA believes that Congress did not intend
section 112(g)(2)(B) to be so limited in scope that it would apply only
to construction or reconstruction of entire facilities, and that this
section was also intended to apply to construction of new process or
production units and reconstruction of existing process or production
units at existing facilities. Accordingly, it is necessary for EPA to
decide what types of new equipment constitute the unit to be controlled
under section 112(g).
A number of commenters expressed concerns regarding the exclusion
for an ``integral component of a process or production unit,'' in the
draft final rule, which required that the component be an ``essential
part'' of a larger process or production unit. The nature of the
comments made it clear that this definition was subject to greatly
differing interpretations. Many commenters stated that the definition
was too narrow, while some argued that it could be construed so broadly
that no new equipment would qualify. Several commenters who believed
the proposed definition of ``integral component'' to be too narrow
suggested that EPA use alternative criteria such as ``functions as a
part of'' or ``integrated with'' a larger process or production unit
instead. The EPA believes the concept of a functional relationship to
be a useful one, but by itself this concept is susceptible to an unduly
broad interpretation.
The EPA is concerned about the varying interpretations given to
this term by the commenters. Therefore, instead of defining the
equipment which should be excluded from section 112(g), the EPA has
chosen to define the
[[Page 68390]]
equipment to which section 112(g) should apply controls. This rule
applies section 112(g) to equipment which meets the definition of a
``process or production unit.''
The definition of ``process or production unit'' requires that the
unit to which section 112(g) applies should be ``any collection of
structures and/or equipment that processes, assembles, applies, or
otherwise uses material inputs to produce an intermediate or final
product,'' and notes that the process or production unit may be a part
of a facility which contains several such units. By requiring that the
unit produce a product, the EPA intends section 112(g) to apply to
units which are discrete, not units which are just one essential part
of a larger function. The EPA also intends that the requirement that
the unit produce a product be read to include those units whose product
is energy, such as boilers.
At the same time, some commenters suggested that an entire plant
site should generally be considered the unit to which section 112(g)
applies, an interpretation which the EPA does not share. Therefore, by
specifying that the process or production unit may be a part of a
facility, the EPA intends that the definition be interpreted to cover a
process line or production operation within a facility.
The draft final rule contained separate definitions of ``process''
and ``production unit.'' Under the draft language, storage tanks would
have been considered processes or production units in some situations.
Because the final rule consolidates the two definitions, the EPA has
changed the definition of process or production unit to include the
storage of materials, where storage is the primary function of the
facility (e.g., tank farms), as a process or production unit. These
issues are discussed and illustrated further in section III.D. below.
5. Electric Utility Steam Generating Unit
The definition of electric utility steam generating unit in the
proposed rule is taken directly from section 112(a) of the Act.
C. Section 63.42 Program Requirements Governing Construction or
Reconstruction of Major Sources
Several commenters expressed concerns regarding the provision in
the draft final rule under which section 112(g) would have taken effect
immediately upon promulgation of this rule in those States which have
already developed section 112(g) programs. Some of these commenters
noted that it is illogical to assume that a program adopted by a State
in advance of issuance of this rule will meet its requirements, and
that States should be required to evaluate their programs for
conformity to this rule before they take effect. The EPA agrees with
this comment, and has therefore required that each permitting authority
certify that its implementing program is in conformity with the
provisions of this rule as part of its adoption of a program.
Some commenters requested that EPA provide a fuller description of
the steps by which a permitting authority can adopt a section 112(g)
program. Other commenters argued that a program should not take effect
without some sort of notice to affected facilities. The EPA agrees with
these comments and has therefore also required that a permitting
authority establish in advance an effective date for its program, and
publish notice of the adoption of the program prior to that effective
date.
One commenter argued that section 112(g) programs adopted by a
State permitting authority cannot take effect unless they are expressly
approved by EPA, either as part of a title V program or as a delegation
of authority to the State under section 112(l). The commenter argued
that EPA must also afford an opportunity for public comment prior to
any such approval. The EPA does not agree with the position expressed
by this commenter.
The EPA interprets section 112(g) as assigning to the permitting
authority for each State, whether it be the State or the EPA Regional
Office acting on behalf of the Administrator, the responsibility for
making section 112(g) determinations. This construction of section
112(g) is implicit in the language which makes the applicability of the
prohibitions in section 112(g)(2)(B) contingent on the effective date
of a title V permit program in each State. Moreover, the EPA has
previously taken steps to effectuate this construction of the Act. Each
State which received approval to operate a title V permit program was
required to state that it had the requisite authority to implement
section 112(g). While an individual State (or the EPA Regional Office
if it is the permitting authority under title V) is not in a position
to adopt a section 112(g) program which satisfies Federal requirements
for such programs until after EPA has issued its general guidance
concerning the nature of these requirements, there is no indication in
the language of section 112(g) that EPA must then ``delegate'' to each
State the authority already assigned it by the statute itself.
The EPA believes that it would be permissible for EPA to require
that State section 112(g) programs be approved by the EPA before they
could take effect, but does not intend to do so. The EPA acknowledges
that the difficulties it has encountered in devising guidance on
implementation of section 112(g) which is both effective and
practicable have resulted in unfortunate delays in implementation, and
that EPA must necessarily afford State permitting authorities some
additional time after issuance of this rule to plan for and adopt their
implementing programs. However, inclusion of additional EPA comment and
review procedures which are not mandatory would only serve to further
delay implementation of this provision, thereby undermining the
congressional intent.
Section 63.42(c) says that no person may ``begin actual
construction or reconstruction'' of a major source unless a case-by-
case MACT determination has been made. The EPA intends that the phrase
``begin actual construction or reconstruction'' have the same meaning
as the phrase ``begin actual construction'' in 40 CFR 51 and 52 [the
NSR and PSD programs], i.e. initiation of physical onsite construction
activities as set forth in those programs.
If a facility which wishes to undertake construction or
reconstruction of a major source after the effective date of section
112(g)(2)(B) in a State or local jurisdiction is unable to obtain the
case-by-case MACT determination required by that provision, this could
prevent the facility from proceeding with construction or
reconstruction. Although the potential for constraints on construction
or reconstruction when no section 112(g) program is in place is
inherent in the structure of the statute itself, the EPA has included
in the final rule two provisions which are intended to avert such a
result in the event that a State permitting authority is unable to
adopt a section 112(g) program in a timely manner.
First, in those instances where a State has not adopted a section
112(g) program within 18 months but concludes that it can still make
the required case-by-case MACT determinations, the State may elect to
make such determinations subject to written concurrence by the EPA
Regional Office. Upon written concurrence by the EPA, the MACT
determination will become final and federally enforceable. Second, in
those instances where a State has not adopted a section 112(g) program
within 18 months and concludes that it is unable to make case-by-case
MACT determinations in the absence of such a program, the State may
request that the EPA Regional Office implement a transitional section
112(g) program for a
[[Page 68391]]
period not to exceed 1 year. Although it is clear that failure to adopt
a section 112(g) program would constitute a material deficiency in a
State's title V permitting program, the EPA would prefer to afford
those States who have encountered practical difficulties in timely
adoption of a section 112(g) program additional time rather than
immediately applying the sanctions and remedies set forth in section
502(i).
Industry commenters have expressed concern that individual States
might use adoption of a section 112(g) program to ``federalize''
elements of existing State air toxics programs which are not required
to implement section 112(g) with respect to construction or
reconstruction of major sources. Conversely, some States have expressed
concern that adoption of a section 112(g) program might operate to
preempt other existing provisions in State air toxics programs which
are not required to implement section 112(g). The EPA does not intend
or support either of these results. The program adopted by each State
to implement section 112(g) will be intrinsically less extensive in its
scope than many existing State air toxics programs. When this is the
case, the section 112(g) program should not be treated as either
subsuming or superseding extraneous State program elements.
Accordingly, the EPA has included in the final rule explicit language
making it clear that nothing in the section 112(g) rule can be
construed to require compliance with State program elements not
intended to implement section 112(g) with respect to construction or
reconstruction of major sources, and nothing in the rule can be
construed to preclude enforcement of such State program elements under
any other provision of applicable law. State permitting authorities may
examine their existing State air toxics programs to determine if they
contain the requirements of this rule. If so, a permitting authority
may use its existing air toxics program as a vehicle for implementing
section 112(g) requirements.
D. Section 63.43 MACT Determinations for Constructed and Reconstructed
Major Sources
Section 63.43 (in combination with a number of definitions
contained in section 63.41) contains the requirements for constructed
and reconstructed major sources described in section 112(g)(2)(B) of
the Act. Equipment affected by this section must comply with a ``new
source MACT'' level of control.
Applicability
1. ``Greenfield'' Facilities. The most straightforward case for
section 112(g) is for a new plant site emitting (or having the PTE)
more than major amounts of HAP (that is, 10 tons/yr of one HAP, 25
tons/yr of multiple HAP, or amounts that exceed any lesser quantity
cutoffs that may be established under subpart C of part 63). The EPA
believes that the statute clearly requires such a new plant site to be
treated as a ``constructed major source'' subject to a ``new source
MACT'' level of control.
2. Addition of Equipment at an Existing Plant Site. This rule
treats addition of a new ``process or production unit'' as
construction, as discussed above, and requires application of new
source MACT to that process or production unit. This ensures that new
major-emitting process or production units (that is, those emitting
more than 10 tons/year of a HAP, or 25 tons/year from all HAP, or
amounts exceeding a lesser quantity cutoff), which generally would
represent sizeable investments, will be built with state-of-the art
control technology. It is generally recognized that it is more
straightforward to build such a level of control technology into the
original design, and that it is difficult or sometimes even impossible
to retrofit such controls at a later date. A fundamental goal of many
EPA programs, such as the new source performance standards program
under section 111 of the Act and the effluent guidelines program under
the Clean Water Act, is to achieve long-term reductions in emissions by
requiring ``best'' controls as old production operations are replaced
with new operations. In addition, this requirement prevents inequities
in the implementation of the 112(g) program, because a new process or
production unit at an existing plant would be subject to the same
standard as a ``greenfield'' plant site with identical equipment. If
this rule only covered greenfield sites, as some commenters suggested,
then that same new process or production unit would not be controlled
at all under section 112(g).
The guidance in this preamble is designed to help the permitting
authority determine whether a new major addition constitutes a process
or production unit. The EPA is providing the following examples to
illustrate its intent for applicability of section 112(g). The
rationale for each case is explained based on the definition of a
process or production unit.
Because this rule is generic to all industries, the definition of
``process or production unit'' and the use of the terms ``intermediate
or final product'' in this rule are necessarily generic. As a result,
in applying this definition to individual plant sites, permitting
authorities will need to exercise their reasonable judgment in
determining the ``collection of structures and/or equipment that * * *
produce(s) an intermediate or final product.'' The following discussion
and examples provide guidance on factors and considerations that EPA
believes are appropriate in making this judgment. None of the factors
or considerations by itself should be considered absolute in
determining applicability, but these should be weighed by the
permitting authority in reaching a decision.
In applying the definition of ``process or production unit'' to a
facility, a key question is: What are the intermediate or final
products? There is no intention for this rule to impart any regulatory
significance to informal uses of the term ``intermediate.'' The
examples below illustrate EPA's intent for a variety of industries.
A second question is: Do the new equipment and/or structures
constitute a collection of equipment and/or structures that produces
such a product? The EPA believes that an appropriate factor for the
permitting authority to consider is the extent to which the new
equipment and structures are discrete--in other words, whether as a
technical matter the new equipment and structures can produce an
intermediate or final product independently, in substantial degree,
from the existing equipment or structures. If so, this would tend to
support a judgment by the permitting authority that the new equipment
and structures constitute a process or production unit. If not, this
would support the opposite conclusion. The EPA notes that in making
this judgment concerning ``discreteness,'' one relevant consideration
is whether the types of new equipment and structures in question are
reasonably controlled independently.
In many cases it will be easy to discern whether changes at a plant
site will constitute construction or reconstruction of a ``process or
production unit.'' For example, if a new unit is added to an existing
plant site, and that type of unit is often built alone at a greenfield
site, the logical conclusion is that the new unit is a process or
production unit. Also, if minor changes are being made to existing
equipment, it should be clear that no process or production unit is
being constructed or reconstructed. Of course, there is no need to
define the ``process or production unit'' at all
[[Page 68392]]
unless the structures and/or equipment being constructed at an existing
plant site have the potential to emit major amounts of HAP.
The following sample applicability determinations provide further
guidance in judging when a source is subject to section 112(g)
requirements:
Example 1. At a plant which manufactures fiberglass reinforced
plastic boats, the owners wish to add more spray guns to an existing
fabrication line to supplement the existing spray guns in laminating
a particular model of boat hulls. The new spray guns will have a PTE
greater than 10 tons/year of a HAP.
In this example, EPA views the fiberglass hull of a boat as an
intermediate product in the manufacture of the final product (i.e., the
boat with deck, trim, paint, engine, etc.) The collection of structures
and/or equipment needed to manufacture the intermediate product, in
this case, includes the existing spray guns and other operations in the
building (e.g., the lamination operation and other supporting
equipment) that typically are found in the production of boats. Because
the newly added spray guns in and of themselves do not produce the
intermediate product, the EPA does not view the additional spray guns
for lamination as a process or production unit that is subject to
review under section 112(g).
Example 2. Using Example 1, assume that the owner adds more
spray guns to laminate a second model of boat hulls. The room is
large enough to accommodate two lamination processes at the same
time. The new spray guns have a PTE greater than 10 TPY.
The same rationale used in Example 1 applies here. The
collection of equipment needed to produce the boat hull includes the
lamination process as well as the gel coat process. Because the
addition of the second lamination process does not produce an
intermediate product, if no additional laminating or other essential
equipment were added, it would not be subject to review under
section 112(g).
Example 3. Using Example 2, a gel coat spray booth and
supporting equipment needed to manufacture the boat hulls are added
in addition to the spray guns.
The process or production unit in this example is the set of
equipment that consists of the gel coat spray booths, the spray gun,
and the supporting equipment. This new set of equipment can
reasonably operate alone and produce an intermediate product.
Consequently, all sources of HAP in this set of equipment, which
includes the gel coat spray booth and the spray guns in the
laminating room, are subject to review under section 112(g).
Example 4. An aluminum reduction plant has several potlines
which manufacture aluminum. Each potline consists of between 100 and
200 electrolytic reduction cells or ``pots'' that are connected
together in series electrically to complete a circuit. Each pot
produces molten aluminum. The company wishes to add more pots on
each line. The additional pots will result in a major increase in
emissions.
Although each individual pot contributes to the production of the
aluminum, the separate pots are not considered to be discrete process
or production units in that they cannot operate independently. In
addition, it does not make sense from an engineering standpoint to
apply new source MACT only to the additional pots. The best time to
apply new source MACT is when constructing an entirely new potline. The
EPA does not view each separate pot as a process or production unit and
thus the individual pots are not subject to review under section
112(g). The EPA sees the pots within the potline as being both
functionally and physically interconnected and unable to function
alone. Thus, EPA does not consider the pots as discrete process or
production units.
Example 5. Using Example 4, assume the aluminum production
facility adds a new potline which is a major source of HAP.
The EPA considers the entire potline as the collection of
structures and equipment that produces an intermediate product (i.e.,
molten aluminum). Since it fits within the definition of a process or
production unit, the potline is subject to review under 112(g). Also,
note that the potline is an example of a process or production unit
that is part of a larger production unit, the aluminum production
plant.
Example 6. At an automobile assembly paint shop, three coating
steps, primer, surfacer, and top coat, are used to paint the
automobile body. Another parallel topcoat step is added to the
existing topcoat step. Both top coat steps then feed back into a
bake oven. The new top coat step will be a major source of HAP.
The new parallel topcoat step is not subject to review under
section 112(g). The intermediate product in this case is the painted
automobile body. The top coating step cannot take place without the
preceding primer and surfacer steps and the supporting infrastructure.
Additionally, the intermediate product cannot be completed without the
bake oven step. Consequently, the topcoat by itself is not a discrete
process as it is only one step in a series of steps necessary to
produce an intermediate or final product. (Although unlikely, if an
existing automobile assembly plant were to build a second paint shop,
this should be reviewed under section 112(g).)
3. Reconstruction. Section 112(g) continues the concept of
``reconstruction'' contained in past regulatory programs. The concept
of reconstruction is intended to prevent the circumvention of ``new
source'' requirements by completely overhauling existing equipment.
Current air pollutant emission standards under previous requirements of
the Act treat replacement of components as a reconstruction if the
replacement represents more than 50 percent of the capital cost of the
new unit.
For section 112(g), the requirements apply to the reconstruction of
a ``major source,'' and this rule defines ``reconstruct a major
source'' as the replacement of components at a major source such that
the replacement exceeds 50 percent of the capital cost of either an
entirely new major source, or of a comparable process or production
unit where the process or production unit, if newly constructed, would
have been considered a constructed major source under this rule. (For
the sake of clarity, the EPA has deleted that portion of the
reconstruction definition in the draft rule that referred to a ``group
of process or production units'' being reconstructed, so that the
definitions of both construction and reconstruction would refer to the
same units).
MACT Determinations
Section 63.43 reflects the statutory requirement that an owner or
operator who proposes to ``construct or reconstruct'' a major source
must obtain a determination from the ``permitting authority'' that the
``MACT emission limitation for new sources'' will be met. The
``permitting authority'' is defined as the agency responsible for the
title V permit program. Further discussion of this issue, and of other
issues related to implementation of section 112(g), is contained in
section IV of this preamble.
This section of the preamble discusses the procedures for making
these MACT determinations. These procedures include technical review
procedures needed to establish a MACT emission limitation and a
corresponding MACT control technology, and, (where appropriate),
administrative procedures for submitting and reviewing applications for
MACT determinations. In this rule, the overall process for MACT
determinations is outlined in Sec. 63.43.
1. Overall Process for MACT Determinations. Where no MACT standard
under section 112(d) has been promulgated, section 112(g) requires a
case-by-case determination of the MACT emission limitation. This
``determination'' can take any of three
[[Page 68393]]
forms, as described below and in Sec. 63.43(c) of this rule. Under any
approach, the process for review is conceptually similar.
The process begins with a MACT analysis by the owner and operator.
This MACT analysis must be consistent with general principles described
in Sec. 63.43(d). The owner or operator provides an application for a
MACT determination to the permitting authority. Requirements for the
contents of this application are listed in Sec. 63.43(e). Commenters
indicated that the source cannot certify that the control technology
meets MACT because the permitting authority has not yet made the MACT
determination. The EPA agrees with these commenters and has therefore
eliminated the requirement from Sec. 63.43(e)(2) of the draft final
rule for a responsible official to certify that the control technology
meets the requirements of section 112(g) of the Act. (The EPA wishes to
clarify that the requirement in Sec. 63.43(e)(2)(vi) 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 speciations. 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.)
This application for a MACT determination is then reviewed by the
permitting authority according to one of the following procedures (at
the permitting authority's discretion): (1) the permitting authority's
own review procedures (so long as they provide for public participation
in the determination), (2) the administrative procedures outlined in 40
CFR part 70 or part 71, or (3) the administrative procedures described
in Sec. 63.43, paragraphs (f), (g), and (h). If approvable, the
permitting authority will then either: (1) issue approval under its own
procedures, (2) revise the part 70 or part 71 permit, or (3) issue a
Notice of MACT Approval. Regardless of which review procedure is used,
the provisions of section 63.43, paragraphs (j), (k), (l), and (m)
apply.
Section 63.43(c)(3) of this rule provides that a source may seek
approval of case-by-case MACT determinations for new alternate
operating scenarios (that were not incorporated in a State permit) when
obtaining its title V permit. As a result, the source would have met
the requirements of section 112(g) at the time of permit approval, and
thus would be free to activate any such alternative operating scenario
in the future without having to undergo any further section 112(g)
review.
Where EPA determines that the MACT determination made by the
permitting authority fails to meet any of the requirements of
Sec. 63.43, EPA may take one of two actions to address the deficient
MACT determination. (a) Where the MACT determination is made part of a
source's part 70 permit, EPA may veto issuance of the permit in
accordance with the provisions of 40 CFR 70.8(c). The EPA may also use
the veto process outlined in 40 CFR 70.8(c) where the State has
``enhanced'' its section 112(g) process to incorporate the part 70
procedures.
(b) Where the MACT determination is made before the source obtains
or revises its part 70 permit, either through a Notice of MACT Approval
or the permitting authority's own procedures, EPA may exercise its
authority under section 113(a)(5) of the Act to prohibit construction,
issue an administrative penalty order, or bring a civil action against
the source upon finding that the State has not acted in compliance with
any requirement or prohibition relating to the construction or
reconstruction of new sources.
Many commenters have expressed opposition to the provision in the
draft final rule which provides that an owner or operator shall be
deemed to be in compliance with section 112(g)(2)(B) only to the extent
that the constructed or reconstructed major source is in compliance
with the terms and conditions of the MACT determination. The commenters
contend that this provision would operate to treat sources that are
temporarily in violation of the terms of a MACT determination the same
as sources who completely ignore section 112(g)(2)(B) and proceed to
construct or reconstruct without obtaining a MACT determination. One
commenter even argues expansively that this proposed provision would
operate to subject the violator to penalties for the entire period
since the original construction or reconstruction, rather than only for
the period of the violation itself.
It was not the intent of EPA, nor would it be appropriate, to
transform prior compliance into a violation based on the occurrence of
subsequent violations. The EPA has clarified the language of the
provision to assure that any violation of the terms and conditions in a
MACT determination will be construed as a violation of section
112(g)(2)(B) only for that period that the owner or operator is
actually in violation of such terms or conditions.
In general, the commenters assume that the MACT determinations made
by a State will themselves be automatically federally enforceable,
regardless of whether they have been incorporated in a title V
operating permit for the facility. One commenter expressly invoked the
language of section 113 by referring to a MACT determination as a
``permit,'' while another argued to the contrary that Federal
enforceability is not mandatory for MACT determinations under section
112(g). The EPA agrees that MACT determinations made pursuant to the
authority conferred on a State by section 112(g) should be construed as
federally enforceable actions, regardless of whether their terms have
been incorporated into a title V operating permit. The EPA notes that a
significant period may elapse between the time a facility first obtains
a MACT determination and the subsequent issuance of a title V operating
permit for that facility. The MACT determinations in this interim
period are federally enforceable.
Congress clearly intended that the EPA should be able to enforce
the requirement for sources to apply MACT prior to construction or
reconstruction of a major source. If a facility obtains a MACT
determination but does not adhere to its terms and conditions, then
that facility should not be shielded from Federal enforcement. The
provision in the final rule which makes failure to adhere to the
requirements in the MACT determination a violation of section
112(g)(2)(B) itself, but only for the period that the facility is
actually violating those requirements, is reasonable. It provides
additional assurance that no facility will be able to avoid Federal
enforcement based on a contention that the MACT determination has not
yet been incorporated into a title V operating permit and should not be
deemed directly enforceable.
2. Requirement for Preconstruction Determination. Section 63.43
requires the MACT determination before construction or reconstruction
of the major source. The requirement is based upon the language in
section 112(g)(2)(B) requiring that the Administrator (or the State)
determine that MACT ``will be met.'' The EPA believes that the future
tense suggests an up-front determination.
In addition, the EPA believes that there are substantial
implementation disadvantages for any program that would allow equipment
to be constructed before a determination is made. The EPA's past
experience in enforcing air quality regulations suggests strongly that
it would be very
[[Page 68394]]
difficult to require substantial changes in the design of equipment
once it is in place. The EPA feels that fairness or equity arguments,
based on investments already made and the costs of retrofit and
shutdown, could be made by a source seeking to begin operation under
these circumstances.
3. General Principles for MACT Determinations. Section 63.43(d)
reviews a number of general principles that govern MACT determinations
under this rule. As required by section 112(g)(2)(B), this rule
requires a case-by-case determination by the permitting authority that
the technology selected by the owner or operator is consistent with
what would have been required under section 112(d) of the Act. For
constructed and reconstructed major sources, the minimum requirement
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 definition of MACT for new source MACT
in this rule does not require consideration of sources outside the U.S.
However, sources and permitting authorities are expected to consider
controls on sources across the U.S., as opposed to considering just
those controls used on sources in a particular State.
In determining the appropriate level of control, this rule requires
consideration of ``available information.'' In some instances, such
information sources are readily apparent. For example, if a Federal
MACT standard has been proposed, but not yet promulgated, the EPA
expects that a MACT determination will strongly consider that proposal.
(Other information may be available in some cases, for example, based
upon public comment on the MACT proposal, but such data would need to
be adequate to refute the finding in the proposal). In other cases, the
EPA will have generated background documents summarizing MACT findings
which should be readily available.
In some cases, during the course of developing the MACT standard
the EPA will decide upon and make publicly available a ``presumptive
MACT'' emission limitation that anticipates what the ultimate MACT
determination will be. The EPA may do this before a proposed MACT
standard has been published in the Federal Register for a source
category. If so, sources and States should use such a ``presumptive
MACT'' emission limitation as guidance in making case-by-case MACT
determinations, because these determinations would be the best
available information on the eventual MACT emission limitation.
The most recent performance standards for existing control
technologies must be met. These include standards for BACT, LAER, or
State T-BACT established within the last 5 years. The EPA plans to
develop guidance for performance standards for 10-year MACT categories.
Any relevant performance standards established in this guidance should
be used once it is available. Determinations by the permitting
authority on the adequacy of equivalent controls should be evaluated by
the most recent performance standards available at the time of
construction. As indicated in the draft final rule, the resulting level
of control must at least meet that provided by the control technology
prior to the inclusion of additional sources.
In addition, the EPA currently maintains a number of data bases
that may be useful as a resource for information on available control
technologies. The EPA has also designed a data management system that
will support case-by-case MACT determinations. This data base is called
the MACT data base. The EPA is developing guidance documents on how to
use the MACT data base. Section 63.43(m) requires States to report all
case-by-case MACT determinations to the MACT data base.
Finally, it should be noted that the final rule changes the term
``control equipment'' to ``controls'' to include any pollution
prevention strategy that effectively limits emissions and is federally
enforceable.
4. General Issues with Regard to MACT Determinations. For
constructed and reconstructed major sources, section 112(g) of the Act
requires an emission limitation consistent with a ``new source MACT''
level of control. The Act states:
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.
For the purposes of section 112(g), two criteria should be used to
determine if a source is similar: (1) whether the two sources have
similar emission types, and (2) whether the sources can be controlled
with the same type of control technology. The EPA can classify the
emission source as one of five different types. They are as follows:
Process vent or stack discharges--the direct or indirect discharge
of an organic liquid, gas, fume, or particulate by mechanical or
process-related means. Examples would be emission discharges from
columns and receiving tanks from distillation, fractionation, thin-film
evaporation, solvent condensers, incinerators, flares, and closed-
looped biological treatment units.
Equipment leaks--fugitive emissions from the following types of
equipment: valves, pumps, compressors, pressure valves and lines,
flanges, agitators, sampling connection systems, and valve connectors.
Evaporation and breathing losses--emissions from storage or
accumulation of product or waste material; for example: stationary and
mobile tanks, containers, landfills, and surface impoundments, and
pilings of material or waste.
Transfer losses--emission of an organic liquid, gas, fume, vapor or
particulate resulting from the agitation of material during transfer or
the material from one unit to another. Examples of such activities are
filling of mobile tanks, dumping of coke into coke quench cars,
transfer of coal from bunker into larry car, emptying of baghouse
hoppers, and sludge transfer.
Operational losses--emissions resulting from the process operation
which would result in fugitive emissions if uncontrolled by hoods or
vacuum vent, or other vent systems. Examples of operation losses are
emission resulting from spray coating booths, dip-coating tanks,
quenching towers, lubricating stations, flash-off areas, or grinding
and crushing operations.
These five types of emission sources can serve as a general guide
in identifying available control options while also considering the
concentration and the type of constituents of a gas stream. However,
while two pieces of apparatus can be classified within the same
emission source type, this does not automatically mean that the
emission points can be controlled using the same type of control
technology. For instance, storage tanks and landfills are both listed
in the evaporation and breathing losses classification, but it is
unlikely that a storage tank and landfill would be controlled with the
same technology.
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. EPA believes that
the use of the word ``similar'' provides support for this
interpretation. The EPA believes that Congress could have
[[Page 68395]]
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 consider transfer technologies when appropriate.
Some commenters expressed concern that the EPA's definition of
``similar source'' could be interpreted too broadly. The EPA believes
that the practical use and effectiveness of any transfer technology
should be generally comparable across emission units. While the
particular pollutants emitted need not be the same, the following
factors may be considered: the volume and concentration of emissions,
the type of emissions, the similarity of emission points, and the cost
and effectiveness of controls for one source category relative to the
cost and effectiveness of those controls for the other source category,
as well as other operating conditions. The uninstalled cost of controls
should not be a factor in determining similarity across emission units.
What should be a factor is the uninstalled cost of controls plus the
costs associated with installation and operation of those controls.
Therefore, whenever costs are quantified, such costs should include the
purchase price of controls plus the costs associated with installation
and operation of those controls for the source in question. In
addition, the EPA recognizes that control efficiencies across similar
sources may be different. The permitting authority is expected to use
its judgement in determining when operating conditions are comparable
across emission units.
Another general problem that must be addressed in determining the
MACT, is the identification of the universe of equipment that must be
considered for control. When the notice of initial list of categories
of sources under section 112(c)(1) of the Act was published (57 FR
31576), 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 identify
technically distinct groupings within these broad categories. During
the standard-setting process, EPA may find it appropriate to further
subcategorize to distinguish among classes, types and sizes of sources.
In making case-by-case MACT determinations, the EPA believes that
permitting authorities may find it necessary to subcategorize
particular source categories into technically distinct groupings. This
rule allows permitting authorities to subcategorize, at their
discretion, on a case-by-case basis, giving permitting authorities the
greatest flexibility in case-by-case MACT determinations. In their
comments, some permitting authorities indicated that reviewing agencies
may not have the resources to address this subcategorization issue. The
EPA recognizes that allowing permitting authorities discretion to
subcategorize or not subcategorize may lead to some national
inconsistency in implementation for source categories for which the EPA
has not yet established a presumptive MACT, or has not yet collected
enough information on the source category to establish subcategories.
To limit inconsistencies, the EPA strongly encourages those States
which have collected information on particular source categories to
share that information with other States through the MACT data base.
In the proposed rule, EPA also sought comment on the criteria for
which subcategorization would be allowed. Possible criteria can include
technically distinct processes or operations (including differences
between batch and continuous operation), fundamental differences in
emission characteristics or control device applicability, differences
in safety considerations, and the appropriate consideration of
opportunities for pollution prevention. Most commenters supported
allowing sources and/or States the discretion to subcategorize on a
case-by-case basis. The EPA has not subcategorized source categories in
this rule because it is most feasible to do so on a case-by-case basis.
5. Application for a MACT Determination. Section 63.43(e) of this
rule describes the information the owner or operator is required to
provide with an application for a MACT determination or in a title V
permit application for which a MACT determination is requested. These
information requirements are designed to identify the equipment to be
controlled, and to demonstrate that the selected control technology for
those units is consistent with or exceeds the requirements of the
statute.
6. Review Process. Analysis of the relationship of section 112(g)
to the operating permits program. This rule, in section 63.43,
paragraphs (f), (g), (h), and (i), establishes an administrative
process for reviewing a request by an owner or operator for a MACT
determination. As discussed previously, the EPA believes that section
112(g) of the Act requires such a determination to be made before
constructing or reconstructing a major source.
There will be cases when the title V permit process will be used
for section 112(g) reviews, and there will be cases when it will not be
used and MACT determinations will be incorporated into the permit after
commencement of operation. Section 63.43(c) of this rule states that
when the title V procedures are used, this process would be sufficient.
When the title V process does not occur until after construction or
reconstruction of a major source requiring a case-by-case MACT
determination, this rule requires that the owner or operator follow
either of the other two administrative review processes described in
Sec. 63.43. Where the change that is subject to section 112(g) review
is addressed or prohibited by an existing title V permit, the change
would of course need to be processed as a revision to the title V
operating permit prior to commencing operation.
Regardless of the timing for incorporation of section 112(g)
determinations into the operating permit, there are certain 40 CFR Part
70 requirements that apply. The title V permit must be revised or
issued according to procedures set forth in part 70, and must
incorporate the compliance provisions of part 70. If, during the EPA's
review of the section 112(g) 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 if part 70
requires revision to an existing title V permit prior to operation, or
if the permitting authority otherwise requires incorporation into a
title V permit as a step in the section 112(g) determination process.
However, even where there is no formal incorporation into a title V
permit prior to operation, subsequent title V review may effectively be
avoided if the State's section 112(g) process is ``enhanced'' to
include the required title V procedures, thereby allowing for later
incorporation into the title V permit by administrative amendment.
7. Streamlined Administrative Process. Section 63.43, paragraphs
(f), (g), and (h) of this rule establish an administrative review
process for case-by-case MACT determinations for permitting authorities
to use at their discretion. The process begins with a 45-day
completeness determination. (In this rule the EPA suggests a
completeness determination of 45 days, and a public review period of 30
days, in order to be consistent with the time periods set forth in part
70 for a permit application, so that a permitting
[[Page 68396]]
authority can easily combine these processes). 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. The proposed decision to either approve or disapprove the
application is then subject to public review. This rule provides for
public review through issuance of a notice containing all the relevant
background information about the application and allows 30 days for the
public to comment on whether the application should or should not be
granted. To expedite approval of noncontroversial case-by-case MACT
determinations, this rule allows such determinations to become final
following the close of the comment period if no adverse comments have
been received. If adverse comments are received, a final notice
addressing the comments must be published either approving or
disapproving the application.
8. Notice of MACT Approval or similar document. The end result of
the administrative review process is a determination set forth in a
State permit or other document issued by the permitting authority.
Necessary elements of this document are set forth in section 63.43(g)
of this rule. This document should contain the emission limitations,
notification, operating and maintenance, performance testing,
monitoring, reporting, record keeping and any other requirements needed
to ensure that the case-by-case MACT emission limitation will be met.
The Notice of MACT Approval or other document serves to provide a
mechanism for Federal enforceability of these conditions in the interim
time period between initial operation of the constructed or
reconstructed major source and the time the conditions are added to the
title V permit. The EPA has added a provision under which a Notice of
MACT Approval would expire if construction does not begin within 18
months from the issuance of the notice. Such an 18-month expiration
period is included in criteria pollutant preconstruction review
programs.
9. Compliance. Section 63.43(k) requires the permitting authority
to establish compliance dates for MACT. For constructed and
reconstructed major sources subject to a ``new source MACT'' level of
control, compliance upon startup is required. Some commenters requested
that compliance be required by the date 180 days after startup to allow
for a ``shakedown'' period for controls. However, sources subject to
this rule are also subject to the relevant requirements of subpart A of
this part (the general provisions for part 63), including compliance
requirements. Since subpart A does not require the first performance
test until 180 days after startup, the EPA believes that a
``shakedown'' period for controls is already accounted for through
subpart A.
To ensure Federal enforceability, section 63.43(l) of this rule
requires that the Notice of MACT Approval or other such document
contain, at a minimum, monitoring, record keeping and reporting
requirements sufficient to document the source's compliance. Because
major sources obtaining MACT determinations will incorporate that
determination into a title V permit, this rule includes a requirement
that the monitoring, record keeping, and reporting requirements
required for a case-by-case MACT determination be consistent with the
compliance requirements contained in part 70.
In addition to part 70 compliance requirements, additional
requirements may need to be considered at the time of the MACT
determination. Under section 114(a)(3) of the Act, EPA regulations for
major sources must assure that owners or operators are accountable for
their emissions and compliance status on a continuous basis. In this
way, the EPA is assured that the emissions reductions intended by
regulations are in fact achieved. Some commenters noted that monitoring
requirements were not consistent with the requirements being developed
for the Compliance Assurance Monitoring (CAM) rulemaking. However, the
CAM rule does not apply to new standards promulgated currently under
section 112. A new program, such as section 112(g), should apply
monitoring as directed by section 114(a)(3) of the Act.
It is important to distinguish between continuous compliance and
continuous monitoring. Under section 112 of the Act, to demonstrate
continuous compliance, a source may not be required to record emissions
data on a continuous, instantaneous basis such as with a continuous
emission monitor. Depending on the type of standard, regular parameter
monitoring, equipment inspections, and/or maintenance of raw material
records, etc., may be sufficient to demonstrate continuous compliance.
For all standards, monitoring frequency must be based on the averaging
time of the applicable limitation or standard, and the likely
variability of potential emissions from a particular emissions unit. If
the potential variability is high, monitoring must be done frequently.
If the potential variability is low, monitoring may be conducted less
frequently at regular intervals.
Where the Notice of MACT Approval or other such document fails to
meet any requirement of section 63.43, EPA may exercise its authority
under section 113(a)(5) of the 1990 Amendments to prohibit construction
or reconstruction, issue an administrative penalty order or bring a
civil action against the source upon finding that the State has not
acted in compliance with any requirement or prohibition relating to the
construction or reconstruction of new sources.
10. Reporting to National Data Base. Section 63.43(m) requires
permitting authorities to provide EPA with information on all case-by-
case MACT determinations issued under this subpart. The intent of this
paragraph is to use EPA's MACT data base to store data on well-
controlled sources and on previous MACT determinations to help
facilitate the MACT determination process.
E. Section 63.44 Requirements for Process or Production Units Subject
to a Subsequently Promulgated MACT Standard or MACT Requirement
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, the EPA
believes that it may be appropriate in some instances for the EPA to
establish a later compliance date for those sources which have acted in
reliance on a prior case-by-case MACT determination. This rule
expressly provides that the EPA may establish separate compliance dates
for facilities which have notified EPA of such determinations in a
timely manner. Specifically, the EPA may establish, in the MACT
standard, a later compliance date for those sources which have received
a final and legally effective MACT determination 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.
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, this rule authorizes the permitting authority to
grant up to 8 years of additional time for the affected
[[Page 68397]]
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).
This provision is a modified form of the provision that appeared in
the original proposed rule. The original provision has been modified in
two respects. First, commenters indicated that inequities might result
from the fact that the original provision stated that the revised
compliance date should not be more than 8 years after a standard
promulgated under section 112(d), or 8 years after the date by which
the source must comply with the MACT determination under section
112(g), whichever is earlier. For example, if a standard under section
112(d) is promulgated 7 years after a source's compliance date under
section 112(g), the source might only have one year to comply with the
standard under section 112(d). Therefore the EPA has removed this
condition, and allowed the extension to be counted from the section
112(d) compliance date in all cases.
Second, commenters noted that the EPA had required, in
Sec. 63.44(a), that a source must comply with a relevant section 112(d)
standard if it has not yet obtained a ``final and legally effective
MACT determination'' under section 112(g) before promulgation of the
relevant section 112(d) standard. However, the EPA had required, in
Sec. 63.44(b), that the source must have ``commenced construction'' in
order to be eligible for a compliance extension under section 112(d).
In order to eliminate this inconsistency, the EPA has changed section
63.44(b) to require that the source must have obtained a ``final and
legally effective MACT determination'' in order to be eligible for a
compliance extension under section 112(d).
Several industry commenters felt that section 112(g) compliance
should constitute compliance with subsequent MACT standards. The EPA is
currently evaluating this issue in the context of setting policy for
section 112(d) and section 112(j) standards. The EPA believes that in
most cases the section 112(g) determination will be equivalent to MACT,
but that this decision should be made on a case-by-case basis in the
context of a determination under section 112(d) or section 112(j).
Several commenters requested EPA to clarify whether a source which
met a new source section 112(g) MACT determination would be considered
to be a new or existing source under a subsequent section 112(d)
standard. According to section 112(a)(4) of the Act, if the source
begins construction before the section 112(d) standard is proposed,
then it is considered an existing source under a section 112(d) MACT
standard. Sources constructed after a section 112(d) standard is
proposed are treated as new sources under section 112(d). This applies
as well to sources that have met new source MACT under section 112(g).
IV. Discussion of the Relationship of the Requirements of This Rule to
Other Requirements of the Act
The previous sections of this preamble discuss the requirements of
this rule in defining the requirements of section 112(g) of the Act as
it relates to constructed or reconstructed major sources of HAP. In
addition, there are a number of issues concerning the relationship
between the requirements of section 112(g) and other requirements of
the Act that are relevant to the implementation of the requirements of
this rule. These issues are important in defining the overall
responsibilities of States and the EPA in carrying out the requirements
of section 112(g), and in understanding how section 112(g) requirements
relate to other important requirements of the Act. The purpose of this
section of the preamble is to present a number of regulatory and
statutory interpretations related to these implementation issues.
A. Relationship of Section 112(g) Implementation to Title V Program
Approval
Title V of the Act and the part 70 regulations provide that a State
seeking to obtain or retain approval of a title V program must have
authority to assure compliance with all applicable requirements through
the title V permit (section 502(b)(5)(A); 40 CFR 70.4(b)(3)(i)). The
preamble to the operating permits rule explains that, in the context of
section 112, the permitting authority must have authority to develop
and enforce case-by-case MACT determinations under section 112(g).
This rule and preamble language represent what EPA considers to be
the most natural reading of section 112(g). The EPA reads the reference
in section 112(g)(2) to case-by-case determinations made by ``the
Administrator (or the State)'' to mean that these determinations must
be made by the title V permitting authority. This reading is consistent
with the reference in section 112(g)(2) to the effective date of the
title V program as the date on which the requirements of section 112(g)
become applicable, and with the title V requirement that major sources
of HAP submit applications for title V permits regardless of whether
they are subject to a MACT standard. It is also consistent with the
reference in section 112(j) to ``the Administrator (or the State)'' as
the entity that must make case-by-case determinations of MACT and issue
permits incorporating these determinations.
B. Relationship to the 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. The EPA promulgated a
rule for the implementation of section 112(l) on November 26, 1993 (58
FR 62262). This rulemaking added sections 63.90 through 63.96 to 40 CFR
63.
During the mid to late 1980's, most States adopted regulations or
procedures to review toxic air pollutant emissions from new (and
modified) sources. In some cases, these programs already regulate all
of the equipment covered by section 112(g). It is the EPA's view that
the Act directly confers on the permitting authority the obligation to
implement section 112(g) and to adopt a program which conforms to the
requirements of this rule. Therefore, the permitting authority need not
apply for approval under section 112(l) in order to use its own program
to implement section 112(g). A State need simply certify that their
State program meets the requirements of section 112(g), and notify the
EPA to that effect. (For further discussion of this issue see section
III.C., above.)
C. Section 112(i)(5) Early Reductions Program
Section 112(i)(5) allows owners and operators, that provide early
reductions in HAP emissions, to be granted a 6-year extension of any
compliance date for emission standards issued under section 112(d). In
order to participate in the section 112(i)(5) program, the owner or
operator defines a ``source'' at a plant-site for which a 90 or 95
percent reduction in emissions can be accomplished before the proposal
date of the emission standard. There are a few items of clarification
on the relationship between the section 112(i)(5) requirements and
section 112(g).
First, the extension granted by section 112(i)(5) applies only to
that equipment incorporated within the ``source'' for
[[Page 68398]]
which the 90 or 95 percent reduction was accomplished. Other equipment
at a plant-site not included within that ``source'' definition are
subject to section 112(g) requirements if they make changes that would
be considered to be construction or reconstruction of a major source
under this rule.
On the other hand, equipment within the ``source'' definition for
which there is an approved early reductions submittal are not subject
to further control technology requirements under section 112(g).
Section 112(g) requires case-by-case MACT where no ``applicable
emission limitation'' exist. The ``alternative emission limitation''
under section 112(i)(5) should be considered an ``applicable emissions
limitation'' for purposes of section 112(g), such that compliance with
such alternative emissions limitation shields a source from having to
comply with section 112(g).
D. Subpart A ``General Provisions''
The EPA has promulgated ``general provisions'' to the MACT program
as subpart A to 40 CFR 63. These general provisions contain a number of
definitions and provisions that generally affect the subparts of part
63 that follow, including subpart B discussed here. In general, the
relevant requirements of subpart A apply to sources subject to case-by-
case MACT determinations under this rule. For example, requirements for
monitoring, record keeping, and reporting established in subpart A
apply to a section 112(g) source which uses the control equipment at
which such requirements are directed. It should be noted, however, that
specific preconstruction review requirements in subpart A apply only to
standards promulgated under section 112(d), section 112(f), or section
112(h) of the Act--not to section 112(g), which establishes its own
requirements. This is set out in section 112(i) of the Act, from which
subpart A draws its authority to require preconstruction review.
V. Administrative Requirements
A. Executive Order 12866
Under Executive Order 12866, (58 FR 51,735 (October 4, 1993)) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) have an annual effect on the economy of $100 million or more
or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with
an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements,
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Although this rule will not have an annual effect on the economy of
$100 million or more, and therefore is not economically significant,
EPA has determined that this rule is a ``significant regulatory
action'' because it contains novel policy issues. This action was
submitted to the Office of Management and Budget (OMB) for review as
required by Executive Order 12866. Any written comments from OMB and
any EPA response to OMB comments are in the public docket.
B. Regulatory Flexibility
The EPA considered the impact of this rule on small entities. In
general, the EPA believes that very few small entities will actually be
affected by the rule. Estimating the number of small entities that may
be affected, however, is difficult due to the large number of
industries potentially affected, and the need to predict the frequency
of what is generally a fairly uncommon event, a small entity making an
expansion which is itself a major source. In examining the potential
impact on small entities, the EPA took into account the factors listed
in the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., for conducting
a final regulatory flexibility analysis.
The approach chosen in this final rule is a less burdensome option
for small entities than the approach contained in the proposed rule.
The proposed rule to implement section 112(g) contained requirements
for modifications, as noted above. These requirements would have
required control on many smaller equipment changes at industrial
facilities. The EPA has chosen instead only to implement section
112(g)(2)(B) at this time (and not all of section 112(g)). By doing so,
this rule eliminates much of the complexity inherent in the portion of
section 112(g) which covers modifications to existing sources. It
should be noted that some commenters requested that the EPA restrict
section 112(g) requirements even further, to just covering construction
of new ``greenfield'' facilities or reconstruction of entire
plantsites. The EPA rejected this approach because the EPA believes it
makes sense to control major sources at the time of construction when
they are most cost-effective to control, whether or not they are
constructed at existing plantsites.
C. Paperwork Reduction Act
The information collection requirements in this proposal have been
submitted for approval to OMB under the Paperwork Reduction Act, 44
U.S.C. 3501 et seq. An information collection request (ICR) document
has been prepared by the EPA (ICR No. 1658.01) and a copy may be
obtained from Sandy Farmer, Information Policy Branch (2136), U.S.
Environmental Protection Agency, 401 M Street, South West, Washington,
DC 20460, or by calling (202) 260-2740.
The EPA prepared estimates of the average annual burden hours
needed to collect and prepare information required under section
112(g). The burden estimates presented below are an accumulation of the
estimated annual burden hours that would be experienced by industry
respondents, State and local agencies, and EPA under the various
regulatory scenarios. The approximate annual burden-hours that would be
required would peak in 1999 at 167,134 hours, and reduce to 23,218 by
2003.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may
[[Page 68399]]
significantly or uniquely affect small governments, including tribal
governments, it must have developed under section 203 of the UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments, enabling officials of affected
small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
The EPA has determined that this rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and tribal governments, in the aggregate, or the private
sector in any one year. EPA has also determined that this rule contains
no regulatory requirements that might significantly or uniquely affect
small governments. This determination was made based on the analyses
conducted for the proposal RIA.
E. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Comptroller General of the
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
The statutory authority for this rule is provided by sections 101,
112, 114, 116, and 301 of the Clean Air Act as amended; 42 U.S.C. 7401,
7412, 7414, 7416, and 7601.
List of Subjects in 40 CFR Part 63
Environmental protection, Administrative practices and procedures,
Air pollution control, Hazardous substances, Intergovernmental
relations, Reporting and recordkeeping requirements.
Dated: December 13, 1996.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, part 63 of chapter I of
title 40 of the Code of Federal Regulations is amended as follows:
1. The authority citation for part 63 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart B--Requirements for Control Technology
Determinations for Major Sources In Accordance with Clean Air Act
Sections, Section 112(g) and 112(j).
2. Part 63 is amended by adding new Secs. 63.40 through 63.44 to
subpart B to read as follows:
Sec. 63.40 Applicability of Secs. 63.40 through 63.44
(a) Applicability. The requirements of Secs. 63.40 through 63.44 of
this subpart carry out section 112(g)(2)(B) of the 1990 Amendments.
(b) Overall requirements. The requirements of Secs. 63.40 through
63.44 of this subpart apply to any owner or operator who constructs or
reconstructs a major source of hazardous air pollutants after the
effective date of section 112(g)(2)(B) (as defined in Sec. 63.41) and
the effective date of a title V permit program in the State or local
jurisdiction in which the major source is (or would be) located unless
the major source in question has been specifically regulated or
exempted from regulation under a standard issued pursuant to section
112(d), section 112(h), or section 112(j) and incorporated in another
subpart of part 63, or the owner or operator of such major source has
received all necessary air quality permits for such construction or
reconstruction project before the effective date of section
112(g)(2)(B).
(c) Exclusion for electric utility steam generating units. The
requirements of this subpart do not apply to electric utility steam
generating units unless and until such time as these units are added to
the source category list pursuant to section 112(c)(5) of the Act.
(d) Relationship to State and local requirements. Nothing in this
subpart shall prevent a State or local agency from imposing more
stringent requirements than those contained in this subpart.
(e) Exclusion for stationary sources in deleted source categories.
The requirements of this subpart do not apply to stationary sources
that are within a source category that has been deleted from the source
category list pursuant to section 112(c)(9) of the Act.
(f) Exclusion for research and development activities. The
requirements of this subpart do not apply to research and development
activities, as defined in Sec. 63.41.
Sec. 63.41 Definitions.
Terms used in this subpart that are not defined in this section
have the meaning given to them in the Act and in subpart A.
Affected source means the stationary source or group of stationary
sources which, when fabricated (on site), erected, or installed meets
the definition of ``construct a major source'' or the definition of
``reconstruct a major source'' contained in this section.
Affected States are all States:
(1) Whose air quality may be affected and that are contiguous to
the State in which a MACT determination is made in accordance with this
subpart; or
(2) Whose air quality may be affected and that are within 50 miles
of the major source for which a MACT determination is made in
accordance with this subpart.
Available information means, for purposes of identifying control
technology options for the affected source, information contained in
the following information sources as of the date of approval of the
MACT determination by the permitting authority:
(1) A relevant proposed regulation, including all supporting
information;
(2) Background information documents for a draft or proposed
regulation;
(3) Data and information available for the Control Technology
Center developed pursuant to section 113 of the Act;
(4) Data and information contained in the Aerometric Informational
Retrieval System including information in the MACT data base;
(5) Any additional information that can be expeditiously provided
by the Administrator; and
(6) For the purpose of determinations by the permitting authority,
any additional information provided by the applicant or others, and any
additional information considered available by the permitting
authority.
Construct a major source means:
(1) To fabricate, erect, or install at any greenfield site a
stationary source or group of stationary sources which is located
within a contiguous area and under common control and which emits or
has the potential to emit 10 tons per year of any HAP's or 25 tons per
year of any combination of HAP, or
(2) To fabricate, erect, or install at any developed site a new
process or production unit which in and of itself emits or has the
potential to emit 10 tons per year of any HAP or 25 tons per year of
any combination of HAP, unless the process or production unit satisfies
criteria in paragraphs (2) (i) through (vi) of this definition.
(i) All HAP emitted by the process or production unit that would
otherwise be controlled under the requirements of this subpart will be
controlled by
[[Page 68400]]
emission control equipment which was previously installed at the same
site as the process or production unit;
(ii) (A) The permitting authority has determined within a period of
5 years prior to the fabrication, erection, or installation of the
process or production unit that the existing emission control equipment
represented best available control technology (BACT), lowest achievable
emission rate (LAER) under 40 CFR part 51 or 52, toxics--best available
control technology (T-BACT), or MACT based on State air toxic rules for
the category of pollutants which includes those HAP's to be emitted by
the process or production unit; or
(B) The permitting authority determines that the control of HAP
emissions provided by the existing equipment will be equivalent to that
level of control currently achieved by other well-controlled similar
sources (i.e., equivalent to the level of control that would be
provided by a current BACT, LAER, T-BACT, or State air toxic rule MACT
determination);
(iii) The permitting authority determines that the percent control
efficiency for emissions of HAP from all sources to be controlled by
the existing control equipment will be equivalent to the percent
control efficiency provided by the control equipment prior to the
inclusion of the new process or production unit;
(iv) The permitting authority has provided notice and an
opportunity for public comment concerning its determination that
criteria in paragraphs (2)(i), (2)(ii), and (2)(iii) of this definition
apply and concerning the continued adequacy of any prior LAER, BATC, T-
BACT, or State air toxic rule MACT determination;
(v) If any commenter has asserted that a prior LAER, BACT, T-BACT,
or State air toxic rule MACT determination is no longer adequate, the
permitting authority has determined that the level of control required
by that prior determination remains adequate; and
(vi) Any emission limitations, work practice requirements, or other
terms and conditions upon which the above determinations by the
permitting authority are applicable requirements under section 504(a)
and either have been incorporated into any existing title V permit for
the affected facility or will be incorporated into such permit upon
issuance.
Control technology means measures, processes, methods, systems, or
techniques to limit the emission of hazardous air pollutants through
process changes, substitution of materials or other modifications;
(1) Reduce the quantity of, 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 U.S.C. 7412(h); or
(5) Are a combination of paragraphs (1) through (4) of this
definition.
Effective date of section 112(g)(2)(B) in a State or local
jurisdiction means the effective date specified by the permitting
authority at the time the permitting authority adopts a program to
implement section 112(g) with respect to construction or reconstruction
or major sources of HAP, or June 29, 1998 whichever is earlier.
Electric utility steam generating unit means any fossil fuel fired
combustion unit of more than 25 megawatts that serves a generator that
produces electricity for sale. A unit that co-generates steam and
electricity and supplies more than one-third of its potential electric
output capacity and more than 25 megawatts electric output to any
utility power distribution system for sale shall be considered an
electric utility steam generating unit.
Greenfield suite means a contiguous area under common control that
is an undeveloped site.
List of Source Categories means the Source Category List required
by section 112(c) of the Act.
Maximum achievable control technology (MACT) emission limitation
for new sources means the emission limitation which is not less
stringent that the emission limitation achieved in practice by the best
controlled similar source, and which reflects the maximum degree of
deduction in emissions 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 the constructed or
reconstructed major source.
Notice of MACT Approval means a document issued by a permitting
authority containing all federally enforceable conditions necessary to
enforce the application and operation of MACT or other control
technologies such that the MACT emission limitation is met.
Permitting authority means the permitting authority as defined in
part 70 or 71 of this chapter.
Process or production unit means any collection of structures and/
or equipment, that processes assembles, applies, or otherwise uses
material inputs to produce or store an intermediate or final product. A
single facility may contain more than one process or production unit.
Reconstruct a major source means the replacement of components at
an existing process or production unit that in and of itself emits or
has that potential to emit 10 tons per year of any HAP or 25 tons per
year of any combination of HAP, whenever:
(1) The fixed capital cost of the new components exceeds 50 percent
of the fixed capital cost that would be required to construct a
comparable process or production unit; and
(2) It is technically and economically feasible for the
reconstructed major source to meet the applicable maximum achievable
control technology emission limitation for new sources established
under this subpart.
Research and development activities means activities conducted at a
research or laboratory facility whose primary purpose is to conduct
research and development into new processes and products, where such
source is operated under the close supervision of technically trained
personnel and is not engaged in the manufacture of products for sale or
exchange for commercial profit, except in a de minimis manner.
Similar source means a stationary source or process that has
comparable emissions and is structurally similar in design and capacity
to a constructed or reconstructed major source such that the source
could be controlled using the same control technology.
Sec. 63.42 Program requirements governing construction or
reconstruction of major sources.
(a) Adoption of program. Each permitting authority shall review its
existing programs, procedures, and criteria for preconstruction review
for conformity to the requirements established by Secs. 63.40 through
63.44, shall make any additions and revisions to its existing programs,
procedures, and criteria that the permitting authority deems necessary
to properly effectuate Secs. 63.40 through 63.44, and shall adopt a
program to implement section 112(g) with respect to construction or
reconstruction of major sources of HAP. As part of the adoption by the
permitting authority of a program to implement section 112(g) with
respect to construction or reconstruction of
[[Page 68401]]
major sources of HAP, the chief executive officer of the permitting
authority shall certify that the program satisfies all applicable
requirements established by Secs. 63.40 through 63.44, and shall
specify an effective date for that program which is not later than June
29, 1998. Prior to the specified effective date, the permitting
authority shall publish a notice stating that the permitting authority
has adopted a program to implement section 112(g) with respect to
construction or reconstruction of major sources of HAP and stating the
effective date, and shall provide a written description of the program
to the Administrator through the appropriate EPA Regional Office.
Nothing in this section shall be construed either:
(1) To require that any owner or operator of a stationary source
comply with any requirement adopted by the permitting authority which
is not intended to implement section 112(g) with respect to
construction or reconstruction of major sources of HAP; or
(2) To preclude the permitting authority from enforcing any
requirements not intended to implement section 112(g) with respect to
construction or reconstruction of major sources of HAP under any other
provision of applicable law.
(b) Failure to adopt program. In the event that the permitting
authority fails to adopt a program to implement section 112(g) with
respect to construction or reconstruction of major sources of HAP with
an effective date on or before June 29, 1998, and the permitting
authority concludes that it is able to make case-by-case MACT
determinations which conform to the provisions of Sec. 63.43 in the
absence of such a program, the permitting authority may elect to make
such determinations. However, in those instances where the permitting
authority elects to make case-by-case MACT determinations in the
absence of a program to implement section 112(g) with respects to
construction or reconstruction of major sources of HAP, no such case-
by-case MACT determinations shall take effect until after it has been
submitted by the permitting authority in writing to the appropriate EPA
Regional Office and the EPA Regional Office has concurred in writing
that the case-by-case MACT determination by the permitting authority is
in conformity with all requirements established by Secs. 63.40 through
63.44. In the event that the permitting authority fails to adopt a
program to implement section 112(g) with respect to construction or
reconstruction of major sources of HAP with an effective date on or
before June 29, 1998, and the permitting authority concludes that it is
unable to make case-by-case MACT determinations in the absence of such
a program, the permitting authority may request that the EPA Regional
Office adopt and implement a transitional program to implement section
112(g) with respect to construction or reconstruction of major sources
of HAP in the affected State of local jurisdiction while the permitting
authority completes development and adoption of a section 112(g)
program. Any such transitional section 112(g) program adopted by the
EPA Regional Office shall conform to all requirements established by
Secs. 63.40 through 63.44, and shall remain in effect for no more than
1 year. Continued failure by the permitting authority to adopt a
program to implement section 112(g) with respect to construction or
reconstruction of major sources of HAP shall be construed as a failure
by the permitting authority to adequately administer and enforce its
title V permitting program and shall constitute cause by EPA to apply
the sanctions and remedies set forth in the Clean Air Act section
502(I).
(c) Prohibition. After the effective date of section 112(g)(2)(B)
(as defined in Sec. 63.41) in a State or local jurisdiction and the
effective date of the title V permit program applicable to that State
or local jurisdiction, no person may begin actual construction or
reconstruction of a major source of HAP in such State or local
jurisdiction unless:
(1) The major source in question has been specifically regulated or
exempted from regulation under a standard issued pursuant to section
112(d), section 112(h) or section 112(j) in part 63, and the owner and
operator has fully complied with all procedures and requirements for
preconstruction review established by that standard, including any
applicable requirements set forth in subpart A of this part 63; or
(2) The permitting authority has made a final and effective case-
by-case determination pursuant to the provisions of Sec. 63.43 such
that emissions from the constructed or reconstructed major source will
be controlled to a level no less stringent than the maximum achievable
control technology emission limitation for new sources.
Sec. 63.43 Maximum achievable control technology (MACT) determinations
for constructed and reconstructed major sources.
(a) Applicability. The requirements of this section apply to an
owner or operator who constructs or reconstructs a major source of HAP
subject to a case-by-case determination of maximum achievable control
technology pursuant to Sec. 63.42(c).
(b) Requirements for constructed and reconstructed major sources.
When a case-by-case determination of MACT is required by Sec. 63.42(c),
the owner and operator shall obtain from the permitting authority an
approved MACT determination according to one of the review options
contained in paragraph (c) of this section.
(c) Review options. (1) When the permitting authority requires the
owner or operator to obtain, or revise, a permit issued pursuant to
title V of the Act before construction or reconstruction of the major
source, or when the permitting authority allows the owner or operator
at its discretion to obtain or revise such a permit before construction
or reconstruction, and the owner or operator elects that option, the
owner or operator shall follow the administrative procedures in the
program approved under title V of the Act (or in other regulations
issued pursuant to title V of the Act, where applicable).
(2) When an owner or operator is not required to obtain or revise a
title V permit (or other permit issued pursuant to title V of the Act)
before construction or reconstruction, the owner or operator (unless
the owner or operator voluntarily follows the process to obtain a title
V permit) shall either, at the discretion of the permitting authority:
(i) Apply for and obtain a Notice of MACT Approval according to the
procedures outlined in paragraphs (f) through (h) of this section; or
(ii) Apply for a MACT determination under any other administrative
procedures for preconstruction review and approval established by the
permitting authority for a State or local jurisdiction which provide
for public participation in the determination, and ensure that no
person may begin actual construction or reconstruction of a major
source in that State or local jurisdiction unless the permitting
authority determines that the MACT emission limitation for new sources
will be met.
(3) When applying for a permit pursuant to title V of the Act, an
owner or operator may request approval of case-by-case MACT
determinations for alternative operating scenarios. Approval of such
determinations satisfies the requirements of section 112(g) of each
such scenario.
(4) Regardless of the review process, the MACT emission limitation
and requirements established shall be effective as required by
paragraph (j) of
[[Page 68402]]
this section, consistent with the principles established in paragraph
(d) of this section, and supported by the information listed in
paragraph (e) of this section. The owner or operator shall comply with
the requirements in paragraphs (k) and (l) of this section, and with
all applicable requirements in subpart A of this part.
(d) Principles of MACT determinations. The following general
principles shall govern preparation by the owner or operator of each
permit application or other application requiring a case-by-case MACT
determination concerning construction or reconstruction of a major
source, and all subsequent review of and actions taken concerning such
an application by the permitting authority:
(1) The MACT emission limitation or MACT requirements recommended
by the applicant and approved by the permitting authority shall not be
less stringent than the emission control which is achieved in practice
by the best controlled similar source, as determined by the permitting
authority.
(2) Based upon available information, as defined in this subpart,
the MACT emission limitation and control technology (including any
requirements under paragraph (d)(3) of this section) recommended by the
applicant and approved by the permitting authority shall achieve the
maximum degree of reduction in emissions of HAP which can be achieved
by utilizing those control technologies that can be identified from the
available information, taking into consideration the costs of achieving
such emission reduction and any non-air quality health and
environmental impacts and energy requirements associated with the
emission reduction.
(3) The applicant may recommend a specific design, equipment, work
practice, or operational standard, or a combination thereof, and the
permitting authority may approve such a standard if the permitting
authority specifically determines that it is not feasible to prescribe
or enforce an emission limitation under the criteria set forth in
section 112(h)(2) of the Act.
(4) If the Administrator has either proposed a relevant emission
standard pursuant to section 112(d) or section 112(h) of the Act or
adopted a presumptive MACT determination for the source category which
includes the constructed or reconstructed major source, then the MACT
requirements applied to the constructed or reconstructed major source
shall have considered those MACT emission limitations and requirements
of the proposed standard or presumptive MACT determination.
(e) Application requirements for a case-by-case MACT determination.
(1) An application for a MACT determination (whether a permit
application under title V of the Act, an application for a Notice of
MACT Approval, or other document specified by the permitting authority
under paragraph (c)(2)(ii) of this section) shall specify a control
technology selected by the owner or operator that, if properly operated
and maintained, will meet the MACT emission limitation or standard as
determined according to the principles set forth in paragraph (d) of
this section.
(2) In each instance where a constructed or reconstructed major
source would require additional control technology or a change in
control technology, the application for a MACT determination shall
contain the following information:
(i) The name and address (physical location) of the major source to
be constructed or reconstructed;
(ii) A brief description of the major source to be constructed or
reconstructed and identification of any listed source category or
categories in which it is included;
(iii) The expected commencement date for the construction or
reconstruction of the major source;
(iv) The expected completion date for construction or
reconstruction of the major source;
(v) the anticipated date of start-up for the constructed or
reconstructed major source;
(vi) The HAP emitted by the constructed or reconstructed major
source, and the estimated emission rate for each such HAP, to the
extent this information is needed by the permitting authority to
determine MACT;
(vii) Any federally enforceable emission limitations applicable to
the constructed or reconstructed major source;
(viii) The maximum and expected utilization of capacity of the
constructed or reconstructed major source, and the associated
uncontrolled emission rates for that source, to the extent this
information is needed by the permitting authority to determine MACT;
(ix) The controlled emissions for the constructed or reconstructed
major source in tons/yr at expected and maximum utilization of
capacity, to the extent this information is needed by the permitting
authority to determine MACT;
(x) A recommended emission limitation for the constructed or
reconstructed major source consistent with the principles set forth in
paragraph (d) of this section;
(xi) The selected control technology to meet the recommended MACT
emission limitation, including technical information on the design,
operation, size, estimated control efficiency of the control technology
(and the manufacturer's name, address, telephone number, and relevant
specifications and drawings, if requested by the permitting authority);
(xii) Supporting documentation including identification of
alternative control technologies considered by the applicant to meet
the emission limitation, and analysis of cost and non-air quality
health environmental impacts or energy requirements for the selected
control technology; and
(xiii) Any other relevant information required pursuant to subpart
A.
(3) In each instance where the owner or operator contends that a
constructed or reconstructed major source will be in compliance, upon
startup, with case-by-case MACT under this subpart without a change in
control technology, the application for a MACT determination shall
contain the following information:
(i) The information described in paragraphs (e)(2)(i) through
(e)(2)(x) of this section; and
(ii) Documentation of the control technology in place.
(f) Administrative procedures for review of the Notice of MACT
Approval. (1) The permitting authority will notify the owner or
operator in writing, within 45 days from the date the application is
first received, as to whether the application for a MACT determination
is complete or whether additional information is required.
(2) The permitting authority will initially approve the recommended
MACT emission limitation and other terms set forth in the application,
or the permitting authority will notify the owner or operator in
writing of its intent to disapprove the application, within 30 calendar
days after the owner or operator is notified in writing that the
application is complete.
(3) The owner or operator may present, in writing, within 60
calendar days after receipt of notice of the permitting authority's
intent to disapprove the application, additional information or
arguments pertaining to, or amendments to, the application for
consideration by the permitting authority before it decides whether to
finally disapprove the application.
(4) The permitting authority will either initially approve or issue
a final disapproval of the application within 90 days after it notifies
the owner or operator of an intent to disapprove or
[[Page 68403]]
within 30 days after the date additional information is received from
the owner or operator; whichever is earlier.
(5) A final determination by the permitting authority to disapprove
any application will be in writing and will specify the grounds on
which the disapproval is based. If any application is finally
disapproved, the owner or operator may submit a subsequent application
concerning construction or reconstruction of the same major source,
provided that the subsequent application has been amended in response
to the stated grounds for the prior disapproval.
(6) An initial decision to approve an application for a MACT
determination will be set forth in the Notice of MACT Approval as
described in paragraph (g) of this section.
(g) Notice of MACT Approval. (1) The Notice of MACT Approval will
contain a MACT emission limitation (or a MACT work practice standard if
the permitting authority determines it is not feasible to prescribe or
enforce an emission standard) to control the emissions of HAP. The MACT
emission limitation or standard will be determined by the permitting
authority and will conform to the principles set forth in paragraph (d)
of this section.
(2) The Notice of MACT Approval will specify any notification,
operation and maintenance, performance testing, monitoring, reporting
and record keeping requirements. The Notice of MACT Approval shall
include:
(i) In addition to the MACT emission limitation or MACT work
practice standard established under this subpart, 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
record keeping requirements that are consistent with the requirements
of Sec. 70.6(c) of this chapter;
(iii) In accordance with section 114(a)(3) of the Act, monitoring
shall be capable of demonstrating continuous compliance during the
applicable reporting period. Such monitoring data shall be of
sufficient quality to be used as a basis for enforcing all applicable
requirements established under this subpart, including emission
limitations;
(iv) A statement requiring the owner or operator to comply with all
applicable requirements contained in subpart A of this part;
(3) All provisions contained in the Notice of MACT Approval shall
be federally enforceable upon the effective date of issuance of such
notice, as provided by paragraph (j) of this section.
(4) The Notice of MACT Approval shall expire if construction or
reconstruction has not commenced within 18 months of issuance, unless
the permitting authority has granted an extension which shall not
exceed an additional 12 months.
(h) Opportunity for public comment on the Notice of MACT Approval.
(1) The permitting authority will provide opportunity for public
comment on the Notice of MACT Approval, including, at a minimum:
(i) 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 initial decision to approve the
application;
(ii) A 30-day period for submittal of public comment; and
(iii) A notice by prominent advertisement in the area affected of
the location of the source information and initial decision specified
in paragraph (h)(1)(i) of this section.
(2) At the discretion of the permitting authority, the Notice of
MACT Approval setting forth the initial decision to approve the
application may become final automatically at the end of the comment
period if no adverse comments are received. If adverse comments are
received, the permitting authority shall have 30 days after the end of
the comment period to make any necessary revisions in its analysis and
decide whether to finally approve the application.
(i) EPA notification. The permitting authority shall send a copy of
the final Notice of MACT Approval, notice of approval of a title V
permit application incorporating a MACT determination (in those
instances where the owner or operator either is required or elects to
obtain such a permit before construction or reconstruction), or other
notice of approval issued pursuant to paragraph (c)(2)(ii) of this
section to the Administrator through the appropriate Regional Office,
and to all other State and local air pollution control agencies having
jurisdiction in affected States.
(j) Effective date. The effective date of a MACT determination
shall be the date the Notice of MACT Approval becomes final, the date
of issuance of a title V permit incorporating a MACT determination (in
those instances where the owner or operator either is required or
elects to obtain such a permit before construction or reconstruction),
or the date any other notice of approval issued pursuant to paragraph
(c)(2)(ii) of this section becomes final.
(k) Compliance date. On and after the date of start-up, a
constructed or reconstructed major source which is subject to the
requirements of this subpart shall be in compliance with all applicable
requirements specified in the MACT determination.
(l) Compliance with MACT determinations. (1) An owner or operator
of a constructed or reconstructed major source that is subject to a
MACT determination shall comply with all requirements in the final
Notice of MACT Approval, the title V permit (in those instances where
the owner or operator either is required or elects to obtain such a
permit before construction or reconstruction), or any other final
notice of approval issued pursuant to paragraph (c)(2)(ii) of this
section, including but not limited to any MACT emission limitation or
MACT work practice standard, and any notification, operation and
maintenance, performance testing, monitoring, reporting, and
recordkeeping requirements.
(2) An owner or operator of a constructed or reconstructed major
source which has obtained a MACT determination shall be deemed to be in
compliance with section 112(g)(2)(B) of the Act only to the extent that
the constructed or reconstructed major source is in compliance with all
requirements set forth in the final Notice of MACT Approval, the title
V permit (in those instances where the owner or operator either is
required or elects to obtain such a permit before construction or
reconstruction), or any other final notice of approval issued pursuant
to paragraph (c)(2)(ii) of this section. Any violation of such
requirements by the owner or operator shall be deemed by the permitting
authority and by EPA to be a violation of the prohibition on
construction or reconstruction in section 112(g)(2)(B) for whatever
period the owner or operator is determined to be in violation of such
requirements, and shall subject the owner or operator to appropriate
enforcement action under the Act.
(m) Reporting to the Administrator. Within 60 days of the issuance
of a final Notice of MACT Approval, a title V permit incorporating a
MACT determination (in those instances where the owner or operator
either is required or elects to obtain such a permit before
construction or reconstruction), or any other final notice of approval
issued pursuant to paragraph (c)(2)(ii) of this section, the permitting
authority shall provide a copy of such notice to the Administrator, and
shall provide a summary in a compatible electronic
[[Page 68404]]
format for inclusion in the MACT data base.
Sec. 63.44 Requirements for constructed or reconstructed major sources
subject to a subsequently promulgated MACT standard or MACT
requirement.
(a) if the Administrator promulgates an emission standard under
section 112(d) or section 112(h) of the Act or the permitting authority
issues a determination under section 112(j) of the Act that is
applicable to a stationary source or group of sources which would be
deemed to be a constructed or reconstructed major source under this
subpart before the date that the owner or operator has obtained a final
and legally effective MACT determination under any of the review
options available pursuant to Sec. 63.43, the owner or operator of the
source(s) shall comply with the promulgated standard or determination
rather than any MACT determination under section 112(g) by the
permitting authority, 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 section 112(h) of the Act or the permitting authority
makes a determination under section 112(j) of the Act that is
applicable to a stationary source or group of sources which was deemed
to be a constructed or reconstructed major source under this subpart
and has been subject to a prior case-by-case MACT determination
pursuant to Sec. 63.43, and the owner and operator obtained a final and
legally effective case-by-case MACT determination prior to the
promulgation date of such emission standard, then the permitting
authority shall (if the initial title V permit has not yet been issued)
issue an initial operating permit which incorporates the emission
standard or determination, or shall (if the initial title V permit has
been issued) revise the operating permit according to the reopening
procedures in 40 CFR part 70 or part 71, whichever is relevant, to
incorporate the emission standard or determination.
(1) The EPA may include in the emission standard established under
section 112(d) or section 112(h) of the Act a specific compliance date
for those sources which have obtained a final and legally effective
MACT determination under this subpart and which have submitted the
information required by Sec. 63.43 to the EPA before the close of the
public comment period for the standard established under section 112(d)
of the Act. Such date shall assure that the owner or operator shall
comply with the promulgated standard as expeditiously as practicable,
but not longer than 8 years after such standard is promulgated. In that
event, the permitting authority shall incorporate the applicable
compliance date in the title V operating permit.
(2) If no compliance date has been established in the promulgated
112(d) or 112(h) standard or section 112(j) determination, for those
sources which have obtained a final and legally effective MACT
determination under this subpart, then the permitting authority shall
establish a compliance date in the permit that assures that the owner
or operator shall comply with the promulgated standard or determination
as expeditiously as practicable, but not longer than 8 years after such
standard is promulgated or a section 112(j) determination is made.
(c) Notwithstanding the requirements of paragraphs (a) and (b) of
this section, if the Administrator promulgates an emission standard
under section 112(d) or section 112(h) of the Act or the permitting
authority issues a determination under section 112(j) of the Act that
is applicable to a stationary source or group of sources which was
deemed to be a constructed or reconstructed major source under this
subpart and which is the subject of a prior case-by-case MACT
determination pursuant to Sec. 63.43, and the level of control required
by the emission standard issued under section 112(d) or section 112(h)
or the determination issued under section 112(j) is less stringent than
the level of control required by any emission limitation or standard in
the prior MACT determination, the permitting authority is not required
to incorporate any less stringent terms of the promulgated standard in
the title V operating permit applicable to such source(s) and may in
its discretion consider any more stringent provisions of the prior MACT
determination to be applicable legal requirements when issuing or
revising such an operating permit.
[FR Doc. 96-32236 Filed 12-26-96; 8:45 am]
BILLING CODE 6560-50-P