[Federal Register Volume 68, Number 94 (Thursday, May 15, 2003)]
[Proposed Rules]
[Pages 26249-26265]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-12180]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[Docket ID No. OAR-2002-0044; FRL -7497-8]
RIN 2060-AF31


National Emission Standards for Hazardous Air Pollutants for 
Source Categories: General Provisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule; amendments.

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SUMMARY: On March 16, 1994, the EPA promulgated General Provisions for 
national emission standards for hazardous air pollutants (NESHAP) and 
other regulatory requirements that are established under section 112 of 
the Clean Air Act (CAA). On April 5, 2002, we amended the General 
Provisions to revise and clarify several of the requirements. In this 
action, we are proposing additional amendments that would provide 
regulatory relief, where appropriate, to facilities that use pollution 
prevention (P2) to achieve and maintain hazardous air pollutant (HAP) 
emissions reductions equivalent to or better than the maximum 
achievable control technology (MACT) level of control required under 
applicable NESHAP.
    We are proposing these amendments to encourage and promote 
pollution prevention, which is our strategy of first choice for 
reducing HAP emissions. EPA is also proposing additional incentives 
specifically designed for, and only available to, facilities that are 
members of the National Environmental Performance Track program 
(Performance Track). The Performance Track program recognizes and 
encourages top environmental performers; those who go beyond compliance 
with regulatory requirements to attain levels of environmental 
performance and management that provide greater benefit to people, 
communities, and the environment.

DATES: Comments. Submit comments on or before July 14, 2003.
    Public Hearing. If anyone contacts the EPA requesting to speak at a 
public hearing by June 5, 2003, a public hearing will be held on June 
12, 2003.

ADDRESSES: Comments. The official public docket is the collection of 
materials that is available for public viewing at the EPA Docket Center 
(EPA/DC), EPA West, Room B102, 1301 Constitution Ave., NW., Washington, 
DC.
    Public Hearing. If a public hearing is requested, it will be held 
at the new EPA facility complex in Research Triangle Park, NC at 10 
a.m. Persons interested in attending the hearing or wishing to present 
oral testimony should notify Dorothy Apple, Policy, Planning, and 
Standards Group (MD-C439-04), U.S. EPA, Research Triangle Park, NC 
27711, telephone (919) 541-4487 at least 2 days in advance of the 
hearing.

FOR FURTHER INFORMATION CONTACT: Steve Fruh, Policy, Planning, and 
Standards Group (MD-C439-04), Emission Standards Division, Office of 
Air Quality Planning and Standards, U.S. EPA, Research Triangle Park, 
NC 27711, telephone (919) 541-2837, electronic mail (e-mail) address, 
[email protected].

SUPPLEMENTARY INFORMATION: Regulated Entities. Categories and entities 
potentially affected by this action include all source categories 
listed pursuant to section 112(c) and (k) of the CAA:

Industry Group: Source Categories With Major and Area Sources

Fuel Combustion

Combustion Turbines
Engine Test Facilities
Industrial 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

[[Page 26250]]

Ferrous Metals Processing

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

Mineral Products Processing

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

Petroleum and Natural Gas Production and Refining

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

Liquids Distribution

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

Surface Coating Processes

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

Waste Treatment and Disposal

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

Agricultural Chemicals Production

Pesticide Active Ingredient Production

Fibers Production Processes

Acrylic Fibers/Modacrylic Fibers Production
Rayon Production
Spandex Production

Food and Agriculture Processes

Manufacturing of Nutritional Yeast
Cellulose Food Casing Manufacturing
Vegetable Oil Production

Pharmaceutical Production Processes

Pharmaceuticals Production

Polymers and Resins Production

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

Production of Inorganic Chemicals

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

Production of Organic Chemicals

Ethylene Processes
Quaternary Ammonium Compounds Production
Synthetic Organic Chemical

Miscellaneous Processes

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

[[Page 26251]]

Categories With Area Sources Only

Agriculture Chemicals & Pesticides Manufacturing
Autobody Refinishing Paint Shops
Cadmium Refining & Cadmium Oxide Production
Cyclic Crude and Intermediate Production
Hospital Sterilizers
Industrial Inorganic Chemical Manufacturing
Industrial Organic Chemical Manufacturing
Lead and Acid Battery Manufacturing
Medical Waste Incinerators
Mercury Cell Chlor-Alkali Plants
Miscellaneous Organic Chemical Manufacturing (MON)
Municipal Waste Combustors
Other Solid Waste Incinerators (Human/Animal Cremation)
Plastic Materials and Resins Manufacturing
Plating and Polishing
Pressed and Blown Glass & Glassware Manufacturing
Secondary Copper Smelting
Secondary Nonferrous Metals
Stainless and Nonstainless Steel Manufacturing Electric Arc Furnaces 
(EAF)
Stationary Internal Combustion Engines
Synthetic Rubber Manufacturing
Wood Preserving

    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 your facility is regulated by this action, 
you should examine your source category-specific section 112 
regulation. Additional information on the listing of source categories 
is available at http://www.epa.gov/ttn/atw/socatlst/socatpg.html. 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-2002-0044. The official public docket is 
the collection of materials that is available for public viewing in the 
General Provisions Docket at the EPA Docket Center (Air Docket), EPA 
West, Room B-108, 1301 Constitution Avenue, NW., Washington, DC 20004. 
The Docket Center 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 Air Docket is 
(202) 566-1742.
    Electronic Access. 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 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'' and key in the appropriate docket identification number.
    Certain types of information will not be placed in the EPA Dockets. 
Information claimed as confidential business information (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. The 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. 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 in this document.
    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.
    Comments. 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 
submitted after the close of the comment period will be marked 
``late.'' EPA is not required to consider these late comments.
    Electronically. 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. Once in the system, select 
``search'' and key in Docket ID No. OAR-2002-0044, Category VI, Part 63 
General Provisions (Subpart A) Pollution Prevention Compliance 
Alternative Amendments. 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-2002-0044, Category VI, 
Part 63 General Provisions (Subpart A) Pollution Prevention Compliance 
Alternative Amendments. 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

[[Page 26252]]

public docket and made available in EPA's electronic public docket.
    You may submit comments on a disk or CD ROM that you mail to the 
mailing address identified in this document. These electronic 
submissions will be accepted in WordPerfect or ASCII file format. Avoid 
the use of special characters and any form of encryption.
    By Mail. Send your comments (in duplicate, if possible) to: General 
Provisions Docket, Category VI, Part 63 General Provisions (Subpart A) 
Pollution Prevention Compliance Alternative Amendments, EPA Docket 
Center (Air Docket), U.S. EPA West (MD-6102T), Room B-108, 1200 
Pennsylvania Avenue, NW., Washington, DC 20460, Attention Docket ID No. 
OAR-2002-0044.
    By Hand Delivery or Courier. Deliver your comments (in duplicate, 
if possible) to: EPA Docket Center, Room B-108, U.S. EPA West, 1301 
Constitution Avenue, NW., Washington, DC 20004, Attention Docket ID No. 
OAR-2002-0044, Category VI, Part 63 General Provisions (Subpart A) 
Pollution Prevention Compliance Alternative Amendments. Such deliveries 
are only accepted during the Docket Center's normal hours of operation 
as identified in this document.
    By Facsimile. Fax your comments to: (202) 566-1741, Attention 
General Provisions Docket, Category VI, Part 63 General Provisions 
(Subpart A) Pollution Prevention Compliance Alternative Amendments, 
Docket ID No. OAR-2002-0044.
    CBI. Do not submit information that you consider to be CBI through 
EPA's electronic public docket or by e-mail. Send or deliver 
information identified as CBI only to the following address: Roberto 
Morales, OAQPS Document Control Officer (MD-C404-02), Attention Steve 
Fruh, U.S. EPA, Research Triangle Park, NC 27709, Attention Docket ID 
No. OAR-2002-0044. 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.
    Worldwide Web (WWW). In addition to being available in the docket, 
an electronic copy of this proposal will also be available on the WWW 
through the Technology Transfer Network (TTN). Following signature, a 
copy of this action will be posted on the TTN's policy and guidance 
page for newly proposed 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.
    Concurrent Rulemaking: In a proposed rule dated August 13, 2002 (67 
FR 52674), EPA solicited comments on the incentives designed for 
Performance Track member facilities. These proposed amendments contain 
additional incentives for Performance Track member facilities. Persons 
interested in doing so are encouraged to comment on the additional 
incentives as they specifically relate to the MACT incentives in the 
Performance Track proposed rule. It is EPA's intent to finalize both 
proposed rules as they relate to the NESHAP General Provisions in one 
final rulemaking. In the final rule, EPA intends to reconcile the two 
different definitions of ``pollution prevention'' and ``source at a 
Performance Track member facility'' as they appear in these proposed 
amendments and in the Performance Track proposed rule by adopting the 
definitions contained in these proposed amendments.
    Outline. The information presented in this preamble is organized as 
follows:

I. Summary of Proposed Action
II. Background
III. Proposed Amendments to the Part 63 General Provisions
    A. Definitions
    B. Option 1: Facilities that Implement Pollution Prevention to 
Eliminate HAP Emissions Subject to Regulation under a NESHAP Subpart
    C. Option 2: Facilities that Implement Pollution Prevention to 
Reduce HAP Emissions to at Least the Level of a NESHAP Subpart
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866, Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act (RFA), as Amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 
U.S.C. 601 et seq.
    D. Unfunded Mandates Reform Act of 1995
    E. Executive Order 13132, Federalism
    F. Executive Order 13175, Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045, Protection of Children from 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211, Actions Concerning Regulations that 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act

I. Summary of Proposed Action

    We are proposing to amend the NESHAP General Provisions in 40 CFR 
part 63, subpart A. The individual NESHAP (which are frequently 
referred to as MACT standards) are codified as subparts within 40 CFR 
part 63. We are proposing two options:
    [sbull] Option 1: If a facility completely eliminates all HAP 
emissions from all sources of emissions regulated by the subpart, it 
could request to no longer be subject to that subpart. This option 
would be available only where the subpart does not already require 
complete elimination of HAP emissions from any of the regulated sources 
of emissions.
    [sbull] Option 2: If a facility uses P2 to reduce HAP emissions 
either to the level required by the subpart, or below, it could request 
``P2 alternative compliance requirements.'' The alternative compliance 
requirements would include monitoring, recordkeeping, reporting, and/or 
other requirements which match the P2 measures implemented by the 
facility. Alternative emission limits could not be included. If 
approved, the alternative compliance requirements would replace 
specified requirements in the subpart. This option would be available 
for any regulated portion of the facility; it would not be necessary 
for the facility to implement P2 on every source of emissions that is 
subject to the subpart. Under this option, the facility would remain 
subject to the subpart, but some of the requirements would be changed.
    Either option would be effective only as long as the facility 
continued to use the P2 measures and to eliminate or reduce HAP 
emissions as described in the approved request. If the facility 
discontinued the P2 measures or failed to eliminate or reduce HAP 
emissions as approved, all applicable requirements of the subpart would 
again apply immediately, and the facility would be required to comply 
beginning on that date.
    We are also proposing additional incentives for sources at 
facilities that are members of the Performance Track program.

II. Background

    Consistent with the Pollution Prevention Act of 1990 (42 U.S.C. 
13101-13109), it is our policy to promote and encourage P2 in all our 
programs. We seek to reduce HAP emissions with alternative approaches 
that achieve results in innovative and sustainable ways. Preventing 
pollution at the source is our strategy of first choice. Pollution 
prevention strategies

[[Page 26253]]

allow facilities the advantage of meeting pollution reduction goals in 
ways that are most cost effective and appropriate for their individual 
situations. Furthermore, State and local air pollution agencies have 
urged us on numerous occasions to do more to encourage P2 in the MACT 
standards program. For these reasons, we are proposing revisions to the 
part 63 General Provisions which encourage the development and 
implementation of P2 measures at facilities that are already subject to 
NESHAP subparts. By working with State and local agencies in a series 
of meetings, we have developed this proposal to further this goal.
    We are also proposing provisions that would further promote 
improved environmental performance through incentives that are only 
available to facilities participating in the Performance Track program. 
For example, the Administrator will designate a central contact within 
the EPA to facilitate and expedite the review of a Performance Track 
member facility's request for pollution prevention alternatives. The 
Performance Track program was created to recognize, provide incentives, 
and reward individual facilities that go beyond compliance in their 
environmental operations and management. The Performance Track program 
is based on the following premises: Better environmental performance 
warrants different oversight; the EPA should induce facilities to 
perform beyond basic compliance; environmental accomplishments should 
be recognized and rewarded; private and public resources should be used 
efficiently to these ends; and demonstrated innovative ideas should be 
included in regulations.
    The Agency selects its Performance Track members for entry into the 
program based on certain criteria. Member facilities must:
    [sbull] Have adopted and implemented an environmental management 
system that includes specific elements;
    [sbull] Be able to demonstrate environmental achievements and 
commit to continued improvement in particular environmental categories;
    [sbull] Engage the public, and report to the public on the 
facilities' performance; and
    [sbull] Have a record of sustained compliance with environmental 
requirements.
    In addition, member facilities must commit to providing annual 
reports on the status of their efforts to achieve their commitments to 
making improvements in specific environmental categories and to 
maintaining their qualifications as program participants.
    In line with these premises and criteria, we are proposing 
provisions that would provide additional incentives only to those 
sources at facilities that are members of the Performance Track 
program.

III. Proposed Amendments to the Part 63 General Provisions

    We are proposing to amend the General Provisions for the MACT-based 
NESHAP, which are codified at 40 CFR part 63, subpart A. The General 
Provisions 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 subparts by consolidating all 
generally applicable information in one location. They include sections 
on applicability, definitions, compliance dates and requirements, 
monitoring, and recordkeeping and reporting, among others. In addition, 
they include administrative sections concerning actions that the EPA 
Administrator 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 NESHAP. The General Provisions 
apply to every facility that is subject to a NESHAP subpart, except 
where specifically overridden by that subpart.
    We are proposing to add definitions for ``pollution prevention'' 
and ``source at a Performance Track member facility'' to Sec.  63.2 of 
the General Provisions.
    The proposed amendments would also add two sections to the General 
Provisions. New Sec.  63.17 (Option 1) would provide a mechanism for a 
facility that uses P2 to eliminate completely all HAP emissions 
regulated under a NESHAP subpart to become exempt from that subpart. 
New Sec.  63.18 (Option 2) would provide a mechanism enabling a 
facility that uses P2 to reduce HAP emissions to at least the level 
required by a NESHAP subpart to replace select requirements of the 
subpart with requirements appropriate to the P2 measures.

A. Definitions

    We are proposing to add the following definitions for ``pollution 
prevention'' and ``source at a Performance Track member facility'' to 
Sec.  63.2 of the General Provisions:
    Pollution prevention means source reduction as defined under the 
Pollution Prevention Act. The definition is as follows:
    (1) Source reduction is any practice that:
    (i) Reduces the amount of any hazardous substance, pollutant, or 
contaminant entering any waste stream or otherwise released into the 
environment (including fugitive emissions) prior to recycling, 
treatment, or disposal; and
    (ii) Reduces the hazards to public health and the environment 
associated with the release of such substances, pollutants, or 
contaminants.
    (2) The term source reduction includes equipment or technology 
modifications, process or procedure modifications, reformulation or 
redesign of products, substitution of raw materials, and improvements 
in housekeeping, maintenance, training, or inventory control.
    (3) The term source reduction does not include any practice that 
alters the physical, chemical, or biological characteristics or the 
volume of a hazardous substance, pollutant, or contaminant through a 
process or activity which itself is not integral to and necessary for 
the production of a product or the providing of a service.
    This definition is taken directly from the Pollution Prevention Act 
of 1990 (42 U.S.C. 13101-13109). We are proposing to add this 
definition to clarify the types of actions that we intend to consider 
in qualifying a facility for Option 1 or 2.
    The Pollution Prevention Act establishes the following hierarchy 
for managing pollution and wastes: source reduction, recycling, 
treatment, and disposal. Because Congress' primary focus in this 
statute was source reduction, we are proposing to limit availability of 
Options 1 and 2 to facilities whose P2 measures qualify as source 
reduction.
    Source at a Performance Track member facility means a major or area 
source located at a facility which has been accepted by EPA for 
membership in the Performance Track program (as described at http://www.epa.gov/performancetrack, formerly known as the Achievement Track 
Program) and is still a member of the program. The Performance Track 
program is a voluntary public-private partnership that encourages 
continuous environmental improvement through the use of environmental 
management systems, local community outreach, and measurable results.

[[Page 26254]]

B. Option 1: Facilities That Implement Pollution Prevention To 
Eliminate HAP Emissions Subject to Regulation Under a NESHAP Subpart

    We are proposing to add Sec.  63.17 to the General Provisions to 
address facilities that were subject to a NESHAP subpart on the first 
applicable compliance date, and which subsequently have implemented P2 
measures that eliminate all HAP emissions that are regulated under that 
subpart. Under the proposed provision, such facilities could submit a 
request to the Administrator to no longer be subject to the subpart. If 
approved, the facility would no longer be subject to the subpart, as 
long as it does not resume emitting HAP from the regulated source(s) of 
emissions.
    A facility would be eligible for Option 1 if the following three 
conditions are met for a particular NESHAP subpart:
    [sbull] The facility was subject to the subpart on the first 
compliance date that applied to the facility under the subpart.
    [sbull] The facility has implemented P2 measures which ensure that 
no HAP is emitted from any source of emissions that is subject to any 
requirement under the subpart.
    [sbull] None of the emission limitations under the subpart already 
require the complete elimination of HAP emissions.
    By ``first applicable compliance date'' we mean the first date by 
which a source must comply with an emission limitation or other 
substantive regulatory requirement (i.e., emission limit, leak 
detection and repair program, work practice standard, housekeeping 
measure, etc., but not a notice requirement) in the applicable NESHAP 
subpart. For an existing major source, the first applicable compliance 
date is the compliance date defined in the subpart for such sources, 
typically 3 years after the effective date (i.e., promulgation date) of 
the subpart. (This is also true for subparts that apply to area 
sources.) For subparts that have multiple and staggered compliance 
dates for different emission limitations, this means the first such 
date. For a new source, the first applicable compliance date is either 
the date of startup or the effective date of the subpart, whichever is 
later.
    We have included this condition because this mechanism is intended 
primarily for facilities that have initially been subject to a NESHAP 
subpart and complied through conventional means, such as add-on 
emission control equipment or mandated work practices. In this way, we 
intend to encourage and reward the development and implementation of P2 
measures for such facilities.
    As a general matter, we already encourage facilities to develop and 
implement P2 measures prior to the first applicable compliance date. 
Facilities that eliminate HAP through P2 (or otherwise) prior to the 
first compliance date avoid becoming subject to major source NESHAP 
subparts. The proposed General Provisions section (Sec.  63.17) would 
extend the same benefits to facilities that implement P2 measures to 
eliminate HAP after this initial window of opportunity. This condition 
would require the facility to use P2 to reduce HAP emissions to zero 
for all the sources of emissions subject to any requirement under a 
particular NESHAP subpart. For purposes of this proposal, ``pollution 
prevention'' means ``source reduction'' as defined in the Pollution 
Prevention Act. As discussed earlier in this preamble, we are proposing 
to add this definition to Sec.  63.2 of the General Provisions.
    By ``sources of emissions'' we mean all emission units or 
processes, which includes sources of fugitive emissions as well as 
sources with identifiable points of emissions (such as stacks). 
``Subject to any requirement under the subpart'' refers to sources of 
emissions to which any type of requirement applies under the subpart. 
This includes sources of emissions to which emission limitations apply. 
``Emission limitations'' include operation and maintenance, design, 
equipment, work practice, and operational requirements, as well as 
emission limits, opacity limits, operating limits, and visible 
emissions limits. Moreover, this includes sources of emissions that are 
below a cutoff in the subpart so that an emission limitation does not 
apply, but monitoring or recordkeeping requirements apply.
    Option 1 would apply subpart by subpart. That is, a facility could 
use this mechanism to cease being subject to one NESHAP subpart, even 
if it continued to emit HAP from equipment that is subject to a 
different NESHAP subpart.
    Option 1 would be ``all or nothing.'' A facility would not be 
eligible to use this mechanism if it eliminated HAP emissions from only 
some of the sources of emissions that are regulated under the NESHAP 
subpart. For example, if a subpart includes multiple affected sources, 
a facility could not use this provision to become exempt from the 
subpart for individual affected sources. However, such facilities could 
likely use the second option to obtain reduced monitoring, 
recordkeeping, and reporting requirements for those affected sources or 
individual sources of emissions for which they have eliminated HAP 
emissions.
    Option 1 could be used only when none of the emission limitations 
in the subpart require the facility to completely eliminate HAP 
emissions. Any zero HAP limitation could only be achieved through P2. 
(Add-on controls, work practices, etc., can never achieve zero HAP 
emissions as long as HAP are used or produced.) Thus, a facility that 
implements P2 to eliminate HAP emissions from the subject source of 
emissions is simply meeting the required limitation. We do not believe 
that such a facility should be exempted from an emission limitation, 
and the associated monitoring, recordkeeping, and reporting, if the 
subpart already has a requirement to meet a zero HAP limitation.
    Furthermore, we believe that subparts that include a requirement to 
meet a zero HAP emission limitation contain associated compliance 
provisions (such as testing, monitoring, recordkeeping, and reporting) 
that are appropriate for that limitation, and that no further relief is 
warranted. However, if a facility implements P2 measures that were 
unanticipated during development of the subpart, rendering the 
subpart's compliance provisions inappropriate, the facility could use 
the second option to obtain appropriate provisions.
    It should be noted that requirements for zero visible emissions or 
zero opacity do not qualify as ``zero HAP emission limitations.'' Such 
limits can be met without completely eliminating HAP from a process. 
Thus, such limits do not preclude a source from using this option.
    Under Option 1, a facility could submit a written request to the 
Administrator to no longer be subject to the subpart at any time after 
the subpart's first applicable compliance date. As defined in Sec.  
63.2 of the General Provisions, ``Administrator'' means the EPA 
Administrator or his or her authorized representative, such as a State 
that has been delegated the authority to implement the provisions of 
part 63. For Performance Track member facilities, the Administrator 
would designate a central contact within the EPA to facilitate and 
expedite the review of such requests for a P2 exemption. Owners and 
operators of Performance Track member facilities would be encouraged to 
submit their requests to the designated Performance Track contact 
within EPA in addition to the EPA Administrator.
    The request may include any information that the facility considers 
useful in demonstrating that the subpart should no longer apply. At a 
minimum,

[[Page 26255]]

the written request would be required to include these six items:
    [sbull] A statement identifying the NESHAP subpart and the 
operations that are currently subject to the subpart, and indicating 
that the facility is applying to no longer be subject to the subpart.
    [sbull] A description of the P2 measures used to eliminate HAP 
emissions and a demonstration that the measures qualify as P2 as 
defined in Sec.  63.2.
    [sbull] A demonstration that the P2 measures have eliminated all 
HAP emissions from each and every source of emissions subject to an 
emission limitation under the subpart.
    [sbull] Documentation that the subpart does not include a limit of 
zero HAP emissions for any of the sources of emissions subject to an 
emission limitation under the subpart.
    [sbull] A certification (signed by a responsible official) that the 
facility will not resume emitting HAP without notifying the 
Administrator in writing at least 30 days prior to doing so.
    [sbull] A certification (signed by a responsible official) agreeing 
that, upon resuming HAP emissions, the relevant subpart again applies, 
and the facility must immediately comply with the requirements of the 
subpart.
    The first four items that would be required simply identify the 
NESHAP subpart and the affected equipment, indicate that the facility 
wishes to use this provision to be exempt from the subpart, and 
demonstrate that the facility meets the eligibility requirements. The 
fifth is an enforceable commitment by the facility not to resume 
emitting HAP from the affected operations without giving at least 30 
days written notice. The sixth is an enforceable acknowledgment by the 
facility that if it resumes emitting HAP from the affected operations, 
the relevant subpart applies immediately and the facility would be 
required to comply with the subpart immediately upon beginning to emit 
HAP.
    A facility that submits a request under Option 1 would remain 
subject to the NESHAP subpart in question until the Administrator 
notifies it in writing that the request to no longer be subject to the 
subpart has been approved. When the Administrator receives a request 
under Option 1, he or she would notify the facility in writing of 
approval or intent to deny approval within 45 days after receiving the 
original request. (Performance Track member facilities would be 
notified within 30 days.) However, failure by the Administrator to meet 
this deadline would not constitute approval of the request.
    If the Administrator intends to disapprove the request, he or she 
would include the following three items in the written notification:
    [sbull] Notice of the information and findings on which the 
intended disapproval is based.
    [sbull] Notice of the opportunity for the facility to present 
additional information before final action on the request.
    [sbull] A deadline for the facility to present the additional 
information.
    If the facility fails to provide additional information by the 
deadline established above, the Administrator would disapprove the 
request. If the facility provided additional information by the 
deadline, the Administrator would notify the facility of approval or 
disapproval within 45 days after receiving the information. 
(Performance Track member facilities would be notified within 30 days.) 
However, failure by the Administrator to meet this deadline would not 
constitute approval of the request.
    If the Administrator finds that the facility meets the requirements 
under Option 1, he or she would approve the facility's request to no 
longer be subject to the subpart. However, the Administrator could 
condition approval on additional compliance measures as deemed 
necessary. The Administrator would transmit written approval to the 
facility that includes the following components:
    [sbull] Identification of the subpart that no longer applies.
    [sbull] Identification of the sources of emissions to which the 
subpart would otherwise apply.
    [sbull] Any additional compliance measures deemed necessary.
    [sbull] A requirement that the facility provide written notice to 
the Administrator at least 30 days prior to beginning to emit HAP from 
the designated sources of emissions.
    [sbull] A condition that the applicable requirements of the subpart 
will again apply to the designated sources of emissions on the date 
that the facility begins to emit HAP from the sources of emissions, and 
that the facility must comply with the requirements of the subpart on 
that date. This written approval would serve as an enforceable 
agreement between the enforcing agency and the facility.
    We believe that 45 days is a reasonable period for the 
Administrator to review a request and determine whether it should be 
approved or denied. We also believe that a reduced period of 30 days is 
a reasonable period of time for the Administrator to review a request 
from a Performance Track member facility and determine whether it 
should be approved or denied, particularly with the support of a 
designated central contact within EPA to facilitate and expedite the 
Performance Track request. Performance Track member facilities would be 
accorded a shorter review period in recognition of their top 
environmental performance, because of EPA's increased familiarity with 
operations at these member facilities, and to provide an incentive to 
promote increased participation in the Performance Track program. 
However, we have proposed that a failure to meet this deadline should 
not be deemed approval because we believe that an action of this 
importance should not go into effect without affirmative approval.
    After a facility's request has been approved, the facility would be 
required to keep the commitments it agreed to during the request/
approval process. These include the commitment not to emit HAP from the 
affected sources of emissions without giving at least 30 days prior 
notice and the requirement to carry out any additional compliance 
measures upon which the approval was conditioned.
    In addition, we believe that the facility should keep records 
sufficient to show that it is meeting its commitments. Nevertheless, we 
have not proposed that the facility must accept specified monitoring, 
recordkeeping, and reporting requirements for this purpose. We believe 
that the situation after an approval is analogous to that of any other 
facility in a source category for which a NESHAP subpart is 
promulgated. These facilities would be required to determine whether 
they are subject to the subpart, and, if not, they would be required to 
produce documentation to satisfy the Administrator that they are not 
subject when asked to do so. If a facility incorrectly asserted that it 
was not subject to the subpart, it would be subject to an enforcement 
action for failing to meet the requirements of the subpart.
    This being said, we also acknowledge that all facilities are 
unique. We are proposing that the Administrator may condition approval 
on additional compliance measures, and these may include monitoring, 
recordkeeping, and/or reporting as warranted by individual 
circumstances. However, we do not think the level required for 
demonstrating continuous compliance under a NESHAP subpart is likely to 
be appropriate here.
    If a facility resumes HAP emissions from the affected operations, 
the NESHAP subpart would apply to the

[[Page 26256]]

facility immediately, and the facility would be required to comply with 
the subpart immediately upon emitting HAP. This would be a condition of 
approval, and the facility must agree to it during the request/approval 
process. If the facility fails to give 30 days notice of its intent to 
emit HAP from the affected operations and/or fails to comply with the 
subpart upon emitting HAP, it could be subject to an enforcement 
action.
    If the facility has no reason to be subject to CAA title V 
permitting requirements after approval of a request under Option 1, it 
could apply to its permitting authority to rescind the permit. This 
would be the case if the only reason that a facility was required to 
have a title V permit was the fact that it was subject to the NESHAP 
subpart that no longer applies after the approval.
    If the facility continued to be subject to title V for other 
reasons, such as major status for HAP or other pollutants, the 
``applicable requirements'' that come out of the request/approval 
process would be added to the title V permit. These would include the 
requirement not to emit HAP from the affected operations without 30 
days notice; the stipulation that the NESHAP subpart applies, and that 
the facility must comply immediately upon emitting HAP; and any 
additional compliance measures imposed as a condition of approval. 
Similarly, the requirements of the subpart itself would be removed from 
the title V permit.
    From the perspective of part 63, the facility would no longer be 
subject to the subpart upon receiving written approval of its request 
from the Administrator. We believe that the facility should generally 
be able to implement the approved change in status immediately, with 
any process needed to revise the title V permit taking place 
afterwards.

C. Option 2: Facilities That Implement Pollution Prevention To Reduce 
HAP Emissions To at Least the Level of a NESHAP Subpart

    We are proposing to add Sec.  63.18 to the General Provisions to 
address facilities that are subject to a NESHAP subpart on the first 
applicable compliance date, and have subsequently implemented P2 
measures to achieve and maintain HAP emissions reductions equivalent to 
or better than the MACT level of control for some or all of the 
regulated sources of emissions. Under the proposed Option 2, such 
facilities could submit a request to the Administrator for P2 
alternative compliance requirements.
    If the request is approved, the alternative compliance requirements 
would replace requirements specified in the subpart. The P2 alternative 
compliance requirements would remain in force as long as the facility 
continues to use the P2 measures and maintains the HAP emissions 
reductions described in the approved request.
    A facility would be eligible for Option 2 if the following two 
conditions are met for a particular NESHAP subpart:
    [sbull] The facility was subject to the subpart on the first 
compliance date that applied to the facility under the subpart.
    [sbull] The facility has implemented P2 measures to reduce HAP 
emissions to at least the level required under the subpart for one or 
more of the regulated sources of emissions, and continues to maintain 
those reductions.
    The first condition is the same as presented above in Option 1 for 
facilities that eliminate regulated HAP emissions entirely. The second 
condition would require the facility to use P2 to reduce HAP emissions, 
to at least the level of the subpart requirements, for at least one 
source of emissions that is subject to an emission limitation under the 
subpart. Option 2 differs from Option 1 in that this condition would 
not require the facility either to completely eliminate HAP emissions 
or to apply P2 across all the sources of emissions regulated under the 
subpart. Instead, the facility could apply for P2 alternative 
compliance requirements for any regulated sources of emissions on which 
it has implemented P2 and achieved or exceeded the HAP emissions 
reductions required under the subpart.
    A facility could submit a written request to the Administrator for 
P2 alternative compliance requirements at any time after the subpart's 
first applicable compliance date. As defined in Sec.  63.2 of the 
General Provisions, ``Administrator'' means the EPA Administrator or 
his or her authorized representative, such as a State that has been 
delegated the authority to implement the provisions of part 63. For 
Performance Track member facilities, the Administrator would designate 
a central contact within the EPA to facilitate and expedite the review 
of such requests for P2 alternative requirements. Owners and operators 
of Performance Track member facilities would be encouraged to submit 
their requests to the designated Performance Track contact within EPA 
in addition to the EPA Administrator.
    The request may include any information that the facility considers 
useful to demonstrate that alternative compliance requirements are 
justified. At a minimum, the proposed rule would require that the 
written request include these nine items:
    [sbull] A statement identifying the NESHAP subpart and the 
operations that are subject to the subpart, and indicating that the 
facility is applying for P2 alternative compliance requirements.
    [sbull] A description of each source of emissions for which the 
facility is requesting P2 alternative compliance requirements.
    [sbull] A description of the P2 measures used to reduce HAP 
emissions, and a demonstration that the measures qualify as P2 as 
defined in Sec.  63.2. (This definition is proposed to be added as part 
of this rulemaking; see section III.A of this document.)
    [sbull] A demonstration that the P2 measures have reduced HAP 
emissions from each source of emissions for which alternative 
compliance requirements are being requested to at least the level that 
is required by the subpart.
    [sbull] Proposed specific P2 alternative compliance requirements 
for the designated sources of emissions which ensure that the 
commitment both to continue using the P2 measures and to maintain the 
described HAP emissions reductions is enforceable as a practical 
matter, along with a demonstration that the proposed alternative 
requirements will effectively assure continuous compliance with the 
commitment.
    [sbull] A citation of each applicable requirement in the subpart 
and General Provisions that the facility proposes to replace with the 
P2 alternative compliance requirements, accompanied by an explanation 
of how the proposed alternative requirements satisfy the intent of the 
replaced requirements and/or why the replaced requirements are not 
necessary.
    [sbull] A certification (signed by a responsible official) that the 
facility will not discontinue the P2 measures or fail to maintain the 
HAP emissions reductions described in the request without notifying the 
Administrator in writing at least 30 days prior to doing so.
    [sbull] A certification (signed by a responsible official) agreeing 
that, upon discontinuing the P2 measures and/or failing to maintain the 
HAP emissions reductions described in the request, the subpart again 
applies and the facility must comply immediately with all of the 
requirements of the subpart.
    [sbull] A certification (signed by a responsible official) that the 
facility is subject to all applicable requirements of the subpart not 
proposed to be replaced by P2 alternative compliance requirements.

[[Page 26257]]

    The first four required items would simply identify the NESHAP 
subpart and the affected equipment, indicate that the facility wishes 
to use this provision to obtain P2 alternative compliance requirements, 
and demonstrate that the facility meets the eligibility requirements. 
For the fifth and sixth items, the facility would propose and justify 
the alternative compliance requirements and identify the requirements 
in the subpart that the alternative requirements would replace. The 
seventh and eighth items certify that the facility acknowledges it 
would be required to continue the approved alternative P2 measures, and 
understands the consequences for failing to do so. The ninth item 
certifies that the facility will continue to comply with those portions 
of the subpart that were not replaced by approved alternative P2 
measures.
    Under Option 2, approved P2 alternative compliance requirements 
would actually replace the compliance requirements in the NESHAP 
subpart and become the facility's applicable requirements under part 63 
for the subpart. However, unlike Option 1, the facility would remain 
subject to the subpart. Thus, the facility would be required to 
continue to meet all requirements of the subpart for any regulated 
sources of emissions not included in the request, and it would remain 
subject to title V permitting requirements.
    To provide certainty to both the facility and the enforcement 
agency as to exactly what requirements apply to each regulated source 
of emissions, the proposed rule would require that the facility's 
request clearly tie the proposed P2 alternative compliance requirements 
to the designated sources of emissions. Where appropriate, the facility 
could propose different alternative requirements for different sources 
of emissions, as long as applicability is clear. In addition, the 
facility would be required to specify exactly which requirements of the 
subpart and General Provisions would be replaced by the proposed P2 
alternative compliance requirements, and for which sources of 
emissions.
    For its P2 alternative compliance requirements, the facility would 
be required to propose measures that assure compliance with its 
commitments both to continue using the P2 measures and to maintain the 
HAP emissions reductions described in the request. Because the facility 
would remain subject to the subpart, the alternative requirements would 
be sufficient to demonstrate continuous compliance.
    To demonstrate and assure continuous compliance, we expect that the 
P2 alternative compliance requirements will include monitoring, 
recordkeeping, and reporting requirements. In this context, we mean 
``monitoring'' in a broad sense, which could involve simply tracking 
the purchases and composition of the materials used in the operations 
covered by the alternative requirements. Depending on the situation, 
appropriate monitoring may involve more rigorous measures, up to and 
including continuous instrumental monitoring of process or control 
device operating parameters or of the exhaust stream. In general, the 
monitoring program should gather relevant data with sufficient 
frequency and accuracy to form a conclusive basis for assessing whether 
the facility maintained continuous compliance with its commitments for 
P2 and HAP emissions reductions. The monitoring program should include 
appropriate quality assurance and quality control procedures to ensure 
the continued reliability of monitoring data.
    Similarly, the facility would be required to propose recordkeeping 
requirements sufficient to document conclusively whether the facility 
maintained continuous compliance. One existing recordkeeping 
requirement in the General Provisions that we believe generally should 
not be replaced by alternative requirements is Sec.  63.10(b)(1), which 
governs availability and retention of records. The facility's proposed 
reporting requirements would include periodic reporting to disclose 
periods of noncompliance or to confirm continuous compliance, as 
applicable, for each reporting period. Reports also should address the 
performance of the facility's monitoring program. We expect that 
alternative reporting requirements typically will conform to the 
schedule of the existing requirements for the sources of emissions not 
covered by the P2 alternative compliance requirements, and that the 
facility would submit combined reports for all of the sources of 
emissions subject to the subpart.
    The facility should not overlook startup, shutdown, and malfunction 
(SSM) requirements in its request for P2 alternative compliance 
requirements. It may need to revise its SSM plan, and may want to 
propose alternative SSM recordkeeping or reporting requirements to 
match its P2 measures.
    The mechanics of the review process under Option 2 would be 
identical to the process under Option 1. A facility that submits a 
request under Option 2 would remain subject to all the applicable 
requirements of the NESHAP subpart in question until the Administrator 
notifies it in writing that the request for P2 alternative compliance 
requirements has been approved. When the Administrator receives a 
request under Option 2, he or she would notify the facility in writing 
of approval or intent to deny approval within 45 days after receiving 
the original request. (Performance Track member facilities would be 
notified within 30 days.) However, failure by the Administrator to meet 
this deadline would not constitute approval of the request.
    If the Administrator intends to disapprove the request, he or she 
would include the following three items in the written notification:
    [sbull] Notice of the information and findings on which the 
intended disapproval is based.
    [sbull] Notice of the opportunity for the facility to present 
additional information before final action on the request.
    [sbull] A deadline for the facility to present the additional 
information.
    If the facility failed to provide additional information by the 
deadline established above, the Administrator would deny the request. 
If the facility provided additional information by the deadline, the 
Administrator would notify the facility of approval or disapproval 
within 45 days after receiving the information. (Performance Track 
member facilities would be notified within 30 days.) However, failure 
by the Administrator to meet this deadline would not constitute 
approval of the request.
    If the Administrator found that the facility meets the requirements 
under Option 2, he or she would approve the facility's request for P2 
alternative compliance requirements. However, the Administrator could 
condition approval on additional compliance measures as deemed 
necessary. The Administrator would transmit written approval to the 
facility that would include the following components:
    [sbull] Identification of the specific regulated sources of 
emissions covered by the approval.
    [sbull] The P2 alternative compliance requirements that apply, 
including any additional compliance measures deemed necessary. (If 
necessary, the alternative requirements that apply to different sources 
of emissions would be clearly specified.)
    [sbull] The applicable requirements of the subpart that no longer 
apply to the designated sources of emissions. (Again, requirements 
would be differentiated by source of emissions, if necessary.)

[[Page 26258]]

    [sbull] A requirement that the facility provide written notice to 
the Administrator at least 30 days prior to discontinuing the P2 
measures and/or failing to maintain the HAP reductions described in the 
request.
    [sbull] A condition that the applicable requirements of the subpart 
will again apply to the designated source(s) of emissions on the date 
that the facility discontinues the P2 measures and/or fails to maintain 
the HAP reductions described in the request, and that the facility must 
comply on that date. This written approval would serve as an 
enforceable agreement between the enforcing agency and the facility.
    As noted previously, we believe that 45 days is a reasonable period 
for the Administrator to review a request and determine whether it 
should be approved or denied. We also believe that a reduced period of 
30 days is a reasonable period of time for the Administrator to review 
a request from a Performance Track member facility and determine 
whether it should be approved or denied, particularly with the support 
of a designated central contact within EPA to facilitate and expedite 
the Performance Track request. Performance Track member facilities 
would be accorded a shorter review period in recognition of their top 
environmental performance, because of EPA's increased familiarity with 
operations at these member facilities, and to provide an incentive to 
promote increased participation in the Performance Track program. 
However, we are proposing that a failure to meet this deadline should 
not be deemed approval because an action of this importance should not 
go into effect without affirmative approval.
    In implementing Option 2, the Administrator will remain cognizant 
of the fact that the purpose of these provisions is to provide an 
incentive for facilities to develop and implement P2 measures. At the 
same time, the reviewing agency must ensure that HAP emissions will be 
reduced to at least the level of MACT, and that the P2 alternative 
compliance requirements will assure compliance with the facility's 
commitments in a practically enforceable way. Option 2 is not intended 
to be a mechanism for obtaining an exemption from necessary compliance 
requirements.
    As a first step, a facility would submit a clear and complete 
request for P2 alternative compliance requirements. At a minimum, the 
request would include the nine components previously listed. The 
facility would be free to submit any additional information that it 
believes will help justify the alternative requirements.
    The facility and the reviewing agency must have a common 
understanding of the sources of emissions designated for P2 alternative 
compliance requirements, the proposed alternative requirements (i.e., 
the actions that the facility would be required to carry out), and the 
provisions of the NESHAP subpart and General Provisions that would no 
longer apply. In addition, three unambiguous certifications, signed by 
a responsible official of the facility (as defined in Sec.  63.2 of the 
General Provisions) would be included in the request. The reviewing 
agency would not grant a request until these aspects are clearly and 
completely specified in writing.
    A key component of the request would be a clear and comprehensive 
description of the P2 measures that the facility has implemented and a 
demonstration that these measures meet the definition of ``pollution 
prevention'' in the proposed amendments. As detailed earlier (in 
Section III A.), ``pollution prevention'' means ``source reduction'' as 
defined in the Pollution Prevention Act.
    Another key component of the request would be a demonstration that 
the P2 measures have achieved, and will maintain, HAP emissions 
reductions equivalent to or better than the MACT level of control. 
Because of the uniqueness of each situation, the facility should 
describe operations before and after implementation of the P2 measures 
so as to demonstrate that the P2 measures obtain equivalent (or better) 
results. Facilities have detailed knowledge of their operations and, as 
such, are in the best position to determine how to make this 
demonstration.
    We will encourage State, local, and tribal agencies that receive 
requests for P2 alternative compliance requirements to collaborate with 
the EPA Regional Offices and Headquarters in reviewing these requests. 
In this manner, we expect to build a common awareness of the issues 
that arise as a basis for forging a common approach to review and 
approval.
    We invite comment on this approach to demonstrating that P2 
measures reduce HAP emissions to at least the level required by the 
NESHAP subpart. Commenters who believe that we should provide more 
specific criteria or guidance on this demonstration should provide 
specific suggestions on appropriate criteria/guidance.
    In addition to proposing clear P2 alternative compliance 
requirements, the proposed rule would require that the request include 
a commitment from the facility to continue using the P2 measures and to 
maintain the described HAP emissions reductions. To be approved, the 
alternative requirements must be adequate to demonstrate and document 
continuous compliance.
    For example, if a process has been modified to make it inherently 
less polluting and incapable of emitting HAP at or near the level of 
the MACT emission limit, the alternative compliance requirements might 
consist of documenting and periodically certifying that the process 
continues to be operated as described in the request. If the P2 
measures consist of switching raw materials to reduce HAP emissions, 
tracking raw material purchases and HAP content may be adequate to 
demonstrate continuous compliance.
    The margin of compliance achieved through the P2 measures can be an 
important consideration in developing proposed alternative 
requirements. When HAP emissions are at or near the emission limit, 
greater accuracy would typically be desired than when emissions are 
well below allowable levels and the likelihood of exceeding the limit 
is low. Many existing regulations and policies are based on this 
principle. For example, the General Provisions already provide a 
mechanism whereby a facility with a continuous emission monitoring 
system may apply for a less-rigorous alternative to the relative 
accuracy test when its emission rate is less than 50 percent of the 
applicable emission limit. (See Sec.  63.8(f)(6).)
    Many subparts include emission limits and/or compliance options 
based on P2. For such subparts, we do not believe that simply meeting 
these limits automatically entitles a facility to P2 alternative 
compliance requirements, since the requirements are based on the use of 
P2. In general, we believe that the existing requirements are 
appropriate in such cases; however, there may be situations where an 
alternative requirement is equally appropriate. For example, the 
reviewing agency may wish to consider approving alternative compliance 
requirements where a facility's P2 measures have reduced HAP emissions 
to well below the emission limit (i.e., where the margin of compliance 
is large). The margin of compliance is relevant because we have 
typically developed compliance requirements based on what is needed to 
assure continuous compliance when a facility operates at or near the 
emission limit. In addition, a facility that has introduced P2 measures 
that were not considered during development of the applicable subpart's 
compliance requirements is a prime

[[Page 26259]]

candidate for P2 alternative compliance requirements.
    After a facility's request has been approved under Option 2, the 
facility would keep the commitments it agreed to during the request/
approval process. This includes the commitment to neither discontinue 
the P2 measures, nor fail to maintain the HAP emissions reductions 
described in the request without giving at least 30 days prior notice. 
It also includes the commitment to comply with the NESHAP subpart for 
all sources of emissions not designated in the request and approval, 
and the commitment to carry out the approved P2 alternative compliance 
requirements (including any added by the Administrator as a condition 
of approval).
    After approval, the P2 alternative compliance requirements would 
replace the identified portions of the NESHAP subpart and General 
Provisions for the designated sources of emissions. They would become 
the enforceable requirements for the facility under 40 CFR part 63 for 
the subpart.
    Note that the facility would be required to maintain the HAP 
emissions reductions described in its request and approved by the 
Administrator, even if this requirement is more stringent than the 
subpart's emission limit. This would be a condition of approval, and 
the facility would be required to agree to it during the request/
approval process. Because the facility's margin of compliance with the 
MACT emission limits may have been an important consideration in 
development and approval of its P2 alternative compliance requirements, 
it is important that the compliance margin be maintained. Alternative 
compliance requirements approved based on a large margin of compliance 
may not be adequate to demonstrate continuous compliance during times 
when the facility operates closer to the emission limit in the subpart. 
Thus, facilities should be aware that they will be held to the HAP 
reductions described in their requests. If necessary, they may want to 
build in some flexibility by claiming less HAP reductions than they are 
able to obtain with the P2 measures under optimum current operating 
conditions.
    If a facility discontinued the P2 measures and/or failed to 
maintain the HAP emissions reductions described in the approved request 
without giving at least 30 days prior notice, it may be subject to an 
enforcement action for violating the commitments it agreed to as a 
condition of approval. In addition, all portions of the NESHAP subpart 
would apply to the facility immediately, and the facility would be 
required to comply with the subpart immediately upon discontinuing the 
P2 measures and/or failing to maintain the HAP reductions described in 
the approved request, whether or not the facility gave the required 
prior notice. The facility may be subject to an enforcement action if 
it does not comply with all portions of the NESHAP subpart immediately.
    A facility operating under approved P2 alternative compliance 
requirements could submit a request, at any time, to modify the 
alternative requirements. The request may involve changes to any 
combination of the approved P2 measures, levels of HAP reductions, and 
alternative compliance requirements.
    A request for a modification would include, at a minimum, the same 
information required for an initial request for P2 alternative 
compliance requirements. The facility may include any additional 
information that it believes will help demonstrate that modifications 
are justified.
    The Administrator would review the request and approve or 
disapprove it according to the procedures for an initial request. The 
facility would remain subject to the existing P2 alternative compliance 
requirements and all associated commitments until it received written 
approval of the requested modifications.
    A facility that receives approval of P2 alternative compliance 
requirements would remain subject to the NESHAP subpart. As a result, 
the facility also would remain subject to title V permitting 
requirements.
    The ``applicable requirements'' that come out of the request/
approval process would be added to the title V permit. These would 
include the following:
    [sbull] The approved P2 alternative compliance requirements 
(including any requirements added by the Administrator as a condition 
of approval), with associated sources of emissions.
    [sbull] Citations for the subpart and General Provisions 
requirements that have been replaced by the P2 alternative compliance 
requirements, with associated sources of emissions.
    [sbull] A requirement to give at least 30 days notice prior to 
discontinuing the P2 measures and/or failing to maintain the HAP 
emissions reductions described in the request.
    [sbull] A stipulation that all portions of the subpart apply, and 
the facility must comply immediately upon discontinuing the P2 measures 
and/or failing to maintain the HAP emissions reductions described in 
the request.
    Similarly, any requirements in the subpart which no longer apply to 
the facility would be removed from the title V permit. From the 
perspective of 40 CFR part 63, the facility would be subject to the P2 
alternative compliance requirements (and not to the replaced NESHAP 
subpart and General Provisions requirements) upon receiving written 
approval of its request from the Administrator. As noted previously, we 
believe that the facility should generally be able to implement the 
approved change in status immediately, with the needed title V permit 
revisions taking place afterwards.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the EPA 
must determine whether the regulatory action is ``significant'' and 
therefore subject to review by the Office of Management and Budget 
(OMB) and the requirements of the Executive Order. The Executive Order 
defines a ``significant regulatory action'' as one that is likely to 
result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    It has been determined that these proposed amendments are not a 
``significant regulatory action'' under the terms of Executive Order 
12866 and are therefore not subject to OMB review.

B. Paperwork Reduction Act

    The information collection requirements in the proposed amendments 
have been submitted for approval to OMB under the Paperwork Reduction 
Act, 44 U.S.C. 3501 et seq. An information collection request (ICR) 
document has been prepared by EPA (ICR No. 2099.01), and a copy may be 
obtained from Susan Auby by mail at U.S. EPA, Office of Environmental 
Information, Collection Strategies Division (2822T), 1200 Pennsylvania 
Avenue, Washington, DC 20460, by e-

[[Page 26260]]

mail at [email protected], or by calling (202) 566-1672. A copy may 
also be downloaded off the Internet at http://www.epa.gov/icr. The 
information requirements are not effective until OMB approves them.
    The information requirements are based on notification, 
recordkeeping, and reporting requirements in the NESHAP General 
Provisions (40 CFR part 63, subpart A), which are mandatory for all 
operators subject to NESHAP. These recordkeeping and reporting 
requirements are specifically authorized by section 114 of the CAA (42 
U.S.C. 7414). All information submitted to EPA pursuant to the 
recordkeeping and reporting requirements for which a claim of 
confidentiality is made is safeguarded according to Agency policies in 
40 CFR part 2, subpart B.
    The proposed amendments would require that owners or operators who 
wish to apply for P2 compliance alternatives to submit a written 
request that provides all information needed to document the P2 
measures that have been implemented and the alternative compliance 
provisions that are requested. Upon approval of the request, the owner 
or operator would be required to implement any alternative monitoring, 
reporting, and recordkeeping requirements associated with the P2 
compliance alternative. Participation in the program of P2 compliance 
alternatives is voluntary. Only facilities that qualify for a reduced 
burden associated with monitoring, reporting, and recordkeeping are 
expected to participate.
    The annual public reporting and recordkeeping burden for this 
collection of information (averaged over the first 3 years after the 
effective date of the final rule) is estimated to reduce the burden 
associated with existing MACT standards by 82,160 labor hours per year 
at a total annual cost reduction of $4.7 million. The average burden 
reduction per facility is 137 hours per year. This estimate includes 
savings for facilities that completely eliminate all HAP emissions and 
qualify for an exemption from the applicable standards. The estimate 
also includes savings from reduced monitoring, reporting, and 
recordkeeping for facilities that implement P2 measures for specific 
emission points that reduce HAP emissions to, or below, the level 
required by the applicable standards. There are no capital or startup 
costs associated with the proposed amendments.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, 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 number for EPA's 
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
    Comments are requested on EPA's need for this information, the 
accuracy of the provided burden estimates, and any suggested methods 
for minimizing respondent burden, including through the use of 
automated collection techniques. Send comments on the ICR to the 
Director, Collection Strategies Division (2822), U.S. EPA (2136), 1200 
Pennsylvania Avenue, NW., Washington, DC 20460; and to the Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
725 17th Street, NW., Washington, DC 20503, marked ``Attention: Desk 
Officer for EPA.'' Include the ICR number in any correspondence. 
Because OMB is required to make a decision concerning the ICR between 
30 and 60 days after May 15, 2003, a comment to OMB is best assured of 
having its full effect if OMB receives it by June 16, 2003. The final 
rule will respond to any OMB or public comments on the information 
collection requirements contained in the proposed amendments.

C. 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 not-for-profit 
enterprises, and small governmental jurisdictions.
    For purposes of assessing the impacts of the proposed amendments on 
small entities, small entity is defined as: (1) A small business as 
defined in each applicable subpart; (2) a government 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 that is not dominant in its field.
    After considering the economic impacts of the proposed amendments 
on small entities, I certify that this action will not have a 
significant economic impact on a substantial number of small entities. 
In determining whether a rule has significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analysis is to identify 
and address regulatory alternatives which minimize any significant 
economic impact on a substantial number of small entities (5 U.S.C. 
603-604). Thus, an agency may certify that a rule will not have a 
significant economic impact on a substantial number of small entities 
if the rule relieves regulatory burden, or otherwise has a positive 
economic effect on all of the small entities subject to the rule.
    Small entities that are subject to MACT standards would not be 
required to take any action under this proposal; P2 alternative 
compliance requirements are strictly voluntary. In addition, we expect 
that any sources implementing P2 compliance alternatives will 
experience cost savings that will outweigh the cost of requesting the 
alternative requirements.
    The only mandatory cost that would be incurred by air pollution 
control agencies would be the cost of reviewing sources' requests for 
P2 compliance alternatives. No small governmental jurisdictions operate 
their own air pollution control agencies, so none would be required to 
incur costs under the proposal. In addition, any costs associated with 
these reviews are expected to be offset by reduced agency oversight 
obligations for sources with approved P2 alternative compliance 
requirements.
    Based on the considerations above, we have concluded that the 
proposed amendments will relieve regulatory burden for all affected 
small entities. Nevertheless, we continue to be interested in the 
potential impacts of the proposed amendments on small entities

[[Page 26261]]

and welcome comments on issues related to such impacts.

D. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures 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 regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    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, or the 
private sector in any 1 year. Sources subject to MACT standards would 
not be required to take any action under this proposal, including 
sources owned or operated by State, local, or tribal governments; P2 
alternative compliance requirements are strictly voluntary. In 
addition, P2 compliance alternatives are expected to result in reduced 
burden on any source that obtains approval of such alternative 
requirements. Under the proposed amendments, a State, local, or tribal 
air pollution control agency to which we have delegated section 112 
authority would be required to review any requests for P2 compliance 
alternatives submitted by sources in its jurisdiction. However, such 
requests are not expected to be plentiful and will not approach the 
$100 million annual threshold. In addition, any costs associated with 
these reviews are expected to be offset by reduced agency oversight 
obligations for sources with approved P2 alternative compliance 
requirements. Thus, the proposed amendments are not subject to the 
requirements of sections 202 and 205 of UMRA. EPA has determined that 
the proposed amendments contain no regulatory requirements that might 
significantly or uniquely affect small governments because they contain 
no requirements that apply to such governments or impose obligations 
upon them. Thus, the proposed amendments are not subject to the 
requirements of section 203 of the UMRA.

E. 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 the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    These proposed amendments do not have federalism implications. They 
will not have substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132. Although the 
proposed amendments would require State air pollution control agencies 
which have voluntarily taken delegation of the part 63 program to 
conduct case-by-case reviews where sources elect to apply for P2 
alternative compliance requirements, the burden on States will not be 
substantial. In addition, we expect that the overall effect of the 
proposed amendments will be to reduce the burden on State agencies as 
their oversight obligations become less demanding for sources with 
approved P2 alternative compliance requirements. Thus, Executive Order 
13132 does not apply to these proposed amendments. Although section 6 
of Executive Order 13132 does not apply to the proposed amendments, we 
consulted extensively with State and local air pollution control 
officials during the development of this proposal.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on these proposed 
amendments from State and local officials.

F. Executive Order 13175, Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (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.''
    These proposed amendments do not have tribal implications, as 
specified in Executive Order 13175. They will not have substantial 
direct effects on tribal governments, 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. 
Any tribal government that owns or operates a source subject to MACT 
standards would not be required to take any action under this proposal; 
P2 alternative compliance requirements are strictly voluntary. In 
addition, P2 compliance alternatives are expected to result in reduced 
burden on any source that obtains such alternative requirements. Under 
the proposed amendments, a tribal government with an air pollution 
control agency to which we have delegated section 112 authority would 
be required to review any requests for P2 compliance alternatives 
submitted by sources in its jurisdiction. However, such requests are 
not expected to be plentiful, so the effects will not be substantial. 
In addition, any costs associated with these reviews are expected to be 
offset by reduced agency oversight obligations for sources with 
approved P2 alternative compliance requirements. Thus, Executive Order 
13175 does not apply to these proposed amendments.
    However, in the spirit of Executive Order 13175, and consistent 
with EPA policy to promote communications between EPA and Indian 
tribes, EPA

[[Page 26262]]

specifically solicits comment on the proposed amendments from tribal 
officials.

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

    Executive Order 13045, entitled ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997) applies to any rule that: (1) Is determined to be ``economically 
significant'' as defined under Executive Order 12866, and (2) concerns 
an environmental health or safety risk that EPA has reason to believe 
may have a disproportionate effect on children. If the regulatory 
action meets both criteria, the Agency must evaluate the environmental 
health or safety effects of the planned rule on children, and explain 
why the planned regulation is preferable to other potentially effective 
and reasonably feasible alternatives considered by the Agency.
    EPA interprets Executive Order 13045 as applying only to 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 proposed amendments are 
not subject to Executive Order 13045 because all MACT standards 
governed by the General Provisions are based on technology performance 
and not on health or safety risks. Furthermore, the proposed amendments 
have been determined not to be ``economically significant'' as defined 
under Executive Order 12866.

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

    The 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.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act (NTTAA) of 1995, Public Law 104-113,12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
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) that are developed or adopted by 
voluntary consensus standards bodies. The NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    These proposed amendments do not involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards. EPA welcomes comments on this aspect of the proposed 
amendments, specifically, invites the public to identify potentially-
applicable voluntary consensus standards and to explain why such 
standards should be used in the proposed amendments.

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: May 8, 2003.
Christine Todd Whitman,
Administrator.
    For the reasons cited in the preamble, part 63, 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 63.2 is amended by adding, in alphabetical order, 
definitions for the terms Pollution prevention and Source at a 
Performance Track member facility to read as follows:


Sec.  63.2  Definitions.

* * * * *
    Pollution prevention means source reduction as defined under the 
Pollution Prevention Act (42 U.S.C. 13101-13109). The definition is as 
follows:
    (1) Source reduction is any practice that:
    (i) Reduces the amount of any hazardous substance, pollutant, or 
contaminant entering any waste stream or otherwise released into the 
environment (including fugitive emissions) prior to recycling, 
treatment, or disposal; and
    (ii) Reduces the hazards to public health and the environment 
associated with the release of such substances, pollutants, or 
contaminants.
    (2) The term source reduction includes equipment or technology 
modifications, process or procedure modifications, reformulation or 
redesign of products, substitution of raw materials, and improvements 
in housekeeping, maintenance, training, or inventory control.
    (3) The term source reduction does not include any practice that 
alters the physical, chemical, or biological characteristics or the 
volume of a hazardous substance, pollutant, or contaminant through a 
process or activity which itself is not integral to and necessary for 
the production of a product or the providing of a service.
* * * * *
    Source at a Performance Track member facility means a major or area 
source located at a facility which has been accepted by EPA for 
membership in the National Environmental Performance Track program (as 
described at http://www.epa.gov/performancetrack, formerly known as the 
Achievement Track Program) and is still a member of the program. The 
Performance Track program is a voluntary public-private partnership 
that encourages continuous environmental improvement through the use of 
environmental management systems, local community outreach, and 
measurable results.
* * * * *
    3. Section 63.17 is added to read as follows:


Sec.  63.17  Pollution prevention exemption.

    Consistent with EPA's commitment to promote and encourage pollution 
prevention, this section provides a mechanism for a major or area 
source to cease being subject to a particular subpart of this part if 
the owner or operator has implemented pollution prevention measures 
that eliminate all hazardous air pollutant emissions from all sources 
of emissions subject to regulation under that subpart after the initial 
compliance date specified in that subpart.
    (a) Applicability of pollution prevention exemption. The owner or 
operator of a major or area source subject to a subpart in this part 
that meets the requirements in paragraphs (a)(1) through (3) of this 
section may submit a written request to the Administrator that the 
major or area source no longer be subject to the subpart.
    (1) The major or area source was subject to the subpart on the 
first applicable compliance date specified in the subpart.
    (2) The owner or operator has implemented pollution prevention

[[Page 26263]]

measures (as defined in Sec.  63.2) such that no hazardous air 
pollutant is emitted from any source of emissions to which any 
requirement under the subpart applies.
    (3) Each emission limitation under the subpart is greater than 
zero.
    (b) General requirements for pollution prevention exemption. (1) 
Until the owner or operator receives written notification that the 
Administrator has approved a pollution prevention exemption according 
to this section, the major or area source is subject to all applicable 
requirements in the subpart.
    (2) Upon receipt by the owner or operator of the written 
notification of approval from the Administrator, the major or area 
source is no longer subject to the subpart.
    (3) The approved exemption applies only as long as no hazardous air 
pollutant is emitted from any source of emissions to which any 
requirement under the subpart applies. The owner or operator must 
notify the Administrator at least 30 days prior to emitting a hazardous 
air pollutant. If any hazardous air pollutant is emitted from any such 
source of emissions, the major or area source is subject to the 
subpart, and the owner or operator must comply with the subpart as of 
that date.
    (4) If the applicability of the subpart is the only reason that the 
major or area source is subject to requirements under 40 CFR part 70 or 
71 (i.e., the title V operating permits program), after receiving the 
written notification that the source is no longer subject to the 
subpart, the owner or operator may apply to the permitting authority to 
no longer be subject to the title V operating permits program and to 
have the existing permit rescinded.
    (c) Request for pollution prevention exemption. (1) The owner or 
operator may submit a written request to the Administrator at any time 
after the first applicable compliance date for the major or area source 
to no longer be subject to the subpart. For a source at a Performance 
Track member facility, the owner or operator must submit the request to 
the Administrator and is encouraged to submit it to the designated 
performance track contact within EPA. (The Administrator will designate 
a central contact within the EPA to facilitate and expedite the review 
of a Performance Track member facility's request for a pollution 
prevention exemption.)
    (2) The written request may include any information that the owner 
or operator considers useful to demonstrate that the subpart should no 
longer apply. At a minimum, the written request must include the 
information in paragraphs (c)(2)(i) through (c)(2)(vi) of this section.
    (i) A statement identifying the subpart and each source of 
emissions that is currently subject to the subpart, and indicating that 
the owner or operator is applying for the major or area source to no 
longer be subject to the subpart.
    (ii) A description of the pollution prevention measures used to 
eliminate the hazardous air pollutant emissions, and a demonstration 
that the measures qualify as pollution prevention as defined in Sec.  
63.2.
    (iii) A demonstration that the pollution prevention measures have 
eliminated all hazardous air pollutant emissions from each source of 
emissions to which any requirement under the subpart applies.
    (iv) Documentation that the subpart does not include a limit of 
zero hazardous air pollutant emissions for any source of emissions to 
which any requirement under the subpart applies.
    (v) A certification signed by a responsible official that the major 
or area source will not resume emitting any hazardous air pollutant 
from any source of emissions to which any requirement under the subpart 
applies unless the owner or operator notifies the Administrator in 
writing at least 30 days prior to emitting a hazardous air pollutant.
    (vi) A certification signed by a responsible official that the 
subpart will again apply to the major or area source on the date that 
the source resumes emitting a hazardous air pollutant, and that the 
owner or operator will comply with all applicable requirements of the 
subpart on that date.
    (d) Review and approval or disapproval of request for pollution 
prevention exemption. (1) For each request submitted for a pollution 
prevention exemption in accordance with paragraph (c) of this section, 
the Administrator will notify the owner or operator in writing of the 
approval of, or intent to deny approval of, the request within a 45-day 
notification period after receiving the request. For a source at a 
Performance Track member facility, the notification period for approval 
or intent to deny is 30 days after receiving the request.
    (2) The major or area source is subject to the subpart until the 
Administrator notifies the owner or operator in writing of the approval 
of the request to no longer be subject to the subpart. Failure of the 
Administrator to notify the owner or operator in writing of the 
approval of, or intent to deny approval of, the request within the 
applicable notification period after receiving the request does not 
constitute approval of the request.
    (3) The Administrator may specify additional compliance 
requirements as a condition of approving the request that the subpart 
no longer apply.
    (4) If the Administrator intends to disapprove the request that the 
subpart no longer apply, the Administrator will notify the owner or 
operator in writing of the intent to deny approval within the 
applicable notification period after receiving the request. The written 
notification will include the information in paragraphs (d)(4)(i) 
through (d)(4)(iii) of this section.
    (i) Notice of the information and findings on which the intended 
disapproval is based.
    (ii) Notice of opportunity for the owner or operator to present 
additional information to the Administrator before final action on the 
request.
    (iii) A deadline for presenting the additional information to the 
Administrator.
    (5) If additional information is submitted according to paragraph 
(d)(4)(ii) of this section, the Administrator will notify the owner or 
operator in writing of the approval or disapproval of the request 
within the applicable notification period after receiving any 
additional information. If additional information has not been 
submitted by the deadline established according to paragraph 
(d)(4)(iii) of this section, the Administrator will disapprove the 
request. Failure of the Administrator to notify the owner or operator 
in writing of the approval or disapproval within the applicable 
notification period after receiving the additional information does not 
constitute approval of the request.
    (6) If the Administrator approves the request that the subpart no 
longer apply, the Administrator will transmit written approval to the 
owner or operator that includes the elements in paragraphs (d)(6)(i) 
through (d)(6)(v) of this section. The written approval document shall 
be enforceable under the CAA.
    (i) Identification of the subpart of this part that no longer 
applies.
    (ii) Identification of each specific source of emissions to which 
the approval would apply, i.e., the source(s) of emissions to which the 
subpart would no longer apply.
    (iii) Any additional compliance measures deemed necessary by the 
Administrator.
    (iv) A requirement that the owner or operator provide written 
notice to the Administrator at least 30 days prior to emitting a 
hazardous air pollutant from the source of emissions to which the 
approval applies.

[[Page 26264]]

    (v) A condition that the subpart will again apply on the date that 
the major or area source begins to emit a hazardous air pollutant from 
the source of emissions to which the approval applies, and that the 
owner or operator of a major or area source must comply with the 
subpart on that date.
    4. Section 63.18 is added to read as follows:


Sec.  63.18  Pollution prevention alternative requirements.

    Consistent with EPA's commitment to promote and encourage pollution 
prevention, this section provides a mechanism for a major or area 
source to replace particular requirements of a subpart of this part 
with pollution prevention alternative requirements if the owner or 
operator has implemented pollution prevention measures that reduce 
hazardous air pollutant emissions to at least the level required by the 
emission limitation(s) in that subpart after the initial compliance 
date specified in that subpart.
    (a) Applicability of pollution prevention alternative requirements. 
The owner or operator of an affected source subject to emission 
limitation(s) in a subpart of this part may submit a written request to 
the Administrator for approval of pollution prevention alternative 
requirements, including (as desired) alternative compliance 
demonstration procedures, monitoring, recordkeeping, and reporting. 
This mechanism may not be used to request alternative test methods or 
emission limits. The owner or operator of an affected source that is 
currently exempt from a subpart of this part pursuant to Sec.  63.17 
may also apply for alternative requirements. The request for approval 
of pollution prevention alternative requirements may be for a portion 
of an affected source (for example, where the emission limitation 
applies to a source of emissions within the affected source rather than 
to the entire affected source), for an affected source, or for multiple 
affected sources (for example, where the subpart includes several 
affected sources with different emission limitations for each affected 
source). To apply for pollution prevention alternative requirements, 
the owner or operator of an affected source must meet the requirements 
in paragraphs (a)(1) and (2) of this section for each affected source.
    (1) The affected source was subject to the subpart on the first 
applicable compliance date specified in the subpart.
    (2) The owner or operator has implemented pollution prevention 
measures (as defined in Sec.  63.2) to reduce hazardous air pollutant 
emissions to at least the level that is required by the applicable 
emission limitation(s), and maintained hazardous air pollutant 
emissions at that level. If the owner or operator is applying for 
pollution prevention alternative requirements for an affected source 
subject to an emission limitation, the hazardous air pollutant 
emissions must be reduced at least to the level required by the 
emission limitation that applies to that affected source.
    (b) General requirements for pollution prevention alternative 
requirements. (1) Until the owner or operator receives written 
notification that the Administrator has approved pollution prevention 
alternative requirements according to this section, the affected source 
is subject to all applicable requirements in the subpart. For an 
affected source that is currently exempt from a subpart pursuant to 
Sec.  63.17, the affected source is subject to all requirements 
contained in the written approval document for the exemption until the 
owner or operator receives written notification that the Administrator 
has approved pollution prevention alternative requirements.
    (2) Upon receipt by the owner or operator of the written 
notification of approval from the Administrator, the approved pollution 
prevention alternative requirements become the applicable requirements 
for the source of emissions. Accordingly, the source of emissions is no 
longer subject to the compliance requirements in the subpart that the 
alternative requirements specifically replace.
    (3) The approved pollution prevention alternative requirements 
apply only as long as the owner or operator continues to use the 
approved pollution prevention measures and to reduce hazardous air 
pollutant emissions to at least the level specified in the approved 
request. The owner or operator must notify the Administrator at least 
30 days prior to discontinuing the approved pollution prevention 
measures or failing to maintain the hazardous air pollutant reductions. 
If the owner or operator discontinues the approved pollution prevention 
measures and/or fails to maintain the hazardous air pollutant 
reductions specified in the approved request, all applicable 
requirements of the subpart again apply, and the owner or operator must 
comply with the applicable requirements as of that date.
    (4) At all times after the first applicable compliance date 
identified in the subpart, the affected source must comply with each 
applicable requirement in the subpart, unless the Administrator has 
provided written notification according to paragraph (d)(4) of this 
section that an applicable requirement under the subpart does not 
apply.
    (c) Request for pollution prevention alternative requirements. (1) 
The owner or operator may submit a written request to the Administrator 
at any time after the first applicable compliance date for use of 
pollution prevention alternative requirements. For a source at a 
Performance Track member facility, the owner or operator must submit 
the request to the Administrator and is encouraged to submit it to the 
designated performance track contact within EPA. (The Administrator 
will designate a central contact within the EPA to facilitate and 
expedite the review of a Performance Track member facility's request 
for pollution prevention alternative requirements.)
    (2) The written request may include any information that the owner 
or operator considers useful to demonstrate that pollution prevention 
alternative requirements are justified. At a minimum, the written 
request must include the information in paragraphs (c)(2)(i) through 
(c)(2)(ix) of this section.
    (i) A statement identifying the subpart and each source of 
emissions that is currently subject to the subpart, and indicating that 
the owner or operator is applying for the use of pollution prevention 
alternative requirements. (Indicate if the affected source is currently 
exempt from the subpart pursuant to Sec.  63.17.)
    (ii) A description of each source of emissions for which pollution 
prevention alternative requirements are requested.
    (iii) A description of the pollution prevention measures used to 
reduce hazardous air pollutant emissions from each source of emissions, 
and a demonstration that the measures qualify as pollution prevention 
as defined in Sec.  63.2.
    (iv) A demonstration that the pollution prevention measures have 
reduced hazardous air pollutant emissions from each identified source 
of emissions at least to the level that is required by the applicable 
emission limitation.
    (v) Proposed specific pollution prevention alternative 
requirements, including (as needed) procedures for demonstrating 
continuous compliance, monitoring (which may include tracking of 
material purchases and composition), recordkeeping, and reporting to 
assure compliance with the commitment to continue using the pollution 
prevention measures and to maintain the described hazardous air 
pollutant reductions.

[[Page 26265]]

    (vi) A citation of each applicable requirement in the subpart that 
the owner or operator proposes to replace with the proposed pollution 
prevention alternative requirements, accompanied by an explanation of 
how the proposed alternative requirements satisfy the intent of the 
replaced requirements and/or why the replaced requirements are not 
necessary.
    (vii) A certification signed by a responsible official that each 
source of emissions will not discontinue the pollution prevention 
measures or fail to maintain the hazardous air pollutant reductions 
described in the request unless the owner or operator notifies the 
Administrator in writing at least 30 days prior to discontinuing the 
pollution prevention measures or failing to maintain the hazardous air 
pollutant reductions.
    (viii) A certification signed by a responsible official that the 
requirements in the subpart will again apply to each source of 
emissions on the date that the owner or operator discontinues the 
pollution prevention measures and/or fails to maintain the hazardous 
air pollutant reductions, and that the owner or operator will comply 
with all applicable requirements of the subpart on that date.
    (ix) A certification signed by a responsible official that the 
affected source is subject to and in compliance with all applicable 
requirements in the subpart not specifically identified in paragraph 
(c)(2)(vi) of this section (i.e., not proposed to be replaced by 
alternative compliance requirements).
    (d) Review and approval or disapproval of request for pollution 
prevention alternative requirements. (1) For each request submitted 
according to paragraph (c) of this section, the Administrator will 
notify the owner or operator of the affected source in writing of the 
approval or intent to deny approval within a 45-day period after 
receiving the request. For a source at a Performance Track member 
facility, the notification period for approval or intent to deny is 30 
days after receiving the request.
    (2) The affected source is subject to all of the requirements in 
the subpart until the Administrator notifies the owner or operator in 
writing of the approval of the request to use pollution prevention 
alternative requirements. Failure of the Administrator to notify the 
owner or operator in writing of the approval or intent to deny approval 
of the request within the applicable notification period after 
receiving the request does not constitute approval of the request.
    (3) The Administrator may specify additional compliance 
requirements as a condition of approving the pollution prevention 
alternative requirements.
    (4) If the Administrator intends to disapprove the request for 
pollution prevention alternative requirements, the written notification 
will include the information in paragraphs (d)(4)(i) through 
(d)(4)(iii) of this section.
    (i) Notice of the information and findings on which the intended 
disapproval is based.
    (ii) Notice of opportunity for the owner or operator to present 
additional information to the Administrator before final action on the 
request.
    (iii) A deadline for presenting the additional information to the 
Administrator.
    (5) If additional information is submitted according to paragraph 
(d)(4)(ii) of this section, the Administrator will notify the owner or 
operator in writing of the approval or disapproval of the request 
within the applicable notification period after receiving any 
additional information. If additional information has not been 
submitted by the deadline established according to paragraph 
(d)(4)(iii) of this section, the Administrator will disapprove the 
request. Failure of the Administrator to notify the owner or operator 
in writing of the approval or disapproval within the applicable 
notification period after receiving the additional information does not 
constitute approval of the request.
    (6) If the Administrator approves the request for pollution 
prevention alternative requirements, the Administrator will transmit 
written approval to the owner or operator that includes the elements 
listed in paragraphs (d)(6)(i) through (d)(6)(v) of this section. The 
written approval document shall be enforceable under the CAA.
    (i) Identification of each specific source of emissions covered by 
the approval.
    (ii) The pollution prevention alternative requirements that apply 
to each designated source of emissions, including any additional 
compliance measures deemed necessary by the Administrator.
    (iii) The applicable requirements of the subpart that no longer 
apply to each designated source of emissions.
    (iv) A requirement that the owner or operator provide written 
notice to the Administrator at least 30 days prior to discontinuing the 
pollution prevention measures and/or failing to maintain the HAP 
reductions described in the request.
    (v) A condition that the applicable requirements of the subpart 
will again apply to each designated source of emissions on the date 
that the owner or operator discontinues the pollution prevention 
measures and/or fails to maintain the hazardous air pollutant 
reductions described in the request for that source of emissions, and 
that the owner or operator must comply with all applicable requirements 
of the subpart on that date.
    (e) Review and approval or disapproval of request for modification 
to approved pollution prevention alternative requirements. (1) If a 
request for pollution prevention alternative requirements has been 
approved according to paragraph (d) of this section, the owner or 
operator may submit a request to modify the pollution prevention 
alternative requirements.
    (2) The request must include, at a minimum, the information 
specified in paragraphs (c)(2)(i) through (c)(2)(ix) of this section.
    (3) The Administrator will approve or disapprove the request 
according to the procedures in paragraphs (d)(1) through (d)(6) of this 
section.
    (4) Each source of emissions is subject to the previously-approved 
pollution prevention alternative requirements until the Administrator 
notifies the owner or operator in writing of the approval of the 
modified pollution prevention alternative requirements.

[FR Doc. 03-12180 Filed 5-14-03; 8:45 am]
BILLING CODE 6560-50-P