[Federal Register Volume 67, Number 236 (Monday, December 9, 2002)]
[Proposed Rules]
[Pages 72875-72888]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-31012]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[FRL-7419-6]
RIN 2060--AK52


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule; amendments.

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SUMMARY: In this action, we are proposing specific amendments to the 
General Provisions for national emission standards for hazardous air 
pollutants (NESHAP), and to the rule establishing requirements for 
case-by-case determinations under Clean Air Act (CAA) section 112(j). 
We are proposing to establish a new timetable for the submission of 
section 112(j) Part 2 applications which is derived from our agreed 
timetable for promulgation of the remaining NESHAP. This new timetable 
for Part 2 applications is intended both to avoid the expenditure of 
unnecessary resources by affected sources and permitting authorities, 
and to create new incentives for prompt completion of the remaining 
standards. We are also proposing to make several changes in the section 
of the General Provisions rule that establishes general procedures for 
preparation, maintenance, and periodic revision of startup, shutdown, 
and malfunction (SSM) plans. These amendments are being proposed 
pursuant to a settlement agreement concerning a petition for judicial 
review of the prior amendments to these rules published on April 5, 
2002. We are also proposing to revise a recordkeeping provision which 
we adopted in response to comments we received on the prior amendments 
because we have concluded that the recordkeeping provision should be 
more narrow in applicability.

DATES: Comments. Submit comments on or before January 20, 2003.
    Public Hearing. If anyone contacts us requesting to speak at a 
public hearing by December 16, 2002, a public hearing will be held on 
December 19, 2002.

ADDRESSES: Comments. Written comments may be submitted to: Air and 
Radiation Docket and Information Center, Attention Docket Number OAR-
2002-0038, Part 63 General Provisions (Subpart A) and Section 112(j) 
Regulations (Subpart B) Litigation Settlement Amendments II, Mailcode 
6102T, 1200 Pennsylvania Avenue, NW, Washington, DC 20460.
    Public Hearing. If a public hearing is held, it will be held at 10 
a.m. on December 19, 2002 in our EPA facility complex, 109 T.W. 
Alexander Drive, Research Triangle Park, North Carolina, or at an 
alternate site nearby.

FOR FURTHER INFORMATION CONTACT: Mr. Rick Colyer, Emission Standards 
Division (C504-05), U.S. EPA, Research Triangle Park, North Carolina 
27711, telephone (919) 541-5262, e-mail [email protected].

SUPPLEMENTARY INFORMATION:

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:
    Coal- and Oil-fired Electric Utility Steam Generating Units
    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 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
    Steel Foundries
    Steel Pickling--HCl Process Facilities and Hydrochloric Acid 
Regeneration

Mineral Products Processing:
    Asphalt Processing
    Asphalt Roofing Manufacturing
    Asphalt/Coal Tar Application--Metal Pipes
    Brick and Clay Products Manufacturing
    Ceramics 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 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-

[[Page 72876]]

Gasoline)

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

Waste Treatment and Disposal:
    Hazardous Waste Incineration
    Municipal Solid Waste Landfills
    Off-Site Waste and Recovery Operations
    Publicly Owned Treatment Works (POTW)
    Site Remediation

Agricultural Chemicals Production:
    Pesticide Active Ingredient Production
Fibers Production Processes:
    Acrylic Fibers/Modacrylic Fibers Production
    Spandex Production

Food and Agriculture Processes:
    Manufacturing of Nutritional Yeast
    Solvent Extraction for 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
    Cellulose Ethers Production
    Epichlorohydrin Elastomers Production
    Epoxy Resins Production
    Ethylene-Propylene Rubber Production
    Flexible Polyurethane Foam Production
    Hypalon (tm) Production
    Maleic Anhydride Copolymers 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

Production of Organic Chemicals:
    Ethylene Processes
    Quaternary Ammonium Compounds Production
    Synthetic Organic Chemical Manufacturing

Miscellaneous Processes:
    Benzyltrimethylammonium Chloride Production
    Carbonyl Sulfide Production
    Chelating Agents Production
    Chlorinated Paraffins Production
    Chromic Acid Anodizing
    Commercial Dry Cleaning (Perchloroethylene)--Transfer Machines
    Commercial Sterilization Facilities
    Decorative Chromium Electroplating
    Ethylidene Norbornene Production
    Explosives Production
    Flexible Polyurethane Foam Fabrication Operations
    Friction Materials 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 Finishing Operations
    Miscellaneous Vicose Processes
    OBPA/1,3-Diisocyanate Production
    Paint Stripping Operations
    Photographic Chemicals Production
    Phthalate Plasticizers Production
    Plywood and Composite Wood Products
    Pulp and Paper Production
    Rubber Chemicals Manufacturing
    Rubber Tire Manufacturing
    Semiconductor Manufacturing
    Symmetrical Tetrachloropyridine Production
    Wet-formed Fiberglass Mat 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
    Hazardous Waste Incinerators
    Portland Cement Production
    Secondary Aluminum Production
    Secondary Lead Smelting

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

Docket

    EPA has established an official public docket for this action under 
Docket ID No. OAR-2002-0038. The official public docket consists of the 
documents specifically referenced in this action, any public comments 
received, and other information related to this action. Although a part 
of the official docket, the public docket does not include Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. The official public docket is the collection of 
materials that is available for public viewing at the Part 63 General 
Provisions (Subpart A)

[[Page 72877]]

and Section 112(j) Regulations (Subpart B) Litigation Settlement 
Amendments II Docket in the EPA Docket Center, (EPA/DC) EPA West, Room 
B102, 1301 Constitution Ave., NW, Washington, DC. The EPA Docket Center 
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Reading 
Room is (202) 566-1744, and the telephone number for the Part 63 
General Provisions (Subpart A) and Section 112(j) Regulations (Subpart 
B) Litigation Settlement Amendments II Docket is (202) 566-1742). A 
reasonable fee may be charged for copying docket materials.
    You may access this Federal Register document electronically 
through the EPA Internet under the ``Federal Register'' listings at 
http://www.epa.gov/fedrgstr/. An electronic version of the public 
docket is available through EPA's electronic public docket and comment 
system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public comments, access the index listing of 
the contents of the official public docket, and to access those 
documents in the public docket that are available electronically. Once 
in the system, select ``search,'' then key in the appropriate docket 
identification number.
    Certain types of information will not be placed in the EPA Dockets. 
Information claimed as CBI and other information whose disclosure is 
restricted by statute, which is not included in the official public 
docket, will not be available for public viewing in EPA's electronic 
public docket. EPA's policy is that copyrighted material will not be 
placed in EPA's electronic public docket but will be available only in 
printed, paper form in the official public docket. To the extent 
feasible, publicly available docket materials will be made available in 
EPA's electronic public docket. When a document is selected from the 
index list in EPA Dockets, the system will identify whether the 
document is available for viewing in EPA's electronic public docket. 
Although not all docket materials may be available electronically, you 
may still access any of the publicly available docket materials through 
the docket facility previously identified.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing in EPA's electronic public 
docket as EPA receives them and without change, unless the comment 
contains copyrighted material, CBI, or other information whose 
disclosure is restricted by statute. When EPA identifies a comment 
containing copyrighted material, EPA will provide a reference to that 
material in the version of the comment that is placed in EPA's 
electronic public docket. The entire printed comment, including the 
copyrighted material, will be available in the public docket.
    Public comments submitted on computer disks that are mailed or 
delivered to the docket will be transferred to EPA's electronic public 
docket. Public comments that are mailed or delivered to the Docket will 
be scanned and placed in EPA's electronic public docket. Where 
practical, physical objects will be photographed, and the photograph 
will be placed in EPA's electronic public docket along with a brief 
description written by the docket staff.
    You may submit comments electronically, by mail, by facsimile, or 
through hand delivery/courier. To ensure proper receipt by EPA, 
identify the appropriate docket identification number in the subject 
line on the first page of your comment. Please ensure that your 
comments are submitted within the specified comment period. Comments 
received after the close of the comment period will be marked ``late.'' 
EPA is not required to consider these late comments. If you wish to 
submit CBI or information that is otherwise protected by statute, 
please follow the instructions below. Do not use EPA Dockets or e-mail 
to submit CBI or information protected by statute.
    If you submit an electronic comment as prescribed below, EPA 
recommends that you include your name, mailing address, and an e-mail 
address or other contact information in the body of your comment. Also 
include this contact information on the outside of any disk or CD ROM 
you submit and in any cover letter accompanying the disk or CD ROM. 
This ensures that you can be identified as the submitter of the comment 
and allows EPA to contact you in case EPA cannot read your comment due 
to technical difficulties or needs further information on the substance 
of your comment. EPA's policy is that EPA will not edit your comment, 
and any identifying or contact information provided in the body of a 
comment will be included as part of the comment that is placed in the 
official public docket and made available in EPA's electronic public 
docket. If EPA cannot read your comment due to technical difficulties 
and cannot contact you for clarification, EPA may not be able to 
consider your comment.
    Your use of EPA's electronic public docket to submit comments to 
EPA electronically is EPA's preferred method for receiving comments. Go 
directly to EPA Dockets at http://www.epa.gov/edocket and follow the 
online instructions for submitting comments. To access EPA's electronic 
public docket from the EPA Internet Home Page, select ``Information 
Sources,'' ``Dockets,'' and ``EPA Dockets.'' Once in the system, select 
``search,'' and then key in Docket ID No. OAR-2002-0038. The system is 
an ``anonymous access'' system, which means EPA will not know your 
identity, e-mail address, or other contact information unless you 
provide it in the body of your comment.
    Comments may be sent by electronic mail (e-mail) to [email protected], Attention Docket ID No. OAR-2002-0038. In contrast to 
EPA's electronic public docket, EPA's e-mail system is not an 
``anonymous access'' system. If you send an e-mail comment directly to 
the Docket without going through EPA's electronic public docket, EPA's 
e-mail system automatically captures your e-mail address. E-mail 
addresses that are automatically captured by EPA's e-mail system are 
included as part of the comment that is placed in the official public 
docket and made available in EPA's electronic public docket.
    You may submit comments on a disk or CD ROM. These electronic 
submissions will be accepted in WordPerfect or ASCII file format. Avoid 
the use of special characters and any form of encryption.
    Send your comments to: Part 63 General Provisions (Subpart A) and 
Section 112(j) Regulations (Subpart B) Litigation Settlement Amendments 
II, U.S. EPA, Mailcode: 6102T, 1200 Pennsylvania Ave., NW, Washington, 
DC 20460, Attention Docket ID No. OAR-2002-0038.
    Deliver your comments to: Public Reading Room, Room B102, EPA West, 
1301 Constitution Avenue, NW, Washington, DC, Attention Docket ID No. 
OAR-2002-0038. Such deliveries are only accepted during the Docket's 
normal hours of operation.
    Fax your comments to 202-566-1741, Attention Docket ID. No. OAR-
2002-0038.
    Do not submit information that you consider to be CBI 
electronically through EPA's electronic public docket or by e-mail. 
Send or deliver information identified as CBI only to the following 
address: Attention: Mr. Rick Colyer, c/o OAQPS Document Control 
Officer, Mailcode C404-02, U.S. EPA, Research Triangle Park, NC 27711, 
Attention Docket ID No. OAR-2002-

[[Page 72878]]

0038. You may claim information that you submit to EPA as CBI by 
marking any part or all of that information as CBI (if you submit CBI 
on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and 
then identify electronically within the disk or CD ROM the specific 
information that is CBI). Information so marked will not be disclosed 
except in accordance with procedures set forth in 40 CFR part 2.
    In addition to one complete version of the comments that includes 
any information claimed as CBI, a copy of the comments that does not 
contain the information claimed as CBI must be submitted for inclusion 
in the public docket and EPA's electronic public docket. If you submit 
the copy that does not contain CBI on disk or CD ROM, mark the outside 
of the disk or CD ROM clearly that it does not contain CBI. Information 
not marked as CBI will be included in the public docket and EPA's 
electronic public docket without prior notice. If you have any 
questions about CBI or the procedures for claiming CBI, please consult 
the person identified in the FOR FURTHER INFORMATION CONTACT section.

Public Hearing

    Persons interested in presenting oral testimony or inquiring as to 
whether a hearing is to be held should contact Ms. Janet Eck, U.S. EPA, 
Mailcode C539-03, Research Triangle Park, NC 27711, telephone (919) 
541-7946, no later than December 17, 2002. Persons interested in 
attending the public hearing must also contact Ms. Eck to verify the 
time, date, and location of the hearing. The public hearing will 
provide interested parties the opportunity to present data, views, or 
arguments concerning these proposed amendments.

Worldwide Web (WWW)

    In addition to being available in the docket, an electronic copy of 
today's proposed rule amendments will also be available on the WWW 
through the Technology Transfer Network (TTN). Following signature, a 
copy of the rule will be posted on the TTN's policy and guidance page 
for newly proposed or promulgated rules at 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.

Applicable Law

    This rulemaking is being undertaken pursuant to the procedures 
established by CAA section 307(d). The special procedures for 
rulemakings governed by section 307(d) were utilized when EPA 
originally promulgated, and when EPA subsequently amended, each of the 
rules to which this proposal applies. The Administrator has 
specifically determined that it is appropriate to utilize the 
procedures in section 307(d) for this rulemaking.

Outline

    The information presented in this preamble is organized as follows:

I. Background
    A. General Provisions
    B. CAA Section 112(j) Provisions
    C. The Sierra Club Litigation
    D. Review of Proposed Settlement Under CAA Section 113(g)
II. Proposed Amendments to the General Provisions
III. Proposed Amendments to the Section 112(j) Provisions
    A. New Schedule for Part 2 Applications
    B. Requests for Applicability Determination
    C. Prior Section 112(g) Determinations
    D. Content of Part 2 Applications
IV. Administrative Requirements
    A. Executive Order 12866, Regulatory Planning and Review
    B. Executive Order 13132, Federalism
    C. Executive Order 13175, Consultation and Coordination with 
Indian Tribal Governments
    D. Executive Order 13045, Protection of Children from 
Environmental Health Risks and Safety Risks
    E. Executive Order 13211, Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use
    F. Unfunded Mandates Reform Act of 1995
    G. Regulatory Flexibility Act (RFA) as Amended by Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 
et seq.
    H. Paperwork Reduction Act
    I. National Technology Transfer and Advancement Act of 1995

I. Background

A. General Provisions

    Section 112 of the CAA requires us to list categories and 
subcategories of major sources and area sources of Hazardous Air 
Pollutants (HAP) and to establish NESHAP for the listed source 
categories and subcategories. Major sources of HAP are those that have 
the potential to emit equal to or greater than 10 tons/yr of any one 
HAP or 25 tons/yr of any combination of HAP. Area sources of HAP are 
those sources that do not have potential to emit equal to or greater 
than 10 tons/yr of any one HAP and 25 tons/yr of any combination of 
HAP.
    The General Provisions in 40 CFR part 63 establish the framework 
for emission standards and other requirements developed pursuant to 
section 112 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 
air toxics standards. The General Provisions become applicable to a CAA 
section 112(d) source category rule when the source category rule is 
promulgated and becomes effective.
    The NESHAP General Provisions were first promulgated on March 16, 
1994 (59 FR 12408). We subsequently proposed a variety of amendments to 
that initial rule, based in part on settlement negotiations with 
industrial trade organizations which had sought judicial review of the 
rule and in part on our practical experience in developing and 
implementing maximum achievable control technology (MACT) standards 
under the General Provisions (66 FR 16318, March 23, 2001). We then 
promulgated final amendments to the General Provisions pursuant to that 
proposal (67 FR 16582, April 5, 2002).

B. CAA Section 112(j) Provisions

    The 1990 Amendments to section 112 of the CAA include a new section 
112(j), which is entitled ``Equivalent Emission Limitation by Permit.'' 
Section 112(j)(2) provides that the provisions of section 112(j) apply 
if the EPA misses a deadline for promulgation of a standard under 
section 112(d) established in the source category schedule for 
standards. After the effective date of a title V permit program in a 
State, section 112(j)(3) requires the owner or operator of a major 
source in a source category, for which the EPA failed to promulgate a 
section 112(d) standard, to submit a permit application 18 months after 
the missed promulgation deadline.
    We first promulgated a rule to implement section 112(j) on May 20, 
1994 (59 FR 26429). We subsequently proposed a variety of amendments to 
that initial rule, based in part on settlement negotiations with 
industrial trade organizations which had sought judicial review of the 
rule and in part on our own further evaluation of the existing 
procedures (66 FR 16318, March 23, 2001). We then promulgated

[[Page 72879]]

final amendments to the section 112(j) rule, along with our final 
amendments to the General Provisions (67 FR 16582, April 5, 2002).

C. The Sierra Club Litigation

    We promulgated the final rule amending the MACT General Provisions 
and the requirements for case-by-case determinations under Clean Air 
Act section 112(j) on April 5, 2002 (67 FR 16582). The Sierra Club 
filed a petition seeking judicial review of that final rule on April 
25, 2002, Sierra Club v. U.S. Environmental Protection Agency, No. 02-
1135 (D.C. Circuit). Sierra Club also filed a petition seeking 
administrative reconsideration of certain provisions in the final rule, 
pursuant to CAA section 307(d)(7)(B).
    Shortly after the filing of the petition, EPA commenced discussions 
with Sierra Club concerning a settlement agreement. We reached initial 
agreement with Sierra Club on the terms of a settlement and lodged the 
tentative agreement with the court on August 15, 2002. Under the 
proposed settlement, we agreed to propose a rule to make specified 
amendments to the General Provisions and section 112(j) rules no later 
than 2 months after signature and to take final action on the proposed 
amendments within 7 months after signature.

D. Review of Proposed Settlement Under CAA Section 113(g)

    As required by section 113(g) of the CAA, EPA published a notice in 
the Federal Register affording interested persons an opportunity to 
comment on the terms of the proposed settlement in Sierra Club v. U.S. 
Environmental Protection Agency, No. 02-1135 (D.C. Circuit) (67 FR 
54804, August 26, 2002). In response to that notice, we received 110 
timely comments, the vast majority of which opposed one or more 
provisions of the proposed settlement.
    While we do not believe we are legally required to discuss or 
summarize our review of the comments on the proposed settlement we 
received as part of the process required by section 113(g), we think it 
is appropriate in this instance to describe our assessment of and 
response to certain of these comments.
    Virtually all of the commenters expressed concern about the 
practical consequences of the proposal to reduce the time between the 
section 112(j) Part 1 and Part 2 applications from 24 months to 12 
months. We agree with the commenters that this approach would have 
resulted in wasteful expenditures by the applicants and the permitting 
agencies to prepare and to process permit applications which in all 
likelihood would never have been acted upon. Given the strong 
opposition to this approach reflected in the comments both by industry 
sources and organizations and by State and local permitting 
authorities, we were pleased when Sierra Club agreed to discuss 
modifying the proposed settlement to establish an alternative timetable 
for submission of Part 2 section 112(j) applications.
    Organizations representing the State and local permitting 
authorities played a very helpful role in the discussions concerning a 
revised settlement. These organizations noted that EPA had already 
reached an agreement with Sierra Club on a schedule for promulgation of 
all remaining MACT standards that were included on the original 
schedule established pursuant to CAA section 112(e)(1) and (3). We 
anticipate that this agreed upon schedule for promulgation of the 
remaining MACT standards will be incorporated in a forthcoming consent 
decree in Sierra Club v. Whitman, 01-1337 (D.D.C.). The State and local 
governmental organizations suggested that a timetable which would 
require submission of section 112(j) Part 2 applications only if the 
agreed upon schedule is not met would both eliminate the expenditure of 
significant resources on an ultimately futile process and create new 
incentives for EPA and the other stakeholders to cooperate in meeting 
the promulgation schedule.
    After Sierra Club agreed to consider the alternative approach 
suggested by the State and local governmental organizations, EPA and 
Sierra Club then negotiated a revised settlement based on that 
approach. Under the timetable we are proposing pursuant to the revised 
settlement, section 112(j) Part 2 applications for affected sources in 
those categories for which MACT standards are scheduled to be 
promulgated while this rulemaking is pending will be due on May 15, 
2003, and section 112(j) Part 2 applications for affected sources in 
categories for which the MACT standards are scheduled to be promulgated 
thereafter will be due 60 days after the corresponding scheduled 
promulgation dates.
    In the revised settlement, we have also agreed to propose the same 
amendments to the General Provisions concerning startup, shutdown, and 
malfunction (SSM) plans which were set forth in the original 
settlement. Although we received numerous comments opposing these 
amendments as well, we believe that many of these comments materially 
misconstrued both the intent and the effect of these proposed 
amendments. In any case, we note that there will be a full opportunity 
for those who have concerns regarding either the need for or the effect 
of these amendments to comment during this rulemaking. We also believe 
these comments are likely to be more constructive and appropriately 
focused when the commenters have had an opportunity to review our 
explanation of the basis for these proposed amendments set forth below.
    The EPA and Sierra Club executed a final settlement agreement in 
Sierra Club v. U.S. Environmental Protection Agency, No. 02-1135 (DC 
Circuit), and filed it with the Court on November 26, 2002. This 
rulemaking is being conducted in accordance with the provisions of that 
final agreement.

II. Proposed Amendments to the General Provisions

    In today's action, we are proposing to make several changes in the 
section of the General Provisions rule that establishes general 
procedures for preparation, maintenance, and periodic revision of SSM 
plans. We consider these proposed revisions to be modest in character, 
and we believe they are generally consistent with the policies 
articulated in the preamble when we proposed the last set of amendments 
concerning SSM plans. We are also proposing to revise a new 
recordkeeping provision which we adopted in the prior rulemaking in 
response to a comment we received, because we have concluded that the 
new recordkeeping provision is too broad in its effect.
    We are proposing some minor changes in the language in 40 CFR 
63.6(e)(1)(i) to correct a potential problem in interpreting the 
relationship between the general duty to minimize emissions established 
by that section and a facility's compliance with its SSM plan. That 
section was modified in the last rulemaking because it appeared at that 
time to impose on a source a general duty to further reduce emissions, 
even when the source is already in full compliance with the applicable 
MACT standards. We deemed this result to be unreasonable and made 
corresponding changes in the language of the rule. We emphasize that 
nothing in today's proposal is intended to alter our determination that 
the general duty to minimize emissions is satisfied when emission 
levels required by the MACT standard have been achieved.
    However, as part of these changes, we adopted some language which 
could be construed as contrary to the policies regarding the 
relationship between the general duty to minimize emissions and

[[Page 72880]]

SSM plans which we stated in the preamble of the proposal of the 
original amendments. We note at the outset that SSM plans must be 
drafted in a manner which satisfies the general duty to minimize 
emissions (40 CFR 63.6(e)(3)(i)(A)). Thus, compliance with a properly 
drafted SSM plan during a period of startup, shutdown, or malfunction 
will necessarily also constitute compliance with the duty to minimize 
emissions, even though compliance with the MACT standards themselves 
during a period of startup, shutdown, or malfunction may not be 
practicable. However, in the proposal preamble to the original 
amendments, we stated explicitly that ``compliance with an inadequate 
or improperly developed SSM plan is no defense for failing to minimize 
emissions'' (66 FR 16327, March 23, 2001). We note that this 
understanding of the effect of the amendments was explicitly restated 
in comments by the organizations that represent the agencies that 
generally enforce these requirements, the State and Territorial Air 
Pollution Program Administrators (STAPPA) and the Association of Local 
Air Pollution Control Officials (ALAPCO). See Docket A-2001-02.
    Sierra Club subsequently pointed out to us that the actual language 
of the section as promulgated could be construed to indicate that a 
facility that complies with its SSM plan--regardless of whether the 
plan is inadequate or improperly developed--thereby satisfies its 
general duty to minimize emissions. We did not intend this result. We 
believe such a construction could encourage potential abuse, 
particularly because SSM plans do not have to be reviewed or approved 
by the permitting authority before they take effect, and because such 
plans may also be revised by the facility without prior notice to the 
permitting authority. The revisions to 40 CFR 63.6(e)(1)(i) which we 
are proposing today are intended to assure that this section is not 
construed in this manner. Nothing in these revisions is intended either 
to change the general principle that compliance with a MACT standard is 
not mandatory during periods of startup, shutdown, or malfunction, or 
to require a source to further minimize emissions during periods of 
startup, shutdown, or malfunction once it has achieved levels which 
would constitute compliance with the MACT standard at other times.
    We are also proposing some changes to 40 CFR 63.6(e)(3)(v), the 
section that governs submission of SSM plans to the EPA Administrator, 
and to the State or local permitting authorities which operate as the 
Administator's authorized representatives. The present rule provides 
that the current SSM plan must be made available upon request to the 
Administrator for ``inspection and copying.'' The ``Administrator'' is 
defined to include a State which has received delegation and is 
therefore the Administrator's ``authorized representative'' (40 CFR 
63.2).
    We stated in the preamble of the proposal for the previous 
amendments that the permit writer or the Administrator may also require 
submission of the SSM plan (66 FR 16326, March 23, 2001). This is 
sensible because the SSM plan is an integral part of the permit file, 
regardless of whether the plan is physically available at the EPA 
Regional Office or the permitting authority that has received 
delegation or is maintained only at the affected source. However, we 
note that the present rule does not expressly require that SSM plans be 
submitted to the Administrator or to the permitting authority upon 
request. This potential omission was also noted in previous comments by 
STAPPA/ALAPCO. See Docket A-2001-02.
    SSM plans are developed in connection with individual MACT 
standards promulgated under CAA section 112 and are therefore covered 
by CAA section 114(a). Under CAA section 114(c) and 40 CFR 
70.4(b)(3)(viii), information in SSM plans must be made available to 
the public, unless the submitter makes a satisfactory showing that 
disclosure would divulge methods or processes that are entitled to 
protection under the Trade Secrets Act, 18 U.S.C. 1905. SSM plans are 
considered to be submitted to the Administrator under CAA Section 114 
even if they are submitted to a State or local agency acting on the 
Administrator's behalf (40 CFR 2.301(b)(2)).
    Sierra Club has expressed concern about the adequacy of the 
provisions in the present rule to assure the degree of public access to 
SSM plans required by law. In particular, Sierra Club is concerned that 
some permitting authorities might not construe the rule to require that 
an SSM plan be obtained from the affected source when it is requested 
by a member of the public, and that the rule does not expressly require 
submission of an SSM plan when the permitting authority or 
Administrator requests it. Although the rule clearly requires that such 
plans must be made available for inspection and copying by EPA or the 
permitting authority, Sierra Club believes that interested members of 
the public may encounter protracted delays in obtaining access to the 
non-confidential portions of an SSM plan.
    We understand these concerns about the practicality of public 
access under the present system, and we have agreed to propose some 
revisions to the rule to facilitate better public access. The new 
language requires sources to submit a copy of the SSM plan to the 
permitting authority at the time it is first adopted and when it is 
subsequently revised. In most instances, revised versions of the SSM 
plan may be submitted with the semiannual report required by 40 CFR 
63.10(d)(5). Under our proposal, the source may elect to submit the SSM 
plan in an electronic format. If the submitter claims that any portion 
of an SSM plan, or any revision of an SSM plan, is CBI entitled to 
protection under section 114(c) of the CAA or 40 CFR 2.301, the 
material which is claimed as confidential must be clearly designated in 
the submission.
    While the applicable law generally requires that we provide public 
access to those portions of SSM plans which are not entitled to 
confidentiality under the Trade Secrets Act, we note that it is 
hypothetically possible that some information in a particular SSM plan 
would be deemed to be sensitive from a Homeland Security perspective. 
In most instances, we think that such sensitive information would also 
be entitled to confidential treatment under CAA section 114(c). 
However, we note that the entire Federal government is presently 
reviewing public access requirements to assure that they are compatible 
with Homeland Security, and it is possible that we may in the future 
propose other changes in public access to SSM plans as part of this 
important effort.
    We note that many sources have already adopted SSM plans, and that 
the language we are proposing does not establish a specific 
transitional process for submission of those existing plans to 
permitting authorities. If we adopt the proposed changes, we want to 
minimize the burden and disruption associated with this transition, and 
we are requesting comment on how this may best be accomplished. One 
option would be to provide a specific time period within which the 
existing plans must be submitted. Another option would be to require 
that the plans be submitted as part of the next semiannual compliance 
report.
    We are also proposing a change to 40 CFR 63.6(e)(3)(vii). The 
current rule provides that EPA or the permitting authority ``may'' 
require that an SSM plan be revised if certain specified deficiencies 
are found. However, we cannot envision any circumstance

[[Page 72881]]

where revision of an SSM plan should not be mandatory if it is 
specifically found to be deficient by EPA or the permitting authority 
according to one of the criteria set forth in this section. Therefore, 
we have agreed to propose to change the language to make such revisions 
mandatory rather than discretionary.
    We are required to propose all of the foregoing amendments to the 
SSM plan provisions in the MACT General Provisions rule by the final 
settlement agreement that we executed with Sierra Club. We solicit 
comments on all these proposals.
    In addition to the proposals required under our final settlement 
agreement with Sierra Club, we are also proposing to revise a provision 
concerning reporting of SSM events which we adopted in the previous 
rulemaking in response to comments we received. We have concluded that 
the new language we adopted was unnecessarily broad in its scope and we 
are proposing to substantially narrow its applicability.
    During the previous rulemaking concerning revisions to the General 
Provisions and section 112(j) rules, we received comments from STAPPA/
ALAPCO indicating that it would assist permitting agencies in 
performing their oversight function if facilities were required to 
include the number and a description of all malfunctions that occurred 
during the prior reporting period in the required semiannual report. 
See Docket A-2001-02. In response to that comment, we added a new 
reporting obligation to the language governing periodic SSM reporting 
in 40 CFR 63.10(d)(5)(i). However, the language we added was not 
limited to malfunctions and required that the facility report ``the 
number, duration, and a brief description of each startup, shutdown, 
and malfunction.'' We have concluded that the inclusion of startups and 
shutdowns in this reporting requirement is unnecessary and burdensome.
    With respect to malfunctions, the rule expressly requires that the 
SSM plan must be revised by the facility if there is an event meeting 
the characteristics of a malfunction which is not addressed by the plan 
(40 CFR 63.6(e)(3)(vii). Although the facility is required by 40 CFR 
63.6(e)(3)(iv) to immediately report those instances where the actions 
it takes are not in conformity with the SSM plan and the standard is 
exceeded, this provision may not be sufficient to give the permitting 
authority all the information it needs to assure that SSM plans 
properly address all types of malfunctions. Thus, we think that the 
requirement that the owner or operator report the number, duration, and 
type of malfunctions which occurred during the prior reporting period 
may provide useful information to the permitting authority.
    We recognize that some sources are concerned that the requirement 
to periodically report malfunctions may be interpreted to require 
reporting of minor problems that have no impact on emissions. However, 
we do not construe the provision in this manner. Under our regulations, 
``malfunction'' is defined as ``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.'' See 40 CFR 63.2. Only those events that meet this 
definition would be subject to the reporting requirement. During an 
event that meets this definition, the facility is not required to 
comply with otherwise applicable emission limits, and the SSM plan must 
specify alternative procedures which satisfy the general duty to 
minimize emissions. Minor or routine events that have no appreciable 
impact on the ability of a source to meet the standard need not be 
classified by the source as a malfunction, addressed in the SSM plan, 
or included in periodic reports. Thus, if a source experiences a minor 
problem that does not affect its ability to meet the applicable 
emission standard, the problem need not be addressed by the SSM plan 
and would not be a reportable ``malfunction'' under our regulations.
    Unlike malfunctions, we think that the extension of this 
requirement to startups and shutdowns was unwarranted. In some 
industries, startup and shutdown events are numerous and routine. So 
long as the provisions of the SSM plan are followed, there does not 
appear to be any real utility in requiring that each individual startup 
and shutdown be reported or described. In those instances where a 
startup and shutdown includes actions which do not conform to the SSM 
plan and the standard is exceeded, the facility is otherwise required 
to promptly report these deviations from the plan. We encourage all 
interested parties to comment both on our proposal to delete startups 
and shutdowns from this reporting provision, and on our rationale for 
the retention of the periodic reporting of malfunctions.
    In addition to seeking comment on the revisions to the provisions 
governing SSM plans described above, we are also requesting comment 
concerning two other changes to the General Provisions which we made 
during the prior rulemaking in response to industry comments. During 
the prior rulemaking, the Colorado Association of Commerce and Industry 
suggested that we revise the definition of ``monitoring'' in 40 CFR 
63.2 to include the phrase ``or to verify a work practice standard.'' 
See Docket item No. IV-D-03. There are times when we must adopt a work 
practice standard under CAA section 112(h) rather than an emission 
standard under CAA section 112(d), and compliance with such a work 
practice standard is sometimes verified by activities which may not 
require ``* * * collection and use of measurement data or other 
information to control the operation of a process or pollution control 
device * * *'' Therefore, we thought that the suggested revision was a 
sensible one. However, because the additional language was not 
originally proposed by EPA, and it has been subsequently suggested that 
this revision might have unintended consequences, we have decided to 
take additional comment concerning the value of this language and the 
effects it might have when read in conjunction with other regulatory 
requirements, including other provisions of the General Provisions.
    In the prior rulemaking, we also made a small change in the 
language of 40 CFR 63.9(h)(2)(ii) by adding the phrase ``(or activities 
that have the same compliance date)'' in response to a comment 
submitted by Dow Chemical Company. See Docket item No. IV-D-19. 
Although separate notices are appropriate for compliance obligations 
with different compliance dates (e.g., equipment leaks versus process 
vents), Dow was concerned that separate compliance reports might be 
required for compliance obligations that have the same date and 
requested the option of filing a single compliance status report 
covering multiple compliance obligations. Because the new language in 
question was not originally proposed by EPA, and some have questioned 
whether it clearly achieves the intended purpose, we have decided to 
request additional comment concerning the need for this change and 
potential alternatives.

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

A. New Schedule for Part 2 Applications

    The final settlement agreement which we have executed with Sierra 
Club requires us to propose to replace the existing schedule for 
submission of section 112(j) Part 2 applications, under which most Part 
2 applications would have been due on May 15, 2004, with

[[Page 72882]]

a schedule which will establish a specific deadline for submission of 
Part 2 applications for all affected sources in a given category or 
subcategory. With respect to those listed categories or subcategories 
for which MACT standards are scheduled to be promulgated by November 
30, 2002 or by February 28, 2003, we are proposing a Part 2 application 
deadline of May 15, 2003. Establishing an earlier deadline for these 
sources would not be practicable because we do not anticipate 
completing this rulemaking until April 2003. With respect to those 
categories or subcategories for which MACT standards are scheduled to 
be promulgated at a later time, we are proposing Part 2 application 
deadlines which are 60 days after each respective scheduled 
promulgation date. The deadlines for Part 2 applications which we are 
proposing for each category or subcategory are set forth below in 
Tables 1 and 2 of this preamble.

          Table 1.--Section 112(j) Part 2 Application Due Dates
------------------------------------------------------------------------
           Due date                          MACT standard
------------------------------------------------------------------------
5/15/03......................  Municipal Solid Waste Landfills
                               Flexible Polyurethane Foam Fabrication
                                Operations
                               Coke Ovens: Pushing, Quenching, and
                                Battery Stacks
                               Reinforced Plastic Composites Production
                               Semiconductor Manufacturing
                               Refractories Manufacturing \1\
                               Brick and Structural Clay Products
                               Manufacturing, and Clay Ceramics
                                Manufacturing \2\
                               Asphalt Roofing Manufacturing and Asphalt
                                Processing \3\
                               Integrated Iron and Steel Manufacturing
                               Hydrochloric Acid Production and Fumed
                                Silica \4\
                               Engine Test Facilities and Rocket Testing
                                Facilities \3\
                               Metal Furniture (Surface Coating)
                               Printing, Coating, and Dyeing of Fabrics
                               Wood Building Products (Surface Coating)
10/30/03.....................  Combustion Turbines
                               Lime Manufacturing
                               Site Remediation
                               Iron and Steel Foundries
                               Taconite Iron Ore Processing
                               Miscellaneous Organic Chemical
                                Manufacturing (MON) \5\
                               Organic Liquids Distribution
                               Primary Magnesium Refining
                               Metal Can (Surface Coating)
                               Plastic Parts and Products (Surface
                                Coating)
                               Chlorine Production
                               Miscellaneous Metal Parts and Products
                                (Surface Coating) (and Asphalt/Coal Tar
                                Application--Metal Pipes) \3\
4/28/04......................  Industrial Boilers, Institutional/
                                Commercial
                               Boilers and Process Heaters \6\
                               Plywood and Composite Wood Products
                               Reciprocating Internal Combustion Engines
                               Auto and Light-Duty Truck (Surface
                                Coating)
8/13/05......................  Industrial Boilers, Institutional/
                                Commercial Boilers, and Process Heaters
                                \7\
                               Hydrochloric Acid Production \8\
------------------------------------------------------------------------
\1\ Includes Chromium Refractories Production.
\2\ Two subcategories of Clay Products Manufacturing.
\3\ Two source categories.
\4\ Includes all sources within the category Hydrochloric Acid
  Production that burn no hazardous waste, and all sources in the
  category Fumed Silica.
\5\ Covers 23 source categories, see Table 2 of this preamble.
\6\ Includes all sources in the three categories, Industrial Boilers,
  Institutional/Commercial Boilers, and Process Heaters that burn no
  hazardous waste.
\7\ Includes all sources in the three categories, Industrial Boilers,
  Institutional/Commercial Boilers, and Process Heaters that burn
  hazardous waste.
\8\ Includes furnaces that produce acid from hazardous waste at sources
  in the category Hydrochloric Acid Production.


                     Table 2.--MON Source Categories
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
Manufacture of Paints, Coatings, and Adhesives
Alkyd Resins Production
Maleic Anhydride Copolymers Production
Polyester Resins Production
Polymerized Vinylidene Chloride Production
Polymethyl Methacrylate Resins Production
Polyvinyl Acetate Emulsions Production
Polyvinly Alcohol Production
Polyvinyl Butyral Production
Ammonium Sulfate Production--Caprolactam By-Product Plants
Quaternary Ammonium Compounds Production
Benzyltrimethylammonium Chloride Production
Carbonyl Sulfide Production
Chelating Agents Production
Chlorinated Paraffins Production
Ethylidene Norbornene Production
Explosives Production
Hydrazine Production
OBPA/1,3-Diisocyanate Production
Photographic Chemicals Production
Phthalate Plasticizers Production
Rubber Chemicals Manufacturing
Symmetrical Tetrachloropyridine Production
------------------------------------------------------------------------

    We have always been reluctant to establish any timetable which 
would require submission of a large number of Part 2 applications which 
would in all likelihood never be acted upon by the

[[Page 72883]]

permitting authorities. Submission of Part 2 applications would 
generally be a futile exercise in those instances where a final Federal 
MACT standard governing the facilities in question is scheduled for 
promulgation prior to the 18-month deadline for action on the 
applications by the respective permitting authorities. It has been our 
consistent view that requiring submission of such applications would 
represent an unwarranted expenditure of private and public resources. 
Thus, we are pleased that the proposed schedule under the final 
settlement will permit us to avoid such a wasteful exercise unless 
there are further delays in promulgation of the remaining MACT 
standards. We note also that the prompt and significant consequences if 
a promulgation deadline is missed will create new incentives for EPA 
and the other stakeholders to assure that the agreed upon promulgation 
deadlines are met.
    We recognize that the proposed schedule for submission of section 
112(j) Part 2 applications leaves relatively little time for sources to 
prepare and submit such applications if a particular promulgation 
deadline is missed. In recognition of the tight time frames, we will 
try to provide prompt advance notice to affected sources and to 
permitting authorities if we have reason to believe that we will not be 
able to meet an impending promulgation deadline for a particular MACT 
standard.
    We note that the MACT standards for which we are proposing a Part 2 
application deadline of May 15, 2003 are actually scheduled to be 
promulgated while this rulemaking is in progress. There will be no need 
to adopt a Part 2 application deadline for affected sources in any 
category for which a final MACT standard has been promulgated under CAA 
section 112(d) and/or (h) prior to the completion of this rulemaking. 
We are proposing to state explicitly in the amendments to the section 
112(j) rule that no further process to develop a case-by-case MACT 
determination under section 112(j) is required for any source once a 
generally applicable Federal MACT standard governing that source has 
been promulgated.
    The revised timetable for submission of Part 2 applications we are 
proposing requires significant changes in the structure of the existing 
section 112(j) rule. In contrast to the current general timetable for 
Part 2 applications, which applies to all of the remaining MACT 
standards which were included in the schedule adopted under CAA section 
112(e)(1) and (3), we are proposing a phased timetable for Part 2 
applications with different dates for sources in different categories 
based on the scheduled promulgation date. We are also proposing to make 
the new schedule as uniform as practicable for all affected sources in 
each category or subcategory, regardless of whether the source in 
question has previously requested an applicability determination under 
40 CFR 63.52(e)(2)(i) or has previously obtained a case-by-case 
determination under CAA section 112(g).
    These proposed changes will require that the existing section 
112(j) rule be substantially rewritten. In order to allow the 
rulemaking process required by the final settlement agreement to 
proceed expeditiously and to encourage commenters to focus on the broad 
issues presented by the new approach, we are not proposing specific 
regulatory text. Rather, we are providing a detailed discussion in this 
preamble of the changes we are proposing to make. While we do not want 
to discourage those commenters who want to propose specific regulatory 
text for our consideration, we believe that comments will be most 
constructive if they focus on the larger question of how the existing 
rule should be restructured to achieve our proposed objectives.
    When we first proposed the creation of a two-part process for 
section 112(j) applications, we specified a 6-month period between the 
submission of the general initial notification in the Part 1 
application and the submission of more detailed supporting information 
in the Part 2 application. That initial proposal was based on the 
premise that every applicant would automatically be given the maximum 
extension of time to supplement an incomplete application that is 
authorized by CAA section 112(j)(4).
    In the final rule, we observed that there is another provision in 
the statute which may be reasonably construed to provide authority for 
us 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. We have not 
changed our view that this is a reasonable construction of the 
statutory provision in question, and we are reiterating this 
construction of the statute as part of our rationale for these proposed 
rule amendments.

B. Requests for Applicability Determination

    As we explained above, we are proposing to establish a single 
uniform Part 2 application deadline for all sources in a given category 
or subcategory, which is based in turn on the agreed upon promulgation 
date for the MACT standard for that category or subcategory. However, 
to achieve this objective it will be necessary to establish new 
procedures for those affected sources which have previously submitted a 
request for applicability determination under 40 CFR 63.52(e)(2)(i).
    That provision establishes a process by which major sources can 
request that the permitting authority determine whether or not specific 
sources at their facility belong in any category or subcategory 
requiring a case-by-case determination under section 112(j). All 
requests for applicability determinations were due at the same time as 
the section 112(j) Part 1 applications, on May 15, 2002. Under the 
procedures in the current rule, a negative determination by the 
permitting authority concerning such a request means that no further 
action is required, while a positive determination means that the 
applicant must then submit a Part 2 application within 24 months. In 
order to adopt the single uniform deadline for Part 2 applications for 
each affected source in a category or subcategory which we are required 
to propose by the final settlement, it is necessary to amend the 
provisions governing requests for applicability determinations.
    We lack precise information concerning how many such requests for 
applicability determination were submitted to permitting authorities on 
or before May 15, 2002, but we believe that hundreds of such requests 
are pending. We know that some of these requests reflect genuine 
uncertainty concerning the scope of the activities or equipment 
governed by a particular category or subcategory. For some of these 
requests, the subsequent issuance of a proposed MACT standard or other 
subsequent events may have resolved such uncertainty. However, we also 
believe that many of these requests were filed merely because the 
filing of such a request operated to defer the deadline for submission 
of a Part 2 application. Under the proposal required by the final 
settlement, such an indefinite deferral of the Part 2 application 
deadline will no longer be allowed.

[[Page 72884]]

    We do not seek to limit the right of those affected sources who may 
have genuine uncertainty regarding the scope of a particular category 
or subcategory to obtain a decision on applicability issues by the 
permitting authority, but we also do not want to burden the permitting 
authorities with a process that requires them to take final action on 
those pending requests which do not present genuine applicability 
issues. Accordingly, we are proposing to require that each affected 
source which still wishes to pursue a previously filed request for 
applicability determination under 40 CFR 63.52(e)(2)(i) which is still 
pending must resubmit and supplement that request within 60 days after 
EPA publishes final action in this rulemaking or within 60 days after 
EPA publishes a proposed MACT standard for the category or subcategory 
in question, whichever is later.
    Our experience tells us that most uncertainties regarding 
applicability can be resolved by applying the specific applicability 
language in the proposed MACT standard. That is why we are proposing to 
delay any requirement to resubmit and supplement a request for 
applicability determination until after a proposed MACT standard is 
available. We are proposing to require that each resubmitted request 
for an applicability determination be supplemented to specifically 
discuss the relation between the source(s) in question and the 
applicability provision in the proposed MACT standard for the category 
or subcategory in question, and to explain why there may still be 
uncertainties that require a determination of applicability. We are 
also proposing to require that the permitting authority act upon each 
resubmitted and supplemented request for an applicability determination 
within an additional 60 days after the applicable deadline for the 
resubmitted request.
    We believe this approach will preserve the rights of those affected 
sources which still have legitimate applicability concerns even after 
issuance of a proposed MACT standard. We also expect there will be a 
significant reduction in the number of pending requests, since the 
current procedural incentives for submission of such requests will have 
been eliminated. With respect to those requests that are resubmitted, 
the proposed mandatory supplementation should delineate the issues more 
clearly and improve the record for a decision concerning the request by 
the permitting authority.
    While we anticipate that the issuance of a proposed MACT standard 
will generally operate to resolve existing applicability issues rather 
than raising new ones, it is hypothetically possible that a facility 
will have new questions based on the applicability provision in a 
proposed MACT standard. There is at present no formal process for 
addressing such issues, but we encourage all major sources that have 
questions concerning the applicability of a proposed MACT standard to 
their operations or equipment to seek guidance from responsible 
personnel at the permitting authority and the EPA Regional Office.
    We note that there are special timing issues with respect to any 
requests for applicability determination which have been submitted 
concerning sources that may be in a category or subcategory for which 
the MACT standard in question is scheduled to be promulgated by 
November 30, 2002 or by February 28, 2003. There will be no need to 
address these concerns if the standards are promulgated on schedule. 
However, if any one of these standards is delayed, and if the delayed 
standard still has not been promulgated by the time we take final 
action concerning this proposal, special procedures will be required. 
Those facilities which have sources which may be in such a category or 
subcategory, and who previously submitted a request for applicability 
determination which is still pending, cannot be required to submit 
their Part 2 application on May 15, 2003. In such an instance, we 
propose that any Part 2 application will be required 120 days after EPA 
publishes final action in this rulemaking if the request for 
applicability determination is not resubmitted within 60 days after 
publication, or within 180 days after EPA publishes final action in 
this rulemaking if the request is resubmitted and a determination 
concerning the request by the permitting authority is required. We 
consider it improbable that we will need to adopt such procedures, but 
we are proposing them now in the unlikely event they are required.
    We note also that those major sources which elect to resubmit 
requests for applicability determination with respect to sources that 
may be governed by one of the MACT standards which are scheduled to be 
promulgated by August 31, 2003, may not be entitled to receive a 
determination by the permitting authority on the resubmitted request 
until shortly after the scheduled promulgation date. If such a standard 
is delayed, and there is no negative determination by the permitting 
authority on the resubmitted request, the Part 2 application for 
sources within the category in question will be due on October 30, 
2003. This tight time frame underscores the importance of careful 
coordination between such sources and the permitting authority if it 
appears that a MACT standard will be delayed. As discussed above, EPA 
will endeavor to provide timely information to affected sources and 
permitting authorities if it becomes apparent that the Agency will not 
meet the promulgation schedule for any of the remaining MACT standards.

C. Prior Section 112(g) Determinations

    Our proposal to establish a single uniform Part 2 application 
deadline for all sources in a given category or subcategory also 
requires that we make some changes to the current procedures governing 
CAA section 112(j) applications for those sources which have previously 
received a case-by-case determination pursuant to CAA section 112(g). 
In evaluating this question, it is important to understand the 
substantive relationship between these separate statutory requirements.
    In general, we anticipate that emission control requirements 
established as part of a previous case-by-case determination under 
section 112(g) will subsequently be adopted by the permitting authority 
to satisfy any applicable section 112(j) requirements as well. This is 
because the determination required for any sources subject to CAA 
section 112(g) is supposed to be based on new source MACT, and the 
subsequent application of section 112(j) requirements to those same 
sources will be based on existing source MACT. Moreover, to assure that 
inconsequential differences in emission control do not result in unduly 
burdensome sequential case-by-case determinations, the current section 
112(j) rule requires the permitting authority to adopt any prior case-
by-case determination under section 112(g) as its determination for the 
same sources under section 112(j) if it ``determines that the emission 
limitations in the prior case-by-case determination are substantially 
as effective as the emission limitations which the permitting authority 
would otherwise adopt under section 112(j).'' See 40 CFR 63.52(a)(3), 
(b)(2), and (e)(2)(ii).
    Under the applicable provisions of the present rule, sources which 
have previously obtained a case-by-case determination under CAA section 
112(g) are generally required to submit a request for an ``equivalency 
determination'' to decide if the applicable section 112(g) requirements 
are ``substantially as effective'' as the requirements which would 
otherwise apply under section 112(j). As explained above, we believe 
that this

[[Page 72885]]

determination will generally be positive. However, 40 CFR 
63.52(e)(2)(ii) provides that, if such a determination is negative, the 
source must then submit a Part 2 application within 24 months. As in 
the case of requests for applicability determination, changes to the 
existing rule will be required to place all sources in a given category 
or subcategory on the same schedule for submission of Part 2 
applications. However, in this instance, we believe that the solution 
is considerably simpler.
    We are proposing to adopt the proposed Part 2 application deadline 
for a given category or subcategory as the final deadline for 
submission of a request for an ``equivalency determination'' by any 
affected source that previously obtained a case-by-case determination 
under CAA section 112(g). Under this proposal, those sources which 
submitted such requests earlier under the provisions of the existing 
rule need not resubmit them. However, we are also proposing that all 
requests for an equivalency determination, regardless of when they were 
submitted, will be construed in the alternative as a section 112(j) 
Part 2 application as well.
    The effect of this proposal will be to require that the permitting 
authority first make an equivalency determination. In the event of a 
negative determination, the permitting authority will then proceed to 
adopt a separate set of requirements pursuant to section 112(j). Under 
this proposal, this process will be completed in the same 18-month 
period that applies to the processing of all other Part 2 applications.
    This proposal will assure that the deadline for submission of Part 
2 applications will be the same for all affected sources within a 
category or subcategory, regardless of whether a source previously 
obtained a case-by-case determination under section 112(g). We do not 
think this proposal imposes any new burden on sources or permitting 
authorities, because the permitting authority should already have all 
of the information required for a Part 2 application in any instance 
where it is already administering section 112(g) requirements 
applicable to the same source.

D. Content of Part 2 Applications

    We are hopeful that no source will be required to submit a section 
112(j) Part 2 application under the schedule we are proposing in this 
rulemaking. We also note that the Part 2 application requirements in 
the current section 112(j) rule are significantly narrower than the 
application requirements in the original section 112(j) rule. However, 
in the event that some Part 2 applications must ultimately be 
submitted, we think it is appropriate to give some additional guidance 
concerning the information they must contain and to request comment on 
a few related issues.
    We believe that an affected source submitting a Part 2 application 
may elect to rely directly on the content of the applicable proposed 
MACT standard in identifying affected emission points. We also think 
that applicants may reasonably limit the information they submit 
concerning HAP emissions to those specific HAP or groups of HAP which 
would be subject to actual control in the applicable proposed MACT 
standard. We encourage all section 112(j) Part 2 applicants to utilize 
the regulatory approach in the applicable proposed MACT standard as a 
practical template in compiling Part 2 applications. We also encourage 
applicants who have previously submitted to the permitting authority 
some of the information required in the Part 2 application to meet the 
requirements in question by cross-referencing such prior submissions.
    Moreover, although the submission by an affected source of a 
proposed case-by-case MACT determination as part of its Part 2 
application is entirely discretionary, we note that some industry 
representatives have stated that they would generally elect to include 
such information as a precautionary matter. While we do not seek to 
discourage this practice, we believe that the burden associated with 
inclusion of such information will not be significant in instances 
where a Federal MACT standard has already been proposed, the applicable 
proposed standard has already been evaluated by the facility, and the 
facility has already had an opportunity to comment on the applicable 
proposed standard.
    We also want to do whatever we can to minimize any unnecessary 
burdens associated with submission of a Part 2 application. We do not 
want to require the submission of any information which is not truly 
necessary to prepare for potential issuance of case-by-case MACT 
determinations. To that end, we are requesting comment on the approach 
outlined above and whether there may be other ways to minimize any 
unnecessary burden. We also request comments on the following specific 
questions. Does the applicant need to provide ``estimated total 
uncontrolled and controlled emission rates'' to enable the permitting 
authority to prepare for a potential case-by-case determination? If the 
applicant does not have the information required to provide meaningful 
estimates of emission rates, should new emission testing be required? 
Is it appropriate to require individual applicants to submit 
``information relevant to establishing the MACT floor'' in their Part 2 
applications? Are there any Part 2 application requirements which can 
be met simply by referring to the applicable proposed MACT standard?

IV. Administrative Requirements

A. Executive Order 12866, Regulatory Planning and Review

    Under Executive Order 12866, (58 FR 51735, October 4, 1993) the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to Office of Management and Budget (OMB) review 
and the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    We have determined that neither the proposed amendments to the 
General Provisions nor the proposed amendments to the section 112(j) 
rule are a ``significant regulatory action'' under the terms of 
Executive Order 12866, and this proposal was therefore not submitted to 
OMB for review.

B. Executive Order 13132, Federalism

    Executive Order 13132, entitled, ``Federalism (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have Federalism implications.'' 
``Policies that have Federalism implications'' 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 States, or on the distribution of power and 
responsibilities among the various levels of government.''

[[Page 72886]]

    These proposed amendments do not have Federalism implications under 
the terms of this Executive Order. We do not believe that the proposed 
changes in the General Provisions rule have any significant federalism 
implications. With respect to the alteration in the schedule for 
submission of section 112(j) Part 2 applications, we note that the CAA 
itself requires that State and local permitting authorities receive and 
process applications for case-by-case MACT determinations pursuant to 
section 112(j). This is one of the responsibilities that State and 
local permitting authorities have agreed to assume. We have tried to 
construe the statutory provisions in question in a manner that 
minimizes the burden on these agencies associated with this 
responsibility. We have determined that the proposed change in the 
schedule for submission of such applications does not itself have a 
substantial direct effect on the States, on the relationship between 
the national government and States, or on the distribution of power and 
responsibilities among the various levels of government.
    Nevertheless, in the spirit of Executive Order 13132 and consistent 
with EPA policy to promote communications between EPA, State, and local 
governments, EPA specifically solicits comment on these proposed 
amendments from State and local officials.

C. 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'' is 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 proposed amendments to the General Provisions and the section 
112(j) rule would not have tribal implications. They would 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 case-by-case permit 
applications under section 112(j). Accordingly, Executive Order 13175 
would not apply to this action.

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

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

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

    These proposed 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 they 
are not a significant regulatory action under Executive Order 12866.

F. 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 on the private sector. Under section 202 of the UMRA, 
EPA generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``Federal 
mandates'' that may result in expenditures by State, local, and tribal 
governments, in aggregate, or by the private sector, of $100 million or 
more in any 1 year. Before promulgating an EPA rule for which a written 
statement is needed, section 205 of the UMRA generally requires EPA to 
identify and consider a reasonable number of regulatory alternatives 
and adopt the least-costly, most cost-effective, or least-burdensome 
alternative that achieves the objectives of the rule. The provisions of 
section 205 do not apply when they are inconsistent with applicable 
law. Moreover, section 205 allows EPA to adopt an alternative other 
than the least-costly, most cost-effective, or least-burdensome 
alternative if the Administrator publishes with the final rule an 
explanation why that alternative was not adopted. Before EPA 
establishes any regulatory requirements that may significantly or 
uniquely affect small governments, including tribal governments, it 
must have developed under section 203 of the UMRA a small government 
agency plan. The plan must provide for notifying potentially affected 
small governments, enabling officials of affected small governments to 
have meaningful and timely input in the development of EPA's regulatory 
proposals with significant Federal intergovernmental mandates, and 
informing, educating, and advising small governments on compliance with 
the regulatory requirements.
    The EPA has determined that these proposed 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, in any 1 year. We do not expect annual expenditures by 
State, local and tribal governments in connection with implementation 
of these amendments to exceed $100 million. In any case, any obligation 
of State or local permitting authorities to take particular actions 
under these proposed amendments is not directly enforceable by a court 
of law, and any failure by a State or local permitting authority to 
meet such an obligation would at most result in a determination that 
the permitting authority is not adequately administering its permit 
program under CAA section 502(i). Thus, it can be argued that such 
obligations are not enforceable duties within the meaning of section 
421(5)(A)(i) of UMRA, 2 U.S.C. 658(5)(A)(i). Moreover, even if such 
obligations were deemed to be enforceable duties, such duties might be 
viewed as falling within the exception for a condition of Federal 
assistance

[[Page 72887]]

under section 421(5)(A)(i)(I), 2 U.S.C. 658(5)(A)(i)(I).
    We have also determined that the proposed amendments will not 
result in expenditures by the private sector of $100 million in any 1 
year. We fully expect to promulgate the remaining MACT standards on or 
near schedule, eliminating the need for sources to prepare and submit 
section 112(j) Part 2 applications. We recognize that some sources may 
choose to begin preparing the Part 2 application, but cannot estimate 
the total expenditures this would entail, although we believe it to be 
only a small fraction of the $100 million criterion. We also expect 
relatively few resubmissions of applicability determination requests. 
In any case, all such resubmissions will be done at the source's 
discretion, and we expect the aggregate expenditure on them to be 
small.
    Based on these determinations, today's proposed amendments are not 
subject to the requirements of sections 202, 203, and 205 of the UMRA.

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

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any proposed rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impacts of today's amendments on 
small entities, small entity is defined as: (1) A small business as 
defined in each applicable subpart, as defined by the Small Business 
Administration; (2) a small governmental jurisdiction that is a 
government of a city, county, town, school district or special district 
with a population of less than 50,000; and (3) a small organization 
that is any not-for-profit enterprise which is independently owned and 
operated and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
impact on a substantial number of small entities. We have determined 
that the proposed amendments to the General Provisions would not 
themselves cause any economic impacts on small entities. Rather, any 
economic impacts on small entities would be associated with the 
incorporation of specific elements of the General Provisions in the 
individual MACT standards which are promulgated for particular source 
categories.
    We believe that adoption of the proposed amendments will not lead 
to a substantial impact on small entities through the incorporation of 
the General Provisions in individual MACT standards. For most MACT 
standards, we anticipate that any affected facilities will not be small 
entities. For those MACT standards where small entities would be 
affected, we believe any economic impact will be minimal since the only 
specific action which may be required is the submission to the 
permitting authority of an existing document which has already been 
prepared and is on file at the source.
    We also have not prepared any regulatory flexibility analysis for 
the proposed amendments to the section 112(j) rule. At this time, we do 
not expect that any Part 2 applications will have to be submitted or 
case-by-case determinations will have to be made under section 112(j) 
and thus no small businesses would be affected by such determinations.
    We continue to be interested in the potential impacts of the 
proposed rule on small entities and welcome comments on issues related 
to such impacts.

H. Paperwork Reduction Act

    As required by the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et 
seq., the OMB must clear any reporting and recordkeeping requirements 
that qualify as an information collection request (ICR) under the PRA.
    Approval of an ICR is not required in connection with the proposed 
amendments to the General Provisions rule. This is because the General 
Provisions do not themselves require any reporting and recordkeeping 
activities, and no ICR was submitted in connection with their original 
promulgation or their subsequent amendment. Any recordkeeping and 
reporting requirements are imposed only through the incorporation of 
specific elements of the General Provisions in the individual MACT 
standards which are promulgated for particular source categories. In 
any case, we believe that adoption of the proposed amendments will not 
materially alter the burden imposed on affected sources through the 
incorporation of the General Provisions in individual MACT standards. 
We anticipate that any incremental changes in the recordkeeping and 
reporting burden estimate for individual MACT standards will be 
addressed in the context of the periodic renewal process required by 
the PRA.
    Approval is also not required for the proposed amendments to the 
section 112(j) rule. We expect to promulgate all remaining MACT 
standards before the Part 2 application due dates associated with those 
standards (see Table 1 of this preamble), which would eliminate the 
need for sources to submit the Part 2 application. Approval is also not 
necessary for resubmission of applicability determination requests. We 
expect there to be few resubmissions, and all of these will be entirely 
at the sources' discretion; the rule does not require submission or 
resubmission of such requests. Thus we do not project any recordkeeping 
or reporting burden to be incurred by sources as a result of these 
amendments.
    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 review instructions; 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; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and 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.

I. National Technology Transfer and Advancement Act of 1995

    Under section 12(d) of the National Technology Transfer and 
Advancement Act (NTTAA) of 1995 (Public Law No. 104-113), all Federal 
agencies are required to use voluntary consensus standards (VCS) in 
their regulatory and procurement activities unless to do so would be 
inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, business practices) 
developed or adopted by one or more voluntary consensus bodies. The 
NTTAA requires Federal agencies to provide Congress, through annual 
reports to OMB, with

[[Page 72888]]

explanations when an agency does not use available and applicable 
voluntary consensus standards.
    These proposed amendments do not involve technical standards. 
Therefore, EPA is not considering the use of any VCS.

List of Subjects in 40 CFR Part 63

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

    Dated: December 3, 2002.
Christine Todd Whitman,
Administrator.

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

PART 63--[AMENDED]

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

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

Subpart A--[Amended]

    2. Section 63.6 is amended by:
    a. Revising paragraph (e)(1)(i);
    b. Adding 6 sentences to the beginning of paragraph (e)(3)(v); and
    c. Revising the introductory text to paragraph (e)(3)(vii).
    The revisions and additions read as follows:


Sec.  63.6  Compliance with standards and maintenance requirements.

* * * * *
    (e) * * *
    (1)(i) At all times, including periods of startup, shutdown, and 
malfunction, owners or operators 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. Determination of whether acceptable 
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.
* * * * *
    (3) * * *
    (v) The owner or operator must submit to the Administrator a copy 
of the startup, shutdown, and malfunction plan at the time it is first 
adopted. The owner or operator must also submit to the Administrator a 
copy of any subsequent revisions of the startup, shutdown, and 
malfunction plan. Such revisions must be submitted at the time they are 
adopted if the revisions are required in order to adequately address an 
event involving a type of malfunction not included in the plan, or the 
revisions alter the scope of the activities at the source which are 
deemed to be a startup, shutdown, or malfunction, or otherwise modify 
the applicability of any emission limit, work practice requirement, or 
other requirement in a standard established under this part. All other 
revisions to the startup, shutdown, and malfunction plan may be 
submitted with the semiannual report required by Sec.  63.10(d)(5). The 
owner or operator may elect to submit the required copy of the initial 
startup, shutdown, and malfunction plan, and of all subsequent 
revisions to the plan, in an electronic format. If the owner or 
operator claims that any portion of a startup, shutdown, and 
malfunction plan, or any revision of the plan, submitted to the 
Administrator is confidential business information entitled to 
protection under section 114(c) of the CAA or 40 CFR 2.301, the 
material which is claimed as confidential must be clearly designated in 
the submission. * * *
* * * * *
    (vii) Based on the results of a determination made under paragraph 
(e)(1)(i) of this section, the Administrator may require that an owner 
or operator of an affected source make changes to the startup, 
shutdown, and malfunction plan for that source. The Administrator must 
require appropriate revisions to a startup, shutdown, and malfunction 
plan, if the Administrator finds that the plan:
* * * * *
    3. Section 63.10 is amended by revising the second sentence of 
paragraph (d)(5)(i) to read as follows:


Sec.  63.10  Recordkeeping and reporting requirements.

* * * * *
    (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 
malfunction. * * *
* * * * *
[FR Doc. 02-31012 Filed 12-6-02; 8:45 am]
BILLING CODE 6560-50-P