[Federal Register Volume 67, Number 66 (Friday, April 5, 2002)]
[Rules and Regulations]
[Pages 16582-16611]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-5861]



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Part III





Environmental Protection Agency





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40 CFR Part 63



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

  Federal Register / Vol. 67, No. 66 / Friday, April 5, 2002 / Rules 
and Regulations  

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[FRL-7155-8]
RIN 2060--AF31


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; amendments.

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SUMMARY: On March 16, 1994, the EPA promulgated General Provisions for 
national emission standards for hazardous air pollutants (NESHAP) and 
other regulatory requirements that are established under section 112 of 
the Clean Air Act (CAA). In today's action, we are promulgating 
amendments to the General Provisions that revise and clarify several of 
the current provisions.
    We are promulgating these amendments, in part, as a result of 
decisions reached in settlement negotiations conducted between 
petitioners who filed for review of the General Provisions and the EPA, 
as well as internal EPA discussions on issues regarding implementation 
of the General Provisions. The promulgated amendments also reflect our 
response to public comments.
    In a separate action in today's Federal Register, we are also 
amending regulations on National Emission Standards for Hazardous Air 
Pollutants: Solvent Extraction for Vegetable Oil Production, in a 
direct final rule in order to resolve inconsistencies between that rule 
and these amendments to the General Provisions.
    In addition, in today's action, we are promulgating amendments to 
the rule that establishes equivalent emission limitations by permit 
under section 112(j) of the CAA. The ``section 112(j)'' rule 
establishes requirements and procedures for owners or operators of 
major sources of hazardous air pollutants (HAP) and permitting 
authorities to comply with section 112(j). The section 112(j) rule was 
promulgated on May 20, 1994.
    These amendments have been developed in response to settlement 
negotiations conducted between petitioners who filed for review of the 
section 112(j) rule and the EPA, as well as internal EPA discussions 
regarding implementation of the section 112(j) rule. The promulgated 
amendments to the section 112(j) rule also reflect our response to 
public comments.

EFFECTIVE DATE: April 5, 2002.

ADDRESSES: Docket No. A-2001-02, Part 63 General Provisions (Subpart A) 
and Section 112(j) Regulations (Subpart B) Litigation Settlement 
Amendments, contains supporting information used in developing these 
amendments. This docket is located at the U.S. EPA, 401 M Street, SW, 
Washington, DC 20460 in room M-1500, Waterside Mall (ground floor), and 
is available for public inspection and copying from 8:30 a.m. through 
5:30 p.m., Monday through Friday, excluding legal holidays. A 
reasonable fee may be charged for copying.

FOR FURTHER INFORMATION CONTACT: For information concerning 
applicability and rule determinations, contact your State or local 
permitting agency representative or the appropriate EPA Regional Office 
representative. For further information concerning the development of 
these rule amendments, contact Mr. Rick Colyer, U.S. EPA, Office of Air 
Quality Planning and Standards, Minerals and Inorganic Chemicals Group, 
C504-05, Research Triangle Park, North Carolina, 27711, telephone (919) 
541-5262, e-mail [email protected].

SUPPLEMENTARY INFORMATION: Docket. The docket is an organized and 
complete file of the record compiled by EPA in the development of this 
rulemaking. The docket is a dynamic file because material is added 
throughout the rulemaking process. The docketing system is intended to 
allow members of the public and industries involved to readily identify 
and locate documents so that they can effectively participate in the 
rulemaking process. Along with the background information document and 
the proposal and promulgation preamble and standards for this 
rulemaking, the contents of the docket will serve as the record in the 
case of judicial review. (See section 307(d)(7)(A) of the CAA.) All 
these materials are available for review in the docket or copies may be 
mailed on request from the Air Docket by calling (202) 260-7548. A 
reasonable fee may be charged for copying docket materials.
    Worldwide Web (WWW). In addition to being available in the docket, 
an electronic copy of today's promulgated rule amendments will also be 
available on the WWW through the Technology Transfer Network (TTN). 
Following the Administrator's signature, a copy of the rule will be 
posted on the TTN's policy and guidance page for newly proposed or 
promulgated rules: http://www.epa.gov/ttn/oarpg. The TTN provides 
information and technology exchange in various areas of air pollution 
control. If more information regarding the TTN is needed, call the TTN 
HELP line at (919) 541-5384.
    Regulated Entities. Categories and entities potentially regulated 
by this action include all section 112 source categories listed under 
section 112(c) of the CAA.

Industry Group: Source Category

Fuel Combustion

Combustion Turbines
Engine Test Facilities
Industrial Boilers
Institutional/Commercial Boilers
Process Heaters
Reciprocating Internal Combustion Engines
Rocket Testing Facilities

Non-Ferrous Metals Processing

Primary Aluminum Production
Primary Copper Smelting
Primary Lead Smelting
Primary Magnesium Refining
Secondary Aluminum Production
Secondary Lead Smelting

Ferrous Metals Processing

Coke By-Product Plants
Coke Ovens: Charging, Top Side, and Door Leaks
Coke Ovens: Pushing, Quenching, Battery Stacks
Ferroalloys Production: Silicomanganese and Ferromanganese
Integrated Iron and Steel Manufacturing
Iron Foundries Electric Arc Furnace (EAF) Operation
Steel Foundries
Steel Pickling--HCl Process Facilities and Hydrochloric Acid 
Regeneration

Mineral Products Processing

Alumina Processing
Asphalt Concrete Manufacturing
Asphalt Processing
Asphalt Roofing Manufacturing
Asphalt/Coal Tar Application--Metal Pipes
Clay Products Manufacturing
Lime Manufacturing
Mineral Wool Production
Portland Cement Manufacturing
Refractories Manufacturing
Taconite Iron Ore Processing
Wool Fiberglass Manufacturing

Petroleum and Natural Gas Production and Refining

Oil and Natural Gas Production
Natural Gas Transmission and Storage
Petroleum Refineries--Catalytic Cracking (Fluid and other) Units, 
Catalytic Reforming Units, and Sulfur Plant Units Petroleum 
Refineries--Other Sources Not Distinctly Listed

Liquids Distribution

Gasoline Distribution (Stage 1)
Marine Vessel Loading Operations
Organic Liquids Distribution (Non-Gasoline)

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Surface Coating Processes

Aerospace Industries
Auto and Light Duty Truck
Large Appliance
Magnetic Tapes
Manufacture of Paints, Coatings, and Adhesives
Metal Can
Metal Coil
Metal Furniture
Miscellaneous Metal Parts and Products
Paper and Other Webs
Plastic Parts and Products
Printing, Coating, and Dyeing of Fabrics
Printing/Publishing
Shipbuilding and Ship Repair
Wood Building Products
Wood Furniture

Waste Treatment and Disposal

Hazardous Waste Incineration
Municipal Landfills
Off-Site Waste and Recovery Operations
Publicly Owned Treatment Works (POTW) Emissions
Sewage Sludge Incineration
Site Remediation
Solid Waste Treatment, Storage and Disposal Facilities (TSDF)

Agricultural Chemicals Production

Pesticide Active Ingredient Production

Fibers Production Processes

Acrylic Fibers/Modacrylic Fibers Production
Rayon Production
Spandex Production

Food and Agriculture Processes

Manufacturing of Nutritional Yeast
Cellulose Food Casing Manufacturing
Vegetable Oil Production

Pharmaceutical Production Processes

Pharmaceuticals Production

Polymers and Resins Production

Acetal Resins Production
Acrylonitrile-Butadiene-Styrene Production
Alkyd Resins Production
Amino Resins Production
Boat Manufacturing
Butyl Rubber Production
Carboxymethylcellulose Production
Cellophane Production
Cellulose Ethers Production
Epichlorohydrin Elastomers Production
Epoxy Resins Production
Ethylene-Propylene Rubber Production
Flexible Polyurethane Foam Production
Hypalon (tm) Production
Maleic Anhydride Copolymers Production
Methylcellulose Production
Methyl Methacrylate-Acrylonitrile-Butadiene-Styrene Production
Methyl Methacrylate-Butadiene-Styrene Terpolymers Production
Neoprene Production
Nitrile Butadiene Rubber Production
Nitrile Resins Production
Non-Nylon Polyamides Production
Phenolic Resins Production
Polybutadiene Rubber Production
Polycarbonates Production
Polyester Resins Production
Polyether Polyols Production
Polyethylene Terephthalate Production
Polymerized Vinylidene Chloride Production
Polymethyl Methacrylate Resins Production
Polystyrene Production
Polysulfide Rubber Production
Polyvinyl Acetate Emulsions Production
Polyvinyl Alcohol Production
Polyvinyl Butyral Production
Polyvinyl Chloride and Copolymers Production
Reinforced Plastic Composites Production
Styrene-Acrylonitrile Production
Styrene-Butadiene Rubber and Latex Production

Production of Inorganic Chemicals

Ammonium Sulfate Production--Caprolactam By-Product Plants
Carbon Black Production
Chlorine Production
Cyanide Chemicals Manufacturing
Fumed Silica Production
Hydrochloric Acid Production
Hydrogen Fluoride Production
Phosphate Fertilizers Production
Phosphoric Acid Manufacturing
Uranium Hexafluoride Production

Production of Organic Chemicals

Ethylene Processes
Quaternary Ammonium Compounds Production
Synthetic Organic Chemical

Miscellaneous Processes

Benzyltrimethylammonium Chloride Production
Butadiene Dimers Production
Carbonyl Sulfide Production
Cellulosic Sponge Manufacturing
Chelating Agents Production
Chlorinated Paraffins
Chromic Acid Anodizing
Commercial Dry Cleaning (Perchloroethylene)--Transfer Machines
Commercial Sterilization Facilities
Decorative Chromium Electroplating
Dry Cleaning (Petroleum Solvent)
Ethylidene Norbornene Production
Explosives Production
Flexible Polyurethane Foam Fabrication Operations
Friction Products Manufacturing
Halogenated Solvent Cleaners
Hard Chromium Electroplating
Hydrazine Production
Industrial Dry Cleaning (Perchloroethylene)--Dry-to-Dry Machines
Industrial Dry Cleaning (Perchloroethylene)--Transfer Machines
Industrial Process Cooling Towers
Leather Tanning and Finishing Operations
OBPA/1,3-Diisocyanate Production
Paint Stripping Operations
Photographic Chemicals Production
Phthalate Plasticizers Production
Plywood and Composite Wood Products
Polyether Polyols Production
Pulp and Paper Production
Rubber Chemicals Manufacturing
Rubber Tire Manufacturing
Semiconductor Manufacturing
Symmetrical Tetrachloropyridine Production

Categories of Area Sources

Chromic Acid Anodizing
Commercial Dry Cleaning (Perchloroethylene)--Dry-to-Dry Machines
Commercial Dry Cleaning (Perchloroethylene)--Transfer Machines
Commercial Sterilization Facilities
Decorative Chromium Electroplating
Halogenated Solvent Cleaners
Hard Chromium Electroplating
Secondary Lead Smelting

This list is not intended to be exhaustive, but rather provides a guide 
for readers regarding entities likely to be regulated by this action. 
To determine whether you are regulated by this action, you should 
examine the section 112(d) regulation for your source category. If you 
have any questions regarding the applicability of this action to a 
particular entity, consult the person listed in the preceding FOR 
FURTHER INFORMATION CONTACT section. Only source categories for which 
standards have not been promulgated by May 15, 2002, are affected by 
the section 112(j) regulation.
    Judicial Review. The amendments to the General Provisions and the 
section 112(j) provisions were proposed on March 23, 2001 (66 FR 
16318). Today's action announces EPA's final decision on the 
amendments. Under section 307(b)(1) of the CAA, judicial review of 
these amendments is available only by filing a petition for review in 
the U.S. Court of Appeals for the District of Columbia Circuit by June 
4, 2002. Under section 307(d)(7)(B) of the CAA, only those objections 
to this rule that were raised with reasonable specificity during the 
period for public comment may be raised during judicial review. 
Moreover, under section 307(b)(2) of the CAA, the requirements that are 
the subject of today's final rule may not be challenged separately in 
civil or criminal proceedings brought by the EPA to enforce these 
requirements.
    Outline. The information presented in this preamble is organized as 
follows:

I. Background
    A. General Provisions
    B. Section 112(j) Provisions
II. What significant comments did we consider and what are the major 
changes to the proposed amendments to the General Provisions?
    A. Comments and Changes in Response to Our Requests for Comments
    B. Other Comments and Changes
III. What significant comments did we consider and what are the 
major changes to the proposed amendments to the section 112(j) 
provisions?
    A. Impact of Missing the Section 112(j) Deadline
    B. Comments and Changes in Response to our Requests for Comments
    C. Other Comments and Changes
IV. What is the section 112(j) process?
    A. If I am an owner or operator of a source, what must I do?

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    B. If I am the permitting authority for a source subject to 
section 112(j), what must I do?
    C. What happens when a rule comes out after the hammer date for 
a given source category?
V. What are the environmental, energy, cost, and economic impacts of 
this rule?
VI. What are the administrative requirements for this rule?
    A. Executive Order 12866, Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Executive Order 13132, Federalism
    D. Executive Order 13175, Consultation and Coordination with 
Indian Tribal Governments
    E. Unfunded Mandates Reform Act of 1995
    F. Regulatory Flexibility Act (RFA) as Amended by Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 
et seq.
    G. National Technology Transfer and Advancement Act of 1995
    H. Executive Order 13045, Protection of Children from 
Environmental Health Risks and Safety Risks
    I. Congressional Review Act
    J. Executive Order 13211, Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

I. Background

A. General Provisions

    Section 112 of the CAA requires us to list categories and 
subcategories of major sources and area sources of HAP and to establish 
NESHAP for the listed source categories and subcategories. Major 
sources of HAP are those that have the potential to emit greater than 
10 tons per year of any one HAP or 25 tons per year of any combination 
of HAP. Area sources of HAP are those sources that do not have 
potential to emit greater than 10 tons per year of any one HAP and 25 
tons per year of any combination of HAP. The General Provisions to 40 
CFR part 63 establish the framework for emission standards and other 
requirements developed pursuant to section 112(d) of the CAA. The 
General Provisions eliminate the repetition of general information and 
requirements in individual NESHAP by consolidating all generally 
applicable information in one location. They include sections on 
applicability, definitions, compliance dates and requirements, 
monitoring, recordkeeping and reporting, among others. In addition, 
they include administrative sections concerning actions that the EPA 
(or delegated authorities) must take, such as making determinations of 
applicability, reviewing applications for approval of new construction, 
responding to requests for extensions or waivers of applicable 
requirements, and generally enforcing national standards for 
controlling toxic air pollutants. The General Provisions become 
applicable to a section 112(d) source category rule when the source 
category rule is promulgated and becomes effective.
    The General Provisions to part 63 were developed in a collaborative 
process that included input from industry and other interested parties. 
On August 11, 1993, we proposed the General Provisions in the Federal 
Register (58 FR 42760). We received numerous comments on that proposal 
from industry groups, environmental groups, and State and local 
agencies. Those comments addressed a wide range of issues and 
requirements in the proposed rulemaking. We published our final 
decisions regarding the General Provisions in the Federal Register on 
March 16, 1994 (59 FR 12408). In the preamble to the promulgated rule, 
we discussed major comments on the proposal and our responses to those 
comments. We addressed other comments in the Background Information 
Document (BID) for the promulgated rulemaking (EPA-450/3-91-019b). In 
responding to comments, we made some changes and some clarifications to 
the final package and retained other provisions where the Agency 
believed it was appropriate to do so.
    On May 16, 1994, six petitioners filed for review of the General 
Provisions. They cited a variety of issues raised in comments on the 
proposed rule whose resolution they believed to be inappropriate. In 
addition, we identified other changes that would clarify the EPA's 
original intent. On March 23, 2001 (66 FR 16318), we proposed changes 
to the General Provisions based on the outcome of settlement 
negotiations between the EPA and the petitioners, as well as on other 
internal EPA deliberations. We received 27 public comment letters in 
response to our proposal. In section II of this preamble, we discuss 
our responses to these public comments and the specific changes that 
were made to the proposed amendments to reflect our responses. The 
amendments to the General Provisions being promulgated today reflect 
decisions which we made in connection with settlement negotiations 
between the EPA and the petitioners, and our responses to the public 
comments on the proposed amendments.
    In a separate action, we are promulgating changes to the Vegetable 
Oil NESHAP in response to public comments on the proposed amendments to 
the General Provisions. These changes are discussed briefly in section 
II of this preamble and more extensively in the preamble to the direct 
final action on the Vegetable Oil NESHAP.
    The amendments finalized with today's action clarify and alter 
certain sections of the General Provisions.

B. Section 112(j) Provisions

    The 1990 Amendments to section 112 of the CAA included a new 
section 112(j) which is entitled ``Equivalent Emission Limitation by 
Permit.'' Section 112(j)(2) provides that the provisions of section 
112(j) apply if the EPA misses a deadline for promulgation of a 
standard under section 112(d) established in the source category 
schedule for standards. After the effective date of a title V permit 
program in a State, section 112(j)(3) requires the owner or operator of 
a major source in a source category for which the EPA failed to 
promulgate a section 112(d) standard to submit a permit application 18 
months after the missed promulgation deadline. Section 112(j)(5) also 
specifies that if the applicable criteria for voluntary early 
reductions established under section 112(i)(5) are met, then this 
alternative emission limit satisfies the requirements of section 
112(j), provided that the emissions reductions are achieved by the 
missed promulgation date.
    The rule proposing to implement section 112(j) of the CAA was 
published on July 13, 1993 (58 FR 37778). Public comments received on 
the proposed rule were considered, and changes we deemed appropriate 
were made in developing a final rule.
    On May 20, 1994 (59 FR 26429), we issued a final rule for 
implementing section 112(j). That rule requires major source owners or 
operators to submit a permit application by the date 18 months after a 
missed date on the regulatory schedule. As required under section 
112(j) of the CAA, the section 112(j) rule establishes requirements for 
the content of permit applications, contains provisions governing the 
establishment of the maximum achievable control technology (MACT)-
equivalent emission limitations by the permitting authority, includes 
the criteria for the reviewing authority to determine completeness, and 
allows the applicant up to 6 months to revise and resubmit the 
application. As required in section 112(j)(5) of the CAA, the rule also 
establishes compliance dates:

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


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    Several petitioners filed for review of several provisions of the 
section 112(j) rule that they believed needed to be clarified or 
streamlined. On March 23, 2001 (66 FR 16318), we proposed changes to 
the section 112(j) rule based on the outcome of settlement negotiations 
between the EPA and the petitioners, as well as on other internal EPA 
deliberations. We received 27 public comment letters in response to our 
proposal. In section III of this preamble, we discuss our responses to 
these public comments and the specific changes that were made to the 
proposed section 112(j) amendments to reflect those public comments. 
The amendments to the section 112(j) rule being promulgated today 
reflect decisions which we made in connection with settlement 
negotiations between the EPA and the litigants, as well as our response 
to the public comments on the proposed amendments.

II. What Significant Comments Did We Consider and What Are the 
Major Changes to the Proposed Amendments to the General Provisions?

    While we received many comments on the proposed amendments to the 
General Provisions, most commenters expressed general support for the 
proposed changes. For this reason, the majority of amendments were 
promulgated as proposed. A comprehensive summary of public comments and 
responses can be found in ``National Emission Standards for Hazardous 
Air Pollutants for Source Categories: General Provisions and 
Requirements for Control Technology Determinations for Major Sources in 
Accordance with Clean Air Act Sections, Sections 112(g) and 112(j)--
Background Information for Standards,'' (EPA 453/R-02-002). This 
preamble discusses the significant comments received and major changes 
made. Additional minor changes and clarifications are discussed in the 
Background Information Document (BID) cited above. In the proposed 
amendments to the General Provisions, we specifically discussed and 
solicited comments on certain issues. In addition, we received comments 
on other proposed amendments to the General Provisions.

A. Comments and Changes in Response to Our Requests for Comments

    In the proposal preamble, we discussed the presumptive 
applicability of the General Provisions, which has been an issue of 
concern for industry petitioners. We believe that the presumptive 
applicability of the General Provisions serves an important and valid 
purpose by eliminating the repetition of common provisions in 
individual NESHAP. While we reiterated that the General Provisions do 
apply unless specifically overridden, we acknowledged the potential for 
confusion regarding the actual requirements for sources when General 
Provisions requirements are not tailored to specific source categories. 
For several years, we have included a table for most part 63 subparts 
that indicates the applicability of each provision of the General 
Provisions to a particular subpart. To codify this practice, we 
proposed to amend the General Provisions to require individual subparts 
to explicitly state which General Provisions requirements are included 
in the relevant standard and which are not.
    In addition, we requested comment on ``any conflicts * * * that 
result solely from applying these proposed amendments to the General 
Provisions to promulgated part 63 subparts.'' One commenter identified 
such a conflict between the startup, shutdown, malfunction (SSM) 
provisions of the Vegetable Oil Production NESHAP and those provisions 
in the General Provisions. Specifically, the commenter noted that 
proposed 40 CFR 63.6(e)(3)(iv), which requires reporting of actions 
inconsistent with the Startup, Shutdown, and Malfunction Plan (SSMP) if 
the emissions exceed the relevant standard, does not comport with 
subpart GGGG. The Vegetable Oil NESHAP require reporting of such 
actions regardless of whether the standard was exceeded. The commenter 
also specifically noted that proposed 40 CFR 63.6(e)(3)(viii), the 
requirement to report modifications to the SSMP in the semiannual 
report, should not apply to sources subject to subpart GGGG, as subpart 
GGGG does not require a semiannual report.
    We agree that the proposed amendments would have had a substantive 
impact on the Vegetable Oil NESHAP. However, the commenter has 
misinterpreted the intent of the changes, which was to reduce burden.
    We agree with the commenter's assessment that certain SSM 
provisions in the proposed amendments are inconsistent with the 
promulgated Vegetable Oil NESHAP. We had previously reviewed the 
existing rules and did not identify any substantive problems. However, 
the Vegetable Oil NESHAP were promulgated after our review and 
subsequent proposal of the amendments. We have discussed the 
implications with the commenter and as a result, we are amending, in a 
separate Federal Register notice, several provisions in the Vegetable 
Oil NESHAP related to SSM requirements to eliminate unintended 
inconsistencies. The Vegetable Oil NESHAP include specifically tailored 
SSM provisions and, thus, sources covered by the Vegetable Oil NESHAP 
should look to that rule for their applicable SSM provisions.
    Specifically, we are correcting the explanation column of Table 1 
of 40 CFR 63.2870 as it applies to 40 CFR 63.6(e) to state, ``implement 
your plan as specified in Sec. 63.2852.'' Table 1 also now indicates 
specifically that 40 CFR 63.6(e)(3)(iii), (iv), and (viii) do not apply 
to Vegetable Oil NESHAP affected sources; this clarifies that not all 
of 40 CFR 63.6(e) applies, as the rule was originally promulgated.
    We are also amending the first sentence of 40 CFR 63.2861(d) to 
clarify that owners or operators must submit an immediate SSM report if 
an SSM is handled differently from the procedures in the SSM plan and 
the emission standards are exceeded. We are also amending the third 
sentence of 40 CFR 63.2852 to clarify that the SSMP does not have to be 
incorporated into the title V permit, consistent with the General 
Provisions amendments.
    These changes will ensure the minimization of emissions at all 
times, clarify the SSM requirements, and specify the relationship of 
the General Provisions to Vegetable Oil NESHAP affected sources.

B. Other Comments and Changes

1. Substantially Equivalent State Preconstruction Review
    We proposed substantive amendments to the preconstruction review 
program, which were designed to clarify and streamline existing 
requirements. Included in these amendments was a provision that allows 
States or local agencies to use preconstruction review procedures used 
for other purposes for purposes of 40 CFR 63.5, provided their 
procedures are ``substantially equivalent.''
    While one commenter generally supported this concept, a few 
commenters disagreed with the specific provisions in proposed 40 CFR 
63.5(f)(1)(i) and (ii), which they interpreted as requiring each owner 
or operator to demonstrate that the State or local agency review is 
substantially equivalent to the relevant requirements in 40 CFR 63.5. 
The commenters instead believed that EPA should determine which State 
or local air permit programs have substantially equivalent 
preconstruction review requirements. One commenter noted that if EPA 
has

[[Page 16586]]

delegated authority to a State or local agency to implement subpart A 
of part 63 and part 70, then EPA has already agreed that the 
preconstruction review and approval process is substantially equivalent 
to the Federal requirements.
    We agree that a State or local agency that has taken delegation of 
part 63 standards has already demonstrated that their preconstruction 
review process is substantially equivalent to the Federal requirements. 
When a State is the delegated authority, the State implements 40 CFR 
63.5; we do not require two preconstruction review processes.
    The intent of the provisions of 40 CFR 63.5(f) is not to place the 
burden on the source to demonstrate equivalency of a State 
preconstruction review program. The intent of the provisions is to 
allow owners or operators of affected sources to notify the EPA's 
Regional Office of a State's finding that their preconstruction review 
program requirements are substantially equivalent to the General 
Provisions' preconstruction review requirements. We agree that the 
proposed language in 40 CFR 63.5(f)(1) could lead to potential 
confusion. Therefore, in order to eliminate any potential for 
confusion, we have amended 40 CFR 63.5(f)(1) to no longer require that 
an owner or operator demonstrate to the Administrator's satisfaction 
that the conditions of 40 CFR 63.5(f)(1)(i) and (ii) are met. Instead, 
40 CFR 63.5(f)(1) specifies that the Administrator will approve an 
application for construction or reconstruction if an owner or operator 
meets the conditions of 40 CFR 63.5(f)(1)(i) and (ii). Additionally, 40 
CFR 63.5(f)(1)(ii) has been amended to require that an owner or 
operator provide a statement from ``the State or other evidence (such 
as State regulations) that it considered the factors specified in 40 
CFR 63.5(e)(1)'' rather than requiring ``the State (in it's finding) 
consider factors substantially equivalent to those specified in 
Sec. 63.5(e)(1).''
    Paragraph (f)(1) of 40 CFR 63.5 states that preconstruction review 
procedures that a State utilizes for other purposes may be utilized if 
the procedures are substantially equivalent to those specified in the 
General Provisions. We believe this adequately refers to 40 CFR 
63.5(e)(1) where the criteria for approval of construction or 
reconstruction are described.
    Finally, we do not agree with the suggestion that we should 
determine which State or local programs have substantially equivalent 
preconstruction review requirements. Individual States or local 
agencies are in a better position to make such a determination.
2. Revisions to the Startup, Shutdown, and Malfunction Plan
    We received several comments regarding SSM and SSMP reporting 
requirements. A few commenters opposed the requirement in 40 CFR 
63.6(e)(3)(viii) that revisions to the SSMP be reported to the 
permitting authority in the semiannual report. Another commenter 
considered the new requirements in 40 CFR 63.6(e)(3)(viii) to be 
burdensome and duplicative. The commenter believed that the 
requirements to submit reports of actions taken that are consistent or 
inconsistent with the SSMP, to revise the SSMP, and to keep copies of 
superseded SSMP on site were sufficient to ensure that the permitting 
authority is kept informed of changes to the SSMP.
    One commenter stated that if the owner or operator of a source can 
revise the plan without prior approval, it makes no sense to require an 
owner or operator to send a file copy to EPA. The commenter expressed 
that the requirement for plan revisions to be maintained on site in 40 
CFR 63.6(e)(3)(v) should suffice. The commenter suggested that if the 
EPA wants a revised SSMP to be submitted, they should provide more 
details on how it should be formatted, including how the specific 
procedure or methodology relates to a particular SSM event. The 
commenter also recommended that the date on the new SSMP be its 
effective date. If the EPA only wants a notice that the SSMP has been 
revised in the semiannual report, the commenter suggested that 40 CFR 
63.6(e)(3)(viii) be revised to state that. The commenter also requested 
clarification on what the ``scope of activities'' in 40 CFR 
63.6(e)(3)(viii) means.
    We disagree with the commenters that the requirements in 40 CFR 
63.6(e)(3)(viii) are burdensome. This section requires that EPA be 
notified in the semiannual report that revisions were made to the SSMP, 
but it does not require that a file copy of the entire revised plan be 
submitted.
    We also disagree with the suggestion that a clarification in the 
rule of the meaning of ``scope of activities'' is necessary. It is the 
owner or operator's responsibility to define the specific scope of 
activities that the SSMP covers, as this is source-dependent. Moreover, 
these provisions are designed to give the source owner or operator 
flexibility. Generally, the scope of activities would include all 
operations and equipment specified by the owner or operator that should 
be included in the SSMP. To the extent that these activities are 
changed in the plan, we are requiring that the permitting authority be 
notified.
    One commenter recommended that we explain how malfunctions that 
meet the definition of SSM under 40 CFR 63.2, but are not covered in 
the existing SSMP, should be reported. The commenter believed that we 
should add language to 40 CFR 63.6(e)(3)(viii) to cover this situation. 
Another commenter requested that EPA require that facilities provide 
the number and a description of malfunctions that occurred in the 
semiannual report. The commenter stated that this information would be 
necessary to evaluate a facility's compliance with the SSMP, as regular 
site visits are infeasible due to limited resources.
    To comply with the rule, sources must either meet the standard or 
comply with the SSMP. If a malfunction not covered by the SSMP occurs 
and the source meets the standard, there is no need to report. If a 
malfunction not covered by the SSMP occurs and the source does not meet 
the standard, the deviation must be reported. In any case, when a 
malfunction occurs that was not included in the SSMP, the plan should 
be revised to include the previously unincluded malfunction.
    However, we agree with the commenter who suggested that the number 
and description of malfunctions is necessary to evaluate compliance 
with the SSMP. Therefore, we have modified the provisions at 40 CFR 
63.10(d)(5)(i) to state ``Periodic startup, shutdown, and malfunction 
reports. * * * Reports shall only be required if a startup, shutdown, 
or malfunction occurred during the reporting period, and they shall 
include the number, duration, and a brief description of each startup, 
shutdown, and malfunction. * * *'' This change provides the 
implementing agency with adequate information without placing an undue 
additional burden on the source. The types of malfunctions will already 
have been identified in the SSMP so a brief description could consist 
of simply identifying which types of malfunctions occurred during the 
reporting period, as well as the number and the duration of each.
    Also, two commenters requested that we remove the last sentence of 
the proposed 40 CFR 63.6(e)(3)(ix), which states that none of the SSMP 
procedures fall within the permit shield. The commenter believed the 
sentence could be misconstrued to mean that the SSMP is part of the 
title V permit and yet ineligible for the permit shield.

[[Page 16587]]

    Concerning the applicability of the permit shield, these commenters 
have misinterpreted the provisions of the rule. The proposed amendments 
to the General Provisions concerning SSM plans were intended in part to 
address concerns expressed by the petitioners, who believe that the 
language in the current General Provisions requiring that the SSM plan 
be ``incorporated by reference into the source's Title V permit'' could 
be construed to require that permit revision procedures be followed 
whenever an SSM plan is revised. We do not construe the existing 
General Provisions in this manner, but we understand the concern 
expressed by the petitioners. The amendments indicate that the permit 
must require that the owner or operator adopt an SSM plan and then 
operate and maintain the source in accordance with the plan, but they 
cannot reasonably be construed as requiring that each element of the 
SSM plan be made an element of the permit. The provisions within the 
SSM plan will not be terms and conditions of the permit except in the 
limited instance where a permitting authority elects to incorporate 
them. Since the SSM plan is not itself part of the operating permit, 
and it can be revised without revision of the permit, the SSM plan is 
not eligible for the permit shield.
    A few commenters strongly opposed the statements in the proposal 
preamble that the SSMP must be submitted to the permitting authority 
and made publicly available if someone requests it. One of the 
commenters believed it would be burdensome to prepare a SSMP without 
Confidential Business Information (CBI) in it. The commenter also 
expressed that such a plan would be uninformative without CBI. Two 
other commenters stated that they preferred that the rule specifically 
state that the permitting agency has the authority to request a copy of 
the facility's SSMP and to review and comment on it. One commenter also 
preferred that State and local agencies have discretion to approve or 
disapprove the SSMP.
    We believe that the proposal preamble discussion accurately 
reflects 40 CFR 70.4(b)(3)(viii) of the title V permit program, which 
requires that the permitting authority has legal authority to: ``Make 
available to the public any permit application, compliance plan, 
permit, and monitoring and compliance certification report pursuant to 
section 503(e) of the Act, except for information entitled to 
confidential treatment pursuant to section 114(c) of the Act. The 
contents of a part 70 permit shall not be entitled to protection under 
section 114(c) of the Act.'' For this reason, we do not agree with the 
commenters who oppose the requirements for the SSMP to be made publicly 
available if requested. Owners or operators may still identify the 
portions of the SSMP that are considered CBI; material claimed as CBI 
would not be available for public disclosure except as provided under 
the process established by 40 CFR Part 2. We further believe, pursuant 
to 40 CFR 70.4(b)(3)(viii), that the authority for permitting agencies 
to request a facility's SSMP already exists. Therefore, we do not 
believe it is appropriate at the present time to revise the rule as the 
commenters requested.
3. Compliance Extension Request 120 Days Before Compliance Date
    The proposed amendments to the compliance extension provisions were 
met with favor by commenters. Several commenters supported the change 
to allow compliance extension requests to be submitted as late as 120 
days before the compliance date, rather than 1 year in advance.
    One commenter expressed that this change would reduce the number of 
compliance extension requests. Another commenter outlined circumstances 
that could arise that would necessitate a late request for a compliance 
extension (e.g., vendor strikes, acts of God, or damaged equipment).
    One commenter specifically supported the proposed provision in 40 
CFR 63.6(i)(4)(i)(B) postponing the applicability of MACT standards 
until the permitting authority either approves or denies a compliance 
extension request. This commenter noted that the proposed compliance 
extension revisions were particularly important for sources subject to 
40 CFR part 63, subpart EEE, National Emission Standards for Hazardous 
Air Pollutants for Hazardous Waste Incinerators. Amendments to the 
performance test requirements of Hazardous Waste Incinerators rule have 
not been completed. The commenter noted that the amendments would have 
had to be promulgated by December 2001 for facilities to complete their 
comprehensive performance test plans by the March 2002 deadline. The 
ability to apply for a compliance extension would be critical if the 
amendments were not final by December 2001.
4. Readily Accessible Readout
    The proposed amendments clarified the owner or operator's 
obligations with respect to the accessibility of readouts from 
monitoring systems required for compliance. Two commenters supported 
the requirement for such readouts to be readily accessible. However, 
several commenters proposed deleting the requirement that the readout 
from the monitoring equipment be ``readily accessible onsite for 
operational control or inspection by the operator of the equipment.'' 
One commenter maintained that the provision was unnecessary because 40 
CFR 63.10(b) already requires files of all information to be readily 
available. A few of the commenters maintained that this requirement was 
technically infeasible, as the readout depends on the configuration of 
the source, type of control equipment, frequency, and whether 
monitoring data are read in central control booths or computers. One 
commenter stated that the optimal location of the readout should be 
left to the source. Another commenter stated that if EPA does not 
remove the phrase, it should be reworded to change the regulatory text 
from ``readout'' to ``indication of operation,'' as audible or visual 
alarms may also alert the operator that a problem has occurred with the 
continuous monitoring system (CMS). The commenter further suggested 
removing the terms ``in plain view'' and ``close proximity,'' as CMS 
readouts may be readily accessible but may not meet these requirements. 
For example, they may be in the control room but not in the line-of-
sight of an operator, in the process unit operating block but not where 
the ``operators are normally operated,'' or operated by a different 
process unit and monitoring unit.
    We recognize the commenters' concerns with the provisions governing 
the availability of information from monitoring equipment. To address 
this issue, we have revised 40 CFR 63.8(c)(2)(ii) to refer to ``readout 
or other indication of operation.'' This addresses the point that 
audible or visual alarms may be in use rather than a ``readout.'' The 
terms ``plain view'' and ``close proximity'' were used in the proposal 
preamble, although not in the regulatory text, to explain what was 
meant by readily accessible and to assure that inspectors would have 
easy access to monitoring information. However, we agree with the 
commenter that the required information may be readily accessible 
although not in plain view. ``Readily accessible'' is the source owner 
or operator's responsibility to ensure that monitoring information is 
easily available. For this reason, we made no further rule changes to 
explain ``readily accessible.''
5. Zero and High Level Calibration Checks
    A few commenters suggested that EPA revise 40 CFR 63.8(c)(6) to 
clarify that

[[Page 16588]]

the zero and high-level calibration checks only apply to continuous 
emission monitoring Systems (CEMS) and continuous opacity monitoring 
systems (COMS), not to all CMS. Some continuous parameter monitoring 
systems (CPMS), such as thermocouples and weight devices, cannot be 
automatically calibrated.
    One commenter requested that EPA delete 40 CFR 63.8(c)(6), as 
promulgated MACT standards already contain calibration requirements and 
daily system checks for CPMS. The commenter cited Secs. 63.118(a)(2) 
and 63.152(f) of 40 CFR part 63.
    To address the commenters' concern about CPMS that cannot be 
automatically calibrated, we have revised 40 CFR 63.8(c)(6) as follows: 
``The owner or operator of a CMS that is not a CPMS, which is installed 
in accordance with the provisions of this part. . . . '' The 
calibration specifications for a CPMS are described in the last 
sentence of this paragraph.
    We do not agree it is appropriate to delete 40 CFR 63.8(c)(6) as 
requested by one of the commenters. Individual standards may change 
this as appropriate or necessary, but these monitoring provisions will 
remain in the General Provisions.
6. Definition of Affected Source and New Affected Source
    We proposed a new process for defining ``affected source'' and 
``new affected source'' in future MACT standards. Over the period that 
EPA has been promulgating MACT standards, we have typically used the 
term ``affected source'' as an indication of the collection of 
processes, activities, or equipment to which each MACT standard will 
apply. We have adopted a broader or narrower definition of affected 
source depending on the nature of particular MACT requirements and the 
strategies available for meeting them. In some instances, we have 
adopted a definition as narrow as a single machine and in others, we 
have defined all processes, activities, and equipment at a source 
within the specified category or subcategory as the affected source. A 
broader definition of affected source permits emission requirements to 
apply to a larger group of processes, activities, and equipment, and 
may thereby facilitate more innovative and economically efficient 
control strategies.
    In those instances where we have previously adopted a broader 
definition of affected source, we have sometimes established a narrower 
definition of the processes, activities, or equipment to which new 
source MACT will apply. In some instances, we believe it is both 
practicable and reasonable to apply new source MACT controls to a 
narrower set of constructed or reconstructed equipment or activities 
and retaining a broad definition would operate to subvert the statutory 
intent to require more stringent controls for new sources.
    When we have adopted a broader definition of affected source, we 
have still determined the MACT floor for the entire affected source by 
evaluating emissions and the feasibility of controls separately for 
particular types of ``emission units'' within the affected source. This 
approach can afford owners and operators the option of demonstrating 
separate compliance by individual emission units within the affected 
source or by adopting more flexible control strategies and 
demonstrating compliance for the affected source as a whole. Moreover, 
a standard for a larger affected source may still be a composite of 
sublimits or other elements expressly directed at particular types of 
equipment or activities.
    In light of this flexibility, we agreed with the industry 
petitioners that it would be feasible to adopt a broader definition of 
affected source on a more consistent basis. Thus, we proposed to change 
the General Provisions to indicate that future MACT standards will 
generally adopt a definition of affected source which consists of all 
existing HAP-emitting equipment and activities which are at a single 
contiguous site and are within a specific category or subcategory. We 
do not believe we are required to adopt this policy, but we agree with 
the industry petitioners that it will foster greater predictability and 
consistency in regulatory outcomes.
    We also proposed to permit a narrower definition of affected source 
in particular future MACT standards when a broad definition will result 
in significant administrative, practical, or implementation problems, 
and a narrower definition would resolve these problems. For example, in 
some instances, the facilities within a category or subcategory which 
must develop appropriate compliance strategies may consider a broader 
definition of affected source to be confusing. In other instances, the 
facilities may operate dissimilar equipment or processes which do not 
emit the same HAP or type of HAP, and a broader definition will have 
little or no utility in promoting more flexible or efficient control 
strategies. These examples are only illustrative and are not intended 
to limit our discretion to adopt a narrower affected source definition 
in particular future MACT standards. However, when we adopt a narrower 
definition of ``affected source,'' we will identify the specific 
problems created by the broader definition and specify why a narrower 
definition will resolve them.
    We also proposed to develop and adopt a separate definition of 
``new affected source'' for each future MACT standard after evaluating 
facilities in the category or subcategory according to eight factors. 
These eight factors are: (1) Emission reduction impacts of controlling 
individual sources versus groups of sources, (2) cost effectiveness of 
controlling individual equipment, (3) flexibility to accommodate common 
control strategies, (4) cost/benefits of emissions averaging, (5) 
incentives for pollution prevention, (6) feasibility and cost of 
controlling processes that share common equipment, (7) feasibility and 
cost of monitoring, and (8) other relevant factors. Under this process, 
the definition of ``new affected source'' for a particular MACT 
standard may be the same as ``affected source'' or it may differ. The 
factors which we deem most important in this assessment will differ 
from standard to standard. When we deem it appropriate based on our 
evaluation of the eight factors to establish a definition of ``new 
affected source'' less inclusive than ``affected source,'' we will do 
so.
    We did not receive any comments opposing the new definitions and 
procedures for specifying the affected source and new affected source 
for future MACT standards. Accordingly, we have decided to adopt these 
definitions and procedures as proposed.
    Each future MACT standard subject to these new procedures will 
explicitly define ``affected source'' and ``new affected source.'' Any 
decision to adopt a narrower definition of affected source or to adopt 
a definition of new affected source differing from the definition of 
affected source will be explained in the individual standard.
    Our proposal made it clear that we only intend to apply this new 
approach prospectively. We will not reconsider or revise previously 
promulgated MACT standards according to the new definitions and 
procedures. However, our proposal did not specify an effective date or 
a specific transitional process for implementation of these new 
definitions and procedures. We anticipated that there could be 
inconsistencies between some of the new General Provisions and 
previously promulgated MACT standards, and that a variety of provisions 
might need to be solely prospective in application or require some sort 
of transitional process. We specifically solicited comment on this

[[Page 16589]]

issue. However, the only other problem in applying the new rule to 
existing MACT standards which was identified in comments concerns the 
provisions for SSM plans in this rule and in our previously promulgated 
vegetable oil MACT rule, which we discuss elsewhere in this preamble.
    In selecting an appropriate effective date for the new definitions 
and procedures for specifying the affected source and new affected 
source, we note that our past practice has been considerably less 
uniform than the one we are adopting today. While we believe it is 
appropriate to bring greater clarity and consistency to this process in 
future MACT standards, we also note that EPA typically begins working 
with affected facilities to devise an appropriate structure for MACT 
standards well before they are proposed, and that this process is well 
advanced for many MACT standards currently under development. We do not 
believe it would be practicable to require all such standards to 
immediately conform to the new definitions and procedures we are 
adopting today. Therefore, we have decided that these new definitions 
and procedures will be mandatory only with respect to those MACT 
standards which are proposed after June 30, 2002. However, we note that 
many standards presently in development already utilize a similar 
approach, and that it may also be feasible to adopt a similar approach 
for additional standards during the pendency of future rulemakings on 
individual MACT standards.

III. What Significant Comments Did We Consider and What Are the 
Major Changes to the Proposed Amendments to the Section 112(j) 
Provisions?

    A comprehensive summary of public comments on the proposed section 
112(j) provisions can be found in ``National Emission Standards for 
Hazardous Air Pollutants for Source Categories: General Provisions and 
Requirements for Control Technology Determinations for Major Sources in 
Accordance with Clean Air Act Sections, Sections 112(g) and 112(j)--
Background Information for Standards,'' (EPA 453/R-02-002). This 
section discusses the significant comments received on and major 
changes made to the section 112(j) provisions.

A. Impact of Missing the Section 112(j) Deadline

    Several commenters expressed serious concern over the potential 
impact of EPA's failure to promulgate the 10-year MACT standards by the 
section 112(j) hammer date. Some commenters noted that there would be 
significant effort expended to develop the Parts 1 and 2 permit 
applications and case-by-case permits and observed that this effort 
would be for naught if the standards were issued prior to the permit. 
Others offered suggestions on how to extend or delay applications such 
that the burden is minimized. All commenters urged EPA to issue the 
MACT standards prior to the hammer date to eliminate the impact of 
section 112(j).
    We appreciate the commenters' concerns, and we are making every 
effort to promulgate the remaining MACT standards as soon as possible. 
However, we note that the previous permit application extensions for 
the 4- and 7-year MACT rules were established because the standards 
were to be issued very shortly after the deadline. This is not the 
situation now, with a significant number of the 10-year MACT standards 
not scheduled for promulgation until well after the deadline. The 
intent of the 2-part section 112(j) application process which we 
proposed was to alleviate unnecessary burdens by deferring the 
collection of the more detailed information necessary for a complete 
case-by-case MACT application until after the ``hammer'' date had 
passed. However, it is now apparent that the process for submission of 
section 112(j) applications as we proposed it will not significantly 
alleviate the burden on sources and permitting authorities.
    Section 112(j) of the CAA was designed to be a ``backstop'' to our 
failure to issue MACT standards. Clearly, we will not complete 
promulgation of all MACT standards in the 10-year bin by the section 
112(j) deadline of May 15, 2002, and in fact, we will miss the schedule 
for numerous source categories. The task to develop MACT standards on 
schedule to cover all the listed source categories has been enormous, 
and our past schedules projecting issuance by the hammer date have 
proved to be unduly optimistic. However, we are still committed to 
completing all MACT standards in as timely a manner as practicable. 
Although numerous standards will be late, we currently anticipate that 
many of the remaining standards in the 10-year bin will be proposed 
before the hammer date, and that all standards in that bin will be 
promulgated before any case-by-case MACT determinations would be 
required under the 24 month timetable for permit issuance which we 
proposed (consisting of 6 months for submission of the Part 2 
application and 18 additional months for action by the permitting 
authority).
    We agree with the commenters that a process in which the source 
must gather detailed information and then prepare and submit a Part 2 
title V permit application and the permitting authorities must then 
review each of the submitted applications and prepare for issuance of a 
case-by-case MACT determination represents an unnecessary burden if all 
MACT standards will be promulgated before any actual permits will be 
issued. We conclude that such resources would be better spent preparing 
for and implementing the MACT standards when they are promulgated. 
Thus, we have decided to revise the proposed rule to extend the amount 
of time between the Part 1 and Part 2 section 112(j) application to 24 
months which coincides with the time period in which we expect to 
promulgate MACT standards for the remaining categories.
    As the preamble to our proposal makes clear, we based our proposal 
to provide a 6 month period between the Part 1 and Part 2 applications 
in part on the concept that every applicant would automatically be 
given the maximum extension to supplement an incomplete application 
which is explicitly provided for by CAA section 112(j)(4). However, as 
one commenter noted, there is another provision in the statute which 
may be construed as providing authority to establish an incremental 
process for the submission of section 112(j) applications. The hammer 
provision in section 112(j)(2) itself establishes the requirement to 
submit permit applications ``beginning 18 months after'' the statutory 
date for promulgation of a standard. Reading this provision in context, 
we believe that the statute can be reasonably construed as authorizing 
us to provide a period of time after the hammer date in which the 
information necessary for a fully informative section 112(j) 
application can be compiled. This alternate construction also makes 
more practical sense because it retains the statutory process in which 
the permit authority can determine whether or not an application is 
complete and provides the applicant the extension of up to 6 months 
contemplated by section 112(j)(4). This assures that the time required 
to supplement an incomplete application will not be deducted from the 
time in which the permitting authority must complete its work.
    While we recognize that compilation of the information needed for a 
Part 2 application is not likely to take 24 months, we are nevertheless 
reluctant to mandate that significant resources be devoted to an 
exercise which will ultimately be futile and unproductive. The burden 
of compiling a Part 2 application for simple sources containing only a 
small number of

[[Page 16590]]

emission points may not be particularly onerous, but the burden on more 
complex sources containing numerous sources and emission points could 
be significant. The sheer number of affected sources that would have to 
submit a Part 2 application by November 15, 2002, under the rule as 
proposed is very large, estimated at over 80,000. Such an exercise 
would also needlessly divert resources needed for other critical tasks 
at already overworked permitting authorities. We do not believe such an 
outcome was envisioned or intended by the drafters of section 112(j), 
particularly in the circumstance where the Federal MACT standards will 
actually be issued prior to the deadline for issuance of the case-by-
case MACT determinations by the permitting authorities.
    Accordingly, we have decided to revise our proposal to provide for 
a 24-month period between submission of the Part 1 application and 
submission of the Part 2 application. The 18-month period for issuance 
of the permit after receipt of a complete application which is provided 
by the current section 112(j) rule and by section 503(c) of title V 
will be retained. We are also restoring the statutory process in which 
the permitting authority may review the application for completeness 
and grant an extension of up to 6 months to remedy any deficiencies.
    We received no adverse comment on requiring that the first portion 
(Part 1) of the section 112(j) application be due on the hammer date. 
We think that this is the minimum required by the statute. The Part 1 
application is very short and simple, and we believe the burden is 
minimal. The Part 1 application will also help permitting authorities 
to identify sources potentially subject to the upcoming MACT standards. 
Sources must note that our decision to extend the time between the Part 
1 and Part 2 applications is no excuse for not submitting a Part 1 
application if the source can reasonably determine it is in one of the 
source categories or subcategories subject to the section 112(j) 
requirements. Failure to meet the section 112(j) requirements, 
including failure to make a timely Part 1 application, can lead to 
enforcement action. If a source is unsure about its applicability, it 
should submit a Part 1 application requesting an applicability 
determination to the permitting authority, which will then make a 
determination of MACT applicability.

B. Comments and Changes in Response to Our Requests for Comments

1. Notification by Permitting Authority Within 120 Days of Section 
112(j) Hammer Date
    In the preamble to the proposed section 112(j) amendments, we 
discussed changes made to clarify obligations for sources and 
permitting agencies when the section 112(j) deadline passes. Among the 
provisions included was the requirement that an owner or operator 
submit a Part 1 permit application within 30 days of being notified by 
the permitting agency that one or more sources at the major source 
belong to a section 112(j) category or subcategory. The permitting 
authority would have been required to make any such notification within 
120 days after the section 112(j) deadline. We specifically requested 
comment on whether 120 days was sufficient time for permitting 
authorities to act.
    In response, a few commenters expressed serious concerns about this 
requirement. These commenters noted that States do not always have up-
to-date information on sources and that 120 days is not sufficient time 
for such notifications. Furthermore, these commenters recommended that 
this requirement be deleted because States may choose to identify and 
notify affected sources but should not be required to do so. A few 
commenters recommended that the final rule specify that owners or 
operators of affected sources must submit a title V permit application 
whether or not they receive notification.
    We agree with the commenters that it is the responsibility of the 
affected source to submit a title V permit application regardless of 
notification if it can reasonably determine that it falls within a 
source category for which a standard has not been promulgated by the 
section 112(j) deadline. We believe, in most instances, that the owner 
or operator will be able to reasonably determine whether the source is 
in the category or subcategory subject to section 112(j) from 
provisions specified in the proposed rule for the category or 
subcategory. If an owner or operator is unable to make this 
determination, they may at their discretion contact the permitting 
authority for assistance in making the determination or submit a Part 1 
applicability determination request. If there is doubt, the owner or 
operator should submit the Part 1 application. Most MACT standards will 
be proposed by the section 112(j) deadline of May 15, 2002, and 
applicability criteria will be specified in those proposals. In 
addition, we are posting applicability criteria on EPA's Air Toxics 
Website for all source categories for which MACT standards have not yet 
been proposed (see www.epa.gov/ttn/atw/eparules.html). The EPA project 
leads may also be directly contacted for additional information. Thus, 
owners or operators should know for all source categories whether or 
not their sources will be subject to the section 112(j) requirements. 
Therefore, we are retaining 40 CFR 63.52(a)(1) as proposed, which 
requires an owner or operator to submit an application for a title V 
permit or permit revision if the owner or operator can reasonably 
determine that one or more sources at the major source belong in the 
category or subcategory subject to section 112(j). The obligation is on 
the source owner or operator to submit the application. Failure to 
submit a Part 1 application when it can reasonably be determined the 
source is in an applicable source category would be considered a 
violation.
    Moreover, we also agree with the commenters that 120 days may not 
be sufficient time to notify owners or operators of affected sources 
subject to section 112(j) if those sources did not submit a title V 
permit application because they could not reasonably determine if they 
were part of a source category on which the section 112(j) ``hammer'' 
fell. As the commenter pointed out, State agencies do not necessarily 
have this information and would not be able to identify each and every 
affected source within 120 days, especially those in source categories 
that contain thousands of sources. We do not want to create an 
opportunity to potentially circumvent the requirements of the rule when 
the State fails to notify the source owner or operator by a specified 
time because it does not have adequate information. Therefore, in the 
final rule amendments, we have removed the requirement that the 
permitting authority must notify the owner or operator that one or more 
sources at the major source belong to such category or subcategory 
within 120 days after the section 112(j) deadline. States may still 
choose to identify and notify affected sources, and we encourage them 
to do so when they have the available information.
    The Part 1 application is intentionally brief so that completing it 
will not be a complicated, burdensome requirement. If there are 
isolated instances where a Part 1 application is erroneously submitted 
where none is required, it would be the responsibility of the 
permitting authority to notify the owner or operator that the source is 
not in a

[[Page 16591]]

category or subcategory subject to section 112(j). In addition, 
permitting authorities have the obligation to determine MACT 
applicability if requested in a Part 1 application.
2. Prohibition on Backsliding
    Several commenters disagreed with EPA's proposed prohibition on 
backsliding, which prevents a State from adopting any section 112(d) 
emission limitations that are less stringent than the case-by-case MACT 
determinations by the permitting authority under section 112(j). The 
commenters maintained that this policy is inconsistent with the plain 
language of the CAA and prior EPA policy. The commenters stated that 
this policy should not be adopted. Instead, one commenter proposed that 
the rule be revised to require States to revise permits to conform to 
MACT standards issued after other emission limitations have been 
adopted. This commenter believed that the prohibition on backsliding 
would create unnecessary burden and uncertainty because permitting 
authorities and sources would have to spend significant time and 
resources to determine when a MACT standard is less stringent. One 
commenter maintained that implementing the anti-backsliding policy 
would result in uneven requirements for similar industries in different 
States and would also require Federal enforcement of regulations that 
were not subject to national review.
    The current section 112(j) rule does not include any prohibition on 
backsliding, and the current 40 CFR 63.56(c) allows the permitting 
authority to exercise its discretion in determining whether or not to 
retain more stringent provisions from a prior section 112(j) MACT 
determination in the operating permit. Similarly, the rule governing 
case-by-case MACT determinations under section 112(g) does not contain 
any prohibition on backsliding, and 40 CFR 63.44(c) provides that the 
permitting authority may exercise its discretion in deciding whether or 
not to retain more stringent provisions from a section 112(g) case-by-
case MACT determination as applicable requirements in the operating 
permit.
    After considering the concerns raised by the commenters, we have 
decided that it is best to retain this basic policy in the amended 
section 112(j) rule. As reflected by the provisions in the existing 
section 112(j) rule, we do not agree with the argument by some 
commenters that the statute requires the permitting authority to 
backslide, but we do believe that the decision whether or not to retain 
any more stringent provisions of a section 112(j) determination as 
applicable legal requirements following issuance of a section 112(d) 
standard should be committed to the discretion of the permitting 
authority that made the case-by-case determination in the first place. 
Accordingly, we have amended the proposed language to delete the 
prohibition on backsliding and to afford the permitting authority the 
discretion to determine whether or not backsliding is appropriate. The 
revisions in the language we proposed make it essentially identical to 
the language we adopted previously for section 112(g) determinations.

C. Other Comments and Changes

    A few commenters strongly encouraged EPA to continue striving to 
meet all the section 112(d) or (h) deadlines so that the provisions of 
section 112(j) might never be necessary. A few commenters specifically 
urged EPA to meet the deadlines for promulgating the section 112(d) 
standards for various combustion sources before the ``hammer'' drops 
for these standards. One commenter emphasized that meeting the 
deadlines for standards would be the most efficient use of EPA 
resources with the greatest public benefit and that avoiding use of 
section 112(j) should be the EPA's top priority. One commenter hoped 
that these provisions might never be implemented, but expressed 
concerns about their implementation if they are necessary.
    We appreciate the commenters' concerns, and we are making every 
effort to meet the statutory deadlines so that section 112(j) is not 
triggered. Nevertheless, at this point, it will not be feasible for us 
to complete all the MACT standards by the section 112(j) deadline. For 
an update on the status of section 112 rulemakings, see our website at 
http://www.epa.gov/ttn/atw/eparules.html.
    One commenter maintained that most agencies would want to receive 
the information listed in 40 CFR 63.53(b)(2) and wondered why EPA had 
designated it as an optional part of the Part 2 MACT application.
    The information listed in 40 CFR 63.53(b)(2) includes information 
about appropriate emission limitations and control technologies to meet 
those limitations. While the source owner or operator may choose to 
submit this information, it is not their responsibility to conduct the 
research and analysis necessary to make MACT determinations. This 
responsibility resides with the State or other designated permitting 
authority. For this reason, it is appropriate that the information 
listed in this paragraph be an optional part of the Part 2 MACT 
application.

IV. What Is the Section 112(j) Process?

    Since we proposed amendments to section 112(j), we have received 
many questions regarding the provisions. The following paragraphs 
provide a general overview of the section 112(j) program.

A. If I Am an Owner or Operator of a Source, What Must I Do?

    If you are an owner or operator of a major source in a source 
category or subcategory for which the statutory deadline for a section 
112(d) emission standard is missed by 18 months, you are subject to the 
provisions of section 112(j). If you are unsure whether you are subject 
to section 112(j), you should review the appropriate proposed MACT rule 
to which you may be subject, you should review information on EPA's Air 
Toxics Website at http://www.epa.gov/ttn/atw/eparules.html, you may 
contact the EPA project lead directly, or you may submit a Part 1 MACT 
application to ask the State for an applicability determination. If the 
section 112(j) deadline arrives before you can determine your 
applicability, you should submit a Part 1 application. In most cases, 
even if the section 112(d) emission standard statutory deadline is 
missed by 18 months, there will be published proposed standards that 
you can refer to that will assist you in determining whether your 
source is subject to the provisions of section 112(j).
    If you are subject to the provisions of section 112(j), you must 
apply for a title V permit or permit revision. The content of the 
required applications, details of the application approval process, 
timing of submittals, reviews, and permit issuance are specified in 
Secs. 63.52 and 63.53 of 40 CFR part 63. The application process is a 
two-part process. Part 1 of the permit application requests very basic 
information about the affected source; the substantive information 
required by the permitting authority to make its MACT determination is 
tied to submittal of the Part 2 permit application. The Part 1 permit 
application must be submitted to the permitting authority by the 
section 112(j) deadline if it can reasonably be determined the source 
is in the source category or subcategory, or within 30 days after being 
notified in writing by the permitting authority that one or more 
sources at the major source belong in a subject category or 
subcategory.
    The application content for a MACT determination is contained in 40 
CFR

[[Page 16592]]

63.53. Information available as of the date on which the first Part 2 
MACT application is filed for a source in the relevant source category 
or subcategory in the State or jurisdiction will be considered by the 
permitting authority in making its case-by-case MACT determination. The 
definition of ``available information'' in 40 CFR 63.51 specifies the 
type of information and sources of information available to the 
affected source owner or operator for use in completing the 
application.
    Your Part 1 application for a MACT determination must contain the 
following information:
     The name and address (physical location) of your source.
     A brief description of the major source and an 
identification of the relevant source category.
     An identification of the types of emission points 
belonging to the relevant source category.
     An identification of any affected sources for which a 
section 112(g) MACT determination has been made.
    As mentioned previously, if you are unsure whether you are subject 
to section 112(j), you should submit a Part 1 MACT application to ask 
the State for an applicability determination. If you have not submitted 
a Part 1 MACT application and the permitting authority notifies you 
that you are subject to section 112(j), you must submit an application 
for a title V permit or for a revision to an existing title V permit or 
pending title V permit within 30 days of being notified.
    Your Part 2 Application for a MACT determination must contain the 
following information:
     For new affected sources, the anticipated date of startup 
of operation.
     The HAP emitted by each affected source in the relevant 
source category and an estimated total uncontrolled and controlled 
emission rate for HAP from the affected source.
     Any existing Federal, State, or local limitations or 
requirements applicable to the affected source.
     For each affected emission point or group of affected 
emission points, an identification of control technology in place.
     Information relevant to establishing the MACT floor, and, 
at the option of the owner or operator, a recommended MACT floor.
     Any other information reasonably needed by the permitting 
authority including, at the discretion of the permitting authority, 
information required pursuant to subpart A of 40 CFR part 63.
    Your Part 2 MACT application may also, but is not required to, 
include the following:
     Recommended emission limitations for the affected source 
and support information consistent with 40 CFR 63.52(f). You may 
recommend a specific design, equipment, work practice, or operational 
standard, or combination thereof, as an emission limitation.
     A description of the control technologies that you would 
apply to meet the emission limitation including technical information 
on the design, operation, size, estimated control efficiency and any 
other information deemed appropriate by the permitting authority, and 
identification of the affected sources to which the control 
technologies shall be applied.
     Relevant parameters to be monitored and frequency of 
monitoring to demonstrate continuous compliance with the MACT emission 
limitation over the applicable reporting period.
    You are required to submit your Part 2 MACT application within 24 
months after submittal of your Part 1 MACT application.

B. If I Am the Permitting Authority for a Source Subject to Section 
112(j), What Must I Do?

    As the permitting authority for a source subject to section 112(j), 
you may, but are not required to, notify an owner or operator of a 
source of their applicability when you have available information that 
allows you to identify subject sources. In such cases, you should 
submit the notification prior to the source's Part 1 MACT application 
deadline. Sources that can reasonably determine they are subject must 
submit a Part 1 application, regardless of any notification (or lack 
thereof). You may notify a source that has not submitted a Part 1 
application to do so, but your discretion to do this does not relieve 
the source of its obligation to submit an application in the absence of 
such a notification. You also have the responsibility of notifying 
owners or operators of sources that erroneously submit a Part 1 MACT 
application (i.e., the source is not subject to section 112(j)) that 
they are not subject to section 112(j), as well as notifying owners or 
operators of sources of their applicability when requested by an owner 
or operator of a source with their Part 1 MACT application.
    Once you have received a Part 2 MACT application from a source, you 
must notify the owner or operator of the source in writing whether the 
application is complete or incomplete within 60 days. If you do not 
notify the owner or operator in writing within 60 days after the 
submittal, it will be assumed that the application is complete.
    Potential sources that would be affected by section 112(j) would be 
those categories or subcategories of major sources listed for 
regulation under section 112(c) of the CAA for which the statutory 
deadline for a section 112(d) emission standard is missed by 18 months. 
You should start the affected source identification by first 
identifying those source categories and subcategories for which a 
section 112(d) emission standard has been missed. Using available 
information from the EPA obtained in the rule development process for 
subject sources, and other available information (e.g., EPA databases, 
State inventories, available literature), you should be able to 
identify sources subject to section 112(j) within your jurisdiction.
    If you are the permitting authority for a source subject to section 
112(j), you must determine case-by-case MACT for the source. You should 
use all available information, as described in 40 CFR 63.51. The most 
prominent and useful piece of information will be the proposed MACT 
rule and its supporting documentation. You can also supplement that 
information with whatever other information is available, including 
information submitted by the source itself.
    Permitting authorities must determine a MACT emission limitation 
equivalent to the limitation that would apply had the MACT standard 
been promulgated on time. You may conduct an independent analysis to 
determine MACT using available information to identify the 12 percent 
of the best performing sources (if there are 30 or more sources) or the 
best performing 5 (if less than 30 sources). Alternately, you may 
simply look to the proposed MACT standard and use the information and 
analysis already prepared by EPA. Regardless of the approach adopted to 
issue or revise the source's title V permit under section 112(j), you 
must determine MACT as an equivalent emission limitation on a case-by-
case basis for each category of sources. Guidance to assist you in your 
case-by-case MACT determination is presented in ``Guidelines for MACT 
Determinations under Section 112(j) Requirements,'' (EPA 453/R-02-001).
    For sources in existence and subject to section 112(j) at the 
deadline, sources that become subject to section 112(j) after the 
section 112(j) deadline, and sources that make a change subject to 
section 112(j) after a permit is issued, you are required to issue a 
section 112(j) permit or a revised section 112(j) permit

[[Page 16593]]

with case-by-case MACT within 18 months after receiving a complete Part 
2 application.

C. What Happens When a Rule Comes Out After the Hammer Date for a Given 
Source Category?

    If the EPA promulgates emission standards under section 112(d) for 
a source category before the date a permit application is approved by 
the permitting authority, the title V permit must contain the 
promulgated standards rather than the section 112(j) case-by-case MACT 
level of control. If, however, the EPA promulgates emission standards 
under section 112(d) for a source after the date a permit application 
is approved by the permitting authority, the permitting authority must 
incorporate the requirements of the promulgated standards in the title 
V permit upon its next renewal. In such cases, the permitting authority 
must establish a compliance date in the revised permit that assures 
that the owner or operator shall comply with the promulgated standards 
within a reasonable time, not to exceed 8 years after the standards are 
promulgated. The permitting authority is not required to revise the 
emission limit in the permit to reflect the promulgated standards if it 
determines that the level of control required by the emission 
limitation in the permit is substantially as effective as that required 
by the promulgated standards. If the requirements you established in a 
case-by-case determination under section 112(j) are more stringent than 
the standards promulgated under section 112(d), you may elect to revise 
the permit to incorporate the less stringent requirements but you are 
not required to do so.

V. What Are the Environmental, Energy, Cost, and Economic Impacts 
of This Rule?

    The General Provisions do not apply until specific relevant 
standards are promulgated. At that time, the impacts of the individual 
NESHAP will be analyzed, including the impacts of the General 
Provisions requirements.
    The section 112(j) rule provides general guidance and procedures 
concerning the implementation of an underlying statutory requirement. 
We estimate that approximately 84,000 affected sources may have to 
prepare and submit a Part 1 permit application. The total estimated 
cost of this 1-time event is about $9,000,000. We currently anticipate 
no other impacts since we plan to promulgate all the 10-year MACT 
standards before the need to submit a Part 2 permit application.

VI. What Are the Administrative Requirements for This Rule?

A. Executive Order 12866, Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), we must 
determine whether a regulatory action is ``significant'' and, 
therefore, subject to review by the Office of Management and Budget 
(OMB) and the requirements of the Executive Order. The Executive 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.
    It has been determined that the amendments are not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and are, 
therefore, not subject to OMB review.

B. Paperwork Reduction Act

    As required by the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et 
seq., the OMB must approve any reporting and recordkeeping requirements 
that qualify as an information collection request (ICR) under the PRA.
    Approval of an ICR is not required for the General Provisions 
because, for sources affected by CAA section 112 only, the General 
Provisions do not require any activities until source category-specific 
standards have been promulgated or until title V permit programs become 
effective. The actual recordkeeping and reporting burden that would be 
imposed by the General Provisions for each source category covered by 
part 63 will be estimated when standards applicable to such category 
are promulgated.
    However, approval of an ICR is required for the section 112(j) 
rule. The information collection requirements in today's amendments to 
the final section 112(j) rule have been submitted to OMB for approval 
under the provisions of the PRA. The EPA has prepared an ICR document 
(ICR No. 1648.04), and you may obtain a copy from Sandy Farmer by mail 
at Office of Environmental Information, Collection Strategies Division 
(2822), U.S. EPA, 1200 Pennsylvania Avenue, NW, Washington, DC 20460, 
by email at [email protected], or by calling (202) 260-2740. You may 
also download a copy off the Internet at http://www.epa.gov/icr. The 
information requirements are not effective until OMB approves them.
    The collection of information required by today's amendments to the 
final section 112(j) rule have an estimated nationwide recordkeeping 
and reporting burden of 172,480 hours ($8,984,976). This burden is a 
short 1-time permit application.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to (1) review instructions; (2) develop, acquire, install, and 
utilize technology and systems for the purposes of collecting, 
validating, and verifying information, processing and maintaining 
information, and disclosing and providing information; (3) adjust the 
existing ways to comply with any previously applicable instructions and 
requirements; (4) train personnel to be able to respond to a collection 
of information; (5) search data sources; (6) complete and review the 
collection of information; and (7) transmit or otherwise disclose the 
information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

C. Executive Order 13132, Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires the EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
Policies that have federalism implications is defined in the Executive 
Order to include regulations that have ``substantial direct effects on 
the States, on the relationship between the national Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.''
    Executive Order 13132 identifies 2 types of rules with Federalism 
implications--rules that impose substantial compliance costs, unless

[[Page 16594]]

they are expressly required by statute or there are federal funds 
available to cover the costs, and rules that preempt State or local 
law. The EPA has interpreted that rules containing ``substantial 
compliance costs'' are those that contain a ``significant federal 
intergovernmental mandate'' under Section 202 of the Unfunded Mandates 
Reform Act (UMRA)--i.e., it is likely to result in the expenditure by 
State, local, and Tribal governments in the aggregate of $100 million 
or more in any one year. In addition, EPA will conclude a rule also has 
Federalism implications if the impacts of the rule on small governments 
is likely to equal or exceed 1% of their revenues.
    Because these final amendments do not exceed either threshold for 
substantial costs described above or preempt State or local law, they 
do not have federalism implications and will not have substantial 
direct effects on the States, on the relationship between the national 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of Government, as specified 
in Executive Order 13132. Nevertheless, in the spirit of Executive 
Order 13132 and consistent with EPA policy to promote communications 
between EPA, State and local governments, EPA specifically solicited 
comment on the rule amendments from State and local officials.

D. Executive Order 13175, Consultation and Coordination with Indian 
Tribal Governments

    Executive Order 13175 (65 FR 67249, November 6, 2000) requires EPA 
to develop an accountable process to ensure ``meaningful and timely 
input by tribal officials in the development of regulatory policies 
that have tribal implications.'' ``Policies that have tribal 
implications'' are defined in the Executive Order to include 
regulations that have ``substantial direct effects on one or more 
Indian tribes, on the relationship between the Federal government and 
Indian tribes, or on the distribution of power and responsibilities 
between the Federal government and Indian tribes.''
    These final rule amendments do not have tribal implications. They 
will not have substantial direct effects on tribal governments, or on 
the relationship between the Federal government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
There are currently no tribal governments that have approved title V 
permit programs to which sources would submit permit applications on 
May 15, 2002. Accordingly, Executive Order 13175 does not apply to this 
action.

E. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
aggregate, or by the private sector, of $100 million or more in any 1 
year. Before promulgating an EPA rule for which a written statement is 
needed, section 205 of the UMRA generally requires EPA to identify and 
consider a reasonable number of regulatory alternatives and adopt the 
least-costly, most cost-effective, or least-burdensome alternative that 
achieves the objective of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows the 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 the EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially 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 these final amendments do not contain a 
Federal mandate that may result in expenditures of $100 million or more 
for State, local, and tribal governments, in the aggregate, or the 
private sector in any 1 year. These amendments will clarify existing 
requirements and reduce regulatory burden. The EPA has determined that 
this action is not a ``significant'' regulatory action within the 
meaning of Executive Order 12866, and it does not impose any additional 
Federal mandate on State, local and tribal governments or the private 
sector within the meaning of the UMRA. Thus, today's final rule 
amendments are not subject to the requirements of sections 202, 203, 
and 205 of the UMRA.

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

    The EPA has determined that it is not necessary to prepare a 
regulatory flexibility analysis in connection with these final 
amendments. The EPA has also determined that these amendments will not 
have a significant economic impact on a substantial number of small 
entities. For purposes of assessing the impact of today's rule 
amendments on small entities, small entities are defined as: (1) A 
small business whose parent company has fewer than 1,000 employees; (2) 
a small governmental jurisdiction that is a government of a city, 
county, town, school district or special district with a population of 
less than 50,000; or (3) a small organization that is any not-for-
profit enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of today's final amendments 
on small entities, EPA has concluded that this action will not have a 
significant economic impact on a substantial number of small entities.
    A regulatory flexibility analysis is not necessary for the General 
Provisions amendments because it is unknown at this time which 
requirements from the General Provisions will be applicable to any 
particular source category, whether such category includes small 
businesses, and how significant the impacts of those requirements would 
be on small businesses. Impacts on small entities associated with the 
General Provisions will be assessed when specific emission standards 
affecting those sources are developed. ``Small entities'' will be 
defined in the context of the applicability of those standards.
    Similarly, no analysis has been prepared for the amendments to the 
section 112(j) rule. The rule provides general guidance and procedures 
concerning the implementation of an underlying statutory requirement, 
but it does not by itself impose any regulatory requirements other than 
a permit application to the permitting authority or prescribe the 
specific content of any case-by-case determination which might be made 
under section 112(j). Although the final amendments will not have a 
significant economic impact on a substantial number of small entities,

[[Page 16595]]

EPA nonetheless has tried to reduce the impact of the rule amendments 
on small entities. We have extended the time between application 
deadlines for the Part 1 and Part 2 submittals so that all 10-year MACT 
standards would be promulgated before any Part 2 applications are due. 
We have also minimized the required information in the Part 1 permit 
application. Although we expect some small businesses to be affected by 
the section 112(j) permit application requirement, we cannot determine 
how many. In any event, the impact would be insignificant. Furthermore, 
the net effect of these rule amendments to the existing rule will be to 
reduce potential regulatory burdens.

G. National Technology Transfer and Advancement Act of 1995

    Section 12(d) of the National Technology Transfer and Advancement 
Act (NTTAA) of 1995, (Public Law No. 104-113) (15 U.S.C. 272 note), 
directs the EPA to use voluntary consensus standards in their 
regulatory and procurement activities unless to do so would be 
inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, business practices) 
developed or adopted by one or more voluntary consensus bodies. The 
NTTAA directs the EPA to provide Congress, through annual reports to 
OMB, with explanations when an agency does not use available and 
applicable voluntary consensus standards.
    The final amendments to the General Provisions do not include any 
technical standards; they consist primarily of revisions to the 
generally applicable procedural and administrative requirements that 
the General Provisions overlay on NESHAP. The final amendments to the 
section 112(j) rule, which establishes requirements and procedures for 
owners or operators of major sources of HAP and permitting authorities 
to follow if the EPA misses the deadline for promulgation of section 
112(d) standards, clarify and amend current procedural and 
administrative provisions to establish equivalent emissions limitations 
by permit. Therefore, section 112(j) is also not a vehicle for the 
application of voluntary consensus standards.

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

    Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any 
rule that (1) is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children and explain why the 
planned regulation is preferable to other potentially effective and 
reasonable alternatives considered by the Agency.
    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under section 5-501 of the Executive Order has 
the potential to influence the regulation. The final amendments to the 
General Provisions are not subject to Executive Order 13045 because the 
provisions provide general technology performance and compliance 
guidelines for section 112(d) standards, which are not based on health 
or safety risks. Likewise, the final amendments to the section 112(j) 
rule are not subject to Executive Order 13045 because they establish 
the process for developing case-by-case MACT, and thus are based on 
technology performance and not on safety or health risks.

I. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
SBREFA, generally provides that before a rule may take effect, the 
agency promulgating the rule must submit a rule report, which includes 
a copy of the rule, to each House of the Congress and to the 
Comptroller General of the United States. Therefore, we will submit a 
report containing the final amendments and other required information 
to the U.S. Senate, the U.S. House of Representatives, and the 
Comptroller General of the United States prior to publication of the 
rule in the Federal Register. A major rule cannot take effect until 60 
days after it is published in the Federal Register. These final 
amendments are not a ``major rule'' as defined by 5 U.S.C. 804(2), and 
therefore will be effective April 5, 2002.

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

    The final amendments are not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001) because it 
is not a significant regulatory action under Executive Order 12866.

List of Subjects in 40 CFR Part 63

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

    Dated: March 5, 2002.
Christine Todd Whitman,
Administrator.


    For the reasons cited in the preamble, part 63, title 40, chapter I 
of the Code of Federal Regulations is amended as follows:

PART 63--[AMENDED]

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

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

Subpart A--[Amended]

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


Sec. 63.1  Applicability.

    (a) * * *
    (3) No emission standard or other requirement established under 
this part shall be interpreted, construed, or applied to diminish or 
replace the requirements of a more stringent emission limitation or 
other applicable requirement established by the Administrator pursuant 
to other authority of the Act (section 111, part C or D or any other 
authority of this Act), or a standard issued under State authority. The 
Administrator may specify in a specific standard under this part that 
facilities subject to other provisions under the Act need only comply 
with the provisions of that standard.
    (4)(i) Each relevant standard in this part 63 must identify 
explicitly whether each provision in this subpart A is or is not 
included in such relevant standard.
    (ii) If a relevant part 63 standard incorporates the requirements 
of 40 CFR part 60, part 61 or other part 63 standards, the relevant 
part 63 standard

[[Page 16596]]

must identify explicitly the applicability of each corresponding part 
60, part 61, or other part 63 subpart A (General) provision.
    (iii) The General Provisions in this subpart A do not apply to 
regulations developed pursuant to section 112(r) of the amended Act, 
unless otherwise specified in those regulations.
* * * * *
    (7) [Reserved]
    (8) [Reserved]
* * * * *
    (b) * * *
    (2) [Reserved]
    (3) An owner or operator of a stationary source who is in the 
relevant source category and who determines that the source is not 
subject to a relevant standard or other requirement established under 
this part must keep a record as specified in Sec. 63.10(b)(3).
    (c) * * *
    (1) If a relevant standard has been established under this part, 
the owner or operator of an affected source must comply with the 
provisions of that standard and of this subpart as provided in 
paragraph (a)(4) of this section.
    (2) Except as provided in Sec. 63.10(b)(3), if a relevant standard 
has been established under this part, the owner or operator of an 
affected source may be required to obtain a title V permit from a 
permitting authority in the State in which the source is located. 
Emission standards promulgated in this part for area sources pursuant 
to section 112(c)(3) of the Act will specify whether--
* * * * *
    (iii) If a standard fails to specify what the permitting 
requirements will be for area sources affected by such a standard, then 
area sources that are subject to the standard will be subject to the 
requirement to obtain a title V permit without any deferral.
* * * * *
    (4) [Reserved]
* * * * *
    (e) If the Administrator promulgates an emission standard under 
section 112(d) or (h) of the Act that is applicable to a source subject 
to an emission limitation by permit established under section 112(j) of 
the Act, and the requirements under the section 112(j) emission 
limitation are substantially as effective as the promulgated emission 
standard, the owner or operator may request the permitting authority to 
revise the source's title V permit to reflect that the emission 
limitation in the permit satisfies the requirements of the promulgated 
emission standard. The process by which the permitting authority 
determines whether the section 112(j) emission limitation is 
substantially as effective as the promulgated emission standard must 
include, consistent with part 70 or 71 of this chapter, the opportunity 
for full public, EPA, and affected State review (including the 
opportunity for EPA's objection) prior to the permit revision being 
finalized. A negative determination by the permitting authority 
constitutes final action for purposes of review and appeal under the 
applicable title V operating permit program.

    3. Section 63.2 is amended by:
    a. Revising the definition of Affected source;
    b. Revising the definition of Commenced;
    c. Revising the definition of Construction;
    d. Revising paragraph (2) in the definition of Effective date;
    e. Revising the definition of Equivalent emission limitation;
    f. Revising paragraph (6) in the definition of Federally 
enforceable;
    g. Revising the first sentence in the definition of Malfunction;
    h. Revising the definition of New source;
    i. Revising the introductory text in the definition of 
Reconstruction;
    j. Amending the definition of Relevant standard by revising the 
first sentence of paragraph (4); running the undesignated paragraph at 
the end of paragraph (4) into pargraph (4), and revising the last 
sentence of newly designated text in paragraph (4);
    k. Revising the definition of Shutdown;
    l. Revising the definition of Startup;
    m. By adding in alphabetical order definitions for Monitoring, New 
affected source, and Working day; and
    n. By removing definitions for Compliance plan, Lesser quantity, 
and Part 70 permit.
    The revisions and additions read as follows:


Sec. 63.2  Definitions.

* * * * *
    Affected source, for the purposes of this part, means the 
collection of equipment, activities, or both within a single contiguous 
area and under common control that is included in a section 112(c) 
source category or subcategory for which a section 112(d) standard or 
other relevant standard is established pursuant to section 112 of the 
Act. Each relevant standard will define the ``affected source,'' as 
defined in this paragraph unless a different definition is warranted 
based on a published justification as to why this definition would 
result in significant administrative, practical, or implementation 
problems and why the different definition would resolve those problems. 
The term ``affected source,'' as used in this part, is separate and 
distinct from any other use of that term in EPA regulations such as 
those implementing title IV of the Act. Affected source may be defined 
differently for part 63 than affected facility and stationary source in 
parts 60 and 61, respectively. This definition of ``affected source,'' 
and the procedures for adopting an alternative definition of ``affected 
source,'' shall apply to each section 112(d) standard for which the 
initial proposed rule is signed by the Administrator after June 30, 
2002.
* * * * *
    Commenced means, with respect to construction or reconstruction of 
an affected source, that an owner or operator has undertaken a 
continuous program of construction or reconstruction or that an owner 
or operator has entered into a contractual obligation to undertake and 
complete, within a reasonable time, a continuous program of 
construction or reconstruction.
* * * * *
    Construction means the on-site fabrication, erection, or 
installation of an affected source. Construction does not include the 
removal of all equipment comprising an affected source from an existing 
location and reinstallation of such equipment at a new location. The 
owner or operator of an existing affected source that is relocated may 
elect not to reinstall minor ancillary equipment including, but not 
limited to, piping, ductwork, and valves. However, removal and 
reinstallation of an affected source will be construed as 
reconstruction if it satisfies the criteria for reconstruction as 
defined in this section. The costs of replacing minor ancillary 
equipment must be considered in determining whether the existing 
affected source is reconstructed.
* * * * *
    Effective date means: * * *
    (2) With regard to an alternative emission limitation or equivalent 
emission limitation determined by the Administrator (or a State with an 
approved permit program), the date that the alternative emission 
limitation or equivalent emission limitation becomes effective 
according to the provisions of this part.
* * * * *
    Equivalent emission limitation means any maximum achievable control 
technology emission limitation or requirements which are applicable to 
a

[[Page 16597]]

major source of hazardous air pollutants and are adopted by the 
Administrator (or a State with an approved permit program) on a case-
by-case basis, pursuant to section 112(g) or (j) of the Act.
* * * * *
    Federally enforceable * * *
    (6) Limitations and conditions that are part of an operating permit 
where the permit and the permitting program pursuant to which it was 
issued meet all of the following criteria:
    (i) The operating permit program has been submitted to and approved 
by EPA into a State implementation plan (SIP) under section 110 of the 
CAA;
    (ii) The SIP imposes a legal obligation that operating permit 
holders adhere to the terms and limitations of such permits and 
provides that permits which do not conform to the operating permit 
program requirements and the requirements of EPA's underlying 
regulations may be deemed not ``federally enforceable'' by EPA;
    (iii) The operating permit program requires that all emission 
limitations, controls, and other requirements imposed by such permits 
will be at least as stringent as any other applicable limitations and 
requirements contained in the SIP or enforceable under the SIP, and 
that the program may not issue permits that waive, or make less 
stringent, any limitations or requirements contained in or issued 
pursuant to the SIP, or that are otherwise ``federally enforceable'';
    (iv) The limitations, controls, and requirements in the permit in 
question are permanent, quantifiable, and otherwise enforceable as a 
practical matter; and
    (v) The permit in question was issued only after adequate and 
timely notice and opportunity for comment for EPA and the public.
* * * * *
    Malfunction means any sudden, infrequent, and not reasonably 
preventable failure of air pollution control and monitoring equipment, 
process equipment, or a process to operate in a normal or usual 
manner.* * *
    Monitoring means the collection and use of measurement data or 
other information to control the operation of a process or pollution 
control device or to verify a work practice standard relative to 
assuring compliance with applicable requirements. Monitoring is 
composed of four elements:
    (1) Indicator(s) of performance--the parameter or parameters you 
measure or observe for demonstrating proper operation of the pollution 
control measures or compliance with the applicable emissions limitation 
or standard. Indicators of performance may include direct or predicted 
emissions measurements (including opacity), operational parametric 
values that correspond to process or control device (and capture 
system) efficiencies or emissions rates, and recorded findings of 
inspection of work practice activities, materials tracking, or design 
characteristics. Indicators may be expressed as a single maximum or 
minimum value, a function of process variables (for example, within a 
range of pressure drops), a particular operational or work practice 
status (for example, a damper position, completion of a waste recovery 
task, materials tracking), or an interdependency between two or among 
more than two variables.
    (2) Measurement techniques--the means by which you gather and 
record information of or about the indicators of performance. The 
components of the measurement technique include the detector type, 
location and installation specifications, inspection procedures, and 
quality assurance and quality control measures. Examples of measurement 
techniques include continuous emission monitoring systems, continuous 
opacity monitoring systems, continuous parametric monitoring systems, 
and manual inspections that include making records of process 
conditions or work practices.
    (3) Monitoring frequency--the number of times you obtain and record 
monitoring data over a specified time interval. Examples of monitoring 
frequencies include at least four points equally spaced for each hour 
for continuous emissions or parametric monitoring systems, at least 
every 10 seconds for continuous opacity monitoring systems, and at 
least once per operating day (or week, month, etc.) for work practice 
or design inspections.
    (4) Averaging time--the period over which you average and use data 
to verify proper operation of the pollution control approach or 
compliance with the emissions limitation or standard. Examples of 
averaging time include a 3-hour average in units of the emissions 
limitation, a 30-day rolling average emissions value, a daily average 
of a control device operational parametric range, and an instantaneous 
alarm.
    New affected source means the collection of equipment, activities, 
or both within a single contiguous area and under common control that 
is included in a section 112(c) source category or subcategory that is 
subject to a section 112(d) or other relevant standard for new sources. 
This definition of ``new affected source,'' and the criteria to be 
utilized in implementing it, shall apply to each section 112(d) 
standard for which the initial proposed rule is signed by the 
Administrator after June 30, 2002. Each relevant standard will define 
the term ``new affected source,'' which will be the same as the 
``affected source'' unless a different collection is warranted based on 
consideration of factors including:
    (1) Emission reduction impacts of controlling individual sources 
versus groups of sources;
    (2) Cost effectiveness of controlling individual equipment;
    (3) Flexibility to accommodate common control strategies;
    (4) Cost/benefits of emissions averaging;
    (5) Incentives for pollution prevention;
    (6) Feasibility and cost of controlling processes that share common 
equipment (e.g., product recovery devices);
    (7) Feasibility and cost of monitoring; and
    (8) Other relevant factors.
    New source means any affected source the construction or 
reconstruction of which is commenced after the Administrator first 
proposes a relevant emission standard under this part establishing an 
emission standard applicable to such source.
* * * * *
    Reconstruction, unless otherwise defined in a relevant standard, 
means the replacement of components of an affected or a previously 
nonaffected source to such an extent that:
* * * * *
    Relevant standard means: * * *
    (4) An equivalent emission limitation established pursuant to 
section 112 of the Act that applies to the collection of equipment, 
activities, or both regulated by such standard or limitation. * * * 
Every relevant standard established pursuant to section 112 of the Act 
includes subpart A of this part, as provided by Sec. 63.1(a)(4), and 
all applicable appendices of this part or of other parts of this 
chapter that are referenced in that standard.
* * * * *
    Shutdown means the cessation of operation of an affected source or 
portion of an affected source for any purpose.
* * * * *
    Startup means the setting in operation of an affected source or 
portion of an affected source for any purpose.
* * * * *
    Working day means any day on which Federal Government offices (or 
State government offices for a State that has obtained delegation under 
section

[[Page 16598]]

112(l)) are open for normal business. Saturdays, Sundays, and official 
Federal (or where delegated, State) holidays are not working days.

    4. Section 63.3 is amended by adding the abbreviation for standard 
cubic meter per minute in paragraph (b).
    The revisions read as follows:


Sec. 63.3  Units and abbreviations.

* * * * *
    (b) * * *

scmm = cubic meter at standard conditions per minute

* * * * *

    5. Section 63.4 is amended by:
    a. Revising paragraph (a)(1);
    b. Removing and reserving paragraphs (a)(3) through (a)(5);
    c. Removing paragraph (b)(3); and
    d. Revising paragraph (c).
    The revisions read as follows:


Sec. 63.4  Prohibited activities and circumvention.

    (a) * * * (1) No owner or operator subject to the provisions of 
this part must operate any affected source in violation of the 
requirements of this part. Affected sources subject to and in 
compliance with either an extension of compliance or an exemption from 
compliance are not in violation of the requirements of this part. An 
extension of compliance can be granted by the Administrator under this 
part; by a State with an approved permit program; or by the President 
under section 112(i)(4) of the Act.
* * * * *
    (3)-(5) [Reserved]
* * * * *
    (c) Fragmentation. Fragmentation after November 15, 1990 which 
divides ownership of an operation, within the same facility among 
various owners where there is no real change in control, will not 
affect applicability. The owner and operator must not use fragmentation 
or phasing of reconstruction activities (i.e., intentionally dividing 
reconstruction into multiple parts for purposes of avoiding new source 
requirements) to avoid becoming subject to new source requirements.

    6. Section 63.5 is amended by:
    a. Revising the section heading;
    b. Revising paragraphs (a)(1) and (2);
    c. Revising paragraphs (b)(1), (b)(3) and (4);
    d. Removing and reserving paragraph (b)(5);
    e. Revising paragraph (b)(6);
    f. Revising paragraphs (d)(1)(i), (d)(1)(ii)(B), and (d)(1)(ii)(E);
    g. Removing and reserving paragraph (d)(1)(ii)(G);
    h. Revising paragraph (d)(2);
    i. Revising paragraph (d)(3)(vi); and
    j. Revising paragraphs (f)(1) and (f)(2).
    The revisions read as follows:


Sec. 63.5  Preconstruction review and notification requirements.

    (a) * * *
    (1) This section implements the preconstruction review requirements 
of section 112(i)(1). After the effective date of a relevant standard, 
promulgated pursuant to section 112(d), (f), or (h) of the Act, under 
this part, the preconstruction review requirements in this section 
apply to the owner or operator of new affected sources and 
reconstructed affected sources that are major-emitting as specified in 
this section. New and reconstructed affected sources that commence 
construction or reconstruction before the effective date of a relevant 
standard are not subject to the preconstruction review requirements 
specified in paragraphs (b)(3), (d), and (e) of this section.
    (2) This section includes notification requirements for new 
affected sources and reconstructed affected sources that are not major-
emitting affected sources and that are or become subject to a relevant 
promulgated emission standard after the effective date of a relevant 
standard promulgated under this part.
    (b) Requirements for existing, newly constructed, and reconstructed 
affected sources. (1) A new affected source for which construction 
commences after proposal of a relevant standard is subject to relevant 
standards for new affected sources, including compliance dates. An 
affected source for which reconstruction commences after proposal of a 
relevant standard is subject to relevant standards for new sources, 
including compliance dates, irrespective of any change in emissions of 
hazardous air pollutants from that source.
* * * * *
    (3) After the effective date of any relevant standard promulgated 
by the Administrator under this part, no person may, without obtaining 
written approval in advance from the Administrator in accordance with 
the procedures specified in paragraphs (d) and (e) of this section, do 
any of the following:
    (i) Construct a new affected source that is major-emitting and 
subject to such standard;
    (ii) Reconstruct an affected source that is major-emitting and 
subject to such standard; or
    (iii) Reconstruct a major source such that the source becomes an 
affected source that is major-emitting and subject to the standard.
    (4) After the effective date of any relevant standard promulgated 
by the Administrator under this part, an owner or operator who 
constructs a new affected source that is not major-emitting or 
reconstructs an affected source that is not major-emitting that is 
subject to such standard, or reconstructs a source such that the source 
becomes an affected source subject to the standard, must notify the 
Administrator of the intended construction or reconstruction. The 
notification must be submitted in accordance with the procedures in 
Sec. 63.9(b).
    (5) [Reserved]
    (6) After the effective date of any relevant standard promulgated 
by the Administrator under this part, equipment added (or a process 
change) to an affected source that is within the scope of the 
definition of affected source under the relevant standard must be 
considered part of the affected source and subject to all provisions of 
the relevant standard established for that affected source.
* * * * *
    (d) * * *
    (1) * * *
    (i) An owner or operator who is subject to the requirements of 
paragraph (b)(3) of this section must submit to the Administrator an 
application for approval of the construction or reconstruction. The 
application must be submitted as soon as practicable before actual 
construction or reconstruction begins. The application for approval of 
construction or reconstruction may be used to fulfill the initial 
notification requirements of Sec. 63.9(b)(5). The owner or operator may 
submit the application for approval well in advance of the date actual 
construction or reconstruction begins in order to ensure a timely 
review by the Administrator and that the planned date to begin will not 
be delayed.
    (ii) * * *
    (B) A notification of intention to construct a new major affected 
source or make any physical or operational change to a major affected 
source that may meet or has been determined to meet the criteria for a 
reconstruction, as defined in Sec. 63.2 or in the relevant standard;
* * * * *
    (E) The expected date of the beginning of actual construction or 
reconstruction;
* * * * *
    (G) [Reserved]
* * * * *
    (2) Application for approval of construction. Each application for 
approval of construction must include, in addition to the information 
required

[[Page 16599]]

in paragraph (d)(1)(ii) of this section, technical information 
describing the proposed nature, size, design, operating design 
capacity, and method of operation of the source, including an 
identification of each type of emission point for each type of 
hazardous air pollutant that is emitted (or could reasonably be 
anticipated to be emitted) and a description of the planned air 
pollution control system (equipment or method) for each emission point. 
The description of the equipment to be used for the control of 
emissions must include each control device for each hazardous air 
pollutant and the estimated control efficiency (percent) for each 
control device. The description of the method to be used for the 
control of emissions must include an estimated control efficiency 
(percent) for that method. Such technical information must include 
calculations of emission estimates in sufficient detail to permit 
assessment of the validity of the calculations.
    (3) * * *
    (vi) If in the application for approval of reconstruction the owner 
or operator designates the affected source as a reconstructed source 
and declares that there are no economic or technical limitations to 
prevent the source from complying with all relevant standards or other 
requirements, the owner or operator need not submit the information 
required in paragraphs (d)(3)(iii) through (d)(3)(v) of this section.
* * * * *
    (f) * * *
    (1) Preconstruction review procedures that a State utilizes for 
other purposes may also be utilized for purposes of this section if the 
procedures are substantially equivalent to those specified in this 
section. The Administrator will approve an application for construction 
or reconstruction specified in paragraphs (b)(3) and (d) of this 
section if the owner or operator of a new affected source or 
reconstructed affected source, who is subject to such requirement meets 
the following conditions:
    (i) The owner or operator of the new affected source or 
reconstructed affected source has undergone a preconstruction review 
and approval process in the State in which the source is (or would be) 
located and has received a federally enforceable construction permit 
that contains a finding that the source will meet the relevant 
promulgated emission standard, if the source is properly built and 
operated.
    (ii) Provide a statement from the State or other evidence (such as 
State regulations) that it considered the factors specified in 
paragraph (e)(1) of this section.
    (2) The owner or operator must submit to the Administrator the 
request for approval of construction or reconstruction under this 
paragraph (f)(2) no later than the application deadline specified in 
paragraph (d)(1) of this section (see also Sec. 63.9(b)(2)). The owner 
or operator must include in the request information sufficient for the 
Administrator's determination. The Administrator will evaluate the 
owner or operator's request in accordance with the procedures specified 
in paragraph (e) of this section. The Administrator may request 
additional relevant information after the submittal of a request for 
approval of construction or reconstruction under this paragraph (f)(2).

    7. Section 63.6 is amended by:
    a. Revising paragraph (a)(1) introductory text;
    b. Revising paragraphs (b)(1), (b)(2), (b)(3)(i), (b)(4), (b)(5), 
and (b)(7);
    c. Revising paragraphs (c)(2) and (c)(5);
    d. Revising paragraphs (e)(1)(i) and (ii);
    e. Removing and reserving paragraph (e)(2);
    f. Revising paragraphs (e)(3)(i) introductory text, (e)(3)(i)(A), 
(e)(3)(ii), the first three sentences of (e)(3)(iii) and (e)(3)(v), 
revising paragraphs (e)(3)(iv), (e)(3)(vii)(B), (e)(3)(vii)(C), adding 
paragraph (e)(3)(vii)(D), revising paragraph (e)(3)(viii) and adding 
paragraph (e)(3)(ix);
    g. Revising paragraphs (f)(1), (f)(2)(iii)(D), and (f)(3);
    h. Revising paragraph (h)(1);
    i. Revising paragraph (h)(2)(iii)(C);
    j. Revising paragraph (i)(4)(i)(B);
    k. Revising the last sentence of paragraph (i)(4)(ii);
    l. Revising paragraphs (i)(6)(i)(B)(1) and (2) and removing and 
reserving paragraphs (i)(6)(i)(C) & (D);
    m. Revising paragraph (i)(12)(i);
    n. Revising paragraph (i)(14); and
    o. Adding paragraph (i)(4)(i)(C).
    The revisions and additions read as follows:


Sec. 63.6  Compliance with standards and maintenance requirements.

    (a) * * *
    (1) The requirements in this section apply to the owner or operator 
of affected sources for which any relevant standard has been 
established pursuant to section 112 of the Act and the applicability of 
such requirements is set out in accordance with Sec. 63.1(a)(4) 
unless--
* * * * *
    (b) Compliance dates for new and reconstructed affected sources. 
(1) Except as specified in paragraphs (b)(3) and (4) of this section, 
the owner or operator of a new or reconstructed affected source for 
which construction or reconstruction commences after proposal of a 
relevant standard that has an initial startup before the effective date 
of a relevant standard established under this part pursuant to section 
112(d), (f), or (h) of the Act must comply with such standard not later 
than the standard's effective date.
    (2) Except as specified in paragraphs (b)(3) and (4) of this 
section, the owner or operator of a new or reconstructed affected 
source that has an initial startup after the effective date of a 
relevant standard established under this part pursuant to section 
112(d), (f), or (h) of the Act must comply with such standard upon 
startup of the source.
    (3) * * *
    (i) The promulgated standard (that is, the relevant standard) is 
more stringent than the proposed standard; for purposes of this 
paragraph, a finding that controls or compliance methods are ``more 
stringent'' must include control technologies or performance criteria 
and compliance or compliance assurance methods that are different but 
are substantially equivalent to those required by the promulgated rule, 
as determined by the Administrator (or his or her authorized 
representative); and
* * * * *
    (4) The owner or operator of an affected source for which 
construction or reconstruction is commenced after the proposal date of 
a relevant standard established pursuant to section 112(d) of the Act 
but before the proposal date of a relevant standard established 
pursuant to section 112(f) shall not be required to comply with the 
section 112(f) emission standard until the date 10 years after the date 
construction or reconstruction is commenced, except that, if the 
section 112(f) standard is promulgated more than 10 years after 
construction or reconstruction is commenced, the owner or operator must 
comply with the standard as provided in paragraphs (b)(1) and (2) of 
this section.
    (5) The owner or operator of a new source that is subject to the 
compliance requirements of paragraph (b)(3) or (4) of this section must 
notify the Administrator in accordance with Sec. 63.9(d).
* * * * *
    (7) When an area source becomes a major source by the addition of 
equipment or operations that meet the definition of new affected source 
in the relevant standard, the portion of the

[[Page 16600]]

existing facility that is a new affected source must comply with all 
requirements of that standard applicable to new sources. The source 
owner or operator must comply with the relevant standard upon startup.
    (c) * * *
    (2) If an existing source is subject to a standard established 
under this part pursuant to section 112(f) of the Act, the owner or 
operator must comply with the standard by the date 90 days after the 
standard's effective date, or by the date specified in an extension 
granted to the source by the Administrator under paragraph (i)(4)(ii) 
of this section, whichever is later.
* * * * *
    (5) Except as provided in paragraph (b)(7) of this section, the 
owner or operator of an area source that increases its emissions of (or 
its potential to emit) hazardous air pollutants such that the source 
becomes a major source shall be subject to relevant standards for 
existing sources. Such sources must comply by the date specified in the 
standards for existing area sources that become major sources. If no 
such compliance date is specified in the standards, the source shall 
have a period of time to comply with the relevant emission standard 
that is equivalent to the compliance period specified in the relevant 
standard for existing sources in existence at the time the standard 
becomes effective.
* * * * *
    (e) * * *
    (1)(i) At all times, including periods of startup, shutdown, and 
malfunction, the owner or operator must operate and maintain any 
affected source, including associated air pollution control equipment 
and monitoring equipment, in a manner consistent with safety and good 
air pollution control practices for minimizing emissions to the levels 
required by the relevant standards, i.e., meet the emission standard or 
comply with the startup, shutdown, and malfunction plan. Determination 
of whether such operation and maintenance procedures are being used 
will be based on information available to the Administrator which may 
include, but is not limited to, monitoring results, review of operation 
and maintenance procedures (including the startup, shutdown, and 
malfunction plan required in paragraph (e)(3) of this section), review 
of operation and maintenance records, and inspection of the source.
    (ii) Malfunctions must be corrected as soon as practicable after 
their occurrence in accordance with the startup, shutdown, and 
malfunction plan required in paragraph (e)(3) of this section. To the 
extent that an unexpected event arises during a startup, shutdown, or 
malfunction, an owner or operator must comply by minimizing emissions 
during such a startup, shutdown, and malfunction event consistent with 
safety and good air pollution control practices.
* * * * *
    (2) [Reserved]
    (3) * * *
    (i) The owner or operator of an affected source must develop and 
implement a written startup, shutdown, and malfunction plan that 
describes, in detail, procedures for operating and maintaining the 
source during periods of startup, shutdown, and malfunction; a program 
of corrective action for malfunctioning process; and air pollution 
control and monitoring equipment used to comply with the relevant 
standard. This plan must be developed by the owner or operator by the 
source's compliance date for that relevant standard. The purpose of the 
startup, shutdown, and malfunction plan is to--
    (A) Ensure that, at all times, the owner or operator operate and 
maintain affected sources, including associated air pollution control 
and monitoring equipment, in a manner consistent with safety and good 
air pollution control practices for minimizing emissions to the levels 
required by the relevant standards;
* * * * *
    (ii) During periods of startup, shutdown, and malfunction, the 
owner or operator of an affected source must operate and maintain such 
source (including associated air pollution control and monitoring 
equipment) in accordance with the procedures specified in the startup, 
shutdown, and malfunction plan developed under paragraph (e)(3)(i) of 
this section.
    (iii) When actions taken by the owner or operator during a startup, 
shutdown, or malfunction (including actions taken to correct a 
malfunction) are consistent with the procedures specified in the 
affected source's startup, shutdown, and malfunction plan, the owner or 
operator must keep records for that event which demonstrate that the 
procedures specified in the plan were followed. These records may take 
the form of a ``checklist,'' or other effective form of recordkeeping 
that confirms conformance with the startup, shutdown, and malfunction 
plan for that event. In addition, the owner or operator must keep 
records of these events as specified in Sec. 63.10(b), including 
records of the occurrence and duration of each startup, shutdown, or 
malfunction of operation and each malfunction of the air pollution 
control and monitoring equipment. * * *
    (iv) If an action taken by the owner or operator during a startup, 
shutdown, or malfunction (including an action taken to correct a 
malfunction) is not consistent with the procedures specified in the 
affected source's startup, shutdown, and malfunction plan, and the 
source exceeds the relevant emission standard, then the owner or 
operator must record the actions taken for that event and must report 
such actions within 2 working days after commencing actions 
inconsistent with the plan, followed by a letter within 7 working days 
after the end of the event, in accordance with Sec. 63.10(d)(5) (unless 
the owner or operator makes alternative reporting arrangements, in 
advance, with the Administrator).
    (v) The owner or operator must maintain at the affected source a 
current startup, shutdown, and malfunction plan and must make the plan 
available upon request for inspection and copying by the Administrator. 
In addition, if the startup, shutdown, and malfunction plan is 
subsequently revised as provided in paragraph (e)(3)(viii) of this 
section, the owner or operator must maintain at the affected source 
each previous (i.e., superseded) version of the startup, shutdown, and 
malfunction plan, and must make each such previous version available 
for inspection and copying by the Administrator for a period of 5 years 
after revision of the plan. If at any time after adoption of a startup, 
shutdown, and malfunction plan the affected source ceases operation or 
is otherwise no longer subject to the provisions of this part, the 
owner or operator must retain a copy of the most recent plan for 5 
years from the date the source ceases operation or is no longer subject 
to this part and must make the plan available upon request for 
inspection and copying by the Administrator. * * *
* * * * *
    (vii) * * *
    (B) Fails to provide for the operation of the source (including 
associated air pollution control and monitoring equipment) during a 
startup, shutdown, or malfunction event in a manner consistent with 
safety and good air pollution control practices for minimizing 
emissions to the levels required by the relevant standards;
    (C) Does not provide adequate procedures for correcting 
malfunctioning process and/or air pollution control and monitoring 
equipment as quickly as practicable; or
    (D) Includes an event that does not meet the definition of startup,

[[Page 16601]]

shutdown, or malfunction listed in Sec. 63.2.
    (viii) The owner or operator may periodically revise the startup, 
shutdown, and malfunction plan for the affected source as necessary to 
satisfy the requirements of this part or to reflect changes in 
equipment or procedures at the affected source. Unless the permitting 
authority provides otherwise, the owner or operator may make such 
revisions to the startup, shutdown, and malfunction plan without prior 
approval by the Administrator or the permitting authority. However, 
each such revision to a startup, shutdown, and malfunction plan must be 
reported in the semiannual report required by Sec. 63.10(d)(5). If the 
startup, shutdown, and malfunction plan fails to address or 
inadequately addresses an event that meets the characteristics of a 
malfunction but was not included in the startup, shutdown, and 
malfunction plan at the time the owner or operator developed the plan, 
the owner or operator must revise the startup, shutdown, and 
malfunction plan within 45 days after the event to include detailed 
procedures for operating and maintaining the source during similar 
malfunction events and a program of corrective action for similar 
malfunctions of process or air pollution control and monitoring 
equipment. In the event that the owner or operator makes any revision 
to the startup, shutdown, and malfunction plan which alters the scope 
of the activities at the source which are deemed to be a startup, 
shutdown, malfunction, or otherwise modifies the applicability of any 
emission limit, work practice requirement, or other requirement in a 
standard established under this part, the revised plan shall not take 
effect until after the owner or operator has provided a written notice 
describing the revision to the permitting authority.
    (ix) The title V permit for an affected source must require that 
the owner or operator adopt a startup, shutdown, and malfunction plan 
which conforms to the provisions of this part, and that the owner or 
operator operate and maintain the source in accordance with the 
procedures specified in the current startup, shutdown, and malfunction 
plan. However, any revisions made to the startup, shutdown, and 
malfunction plan in accordance with the procedures established by this 
part shall not be deemed to constitute permit revisions under part 70 
or part 71 of this chapter. Moreover, none of the procedures specified 
by the startup, shutdown, and malfunction plan for an affected source 
shall be deemed to fall within the permit shield provision in section 
504(f) of the Act.
    (f) * * *
    (1) Applicability. The non-opacity emission standards set forth in 
this part shall apply at all times except during periods of startup, 
shutdown, and malfunction, and as otherwise specified in an applicable 
subpart. If a startup, shutdown, or malfunction of one portion of an 
affected source does not affect the ability of particular emission 
points within other portions of the affected source to comply with the 
non-opacity emission standards set forth in this part, then that 
emission point must still be required to comply with the non-opacity 
emission standards and other applicable requirements.
    (2) * * *
    (iii) * * *
    (D) The performance test was appropriately quality-assured, as 
specified in Sec. 63.7(c).
* * * * *
    (3) Finding of compliance. The Administrator will make a finding 
concerning an affected source's compliance with a non-opacity emission 
standard, as specified in paragraphs (f)(1) and (2) of this section, 
upon obtaining all the compliance information required by the relevant 
standard (including the written reports of performance test results, 
monitoring results, and other information, if applicable), and 
information available to the Administrator pursuant to paragraph 
(e)(1)(i) of this section.
* * * * *
    (h) * * *
    (1) Applicability. The opacity and visible emission standards set 
forth in this part must apply at all times except during periods of 
startup, shutdown, and malfunction, and as otherwise specified in an 
applicable subpart. If a startup, shutdown, or malfunction of one 
portion of an affected source does not affect the ability of particular 
emission points within other portions of the affected source to comply 
with the opacity and visible emission standards set forth in this part, 
then that emission point shall still be required to comply with the 
opacity and visible emission standards and other applicable 
requirements.
    (2) * * *
    (iii) * * *
    (C) The opacity or visible emission test was conducted and the 
resulting data were reduced using EPA-approved test methods and 
procedures, as specified in Sec. 63.7(e); and
* * * * *
    (i) * * *
    (4)(i) * * *
    (B) Any request under this paragraph for an extension of compliance 
with a relevant standard must be submitted in writing to the 
appropriate authority no later than 120 days prior to the affected 
source's compliance date (as specified in paragraphs (b) and (c) of 
this section), except as provided for in paragraph (i)(4)(i)(C) of this 
section. Nonfrivolous requests submitted under this paragraph will stay 
the applicability of the rule as to the emission points in question 
until such time as the request is granted or denied. A denial will be 
effective as of the date of denial. Emission standards established 
under this part may specify alternative dates for the submittal of 
requests for an extension of compliance if alternatives are appropriate 
for the source categories affected by those standards.
    (C) An owner or operator may submit a compliance extension request 
after the date specified in paragraph (i)(4)(i)(B) of this section 
provided the need for the compliance extension arose after that date, 
and before the otherwise applicable compliance date and the need arose 
due to circumstances beyond reasonable control of the owner or 
operator. This request must include, in addition to the information 
required in paragraph (i)(6)(i) of this section, a statement of the 
reasons additional time is needed and the date when the owner or 
operator first learned of the problems. Nonfrivolous requests submitted 
under this paragraph will stay the applicability of the rule as to the 
emission points in question until such time as the request is granted 
or denied. A denial will be effective as of the original compliance 
date.
    (ii) * * * Any request for an extension of compliance with a 
relevant standard under this paragraph must be submitted in writing to 
the Administrator not later than 90 calendar days after the effective 
date of the relevant standard.
* * * * *
    (6)(i) * * *
    (B) * * *
    (1) The date by which on-site construction, installation of 
emission control equipment, or a process change is planned to be 
initiated; and
    (2) The date by which final compliance is to be achieved.
    (C) [Reserved]
    (D) [Reserved]
* * * * *
    (12)(i) The Administrator (or the State with an approved permit 
program) will notify the owner or operator in writing of approval or 
intention to deny approval of a request for an extension of compliance 
within 30 calendar days

[[Page 16602]]

after receipt of sufficient information to evaluate a request submitted 
under paragraph (i)(4)(i) or (i)(5) of this section. The Administrator 
(or the State) will notify the owner or operator in writing of the 
status of his/her application, that is, whether the application 
contains sufficient information to make a determination, within 30 
calendar days after receipt of the original application and within 30 
calendar days after receipt of any supplementary information that is 
submitted. The 30-day approval or denial period will begin after the 
owner or operator has been notified in writing that his/her application 
is complete.
* * * * *
    (14) The Administrator (or the State with an approved permit 
program) may terminate an extension of compliance at an earlier date 
than specified if any specification under paragraph (i)(10)(iii) or 
(iv) of this section is not met. Upon a determination to terminate, the 
Administrator will notify, in writing, the owner or operator of the 
Administrator's determination to terminate, together with:
    (i) Notice of the reason for termination; and
    (ii) Notice of opportunity for the owner or operator to present in 
writing, within 15 calendar days after he/she is notified of the 
determination to terminate, additional information or arguments to the 
Administrator before further action on the termination.
    (iii) A final determination to terminate an extension of compliance 
will be in writing and will set forth the specific grounds on which the 
termination is based. The final determination will be made within 30 
calendar days after presentation of additional information or 
arguments, or within 30 calendar days after the final date specified 
for the presentation if no presentation is made.
* * * * *
    8. Section 63.7 is amended by:

    a. Revising paragraphs (a)(1) and (a)(2) introductory text;
    b. Removing and reserving paragraphs (a)(2)(i) through (viii);
    c. Revising paragraph (b)(1);
    d. Revising the first sentence of paragraph (b)(2);
    e. Revising paragraphs (c)(3)(ii)(A) through (B);
    f. Revising paragraph (c)(4)(i);
    g. Revising paragraphs (e)(2)(i) through (iii);
    h. Revising paragraph (f)(1);
    i. Revising paragraphs (f)(2)(i) through (ii); and
    j. Revising paragraph (f)(3).
    The revisions read as follows:


Sec. 63.7  Performance testing requirements.

    (a) * * *
    (1) The applicability of this section is set out in 
Sec. 63.1(a)(4).
    (2) If required to do performance testing by a relevant standard, 
and unless a waiver of performance testing is obtained under this 
section or the conditions of paragraph (c)(3)(ii)(B) of this section 
apply, the owner or operator of the affected source must perform such 
tests within 180 days of the compliance date for such source.
    (i)--(viii) [Reserved]
* * * * *
    (b) * * *
    (1) The owner or operator of an affected source must notify the 
Administrator in writing of his or her intention to conduct a 
performance test at least 60 calendar days before the performance test 
is initially scheduled to begin to allow the Administrator, upon 
request, to review an approve the site-specific test plan required 
under paragraph (c) of this section and to have an observer present 
during the test.
    (2) In the event the owner or operator is unable to conduct the 
performance test on the date specified in the notification requirement 
specified in paragraph (b)(1) of this section due to unforeseeable 
circumstances beyond his or her control, the owner or operator must 
notify the Administrator as soon as practicable and without delay prior 
to the scheduled performance test date and specify the date when the 
performance test is rescheduled. * * *
    (c) * * *
    (3) * * *
    (ii) * * *
    (A) If the owner or operator intends to demonstrate compliance 
using the test method(s) specified in the relevant standard or with 
only minor changes to those tests methods (see paragraph (e)(2)(i) of 
this section), the owner or operator must conduct the performance test 
within the time specified in this section using the specified 
method(s);
    (B) If the owner or operator intends to demonstrate compliance by 
using an alternative to any test method specified in the relevant 
standard, the owner or operator is authorized to conduct the 
performance test using an alternative test method after the 
Administrator approves the use of the alternative method when the 
Administrator approves the site-specific test plan (if review of the 
site-specific test plan is requested) or after the alternative method 
is approved (see paragraph (f) of this section). However, the owner or 
operator is authorized to conduct the performance test using an 
alternative method in the absence of notification of approval 45 days 
after submission of the site-specific test plan or request to use an 
alternative method. The owner or operator is authorized to conduct the 
performance test within 60 calendar days after he/she is authorized to 
demonstrate compliance using an alternative test method. 
Notwithstanding the requirements in the preceding three sentences, the 
owner or operator may proceed to conduct the performance test as 
required in this section (without the Administrator's prior approval of 
the site-specific test plan) if he/she subsequently chooses to use the 
specified testing and monitoring methods instead of an alternative.
* * * * *
    (4)(i) Performance test method audit program. The owner or operator 
must analyze performance audit (PA) samples during each performance 
test. The owner or operator must request performance audit materials 30 
days prior to the test date. Audit materials including cylinder audit 
gases may be obtained by contacting the appropriate EPA Regional Office 
or the responsible enforcement authority.
* * * * *
    (e) * * *
    (2) * * *
    (i) Specifies or approves, in specific cases, the use of a test 
method with minor changes in methodology (see definition in 
Sec. 63.90(a)). Such changes may be approved in conjunction with 
approval of the site-specific test plan (see paragraph (c) of this 
section); or
    (ii) Approves the use of an intermediate or major change or 
alternative to a test method (see definitions in Sec. 63.90(a)), the 
results of which the Administrator has determined to be adequate for 
indicating whether a specific affected source is in compliance; or
    (iii) Approves shorter sampling times or smaller sample volumes 
when necessitated by process variables or other factors; or
* * * * *
    (f) * * *
    (1) General. Until authorized to use an intermediate or major 
change or alternative to a test method, the owner or operator of an 
affected source remains subject to the requirements of this section and 
the relevant standard.
    (2) * * *
    (i) Notifies the Administrator of his or her intention to use an 
alternative test method at least 60 days before the performance test is 
scheduled to begin;
    (ii) Uses Method 301 in appendix A of this part to validate the 
alternative test method. This may include the use

[[Page 16603]]

of specific procedures of Method 301 if use of such procedures are 
sufficient to validate the alternative test method; and
* * * * *
    (3) The Administrator will determine whether the owner or 
operator's validation of the proposed alternative test method is 
adequate and issue an approval or disapproval of the alternative test 
method. If the owner or operator intends to demonstrate compliance by 
using an alternative to any test method specified in the relevant 
standard, the owner or operator is authorized to conduct the 
performance test using an alternative test method after the 
Administrator approves the use of the alternative method. However, the 
owner or operator is authorized to conduct the performance test using 
an alternative method in the absence of notification of approval/
disapproval 45 days after submission of the request to use an 
alternative method and the request satisfies the requirements in 
paragraph (f)(2) of this section. The owner or operator is authorized 
to conduct the performance test within 60 calendar days after he/she is 
authorized to demonstrate compliance using an alternative test method. 
Notwithstanding the requirements in the preceding three sentences, the 
owner or operator may proceed to conduct the performance test as 
required in this section (without the Administrator's prior approval of 
the site-specific test plan) if he/she subsequently chooses to use the 
specified testing and monitoring methods instead of an alternative.
* * * * *

    9. Section 63.8 is amended by:
    a. Revising paragraph (a)(1);
    b. Revising paragraphs (b)(1)(i) and (ii);
    c. Revising paragraphs (b)(2)(i) and (ii);
    d. Revising paragraphs (c)(1)(i) through (iii);
    e. Revising paragraph (c)(2);
    f. Revising paragraph (c)(6);
    g. Revising paragraph (f)(1);
    h. Revising paragraphs (f)(4)(i) through (ii);
    i. Adding paragraph (f)(4)(iv);
    j. Revising the heading of paragraph (f)(5) and revising paragraph 
(f)(5)(i) introductory text;
    k. Revising paragraph (g)(1); and
    l. Revising paragraph (g)(5).
    The revisions and additions read as follows:


Sec. 63.8  Monitoring requirements.

    (a) * * *
    (1) The applicability of this section is set out in 
Sec. 63.1(a)(4).
* * * * *
    (b) * * *
    (1) * * *
    (i) Specifies or approves the use of minor changes in methodology 
for the specified monitoring requirements and procedures (see 
Sec. 63.90(a) for definition); or
    (ii) Approves the use of an intermediate or major change or 
alternative to any monitoring requirements or procedures (see 
Sec. 63.90(a) for definition).
* * * * *
    (2)(i) When the emissions from two or more affected sources are 
combined before being released to the atmosphere, the owner or operator 
may install an applicable CMS for each emission stream or for the 
combined emissions streams, provided the monitoring is sufficient to 
demonstrate compliance with the relevant standard.
    (ii) If the relevant standard is a mass emission standard and the 
emissions from one affected source are released to the atmosphere 
through more than one point, the owner or operator must install an 
applicable CMS at each emission point unless the installation of fewer 
systems is--
* * * * *
    (c) * * *
    (1)(i) The owner or operator of an affected source must maintain 
and operate each CMS as specified in Sec. 63.6(e)(1).
    (ii) The owner or operator must keep the necessary parts for 
routine repairs of the affected CMS equipment readily available.
    (iii) The owner or operator of an affected source must develop and 
implement a written startup, shutdown, and malfunction plan for CMS as 
specified in Sec. 63.6(e)(3).
    (2)(i) All CMS must be installed such that representative measures 
of emissions or process parameters from the affected source are 
obtained. In addition, CEMS must be located according to procedures 
contained in the applicable performance specification(s).
    (ii) Unless the individual subpart states otherwise, the owner or 
operator must ensure the read out (that portion of the CMS that 
provides a visual display or record), or other indication of operation, 
from any CMS required for compliance with the emission standard is 
readily accessible on site for operational control or inspection by the 
operator of the equipment.
* * * * *
    (6) The owner or operator of a CMS that is not a CPMS, which is 
installed in accordance with the provisions of this part and the 
applicable CMS performance specification(s), must check the zero (low-
level) and high-level calibration drifts at least once daily in 
accordance with the written procedure specified in the performance 
evaluation plan developed under paragraphs (e)(3)(i) and (ii) of this 
section. The zero (low-level) and high-level calibration drifts must be 
adjusted, at a minimum, whenever the 24-hour zero (low-level) drift 
exceeds two times the limits of the applicable performance 
specification(s) specified in the relevant standard. The system shall 
allow the amount of excess zero (low-level) and high-level drift 
measured at the 24-hour interval checks to be recorded and quantified 
whenever specified. For COMS, all optical and instrumental surfaces 
exposed to the effluent gases must be cleaned prior to performing the 
zero (low-level) and high-level drift adjustments; the optical surfaces 
and instrumental surfaces must be cleaned when the cumulative automatic 
zero compensation, if applicable, exceeds 4 percent opacity. The CPMS 
must be calibrated prior to use for the purposes of complying with this 
section. The CPMS must be checked daily for indication that the system 
is responding. If the CPMS system includes an internal system check, 
results must be recorded and checked daily for proper operation.
* * * * *
    (f) * * *
    (1) General. Until permission to use an alternative monitoring 
procedure (minor, intermediate, or major changes; see definition in 
Sec. 63.90(a)) has been granted by the Administrator under this 
paragraph (f)(1), the owner or operator of an affected source remains 
subject to the requirements of this section and the relevant standard.
* * * * *
    (4)(i) Request to use alternative monitoring procedure. An owner or 
operator who wishes to use an alternative monitoring procedure must 
submit an application to the Administrator as described in paragraph 
(f)(4)(ii) of this section. The application may be submitted at any 
time provided that the monitoring procedure is not the performance test 
method used to demonstrate compliance with a relevant standard or other 
requirement. If the alternative monitoring procedure will serve as the 
performance test method that is to be used to demonstrate compliance 
with a relevant standard, the application must be submitted at least 60 
days before the performance evaluation is scheduled to begin and

[[Page 16604]]

must meet the requirements for an alternative test method under 
Sec. 63.7(f).
    (ii) The application must contain a description of the proposed 
alternative monitoring system which addresses the four elements 
contained in the definition of monitoring in Sec. 63.2 and a 
performance evaluation test plan, if required, as specified in 
paragraph (e)(3) of this section. In addition, the application must 
include information justifying the owner or operator's request for an 
alternative monitoring method, such as the technical or economic 
infeasibility, or the impracticality, of the affected source using the 
required method.
* * * * *
    (iv) Application for minor changes to monitoring procedures, as 
specified in paragraph (b)(1) of this section, may be made in the site-
specific performance evaluation plan.
    (5) Approval of request to use alternative monitoring procedure.
    (i) The Administrator will notify the owner or operator of approval 
or intention to deny approval of the request to use an alternative 
monitoring method within 30 calendar days after receipt of the original 
request and within 30 calendar days after receipt of any supplementary 
information that is submitted. If a request for a minor change is made 
in conjunction with site-specific performance evaluation plan, then 
approval of the plan will constitute approval of the minor change. 
Before disapproving any request to use an alternative monitoring 
method, the Administrator will notify the applicant of the 
Administrator's intention to disapprove the request together with--
* * * * *
    (g) Reduction of monitoring data.
    (1) The owner or operator of each CMS must reduce the monitoring 
data as specified in paragraphs (g)(1) through (5) of this section.
* * * * *
    (5) Monitoring data recorded during periods of unavoidable CMS 
breakdowns, out-of-control periods, repairs, maintenance periods, 
calibration checks, and zero (low-level) and high-level adjustments 
must not be included in any data average computed under this part. For 
the owner or operator complying with the requirements of 
Sec. 63.10(b)(2)(vii)(A) or (B), data averages must include any data 
recorded during periods of monitor breakdown or malfunction.

    10. Section 63.9 is amended by:
    a. Revising paragraph (a)(1);
    b. Revising paragraph (b)(2)(iv);
    c. Removing and reserving paragraph (b)(3);
    d. Revising the introductory text of paragraph (b)(4);
    e. Revising paragraph (b)(4)(i);
    f. Removing and reserving paragraphs (b)(4)(ii) through (iii).
    g. Revising paragraph (b)(5);
    h. Revising paragraph (h)(2)(i)(E); and
    i. Revising the first sentence of paragraph (h)(2)(ii);
    The revisions and additions read as follows:


Sec. 63.9  Notification requirements.

    (a) * * *
    (1) The applicability of this section is set out in 
Sec. 63.1(a)(4).
* * * * *
    (b) * * *
    (2) * * *
    (iv) A brief description of the nature, size, design, and method of 
operation of the source and an identification of the types of emission 
points within the affected source subject to the relevant standard and 
types of hazardous air pollutants emitted; and
* * * * *
    (3) [Reserved]
    (4) The owner or operator of a new or reconstructed major affected 
source for which an application for approval of construction or 
reconstruction is required under Sec. 63.5(d) must provide the 
following information in writing to the Administrator:
    (i) A notification of intention to construct a new major-emitting 
affected source, reconstruct a major-emitting affected source, or 
reconstruct a major source such that the source becomes a major-
emitting affected source with the application for approval of 
construction or reconstruction as specified in Sec. 63.5(d)(1)(i); and
    (ii) [Reserved]
    (iii) [Reserved]
* * * * *
    (5) The owner or operator of a new or reconstructed affected source 
for which an application for approval of construction or reconstruction 
is not required under Sec. 63.5(d) must provide the following 
information in writing to the Administrator:
    (i) A notification of intention to construct a new affected source, 
reconstruct an affected source, or reconstruct a source such that the 
source becomes an affected source, and
    (ii) A notification of the actual date of startup of the source, 
delivered or postmarked within 15 calendar days after that date.
    (iii) Unless the owner or operator has requested and received prior 
permission from the Administrator to submit less than the information 
in Sec. 63.5(d), the notification must include the information required 
on the application for approval of construction or reconstruction as 
specified in Sec. 63.5(d)(1)(i).
* * * * *
    (h) * * *
    (2)(i) * * *
    (E) If the relevant standard applies to both major and area 
sources, an analysis demonstrating whether the affected source is a 
major source (using the emissions data generated for this 
notification);
* * * * *
    (ii) The notification must be sent before the close of business on 
the 60th day following the completion of the relevant compliance 
demonstration activity (or activities that have the same compliance 
date) specified in the relevant standard (unless a different reporting 
period is specified in the standard, in which case the letter must be 
sent before the close of business on the day the report of the relevant 
testing or monitoring results is required to be delivered or 
postmarked). * * *
* * * * *

    11. Section 63.10 is amended by:
    a. Revising paragraph (a)(1);
    b. Revising paragraphs (b)(2)(ii) through (b)(2)(v);
    c. Revising paragraph (b)(3); and
    d. Revising the second sentence of paragraph (d)(5)(i).
    The revisions read as follows:


Sec. 63.10  Recordkeeping and reporting requirements.

    (a) * * *
    (1) The applicability of this section is set out in 
Sec. 63.1(a)(4).
* * * * *
    (b) * * *
    (2) * * *
    (ii) The occurrence and duration of each malfunction of the 
required air pollution control and monitoring equipment;
    (iii) All required maintenance performed on the air pollution 
control and monitoring equipment;
    (iv) Actions taken during periods of startup, shutdown, and 
malfunction (including corrective actions to restore malfunctioning 
process and air pollution control and monitoring equipment to its 
normal or usual manner of operation) when such actions are different 
from the procedures specified in the affected source's startup, 
shutdown, and malfunction plan (see Sec. 63.6(e)(3));
    (v) All information necessary to demonstrate conformance with the 
affected source's startup, shutdown, and malfunction plan (see 
Sec. 63.6(e)(3)) when all actions taken during periods of

[[Page 16605]]

startup, shutdown, and malfunction (including corrective actions to 
restore malfunctioning process and air pollution control and monitoring 
equipment to its normal or usual manner of operation) are consistent 
with the procedures specified in such plan. (The information needed to 
demonstrate conformance with the startup, shutdown, and malfunction 
plan may be recorded using a ``checklist,'' or some other effective 
form of recordkeeping, in order to minimize the recordkeeping burden 
for conforming events);
* * * * *
    (3) Recordkeeping requirement for applicability determinations. If 
an owner or operator determines that his or her stationary source that 
emits (or has the potential to emit, without considering controls) one 
or more hazardous air pollutants regulated by any standard established 
pursuant to section 112(d) or (f), and that stationary source is in the 
source category regulated by the relevant standard, but that source is 
not subject to the relevant standard (or other requirement established 
under this part) because of limitations on the source's potential to 
emit or an exclusion, the owner or operator must keep a record of the 
applicability determination on site at the source for a period of 5 
years after the determination, or until the source changes its 
operations to become an affected source, whichever comes first. The 
record of the applicability determination must be signed by the person 
making the determination and include an analysis (or other information) 
that demonstrates why the owner or operator believes the source is 
unaffected (e.g., because the source is an area source). The analysis 
(or other information) must be sufficiently detailed to allow the 
Administrator to make a finding about the source's applicability status 
with regard to the relevant standard or other requirement. If relevant, 
the analysis must be performed in accordance with requirements 
established in relevant subparts of this part for this purpose for 
particular categories of stationary sources. If relevant, the analysis 
should be performed in accordance with EPA guidance materials published 
to assist sources in making applicability determinations under section 
112, if any. The requirements to determine applicability of a standard 
under Sec. 63.1(b)(3) and to record the results of that determination 
under paragraph (b)(3) of this section shall not by themselves create 
an obligation for the owner or operator to obtain a title V permit.
* * * * *
    (d) * *  *
    (5)(i) * * * Reports shall only be required if a startup, shutdown, 
or malfunction occurred during the reporting period, and they must 
include the number, duration, and a brief description of each startup, 
shutdown, or malfunction. * * *
* * * * *

    12. Section 63.11 is amended by revising paragraph (a) to read as 
follows:


Sec. 63.11  Control device requirements.

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

Subpart B--[Amended]

    13. Section 63.50 is amended by:
    1. Revising paragraph (a);
    2. Revising paragraph (b); and
    3. Removing and reserving paragraph (c) as follows:


Sec. 63.50  Applicability.

    (a) General applicability. (1) The requirements of this section 
through Sec. 63.56 implement section 112(j) of the Clean Air Act (as 
amended in 1990). The requirements of this section through Sec. 63.56 
apply in each State beginning on the effective date of an approved 
title V permit program in such State. The requirements of this section 
through Sec. 63.56 do not apply to research or laboratory activities as 
defined in Sec. 63.51.
    (2) The requirements of this section through Sec. 63.56 apply to:
    (i) The owner or operator of affected sources within a source 
category or subcategory under this part that are located at a major 
source that is subject to an approved title V permit program and for 
which the Administrator has failed to promulgate emission standards by 
the section 112(j) deadlines. If title V applicability has been 
deferred for a source category, then section 112(j) is not applicable 
for sources in that category within that State, local or tribal 
jurisdiction until those sources become subject to title V permitting 
requirements; and
    (ii) Permitting authorities with an approved title V permit 
program.
    (b) Relationship to State and local requirements. Nothing in 
Secs. 63.50 through 63.56 shall prevent a State or local regulatory 
agency from imposing more stringent requirements, as a matter of State 
or local law, than those contained in Secs. 63.50 through 63.56.
    (c) [Reserved]

    14. Section 63.51 is amended by:
    a. Revising the introductory text of this section;
    b. Adding in alphabetical order the definition of affected source;
    c. In the definition of Available information by revising the 
introductory text and paragraphs (2) through (5);
    d. Removing the definition of emission point;
    e. Removing the definition of emission unit;
    f. Revising the definition of enhanced review;
    g. Revising the definition of equivalent emission limitation;
    h. Removing the definition of existing major source;
    i. Revising paragraphs (1)(i) and (ii) of the definition of maximum 
achievable control technology (MACT) floor;
    j. Adding in alphabetical order the definition of new affected 
source;
    k. Removing the definition of new emission unit;
    l. Removing the definition of new major source;
    m. Adding in alphabetical order the definition of research or 
laboratory activities.
    n. Revising the definition of section 112(j) deadline;
    o. Revising the definition of similar source; and
    p. Removing the definition of United States;
    The revisions and additions read as follows:


Sec. 63.51  Definitions.

    Terms used in Secs. 63.50 through 63.56 that are not defined in 
this section have the meaning given to them in the Act, or in subpart A 
of this part.
    Affected source means the collection of equipment, activities, or 
both within a single contiguous area and under common control that is 
in a section 112(c) source category or subcategory for which the 
Administrator has failed to promulgate an emission standard by the 
section 112(j) deadline, and that is addressed by an applicable MACT 
emission limitation established pursuant to this subpart.
    Available information means, for purposes of conducting a MACT 
floor finding and identifying control technology options under this 
subpart, any information that is available as of the date on which the 
first Part 2 MACT application is filed for a source in the relevant 
source category or subcategory in the State or jurisdiction; and, 
pursuant to the requirements of this subpart, is additional relevant 
information that can be expeditiously provided by the Administrator, is 
submitted by the applicant or others prior to or during the public 
comment

[[Page 16606]]

period on the section 112(j) equivalent emission limitation for that 
source, or information contained in the information sources in 
paragraphs (1) through (5) of this definition.
    (1) * * *
    (2) Relevant background information documents for a draft or 
proposed regulation.
    (3) Any relevant regulation, information or guidance collected by 
the Administrator establishing a MACT floor finding and/or MACT 
determination.
    (4) Relevant data and information available from the Clean Air 
Technology Center developed pursuant to section 112(l)(3) of the Act.
    (5) Relevant data and information contained in the Aerometric 
Information Retrieval System (AIRS).
* * * * *
    Enhanced review means a review process containing all 
administrative steps needed to ensure that the terms and conditions 
resulting from the review process can be incorporated using title V 
permitting procedures.
    Equivalent emission limitation means an emission limitation, 
established under section 112(j) of the Act, which is equivalent to the 
MACT standard that EPA would have promulgated under section 112(d) or 
(h) of the Act.
* * * * *
    Maximum achievable control technology (MACT) floor means:
    (1) * * *
    (i) The average emission limitation achieved by the best performing 
12 percent of the existing sources in the United States (for which the 
Administrator has emissions information), excluding those sources that 
have, within 18 months before the emission standard is proposed or 
within 30 months before such standard is promulgated, whichever is 
later, first achieved a level of emission rate or emission reduction 
which complies, or would comply if the source is not subject to such 
standard, with the lowest achievable emission rate (as defined in 
section 171 of the Act) applicable to the source category and 
prevailing at the time, in the category or subcategory, for categories 
and subcategories of stationary sources with 30 or more sources; or
    (ii) The average emission limitation achieved by the best 
performing five sources (for which the Administrator has or could 
reasonably obtain emissions information) in the category or 
subcategory, for categories or subcategories with fewer than 30 
sources;
* * * * *
    New affected source means the collection of equipment, activities, 
or both, that if constructed after the issuance of a section 112(j) 
permit for the source pursuant to Sec. 63.52, is subject to the 
applicable MACT emission limitation for new sources. Each permit must 
define the term ``new affected source,'' which will be the same as the 
``affected source'' unless a different collection is warranted based on 
consideration of factors including:
    (1) Emission reduction impacts of controlling individual sources 
versus groups of sources;
    (2) Cost effectiveness of controlling individual equipment;
    (3) Flexibility to accommodate common control strategies;
    (4) Cost/benefits of emissions averaging;
    (5) Incentives for pollution prevention;
    (6) Feasibility and cost of controlling processes that share common 
equipment (e.g., product recovery devices);
    (7) Feasibility and cost of monitoring; and
    (8) Other relevant factors.
* * * * *
    Research or laboratory activities means activities whose primary 
purpose is to conduct research and development into new processes and 
products where such activities are operated under the close supervision 
of technically trained personnel and are not engaged in the manufacture 
of products for commercial sale in commerce, except in a de minimis 
manner; and where the source is not in a source category, specifically 
addressing research or laboratory activities, that is listed pursuant 
to section 112(c)(7) of the Act.
    Section 112(j) deadline means the date 18 months after the date for 
which a relevant standard is scheduled to be promulgated under this 
part, except that for all major sources listed in the source category 
schedule for which a relevant standard is scheduled to be promulgated 
by November 15, 1994, the section 112(j) deadline is November 15, 1996, 
and for all major sources listed in the source category schedule for 
which a relevant standard is scheduled to be promulgated by November 
15, 1997, the section 112(j) deadline is December 15, 1999.
    Similar source means that equipment or collection of equipment 
that, by virtue of its structure, operability, type of emissions and 
volume and concentration of emissions, is substantially equivalent to 
the new affected source and employs control technology for control of 
emissions of hazardous air pollutants that is practical for use on the 
new affected source.
* * * * *

    15. Section 63.52 is revised to read as follows:


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

    (a) Sources subject to section 112(j) as of the section 112(j) 
deadline. The requirements of paragraphs (a)(1) and (2) of this section 
apply to major sources that include, as of the section 112(j) deadline, 
one or more sources in a category or subcategory for which the 
Administrator has failed to promulgate an emission standard under this 
part on or before an applicable section 112(j) deadline. Existing 
source MACT requirements (including relevant compliance deadlines), as 
specified in a title V permit issued to the source pursuant to the 
requirements of the subpart, must apply to such sources.
    (1) The owner or operator must submit an application for a title V 
permit or for a revision to an existing title V permit or a pending 
title V permit meeting the requirements of Sec. 63.53(a) by the section 
112(j) deadline if the owner or operator can reasonably determine that 
one or more sources at the major source belong in the category or 
subcategory subject to section 112(j).
    (2) If an application was not submitted under paragraph (a)(1) of 
this section and if notified by the permitting authority, the owner or 
operator must submit an application for a title V permit or for a 
revision to an existing title V permit or a pending title V permit 
meeting the requirements of Sec. 63.53(a) within 30 days after being 
notified in writing by the permitting authority that one or more 
sources at the major source belong to such category or subcategory. 
Permitting authorities are not required to make such notification.
    (3) The requirements in paragraphs (a)(3)(i) through (ii) of this 
section apply when the owner or operator has obtained a title V permit 
that incorporates a case-by-case MACT determination by the permitting 
authority under section 112(g) or has submitted a title V permit 
application for a revision that incorporates a case-by-case MACT 
determination under section 112(g), but has not submitted an 
application for a title V permit revision that addresses the emission 
limitation requirements of section 112(j).
    (i) When the owner or operator has a title V permit that 
incorporates a case-by-case MACT determination by the permitting 
authority under section 112(g), the owner or operator must submit an 
application meeting the requirements of Sec. 63.53(a) for a title V

[[Page 16607]]

permit revision within 30 days of the section 112(j) deadline or within 
30 days of being notified in writing by the permitting authority that 
one or more sources at the major source belong in such category or 
subcategory. Using the procedures established in paragraph (e) of this 
section, the permitting authority must determine whether the emission 
limitations adopted pursuant to the prior case-by-case MACT 
determination under section 112(g) are substantially as effective as 
the emission limitations which the permitting authority would otherwise 
adopt pursuant to section 112(j) for the source in question. If the 
permitting authority determines that the emission limitations 
previously adopted to effectuate section 112(g) are substantially as 
effective as the emission limitations which the permitting authority 
would otherwise adopt to effectuate section 112(j) for the source, then 
the permitting authority must retain the existing emission limitations 
in the permit as the emission limitations to effectuate section 112(j). 
The title V permit applicable to that source must be revised 
accordingly. If the permitting authority does not retain the existing 
emission limitations in the permit as the emission limitations to 
effectuate section 112(j), the MACT requirements of this subpart are 
satisfied upon issuance of a revised title V permit incorporating any 
additional section 112(j) requirements.
    (ii) When the owner or operator has submitted a title V permit 
application that incorporates a case-by-case MACT determination by the 
permitting authority under section 112(g), but has not received the 
permit incorporating the section 112(g) requirements, the owner or 
operator must continue to pursue a title V permit that addresses the 
emission limitation requirements of section 112(g). Within 30 days of 
issuance of that title V permit, the owner or operator must submit an 
application meeting the requirements of Sec. 63.53(a) for a change to 
the existing title V permit. Using the procedures established in 
paragraph (e) of this section, the permitting authority must determine 
whether the emission limitations adopted pursuant to the prior case-by-
case MACT determination under section 112(g) are substantially as 
effective as the emission limitations which the permitting authority 
would otherwise adopt pursuant to section 112(j) for the source in 
question. If the permitting authority determines that the emission 
limitations previously adopted to effectuate section 112(g) are 
substantially as effective as the emission limitations which the 
permitting authority would otherwise adopt to effectuate section 112(j) 
for the source, then the permitting authority must retain the existing 
emission limitations in the permit as the emission limitations to 
effectuate section 112(j). The title V permit applicable to that source 
must be revised accordingly. If the permitting authority does not 
retain the existing emission limitations in the permit as the emission 
limitations to effectuate section 112(j), the MACT requirements of this 
subpart are satisfied upon issuance of a revised title V permit 
incorporating any additional section 112(j) requirements.
    (b) Sources that become subject to section 112(j) after the section 
112(j) deadline and that do not have a title V permit addressing 
section 112(j) requirements. The requirements of paragraphs (b)(1) 
through (4) of this section apply to sources that do not meet the 
criteria in paragraph (a) of this section on the section 112(j) 
deadline and are, therefore, not subject to section 112(j) on that 
date, but where events occur subsequent to the section 112(j) deadline 
that would bring the source under the requirements of this subpart, and 
the source does not have a title V permit that addresses the 
requirements of section 112(j).
    (1) When one or more sources in a category or subcategory subject 
to the requirements of this subpart are installed at a major source, or 
result in the source becoming a major source due to the installation, 
and the installation does not invoke section 112(g) requirements, the 
owner or operator must submit an application meeting the requirements 
of Sec. 63.53(a) within 30 days of startup of the source. This 
application shall be reviewed using the procedures established in 
paragraph (e) of this section. Existing source MACT requirements 
(including relevant compliance deadlines), as specified in a title V 
permit issued pursuant to the requirements of this subpart, shall apply 
to such sources.
    (2) The requirements in this paragraph apply when one or more 
sources in a category or subcategory subject to this subpart are 
installed at a major source, or result in the source becoming a major 
source due to the installation, and the installation does require 
emission limitations to be established and permitted under section 
112(g), and the owner or operator has not submitted an application for 
a title V permit revision that addresses the emission limitation 
requirements of section 112(j). In this case, the owner or operator 
must apply for and obtain a title V permit that addresses the emission 
limitation requirements of section 112(g). Within 30 days of issuance 
of that title V permit, the owner or operator must submit an 
application meeting the requirements of Sec. 63.53(a) for a revision to 
the existing title V permit. Using the procedures established in 
paragraph (e) of this section, the permitting authority must determine 
whether the emission limitations adopted pursuant to the prior case-by-
case MACT determination under section 112(g) are substantially as 
effective as the emission limitations which the permitting authority 
would otherwise adopt pursuant to section 112(j) for the source in 
question. If the permitting authority determines that the emission 
limitations previously adopted to effectuate section 112(g) are 
substantially as effective as the emission limitations which the 
permitting authority would otherwise adopt to effectuate section 112(j) 
for the source, then the permitting authority must retain the existing 
emission limitations in the permit as the emission limitations to 
effectuate section 112(j). The title V permit applicable to that source 
must be revised accordingly. If the permitting authority does not 
retain the existing emission limitations in the permit as the emission 
limitations to effectuate section 112(j), the MACT requirements of this 
subpart are satisfied upon issuance of a revised title V permit 
incorporating any additional section 112(j) requirements.
    (3) The owner or operator of an area source that, due to a 
relaxation in any federally enforceable emission limitation (such as a 
restriction on hours of operation), increases its potential to emit 
hazardous air pollutants such that the source becomes a major source 
that is subject to this subpart, must submit an application meeting the 
requirements of Sec. 63.53(a) for a title V permit or for an 
application for a title V permit revision within 30 days after the date 
that such source becomes a major source. This application must be 
reviewed using the procedures established in paragraph (e) of this 
section. Existing source MACT requirements (including relevant 
compliance deadlines), as specified in a title V permit issued pursuant 
to the requirements of this subpart, must apply to such sources.
    (4) On or after April 5, 2002, if the Administrator establishes a 
lesser quantity emission rate under section 112(a)(1) of the Act that 
results in an area source becoming a major source that is subject to 
this subpart, then the owner or operator of such a major source must 
submit an application meeting the requirements of Sec. 63.53(a) for a 
title V permit or for a change to an

[[Page 16608]]

existing title V permit or pending title V permit on or before the date 
6 months after the date that such source becomes a major source. 
Existing source MACT requirements (including relevant compliance 
deadlines), as specified in a title V permit issued pursuant to the 
requirements of this subpart, shall apply to such sources.
    (c) Sources that have a title V permit addressing section 112(j) 
requirements. The requirements of paragraphs (c)(1) and (2) of this 
section apply to major sources that include one or more sources in a 
category or subcategory for which the Administrator fails to promulgate 
an emission standard under this part on or before an applicable section 
112(j) deadline, and the owner or operator has a permit meeting the 
section 112(j) requirements, and where changes occur at the major 
source to equipment, activities, or both, subsequent to the section 
112(j) deadline.
    (1) If the title V permit already provides the appropriate 
requirements that address the events that occur under paragraph (c) of 
this section subsequent to the section 112(j) deadline, then the source 
must comply with the applicable new source MACT or existing source MACT 
requirements as specified in the permit, and the section 112(j) 
requirements are thus satisfied.
    (2) If the title V permit does not contain the appropriate 
requirements that address the events that occur under paragraph (c) of 
this section subsequent to the section 112(j) deadline, then the owner 
or operator must submit an application for a revision to the existing 
title V permit that meets the requirements of Sec. 63.53(a). The 
application must be submitted within 30 days of beginning construction 
and must be reviewed using the procedures established in paragraph (e) 
of this section. Existing source MACT requirements (including relevant 
compliance deadlines), as specified in a title V permit issued pursuant 
to the requirements of this subpart, shall apply to such sources.
    (d) Requests for applicability determination or notice of MACT 
approval.
    (1) An owner or operator who is unsure of whether one or more 
sources at a major source belong in a category or subcategory for which 
the Administrator has failed to promulgate an emission standard under 
this part may, on or before an applicable section 112(j) deadline, 
request an applicability determination from the permitting authority by 
submitting an application meeting the requirements of Sec. 63.53(a) by 
the applicable deadlines specified in paragraphs (a), (b), or (c) of 
this section.
    (2) In addition to meeting the requirements of paragraphs (a), (b), 
and (c) of this section, the owner or operator of a new affected source 
may submit an application for a Notice of MACT Approval before 
construction, pursuant to Sec. 63.54.
    (e) Permit application review.
    (1) Within 24 months after an owner or operator submits a Part 1 
MACT application meeting the requirements of Sec. 63.53(a), the owner 
or operator must submit a Part 2 MACT application meeting the 
requirements of Sec. 63.53(b). Part 2 MACT applications must be 
reviewed by the permitting authority according to procedures 
established in Sec. 63.55. The resulting MACT determination must be 
incorporated into the source's title V permit according to procedures 
established under title V, and any other regulations approved under 
title V in the jurisdiction in which the affected source is located.
    (2) Notwithstanding paragraph (e)(1) of this section, the owner or 
operator may request either an applicability determination or an 
equivalency determination by the permitting authority as provided in 
paragraphs (e)(2)(i) and (ii) of this section.
    (i) As specified in paragraph (d)(1) of this section, an owner or 
operator may request, through submittal of an application pursuant to 
Sec. 63.53(a), a determination by the permitting authority of whether 
one or more sources at a major source belong in a category or 
subcategory for which the Administrator has failed to promulgate an 
emission standard under this part. If the applicability determination 
is positive, the owner or operator must comply with the applicable 
provisions of this subpart. The owner or operator must submit a Part 2 
MACT application within 24 months after being notified of the positive 
applicability determination. If the applicability determination is 
negative, then no further action by the owner or operator is necessary.
    (ii) As specified in paragraphs (a) and (b) of this section, an 
owner or operator may request, through submittal of an application 
meeting the requirements of Sec. 63.53(a), a determination by the 
permitting authority of whether emission limitations adopted pursuant 
to a prior case-by-case MACT determination under section 112(g) that 
apply to one or more sources at a major source in a relevant category 
or subcategory are substantially as effective as the emission 
limitations which the permitting authority would otherwise adopt 
pursuant to section 112(j) for the source in question. The process for 
determination by the permitting authority of whether the emission 
limitations in the prior case-by-case MACT determination are 
substantially as effective as the emission limitations which the 
permitting authority would otherwise adopt under section 112(j) must 
include the opportunity for full public, EPA, and affected State review 
prior to a final determination. If the permitting authority determines 
that the emission limitations in the prior case-by-case MACT 
determination are substantially as effective as the emission 
limitations which the permitting authority would otherwise adopt under 
section 112(j), then the permitting authority must adopt the existing 
emission limitations in the permit as the emission limitations to 
effectuate section 112(j) for the source in question. If more than 3 
years remain on the current title V permit, the owner or operator must 
submit an application for a title V permit revision to make any 
conforming changes in the permit required to adopt the existing 
emission limitations as the section 112(j) MACT emission limitations. 
If less than 3 years remain on the current title V permit, any required 
conforming changes must be made when the permit is renewed. If the 
permitting authority determines that the emission limitations in the 
prior case-by-case MACT determination under section 112(g) are not 
substantially as effective as the emission limitations which the 
permitting authority would otherwise adopt for the source in question 
under section 112(j), the owner or operator must comply with the 
applicable provisions of this subpart. The owner or operator must 
submit a Part 2 MACT application within 24 months of being notified of 
such a negative determination. A negative determination under this 
section constitutes final action for purposes of judicial review under 
40 CFR 70.4(b)(3)(x) and corresponding State title V program 
provisions.
    (3) Within 60 days of submittal of the Part 2 MACT application, the 
permitting authority must notify the owner or operator in writing 
whether the application is complete or incomplete. The Part 2 MACT 
application shall be deemed complete on the date it was submitted 
unless the permitting authority notifies the owner or operator in 
writing within 60 days of the submittal that the Part 2 MACT 
application is incomplete. A Part 2 MACT application is complete if it 
is sufficient to begin processing the application for a title V permit 
addressing section 112(j) requirements. In the event that the 
permitting

[[Page 16609]]

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

    16. Section 63.53 is revised to read as follows:


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

    (a) Part 1 MACT application. The Part 1 application for a MACT 
determination must contain the information in paragraphs (a)(1) through 
(4) of this section.
    (1) The name and address (physical location) of the major source.
    (2) A brief description of the major source and an identification 
of the relevant source category.
    (3) An identification of the types of emission points belonging to 
the relevant source category.
    (4) An identification of any affected sources for which a section 
112(g) MACT determination has been made.
    (b) Part 2 MACT application.
    (1) The Part 2 application for a MACT determination must contain 
the information in paragraphs (b)(1)(i) through (vi) of this section.
    (i) For a new affected source, the anticipated date of startup of 
operation.
    (ii) The hazardous air pollutants emitted by each affected source 
in the relevant source category and an estimated total uncontrolled and 
controlled emission rate for hazardous air pollutants from the affected 
source.
    (iii) Any existing Federal, State, or local limitations or 
requirements applicable to the affected source.
    (iv) For each affected emission point or group of affected emission 
points, an identification of control technology in place.
    (v) Information relevant to establishing the MACT floor, and, at 
the option of the owner or operator, a recommended MACT floor.

[[Page 16610]]

    (vi) Any other information reasonably needed by the permitting 
authority including, at the discretion of the permitting authority, 
information required pursuant to subpart A of this part.
    (2) The Part 2 application for a MACT determination may, but is not 
required to, contain the following information:
    (i) Recommended emission limitations for the affected source and 
support information consistent with Sec. 63.52(f). The owner or 
operator may recommend a specific design, equipment, work practice, or 
operational standard, or combination thereof, as an emission 
limitation.
    (ii) A description of the control technologies that would be 
applied to meet the emission limitation including technical information 
on the design, operation, size, estimated control efficiency and any 
other information deemed appropriate by the permitting authority, and 
identification of the affected sources to which the control 
technologies must be applied.
    (iii) Relevant parameters to be monitored and frequency of 
monitoring to demonstrate continuous compliance with the MACT emission 
limitation over the applicable reporting period.

    17. Section 63.54 is amended by:
    a. Revising the section heading and adding introductory text;
    b. Revising paragraph (a)(1) through (2);
    c. Revising paragraph (b) introductory text;
    d. Revising paragraph (b)(6);
    e. Revising paragraph (c)(3);
    f. Revising paragraph (d);
    g. Removing paragraph (e);
    h. Removing paragraph (f);
    i. Redesignating paragraph (g) as (e) and revising newly designated 
paragraph (e); and
    j. Redesignating paragraph (h) as (f).
    The revisions and addition read as follows:


Sec. 63.54  Preconstruction review procedures for new affected sources.

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

    18. Section 63.55 is revised to read as follows:


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

    (a) Requirements for permitting authorities. The permitting 
authority must determine whether the Sec. 63.53(a) Part 1 and 
Sec. 63.53(b) Part 2 MACT application is complete or an application for 
a Notice of MACT Approval is approvable. In either case, when the 
application is complete or approvable, the permitting authority must 
establish hazardous air pollutant emissions limitations equivalent to 
the limitations that would apply if an emission standard had been 
issued in a timely manner under section 112(d) or (h) of the Act. The 
permitting authority must establish these emissions limitations 
consistent with the following requirements and principles:
    (1) Emission limitations must be established for the equipment and 
activities within the affected sources within a source category or 
subcategory for which the section 112(j) deadline has passed.
    (2) Each emission limitation for an existing affected source must 
reflect the maximum degree of reduction in emissions of hazardous air 
pollutants (including a prohibition on such emissions, where 
achievable) that the permitting authority, taking into consideration 
the cost of achieving such emission reduction and any non-air quality 
health and environmental impacts and energy requirements, determines is 
achievable by affected sources in the category or subcategory for which 
the section 112(j) deadline has passed. This limitation must not be 
less stringent than the MACT floor

[[Page 16611]]

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

    19. Section 63.56 is revised to read as follows:


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

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

[FR Doc. 02-5861 Filed 3-29-02; 8:45 am]
BILLING CODE 6560-50-P