[Federal Register Volume 68, Number 104 (Friday, May 30, 2003)]
[Rules and Regulations]
[Pages 32586-32603]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-13178]



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Part II





Environmental Protection Agency





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40 CFR Part 63



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

  Federal Register / Vol. 68, No. 104 / Friday, May 30, 2003 / Rules 
and Regulations  

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[FRL -7498-8]
RIN 2060-AK52


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; amendments.

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SUMMARY: In this action, we are adopting final amendments to the 
General Provisions for national emission standards for hazardous air 
pollutants (NESHAP) and to the rule which establishes criteria and 
procedures for equivalent emission limitations adopted pursuant to 
Clean Air Act (CAA) section 112(j). These final rule amendments 
establish a new timetable for the submission of section 112(j) Part 2 
applications, which is based on the timetable we have agreed to follow 
for promulgation of the remaining NESHAP, and modify the content 
requirements for Part 2 applications. These final rule amendments also 
establish revised procedures for requests for applicability 
determination previously submitted under the section 112(j) rule, and 
for section 112(j) applications submitted by sources that previously 
obtained a case-by-case determination under CAA section 112(g). These 
final rule amendments also adopt various amendments to the NESHAP 
General Provisions governing startup, shutdown, and malfunction (SSM) 
plans, some of which were proposed by EPA pursuant to a settlement 
agreement in a judicial action concerning the prior amendments 
published on April 5, 2002.

EFFECTIVE DATE: May 30, 2003.

ADDRESSES: Docket No. OAR-2002-0038 (formerly A-2002-21) is located at 
the EPA Docket Center, EPA West, U.S. EPA (6102T), 1301 Constitution 
Avenue, NW., Room B-102, Washington, DC 20460.

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

SUPPLEMENTARY INFORMATION: Docket. We have established an official 
public docket for this action under Docket ID No. OAR-2002-0038. The 
official public docket consists of the documents specifically 
referenced in this action, any public comments received, and other 
information related to this action. Although a part of the official 
docket, the public docket does not include Confidential Business 
Information or other information whose disclosure is restricted by 
statute. The official public docket is the collection of materials that 
is available for public viewing at the Office of Air and Radiation 
Docket and Information Center (Air Docket) in the EPA Docket Center, 
(EPA/DC) EPA West, Room B102, 1301 Constitution Avenue, NW., 
Washington, DC 20460. The EPA Docket Center Public Reading Room is open 
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number for the Reading Room is (202) 566-1744, 
and the telephone number for the Air Docket is (202) 566-1742.
    Electronic Docket Access. You may access the final rule 
electronically through the EPA Internet under the Federal Register 
listings at http://www.epa.gov/fedrgstr/.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.epa.gov/edocket/ to view public comments, 
access the index listing of the contents of the official public docket, 
and to access those documents in the public docket that are available 
electronically. Although not all docket materials may be available 
electronically, you may still access any of the publicly available 
docket materials through the docket facility in the above paragraph 
entitled ``Docket.'' Once in the system, select ``search,'' then key in 
the appropriate docket identification number.
    Worldwide Web (WWW). In addition to being available in the docket, 
an electronic copy of today's promulgated rule amendments will also be 
available on the WWW through the Technology Transfer Network (TTN). 
Following the Administrator's signature, a copy of the rule amendments 
will be posted on the TTN's policy and guidance page for newly proposed 
or promulgated rules at the following address: http://www.epa.gov/ttn/oarpg. The TTN provides information and technology exchange in various 
areas of air pollution control. If more information regarding the TTN 
is needed, call the TTN HELP line at (919) 541-5384.
    Regulated Entities. Categories and entities potentially regulated 
by this action include all section 112 source categories listed under 
section 112(c) of the CAA.

Industry Group: Source Category

Fuel Combustion

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

Non-Ferrous Metals Processing

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

Ferrous Metals Processing

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

Mineral Products Processing

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

Petroleum and Natural Gas Production and Refining

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

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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

Categories of Area Sources

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

    This list is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. To determine whether you are regulated by this action, you 
should examine the section 112(d) regulation for your source category. 
If you have any questions regarding the applicability of this action to 
a particular entity, consult the person listed in the preceding FOR 
FURTHER INFORMATION CONTACT section. Only source categories listed in 
Table 1 for which standards have not been promulgated are affected by 
the section 112(j) regulation.

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          Table 1.--Section 112(j) Part 2 Application Due Dates
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        Due date                          MACT standard
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10/30/03...............  Combustion Turbines.
                         Lime Manufacturing.
                         Site Remediation.
                         Iron and Steel Foundries.
                         Taconite Iron Ore Processing.
                         Miscellaneous Organic Chemical Manufacturing
                          (MON) \1\.
                         Organic Liquids Distribution.
                         Primary Magnesium Refining.
                         Metal Can (Surface Coating).
                         Plastic Parts and Products (Surface Coating).
                         Chlorine Production.
                         Miscellaneous Metal Parts and Products (Surface
                          Coating) (and Asphalt/Coal Tar Application--
                          Metal Pipes) \2\.
4/28/04................  Industrial Boilers, Institutional/Commercial
                          Boilers and Process Heaters \3\ Plywood and
                          Composite Wood Product Reciprocating Internal
                          Combustion Engines \4\ Auto and Light-Duty
                          Truck (Surface Coating).
8/13/05................  Industrial Boilers, Institutional/Commercial
                          Boilers, and Process Heaters \5\ Hydrochloric
                          Acid Production \6\.
------------------------------------------------------------------------
\1\ Covers 23 source categories, see Table 2 of this preamble.
\2\ Two source categories.
\3\ Includes all sources in the three categories, Industrial Boilers,
  Institutional/Commercial Boilers, and Process Heaters that burn no
  hazardous waste.
\4\ Includes engines greater than 500 brake horsepower.
\5\ Includes all sources in the three categories, Industrial Boilers,
  Institutional/Commercial Boilers, and Process Heaters that burn
  hazardous waste.
\6\ Includes furnaces that produce acid from hazardous waste at sources
  in the category Hydrochloric Acid Production.


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

    Judicial Review. The amendments to the General Provisions and the 
section 112(j) provisions were proposed on December 9, 2002 (67 FR 
72875). Today's action announces EPA's final decision concerning the 
amendments. Under section 307(b)(1) of the CAA, judicial review of 
these amendments is available only by filing a petition for review in 
the U.S. Court of Appeals for the District of Columbia Circuit by July 
29, 2003. Under section 307(d)(7)(B) of the CAA, only those objections 
to this rule that were raised with reasonable specificity during the 
period for public comment may be raised during judicial review. 
Moreover, under section 307(b)(2) of the CAA, the requirements that are 
the subject of today's final rule may not be challenged separately in 
civil or criminal proceedings brought by the EPA to enforce these 
requirements.
    Outline. The information presented in this preamble is organized as 
follows:

I. Background
    A. General Provisions
    B. CAA Section 112(j) Provisions
    C. The Sierra Club Litigation
    D. Review of Proposed Settlement Under CAA Section 113(g)
    E. Proposed Rule
II. Final Amendments to the General Provisions
    A. Startup, Shutdown, and Malfunction Plans
    B. Other Sections of the General Provisions
III. Final Amendments to the Section 112(j) Provisions
    A. General Applicability
    B. New Schedule for Part 2 Applications
    C. Requests for Applicability Determination
    D. Prior Section 112(g) Determinations
    E. Later Part 1 Applications
    F. Content of Part 2 Applications
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act
    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 and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act
    J. Congressional Review Act

I. Background

A. General Provisions

    Section 112 of the CAA requires us to list categories and 
subcategories of major sources and area sources of hazardous air 
pollutants (HAP) and to establish NESHAP for the listed source 
categories and subcategories. Major sources of HAP are those that have 
the potential to emit 10 tons/yr or more of any one HAP or 25 tons/yr 
or more of any combination of HAP. Area sources of HAP are those 
sources that do not have potential to emit 10 tons/yr or more of any 
one HAP and 25 tons/yr or more of any combination of HAP.
    The General Provisions in 40 CFR part 63 establish the framework 
for emission standards and other requirements developed pursuant to 
section 112 of the CAA. The General Provisions eliminate the repetition 
of general information and requirements in individual NESHAP by 
consolidating all generally applicable information in one location. 
They include sections on applicability, definitions, compliance dates 
and requirements, monitoring, recordkeeping and reporting, among 
others. In addition, they include administrative sections concerning 
actions that the EPA (or delegated authorities) must take, such as 
making determinations of applicability, reviewing applications for 
approval of new construction, responding to requests for extensions or 
waivers of applicable requirements, and generally enforcing national 
air toxics standards. The General Provisions become

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applicable to a CAA section 112(d) source category rule when the source 
category rule is promulgated and becomes effective.
    The NESHAP General Provisions were first promulgated on March 16, 
1994 (59 FR 12408). We subsequently proposed a variety of amendments to 
that initial rule, based in part on settlement negotiations with 
industrial trade organizations which had sought judicial review of the 
rule and in part on our practical experience in developing and 
implementing NESHAP, also know as maximum achievable control technology 
(MACT) standards, under the General Provisions (66 FR 16318, March 23, 
2001). We then promulgated final amendments to the General Provisions 
pursuant to that proposal (67 FR 16582, April 5, 2002).

B. CAA Section 112(j) Provisions

    The 1990 Amendments to section 112 of the CAA included a new 
section 112(j), which is entitled ``Equivalent Emission Limitation by 
Permit.'' Section 112(j)(2) provides that the provisions of section 
112(j) apply if EPA misses a deadline for promulgation of a standard 
under section 112(d) established in the source category schedule for 
standards. After the effective date of a title V permit program in a 
State, section 112(j)(3) requires the owner or operator of a major 
source in a source category, for which the EPA failed to promulgate a 
section 112(d) standard, to submit a permit application 18 months after 
the missed promulgation deadline.
    We first promulgated a rule to implement section 112(j) on May 20, 
1994 (59 FR 26429). We subsequently proposed a variety of amendments to 
that initial rule, based in part on settlement negotiations with 
industrial trade organizations which had sought judicial review of the 
rule and in part on our own further evaluation of the existing 
procedures (66 FR 16318, March 23, 2001). We then promulgated final 
amendments to the section 112(j) rule, along with our final amendments 
to the General Provisions (67 FR 16582, April 5, 2002).

C. The Sierra Club Litigation

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

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

    As required by section 113(g) of the CAA, EPA published a notice in 
the Federal Register affording interested persons an opportunity to 
comment on the terms of the proposed settlement in Sierra Club v. U.S. 
Environmental Protection Agency, No. 02-1135 (DC Circuit) (67 FR 54804, 
August 26, 2002). In response to that notice, we received 110 timely 
comments, the vast majority of which opposed one or more provisions of 
the proposed settlement.
    Virtually all of the commenters expressed concern about the 
practical consequences of a provision in the proposed settlement which 
required us to propose reducing the time between section 112(j) Part 1 
and Part 2 applications from 24 months to 12 months. We agreed with the 
commenters that this approach would have resulted in wasteful 
expenditures by the applicants and the permitting agencies to prepare 
and to process applications which in all likelihood would never have 
been acted upon. Given the strong opposition to this approach reflected 
in the comments both by industry sources and organizations and by State 
and local permitting authorities, we were pleased when the Sierra Club 
agreed to discuss modifying the proposed settlement to establish an 
alternative timetable for submission of section 112(j) Part 2 
applications.
    The EPA and the Sierra Club then negotiated a revised settlement 
based on a new approach suggested by organizations representing State 
and local governments. In the revised settlement, we agreed to propose 
a schedule requiring that section 112(j) Part 2 applications for 
affected sources in those categories for which MACT standards were 
scheduled to be promulgated prior to May 15, 2002, be submitted by May 
15, 2003, and section 112(j) Part 2 applications for all remaining 
source categories be submitted by 60 days after the scheduled 
promulgation date for the source category in question. We also agreed 
to propose the same amendments to the General Provisions concerning SSM 
plans which were set forth in the original settlement. The EPA and the 
Sierra Club executed a final settlement agreement in Sierra Club v. 
U.S. Environmental Protection Agency, No. 02-1135 (DC Circuit), and 
filed it with the court on November 26, 2002.

E. Proposed Rule

    Following execution of the final settlement agreement, we published 
a proposed rule effectuating its terms (67 FR 72875, December 9, 2002). 
In addition to the proposed amendments required by the settlement, we 
also proposed to revise a new recordkeeping provision concerning SSM 
plans we adopted in the April 5, 2002 final rule, and we requested 
comment on issues presented by the section governing the content of 
section 112(j) Part 2 applications and on certain other sections in the 
NESHAP General Provisions we amended in the April 5, 2002 final rule.
    We received 73 public comment letters in response to our proposal. 
We have carefully evaluated all of these comments and have modified the 
amendments we proposed in certain respects. Our responses to some of 
the major comments we received, and the decisions we have made 
concerning appropriate final amendments to the NESHAP General 
Provisions and the section 112(j) rule, are discussed in the sections 
which follow.

II. Final Amendments to the General Provisions

A. Startup, Shutdown, and Malfunction Plans

1. The General Duty To Minimize Emissions
    We proposed revisions in the language in 40 CFR 63.6(e)(1)(i) to 
correct a potential problem in interpreting the relationship between 
the general duty to minimize emissions established by that section and 
the compliance of a source with its SSM plan. The section in question 
was modified in the April 5, 2002 final rule because the prior language 
appeared to impose on a source a general duty to further reduce 
emissions even when the source is already in full compliance with the 
applicable MACT standard. We deemed this result to be unreasonable and 
made corresponding changes in the language of the rule.

[[Page 32590]]

    However, when we made that change, we inadvertently adopted some 
language which could be construed as contrary to the policies regarding 
the relationship between the general duty to minimize emissions and SSM 
plans which we stated in the proposal preamble for the preceding 
amendments. The SSM plans must be drafted in a manner which satisfies 
the general duty to minimize emissions (40 CFR 63.6(e)(3)(i)(A)). Thus, 
compliance with a properly drafted SSM plan during a period of startup, 
shutdown, or malfunction will necessarily also constitute compliance 
with the duty to minimize emissions, even though compliance with the 
MACT standard itself during a period of SSM may not be practicable. 
When we proposed the preceding amendments, we stated explicitly that 
``* * * compliance with an inadequate or improperly developed SSM plan 
is no defense for failing to minimize emissions.'' (66 FR 16327, March 
23, 2001).
    The Sierra Club subsequently pointed out to us that the actual 
language of the section as promulgated could be construed to indicate 
that a facility that complies with its SSM plan--regardless of whether 
the plan is inadequate or improperly developed--thereby satisfies its 
general duty to minimize emissions. We did not intend this result. Such 
a construction could encourage abuse because SSM plans do not have to 
be reviewed or approved by the permitting authority before they take 
effect, and because such plans may also be revised by the owner or 
operator of the source without prior notice to the permitting 
authority. The revisions to 40 CFR 63.6(e)(1)(i) which we proposed in 
this rulemaking were intended to assure that this section would not be 
construed in this manner.
    We received numerous comments from industry opposing the proposed 
revised language. In general, the commenters did not disagree with the 
general principles concerning the relationship between the general duty 
to minimize emissions and the compliance of a source with its SSM plan 
which we articulated in the proposal preamble. Rather, the commenters 
expressed concerns about the interpretation of the proposed language.
    We believe that much of the concern expressed by the commenters is 
based on one alternative construction of the phrase ``to the levels 
required by the relevant standards,'' which replaced the phrase ``at 
least to the levels required by the relevant standards'' in several 
sections of the April 5, 2002 final rule. While we intended this phrase 
to mean that emissions must be minimized to the greatest extent which 
is practicable, unless and until the levels required by the applicable 
MACT standard are achieved, some commenters were concerned that this 
phrase would be construed to require that the standard be met at all 
times. While we believe that such a construction would be unreasonable 
in the context of the remainder of the rule, we do understand how the 
literal language could be construed in this manner. The parenthetical 
phrase which followed this language in one section of the April 5, 2002 
final rule helped to mitigate the potential that readers might adopt 
this alternative construction. However, as we have explained, it also 
created the significant problem identified by the Sierra Club.
    Many commenters suggested that we modify the language of the rule 
itself to more clearly establish those general principles which we 
stated in the proposal preamble. We agree with these commenters. 
Accordingly, we have adopted new language for Sec.  63.6(e)(1)(i), 
which establishes the general duty to minimize emissions. This new 
language makes it clear that during a period of SSM, the general duty 
to minimize emissions requires the owner or operator to reduce 
emissions to the greatest extent consistent with safety and good air 
pollution control practices. However, during an SSM event, the general 
duty to minimize emissions does not require an owner or operator to 
achieve the levels required by the applicable MACT standard at other 
times, or to make further efforts to reduce emissions if such levels 
have been successfully achieved.
    Rather than restating these principles in other sections of the 
rule, we have instead cross-referenced the revised language of Sec.  
63.6(e)(1)(i) in Sec.  63.6(e)(3)(i)(A) and Sec.  63.6(e)(3)(vii)(B). 
This assures that the same principles concerning the duty to minimize 
emissions will also be applied in the drafting of an SSM plan and in 
determining whether a particular SSM plan requires revision. We believe 
that this combination of amendments is responsive to the concerns 
expressed by the industry commenters. However, it also achieves our 
original purpose by assuring that a source will not be considered to 
have satisfied the duty to minimize emissions merely because it has 
complied with the provisions of an inadequate SSM plan.
    We note that the Sierra Club argued in its comments that the whole 
concept that a MACT standard does not apply during periods of SSM has a 
questionable legal basis, and that any exemption for such activities 
should be strictly limited to those instances where violation of 
emission limitations is ``unavoidable.'' We believe that we have 
discretion to make reasonable distinctions concerning those particular 
activities to which the emission limitations in a MACT standard apply, 
and we, therefore, disagree with the legal position taken by the Sierra 
Club. However, we note that the general duty to minimize emissions is 
intended to be a legally enforceable duty which applies when the 
emission limitations in a MACT standard do not apply, thereby limiting 
exceedances of generally applicable emission limitations to those 
instances where they cannot be reasonably avoided.
    The general duty to minimize emissions requires that owners or 
operators review their SSM plans on an ongoing basis and make 
appropriate improvements to assure that excess emissions are avoided. 
Our experience in another regulatory context illustrates how sources 
and regulatory authorities can work together to improve procedures for 
SSM events. We have been working with the petroleum refining industry 
to reduce the number and significance of refinery acid gas flaring 
episodes, and a refinery flaring reduction protocol has now been 
implemented at about 35 refinery facilities nationwide. The protocol 
helps sources to determine the root cause of certain flaring events, 
determine the corrective action(s) for such problems, and then to 
implement the corrections.
    Use of this protocol has resulted in a dramatic drop in the number 
of SSM events. For example, one company reduced the percentage of time 
in flare at its refineries (including all startup, shutdown, 
maintenance, upset activities) from 29.0% in 1998 to 1.6% in 2002. The 
EPA intends to develop guidance this year that will highlight the best 
practices that have been implemented by various refiners around the 
country to improve their response to SSM events. We believe that the 
experience we have gained in this process may also be beneficial to 
other facilities as they work to improve the quality and 
comprehensiveness of their SSM plans.
2. Public Access to SSM Plans
    We also proposed some changes to 40 CFR 63.6(e)(3)(v), the section 
that governs submission of SSM plans to the EPA Administrator, and to 
the State or local permitting authorities which operate as the 
Administrator's designated representatives. That section provides that 
the current SSM plan must be made available upon request to the 
Administrator for ``inspection and

[[Page 32591]]

copying.'' The ``Administrator'' is defined to include a State which 
has received delegation and is therefore the Administrator's 
``authorized representative'' (40 CFR 63.2).
    We stated in the proposal preamble for the previous rulemaking (66 
FR 16326, March 23, 2001) that the permit writer or the Administrator 
may also require submission of the SSM plan. However, Sierra Club 
observed during settlement discussions that the rule as amended in 
April 5, 2002 did not expressly require that SSM plans be submitted to 
the Administrator or to the permitting authority upon request.
    Because SSM plans are required for facilities subject to CAA 
section 112, they clearly are covered by CAA section 114(a). Therefore, 
to address the concern expressed by Sierra Club, we have revised the 
rule to make it clear that the owner or operator of an affected 
facility is required to submit its SSM plan to the Administrator or the 
permitting authority upon request. We also note that SSM plans are 
considered to be submitted to the Administrator under CAA section 114 
even if they are submitted to a State or local agency acting on the 
Administrator's behalf (40 CFR 2.301(b)(2)). Under CAA section 114(c), 
any plan that is submitted to EPA or the permitting authority must also 
be made available to the public, unless the submitter makes a 
satisfactory showing that disclosure would divulge methods or processes 
that are entitled to protection under the Trade Secrets Act, 18 U.S.C. 
1905.
    During settlement discussions, the Sierra Club also expressed 
concern that some permitting authorities might not construe the rule to 
require that an SSM plan be obtained from the affected source when it 
is requested by a member of the public. We agreed to propose some 
revisions to the rule to facilitate better public access. We proposed 
to require sources to submit a copy of the SSM plan to the permitting 
authority at the time it is first adopted and each time it is 
subsequently revised.
    Many commenters vigorously opposed these proposed amendments. A 
number of industry commenters argued that there is no general 
obligation to provide public access to SSM plans, and that only those 
plans that the States or EPA actually elect to obtain from the sources 
must be made available to the public. These commenters argued that EPA 
has incorrectly construed the SSM plan as an integral part of the 
permit documentation that must be made available to the public under 
CAA sections 114(c) and 503(e).
    Industry commenters also argued that requiring routine submission 
of SSM plans would be very burdensome for sources, because SSM plans 
are often fully integrated into other operating procedures at a source, 
and production of a complete SSM plan might, therefore, require copying 
and compilation of other documents. Commenters also expressed concern 
about the burden on sources associated with identification and 
segregation of claimed Confidential Business Information (CBI), and the 
danger that permitting authorities might inadvertently disclose such 
information. Commenters also argued that routine submission of SSM 
plans would be burdensome for the permitting authorities.
    A number of commenters suggested that appropriate public access to 
SSM plans could be assured by a less burdensome approach, focusing on 
the specific problems with the current rule that we identified in the 
proposal. Some commenters suggested that EPA could adopt new regulatory 
language specifically requiring sources to submit SSM plans when 
requested by the permitting authority. Others suggested that EPA 
provide clearer guidance to permitting authorities indicating that they 
are responsible and have the authority to obtain SSM plans when 
requested by the public. We think that these ideas are constructive.
    We acknowledge that adopting a requirement that copies of SSM plans 
be routinely submitted to the permitting authorities would be 
burdensome. In particular, we think that significant resources would be 
expended on the process of identifying and segregating claimed CBI in 
each plan. We also acknowledge that the proper maintenance of these 
extra records would necessarily involve additional resource 
expenditures by the permitting authorities.
    We have concluded that these additional burdens are not necessary 
to assure appropriate public access to SSM plans. As suggested by some 
commenters, we have decided instead to adopt a less burdensome approach 
tailored to the specific problems we identified in the proposal.
    We believe that SSM plans will be most effective in minimizing 
emissions during periods of startup, shutdown, or malfunction if they 
are fully integrated with the detailed process and operating procedures 
of a facility. We also recognize that these types of procedures may 
contain trade secrets and other sensitive information, and that the 
integration of SSM plans with these other procedures may make it more 
difficult and costly for a facility to redact them in a way that would 
be suitable for public disclosure. We do not wish to discourage 
facilities from integrating SSM plans with other procedures.
    On the other hand, we recognize that there will sometimes be 
substantial public interest in the details of SSM plans. There is 
increasing concern about emissions that may occur during a period of 
startup, shutdown, or malfunction. In addition, SSM plans may include 
basic information about when the emission limitations in a MACT 
standard apply to a particular facility and when they do not. To strike 
the right balance between public disclosure and the need to make SSM 
plans comprehensive and effective, we have adopted the following 
approach in this final rule.
    First, we believe that the permitting authorities, acting on behalf 
of the public, can and should play the primary role in reviewing SSM 
plans and ensuring that affected sources take the necessary steps to 
minimize emissions during periods of startup, shutdown, or malfunction. 
We know that some permitting authorities review these plans during the 
process for initial permit issuance. In other instances, we expect that 
permitting authorities will review SSM plans in conjunction with 
inspections and other site visits, when they can more readily observe 
how the SSM plan relates to other operational procedures at the 
facility. In addition, under the language we are adopting, owners or 
operators must promptly submit a copy of any SSM plan (or any portion 
thereof) maintained at the affected source if requested by the 
permitting authority.
    If a member of the public wishes to review the SSM plan for a 
particular facility, or a specific portion of that plan, he or she can 
ask that the permitting authority request the plan from the facility. 
We are also adding language requiring that the permitting authority 
request that the owner or operator submit to the permitting authority a 
particular SSM plan (or the relevant portion thereof) whenever a member 
of the public makes a specific and reasonable request to examine or 
receive a copy. Upon receipt of such a request, the permitting 
authority should take prompt action to make the plan available to the 
requestor. We also expect that, upon receiving a request that is 
insufficiently specific or may be overly broad, the permitting 
authority will work with the requestor to clarify the request and to 
assure that it is focused on the requestor's specific needs or 
interests.
    As in our proposal, the owner or operator may elect to submit the

[[Page 32592]]

requested SSM plan in an electronic format, and any portion of the plan 
that is claimed to be CBI entitled to protection under CAA section 
114(c) or the Trade Secrets Act must be clearly designated in the 
submission. Moreover, we want to encourage all parties to adopt 
procedures for providing public access to SSM plans which avoid 
unnecessary burdens or delays. Therefore, if an owner or operator and a 
requestor both agree that it would be more expedient or convenient for 
the requestor to examine the SSM plan (or a portion thereof) at the 
facility where it is maintained, this approach could be utilized 
instead of requiring submission of the SSM plan to the permitting 
authority. This on-site inspection procedure would be most practicable 
in those instances where the owner or operator has concluded that it is 
not necessary to redact claimed CBI when the plan is being examined at 
the facility that maintains it.
    We think this approach assures appropriate public access to SSM 
plans, but dramatically reduces the aggregate expenditure of resources 
by sources and permitting authorities. We recognize that this approach 
could result in some additional delay before a member of the public 
could obtain a copy of the non-confidential portions of an SSM plan. 
However, we think that requiring routine submission of every SSM plan, 
without regard for whether any member of the public will ultimately 
seek access to it, involves a resource burden which is disproportionate 
to the time which may be saved when a specific plan is actually 
requested by a member of the public.
    As for the concern of some commenters that claimed CBI information 
might be inadvertently disclosed, we think this is less probable when 
SSM plans must be submitted only on demand rather than routinely. If a 
submitter knows that the non-confidential portions of a plan will 
definitely be disclosed, we believe the submitter will be more likely 
to do a good job of segregating claimed CBI and preparing to properly 
substantiate its claim.
    Some commenters expressed concern about the Homeland Security 
implications of public access to SSM plans. It may be that some 
information in a particular SSM plan could be sensitive from a Homeland 
Security perspective. In most instances, we think that such sensitive 
information would also be entitled to confidential treatment under CAA 
section 114(c). However, we note that the entire Federal government is 
presently reviewing public access requirements to assure that they are 
compatible with Homeland Security, and it is possible that we may in 
the future propose other changes in public access to SSM plans as part 
of this important effort.
3. Reporting Requirements
    During the April 5, 2002, rulemaking concerning revisions to the 
General Provisions and section 112(j) rules, we received a comment from 
representatives of the State and local permitting authorities 
indicating that it would assist them in performing their oversight 
function if facilities were required to include the number and a 
description of all malfunctions that occurred during the prior 
reporting period in the required semiannual report. In response to that 
comment, we added a new reporting obligation to the language governing 
periodic SSM reporting in 40 CFR 63.10(d)(5)(i). However, the language 
we added was not limited to malfunctions and required that the facility 
report ``the number, duration, and a brief description of each startup, 
shutdown, and malfunction.'' We later concluded that the inclusion of 
startups and shutdowns in this reporting requirement was unnecessary 
and burdensome, and we proposed to delete these events from this 
provision.
    Many commenters supported that proposal. The Sierra Club opposed 
the deletion of startups and shutdowns from this reporting requirement, 
arguing that sources might improperly define events as startups and 
shutdowns. We consider this type of abuse unlikely, and we do not 
believe in any case that the routine reporting of all startups and 
shutdowns would be particularly helpful in preventing it.
    In some industries, startup and shutdown events are numerous and 
routine. So long as the provisions of the SSM plan are followed, there 
does not appear to be any real utility in requiring that each 
individual startup and shutdown be reported or described. As many 
commenters noted, in those instances where a startup or shutdown 
includes actions which do not conform to the SSM plan and the standard 
is exceeded, the facility is otherwise required to promptly report 
these deviations from the plan.
    Some commenters objected to our retention of the new malfunction 
reporting requirement. These commenters argue that a requirement to 
report all malfunctions is duplicative of other requirements, except in 
those instances where an SSM plan was followed during an event and no 
excess emissions occurred. We do not agree with these commenters that 
the malfunction reporting requirement should be entirely eliminated, 
but we have concluded that its scope can be narrowed.
    With respect to malfunctions, the rule expressly requires that the 
SSM plan must be revised by the facility if there is an event meeting 
the characteristics of a malfunction which is not addressed by the plan 
(40 CFR 63.6(e)(3)(vii)). At the time of proposal, we believed that 
reporting of all malfunctions is necessary to assure that this 
requirement is satisfied. However, after reviewing the comments and 
evaluating this issue in the context of the rule as a whole, we believe 
that the problem of identifying new kinds of malfunctions which would 
require revision of the SSM plan is adequately addressed by other 
provisions in the rule. If a type of malfunction is not addressed by 
the current SSM plan, we believe that any actions taken during such a 
malfunction cannot be reasonably construed as actions consistent with 
the plan and that such actions would otherwise be reportable under 
Sec.  63.10(d)(5)(i) or Sec.  63.10(d)(5)(ii). We discuss these 
reporting provisions further below.
    However, we also agree with a comment by the Sierra Club that 
reporting of malfunctions would help permitting authorities determine 
whether sources are attempting to circumvent the standard by improperly 
defining events as malfunctions. To prevent this type of potential 
abuse, we do not think that all malfunctions need to be reported. 
Rather, we think this problem can be addressed by requiring that the 
affected source report only those malfunctions which occurred during 
the reporting period and which caused or may have caused an emission 
limitation in the relevant standard to be exceeded. Thus, we have 
decided to retain the requirement that the owner or operator report 
malfunctions in the periodic report, but to limit its scope to those 
malfunctions which caused or may have caused an emission limitation in 
the relevant standard to be exceeded.
    Moreover, we stated in the proposal that minor or routine events 
that do not have a significant impact on the ability of a source to 
meet the standard need not be classified as a malfunction, addressed by 
the SSM plan, or included in periodic reports. We think there is no 
reason to classify an event as a malfunction if it does not cause, or 
have the potential to cause, the emission limitations in an applicable 
standard to be exceeded.
    A number of commenters requested that we make this policy clear in 
the regulatory language, rather than only in the preamble. These 
commenters

[[Page 32593]]

suggested that the definition of malfunction could be revised to 
accomplish this. We think this is a good idea, and we have revised the 
definition accordingly. We think that this change will make it clear 
that events that do not cause, or have the potential to cause, emission 
limitations in an applicable standard to be exceeded need not be 
included either in the SSM plan or in periodic malfunction reports.
    We note that 40 CFR 63.10(d) describes two distinct types of SSM 
reports. Periodic SSM reports are submitted on a semiannual basis and 
are described in Sec.  63.10(d)(5)(i). Immediate SSM reports which are 
triggered by a particular event, and which require an oral or facsimile 
report within 2 working days and a written report within 7 working 
days, are described in Sec.  63.10(d)(5)(ii). During our review of the 
comments concerning the various SSM reporting provisions, we realized 
that there is an unresolved conflict between an amendment we made in 
the April 5, 2002 final rule and the language of 40 CFR 63.10(d) as it 
is currently codified. Although we amended 40 CFR 63.6(e)(3)(iv) to 
limit the immediate reporting obligation for actions which are not 
consistent with the SSM plan to those instances where the source 
exceeds the relevant emission standard, we did not make a similar 
conforming change in 40 CFR 63.10(d)(5)(ii). This discrepancy was also 
specifically identified by one commenter. We are amending Sec.  
63.10(d)(5)(ii) to correct this problem.
    We are also making another conforming amendment in Sec.  
63.10(d)(5)(i). Since immediate reports of actions not consistent with 
the SSM plan are not required if the emission limitations in the 
standard are not exceeded, we believe that the periodic SSM report 
should identify any instances in which actions taken were not 
consistent with the plan but no emission limitations were exceeded.
4. Correction of Plan Deficiencies
    We proposed another small change to 40 CFR 63.6(e)(7). The rule as 
amended in April 5, 2002 provides that EPA or the permitting authority 
``may'' require that an SSM plan be revised if certain specified 
deficiencies are found. In the proposal, we stated that we could not 
foresee any circumstance where revision of an SSM plan should not be 
mandatory if it has been specifically found to be deficient under one 
of the criteria set forth in this section. Therefore, we proposed to 
change the language to make such revisions mandatory rather than 
discretionary.
    Some commenters objected to this proposal, but their principal 
concern was that the criterion requiring the SSM plan to satisfy the 
duty to minimize emissions might be interpreted in a manner contrary to 
the other general principles we have articulated. We believe this 
concern is fully resolved by the amendments to the provisions 
concerning the general duty to minimize emissions which we are adopting 
and described above.
    Some commenters also argued that the current practice of giving 
permitting authorities discretion concerning whether to require changes 
in an SSM plan works well, and there is no reason to change it unless a 
problem can be demonstrated. We find this argument unpersuasive. If a 
permitting authority has specifically found that a plan is deficient 
according to one of the criteria, we see no reason why it should not be 
mandatory for corrective action to be taken.

B. Other Sections of the General Provisions

1. Monitoring Definition
    During the April 5, 2002, rulemaking, one commenter suggested that 
we revise the definition of ``monitoring'' in 40 CFR 63.2 to include 
the phrase ``or to verify a work practice standard.'' There are times 
when we must adopt a work practice standard under CAA section 112(h) 
rather than an emission standard under CAA section 112(d), and 
compliance with such a work practice standard is sometimes verified by 
activities which are similar in character to those required to monitor 
compliance with an emission standard. Therefore, we thought that the 
suggested revision was a sensible one. However, because the additional 
language was not originally proposed by EPA, we decided to take 
additional comment concerning this language.
    One industry commenter supported the revised monitoring definition. 
Other commenters expressed concern that the revised definition could 
make changes in work practice verification a significant permit 
modification, or that the revised definition might require verification 
of work practices beyond the procedures specified in a particular MACT 
standard. We do not intend either of these results, and we are not 
persuaded that the revised definition will cause either of these 
problems. Therefore, we have retained the revised definition without 
change.
2. Combined Compliance Reports
    In the April 5, 2002, rulemaking, we also made a small change in 
the language of 40 CFR 63.9(h)(2)(ii), by adding the phrase ``(or 
activities that have the same compliance date)'' in response to a 
industry commenter. The commenter was concerned that separate 
compliance reports might be required for compliance obligations that 
have the same date and requested the option of filing a single 
compliance status report covering multiple compliance obligations. 
Because the new language we adopted was not originally proposed by EPA, 
and some questioned whether it clearly achieved the intended purpose, 
we decided to request additional comment concerning this revision and 
potential alternatives.
    All commenters on this change agreed with our original intent in 
making the change, but some commenters suggested that the language is 
confusing and proposed alternative language. We have adopted new 
language for Sec.  63.9(h)(2)(ii) which is similar to the alternative 
language suggested by one of these commenters.

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

A. General Applicability

    In the proposed rule, we stated our intent to include new language 
concerning general applicability in the final amendments to the section 
112(j) rule. We proposed to state explicitly that no further process to 
develop a case-by-case MACT determination under section 112(j) is 
required for any source once a generally applicable Federal MACT 
standard governing that source has been promulgated. In our view, it is 
obvious that no further process to implement section 112(j) with 
respect to a particular source is required or appropriate once a 
Federal standard governing that source has been promulgated under CAA 
section 112(d) or 112(h). All commenters who addressed this issue 
supported our proposal. A new paragraph effectuating it has been added 
to the general applicability provisions as 40 CFR 63.50(c).
    Just as it is obvious that all activities to develop an equivalent 
emission limitation under CAA section 112(j) should end following 
promulgation of a generally applicable Federal standard, it is also 
clear from the statutory language that any final equivalent emission 
limitation which may be issued prior to adoption of such a standard is 
itself an enforceable Federal requirement, which remains in force until 
revised or supplanted pursuant to section 112(j)(6) and 40 CFR 63.56. 
Although it is clear from the statute that permitting authorities are 
expected to utilize the

[[Page 32594]]

title V permitting procedures to adopt and issue an equivalent emission 
limitation under section 112(j), it is also clear that the authority to 
establish and require compliance with such a limitation is provided by 
section 112(j) itself rather than title V. Section 112(j)(4) requires 
that each equivalent emission limitation be submitted for review and 
approval by EPA under the procedures established by CAA section 505, 
and upon final adoption at the time of permit issuance such an 
equivalent emission limitation is a binding order which may be enforced 
directly under Federal law. An equivalent emission limitation takes 
effect upon issuance of the permit containing it under section 
112(j)(5), and it remains applicable to the source until it is revised 
or superceded, regardless of the subsequent status of the permit in 
which it was initially contained. For the sake of clarity, we have 
included additional general applicability language in 40 CFR 63.50(d) 
which embodies these principles.

B. New Schedule for Part 2 Applications

    Under our final settlement agreement with the Sierra Club, we 
proposed to replace the existing schedule for submission of section 
112(j) Part 2 applications (also referred to as Part 2 MACT 
applications or simply Part 2 applications), under which most Part 2 
applications would have been due on May 15, 2004, with a new schedule 
establishing a specific deadline for submission of all Part 2 
applications for all affected sources in a given category or 
subcategory. With respect to those categories or subcategories for 
which MACT standards are scheduled to be promulgated after this 
rulemaking is complete, we proposed specific Part 2 application 
deadlines which are 60 days after each respective scheduled 
promulgation date. For those categories or subcategories for which MACT 
standards were scheduled to be promulgated while this rulemaking was 
pending, we proposed a Part 2 application deadline of May 15, 2003. 
However, because all of the standards scheduled to be promulgated 
during this rulemaking process have in fact been promulgated, there is 
no need to take any further action concerning the proposed Part 2 
application deadline for those categories.
    We note that commenters were generally supportive of the new 
approach to scheduling of section 112(j) Part 2 applications which we 
proposed. We agree with commenters that the proposed schedule will 
permit us to avoid a wasteful expenditure of public and private 
resources, so long as there are no further delays in promulgation of 
the remaining MACT standards. We note also that the prompt and 
significant consequences if a promulgation deadline is missed will 
create new incentives for EPA and the other stakeholders to assure that 
the agreed promulgation deadlines are met.
    The Part 2 application deadlines which we proposed for each 
category or subcategory were based on a separate agreement in principle 
we had reached with the Sierra Club on a schedule for promulgation of 
all remaining MACT standards which were included in the original 
schedule established pursuant to CAA section 112(e)(1) and 112(e)(3). 
While this rulemaking was pending, this agreed schedule was 
incorporated in a proposed consent decree and filed in Sierra Club v. 
Whitman, 01-1337 (D.D.C.). On March 27, 2003 (68 FR 14976), we 
published a notice pursuant to CAA section 113(g) affording interested 
persons 30 days to submit comments concerning the proposed consent 
decree. We have now reviewed all timely comments received concerning 
the proposed consent decree and have determined that there is no basis 
at this time for modification of the schedule incorporated in that 
decree.
    We note that many commenters on this rulemaking opposed the 
promulgation schedule for particular MACT standards. We received 
comments arguing that the promulgation schedule should be extended for 
the MACT standards for Brick and Structural Clay Products, Combustion 
Turbines, Iron and Steel Foundries, Taconite Iron Ore Processing, 
Miscellaneous Organic Chemical Manufacturing (MON), and Metal Can 
Surface Coating. We understand why these comments were submitted on 
this rulemaking since the notice providing an opportunity to comment on 
the proposed consent decree had not been published at the time they 
were submitted. However, we also believe that the most appropriate 
context for consideration of these comments is the review of the 
proposed consent decree under CAA section 113(g). Accordingly, we have 
deemed all comments submitted on this rulemaking concerning the 
schedule for promulgation of particular MACT standards to also be 
comments concerning the proposed consent decree in Sierra Club v. 
Whitman. Although some commenters complained that they were denied due 
process or otherwise prejudiced by the failure of EPA to provide a 
comment opportunity concerning that consent decree, these objections 
are now moot in view of the fact that their comments have been 
considered both in this rulemaking and as part of the section 113(g) 
process.
    In general, we believe that it is incumbent on EPA to issue all 
MACT standards for which the mandatory statutory promulgation date has 
already passed as rapidly as is practicable. We also believe that EPA 
is in the best position to evaluate those tasks that remain and the 
resources that are available to accomplish those tasks and then to 
establish an appropriate schedule for promulgation of overdue 
standards. We respectfully disagree with those commenters who argue 
that EPA will be unable to adhere to the agreed schedule for 
promulgation of particular standards.
    After considering all of the comments, we have decided to adopt the 
schedule for section 112(j) Part 2 applications with respect to MACT 
standards that have not yet been promulgated, exactly as it was 
proposed. We have added appropriate implementing language and related 
tables to 40 CFR 63.52(e)(1).
    Many commenters expressed concern about the possibility of 
additional delays in the promulgation of MACT standards and requested 
that EPA provide advance notice if it expects to miss one of the 
promulgation deadlines in the consent decree. As we stated in the 
proposal, we recognize that the schedule for submission of section 
112(j) Part 2 applications leaves relatively little time for sources to 
prepare and submit such applications if a particular promulgation 
deadline is missed. In recognition of the tight time frames, we will 
try to provide prompt advance notice to affected sources and to 
permitting authorities if we have reason to believe that an impending 
promulgation deadline for a particular MACT standard will not be met.
    Many commenters also requested that EPA extend the corresponding 
Part 2 application deadline in the event that the date for promulgation 
of a MACT standard in the consent decree is itself extended. We note 
that the dates we are adopting in this rulemaking for submission of 
Part 2 applications for particular categories and subcategories cannot 
be made automatically contingent on the content of a consent decree 
which has not itself been codified. We do not expect to consider any 
future revisions to the schedule for submission of Part 2 applications 
unless the schedule set forth in the consent decree is itself modified. 
If the deadline for promulgation of any MACT standard which appears in 
the consent decree is extended by the District Court in accordance with 
the provisions of that decree, we will consider at that time whether 
any corresponding adjustment

[[Page 32595]]

in the schedule for Part 2 applications set forth in this rule is 
necessary and appropriate. If we conclude that a change in the schedule 
for Part 2 applications is warranted, we will consider the use of 
expedited procedures including direct final rulemaking.

C. Requests for Applicability Determination

    In the proposed rule, we noted that some additional structural 
changes in the section 112(j) rule are required to assure that the new 
schedule for Part 2 applications is as uniform as practicable for the 
sources in a given category or subcategory. To achieve this uniformity, 
we proposed certain changes in the procedures for those sources which 
have previously submitted a request for applicability determination 
under 40 CFR 63.52(e)(2)(i).
    In the section 112(j) rule as amended on April 5, 2002, Sec.  
63.52(e)(2)(i) established a process by which major sources could 
request that the permitting authority determine whether or not specific 
sources at their facility belong in any category or subcategory 
requiring a case-by-case determination under section 112(j). All 
requests for applicability determination were due at the same time as 
the section 112(j) Part 1 applications (also referred to as Part 1 MACT 
applications or simply Part 1 applications) on May 15, 2002. Under the 
old procedures, a negative determination by the permitting authority 
concerning such a request meant that no further action was required, 
while a positive determination meant that the applicant was required to 
submit a Part 2 application within 24 months.
    We lack precise information concerning how many requests for 
applicability determination were submitted to permitting authorities on 
or before May 15, 2002, but we believe that hundreds of such requests 
are pending. We know that some of these requests reflected genuine 
uncertainty concerning the scope of the activities or equipment 
governed by a particular category or subcategory. For some of these 
requests, the subsequent issuance of a proposed MACT standard or other 
subsequent events may have resolved such uncertainty. However, we also 
believe that many of these requests were filed merely because the 
filing of such a request operated to defer the deadline for submission 
of a Part 2 application.
    To reconcile the processing of pending requests for applicability 
determination with the new uniform schedule for Part 2 applications, we 
proposed that each affected source which still wishes to pursue a 
previously filed request for applicability determination under 40 CFR 
63.52(e)(2)(i) be required to resubmit and supplement that request 
within 60 days after EPA publishes final action in this rulemaking, or 
within 60 days after EPA publishes a proposed MACT standard for the 
category or subcategory in question, whichever is later. We proposed to 
delay the requirement to resubmit and supplement a request for 
applicability determination until after a proposed MACT standard is 
available because our experience tells us that most uncertainties 
regarding applicability can be resolved by examining the specific 
applicability language in the proposed MACT standard. We also proposed 
to require that each resubmitted request for an applicability 
determination be supplemented to specifically discuss the relation 
between the source(s) in question and the applicability provision in 
the proposed MACT standard for the category or subcategory in question, 
and to explain why there may still be uncertainties that require a 
determination of applicability. Finally, we proposed to require that 
the permitting authority act upon each resubmitted and supplemented 
request for applicability determination within an additional 60 days 
after the applicable deadline for the resubmitted request.
    Comment on our proposals concerning processing of requests for 
applicability determination was more limited than on many other 
elements of our proposal. Some commenters requested that we provide for 
extensions of the deadline for action by the permitting authority. We 
understand that the time frame for action on a resubmitted request for 
applicability determination by the permitting authority is an expedited 
one, but we believe that extending this time frame would undermine our 
efforts to establish a single uniform schedule for Part 2 applications. 
We are hopeful that sources will act in a responsible manner and will 
resubmit only those requests for which genuine unresolved applicability 
issues remain after publication of a proposed MACT standard. This is a 
reasonable expectation because the procedural incentives for submission 
of such requests which existed previously will be eliminated. We also 
think that the availability of a proposed MACT standard, and the 
mandatory supplementation of the resubmitted request to address the 
effect of that proposed standard, should assure an adequate record for 
expedited decisions by the permitting authorities on those requests 
that are resubmitted.
    Some commenters requested that we establish a presumption of 
negative applicability if the permitting authority does not make a 
timely decision concerning a resubmitted request. We disagree with this 
concept because it would establish a substantial new incentive for a 
source to resubmit a pending request, regardless of whether there are 
any genuine and significant remaining questions regarding 
applicability. However, we also believe it would not be appropriate to 
establish a presumption of positive applicability if the permitting 
authority does not act in a timely manner on a resubmitted request. 
This would penalize those sources who sincerely believe that they are 
not covered by the proposed rule, but are merely seeking confirmation 
of that conclusion by the permitting authority. We intend the absence 
of either a negative or a positive presumption to create a strong 
incentive for a source to work closely with the permitting authority to 
resolve any genuine applicability issues in a timely manner.
    Several commenters requested that EPA make provision for the 
submission of new requests for applicability determination. We do not 
believe that the creation of a new adjudicatory process of this type in 
this rulemaking is either appropriate or practical. However, we 
encourage those sources that have new questions concerning the 
applicability of a proposed MACT standard to their operations or 
equipment to seek guidance from responsible personnel at the permitting 
authority and the appropriate EPA Regional Office.
    One commenter requested that we make it clear that any decision by 
a permitting authority concerning a request for applicability 
determination is null and void once a final MACT standard has been 
promulgated. The commenter noted that a determination of applicability 
based on the language of the proposed standard may not always correctly 
anticipate the ultimate applicability of the final promulgated 
standard. We agree with this comment. Requests for applicability 
determination submitted under 40 CFR 63.52(e)(2)(i) are intended solely 
to determine whether a source must submit a section 112(j) application, 
not to resolve applicability issues which may arise in other contexts. 
As we discussed in the section concerning general applicability above, 
no further process to develop an equivalent emission limitation under 
section 112(j) is necessary or

[[Page 32596]]

appropriate once a generally applicable Federal standard has been 
promulgated.
    After reviewing all of the comments, we have decided to adopt 
amendments to the procedures for requests for applicability 
determination as we proposed them. We have added new language to 40 CFR 
63.52(e)(2)(i) which effectuates this decision.
    As we noted in the proposal, those major sources which elect to 
resubmit requests for applicability determination with respect to 
sources that may be governed by one of the MACT standards which are 
scheduled to be promulgated by August 31, 2003, may not be entitled to 
receive a determination by the permitting authority on the resubmitted 
request until shortly after the scheduled promulgation date. If such a 
standard is delayed, and there is no negative determination by the 
permitting authority on the resubmitted request, the Part 2 application 
for sources within the category in question will be due on October 30, 
2003. This tight time frame underscores the importance of careful 
coordination between such sources and the permitting authority if it 
appears that a MACT standard will be delayed. As discussed above, EPA 
will endeavor to provide timely information to affected sources and 
permitting authorities if it becomes apparent that the promulgation 
schedule for any of the remaining MACT standards will not be met.

D. Prior Section 112(g) Determinations

    As part of our proposal to establish a single uniform Part 2 
application deadline for all sources in a given category or 
subcategory, we also proposed some changes to the procedures governing 
CAA section 112(j) applications for those sources which have previously 
received a case-by-case determination pursuant to CAA section 112(g). 
To understand the effect of this proposal, it is helpful to review the 
substantive relationship between these separate statutory requirements.
    In general, we anticipate that emission control requirements 
established as part of a previous case-by-case determination under 
section 112(g) will subsequently be adopted by the permitting authority 
to satisfy any applicable 112(j) requirements as well. This is because 
the determination required for any sources subject to CAA section 
112(g) is supposed to be based on new source MACT, and the subsequent 
application of section 112(j) requirements to those same sources will 
be based on existing source MACT. Moreover, to assure that 
inconsequential differences in emission control do not result in unduly 
burdensome sequential case-by-case determinations, the section 112(j) 
rule requires the permitting authority to adopt any prior case-by-case 
determination under section 112(g) as its determination for the same 
sources under section 112(j) if it ``determines that the emission 
limitations in the prior case-by-case determination are substantially 
as effective as the emission limitations which the permitting authority 
would otherwise adopt under section 112(j).'' See 40 CFR 63.52(a)(3), 
(b)(2), and (e)(2)(ii).
    Under the rule as it was amended on April 5, 2002, sources which 
had previously obtained a case-by-case determination under CAA section 
112(g) were generally required to submit a request for an ``equivalency 
determination'' to decide if the applicable section 112(g) requirements 
are ``substantially as effective'' as the requirements which would 
otherwise apply under section 112(j). As explained above, we believe 
that this determination will generally be positive. However, the rule 
as amended on April 5, 2002 provided that, if such a determination were 
negative, the source would then be required to submit a Part 2 
application within 24 months. As in the case of requests for 
applicability determination, changes to the old language are required 
to place all sources in a given category or subcategory on the same 
schedule for submission of Part 2 applications.
    Thus, we proposed to adopt the Part 2 application deadline for a 
given category or subcategory as the final deadline for submission of a 
request for an ``equivalency determination'' by any affected source 
that previously obtained a case-by-case determination under CAA section 
112(g). Those sources who submitted such requests earlier under the 
provisions of the existing rule need not resubmit them. However, we 
also proposed to construe all requests for an equivalency 
determination, regardless of when they were submitted, as a section 
112(j) Part 2 application as well.
    Under the amendments we proposed, the permitting authority must 
first make an equivalency determination. In the event of a negative 
determination, the permitting authority will then proceed to adopt a 
separate set of case-by-case requirements pursuant to section 112(j). 
This process will be completed in the same 18-month period that applies 
to the processing of all other Part 2 applications.
    In the proposal, we explained that this revised process would not 
impose any new burden on sources or permitting authorities, because the 
permitting authority should already have all of the information 
required for a Part 2 application in any instance where it is already 
administering section 112(g) requirements applicable to the same 
source.
    As in the case of requests for applicability determination, 
relatively few comments were received concerning this element of our 
proposal. Commenters generally accepted our view that a source which 
has already received a case-by-case determination under section 112(g) 
should not need to submit additional information in a section 112(j) 
application. A couple of commenters requested that the deadline for 
submission of a request for an equivalency determination be delayed if 
the promulgation of a MACT standard is delayed. Since we are proposing 
that the deadline for submission of requests for an equivalency 
determination be the same as the deadline for Part 2 applications, our 
discussion above of the effect of potential delays applies equally to 
this issue.
    After reviewing all of the comments, we have decided to adopt 
amendments to the procedures for requests for equivalency determination 
exactly as we proposed them. We have added new language to 40 CFR 
63.52(e)(2)(ii) which effectuates this decision.

E. Later Part 1 Applications

    In drafting new language to effectuate our amendments to the 
section 112(j) rule, we identified one additional conforming change in 
the prior rule language which is necessary. There are a few instances 
where a source may be required to submit a Part 1 application meeting 
the requirements of 40 CFR 63.53(a) for the first time on a date which 
is after the otherwise uniform date for submission of Part 2 
applications which we are establishing. This may occur under 40 CFR 
63.52(b) when new emission units are installed at a major source, when 
there is an increase in the potential to emit that causes an area 
source to become a major source, or when EPA establishes a lesser 
quantity emission rate that causes an area source to become a major 
source. This may also occur under 40 CFR 63.52(c) if a source that has 
previously obtained a section 112(j) determination changes the 
equipment or activities which were previously covered by that 
determination.
    We consider it relatively unlikely that any of these provisions 
will be triggered, even if there is a delay in the promulgation of one 
or more MACT standards which results in submission of some Part 2 
applications. However, in the event that any Part 1 applications must 
be submitted for the first time after

[[Page 32597]]

the deadline for submission of Part 2 applications, we think it is 
appropriate to provide an additional 60 days for submission of a Part 2 
application after the applicable deadline for the Part 1 application. 
We have added another sentence to 40 CFR 63.52(e)(1) which addresses 
this matter.

F. Content of Part 2 Applications

    We intend to meet the obligations we will be assuming under the 
consent decree in Sierra Club v. Whitman to promulgate the remaining 
MACT standards in a timely manner. If we succeed in promulgating all 
remaining MACT standards by the applicable deadlines, there will be no 
need for submission of any Part 2 applications. However, we also made 
it clear in the proposed rule that we want to minimize any unnecessary 
burdens associated with the submission of Part 2 applications if such 
applications do become necessary. We do not want to require the 
submission of any information which is not truly necessary to prepare 
for potential issuance of case-by-case MACT determinations. To that 
end, our proposal included some general guidance concerning the 
relationship between Part 2 applications and an applicable proposed 
MACT standard, and we also asked some additional questions intended to 
assist us in further limiting any unnecessary burden associated with 
Part 2 applications.
    In our proposal, we stated that we think it is reasonable for an 
affected source submitting a Part 2 application to rely directly on the 
content of the applicable proposed MACT standard in identifying 
affected emission points. We also stated that applicants could 
reasonably limit the information they submit concerning HAP emissions 
to those specific HAP or groups of HAP which would be subject to actual 
control in the applicable proposed MACT standard. Commenters were 
generally supportive of these principles. Rather than merely providing 
guidance, we have decided to revise the language of 40 CFR 63.53(b) to 
expressly incorporate these principles.
    Many commenters argued that the burden of compiling a Part 2 
application could be diminished by permitting cross-referencing of 
various other documents. We agree generally with this concept, although 
we think that the specific information which is being cross-referenced 
needs to be clearly identified and the information being cross-
referenced should also be information that is readily available to the 
permitting authority. Rather than attempting to specify those 
particular documents that may be appropriately cross-referenced, we 
have decided to adopt language setting forth general principles 
regarding the cross-referencing of other documents in Part 2 
applications. These general principles are included in a new paragraph 
codified as 40 CFR 63.53(b)(1).
    We have concluded that an applicant should be permitted to cross-
reference specific information in any prior submission to the 
permitting authority, so long as the applicant does not presume 
favorable action on any prior application or request which is still 
pending. Further, we have concluded that an applicant should be 
permitted to cross-reference any part of a standard proposed by EPA 
pursuant to CAA section 112(d) or 112(h) for a category or subcategory 
which includes sources to which the Part 2 application applies. We also 
want to assure applicants that they can cross-reference a proposed 
standard as part of their Part 2 application without necessarily 
supporting the proposal itself. Thus, an applicant who cross-references 
a proposed standard is free to argue that another approach (other than 
the approach proposed by EPA) should be used in making the case-by-case 
MACT determination.
    We received numerous comments in response to our question asking 
whether the applicant needs to provide ``estimated total uncontrolled 
and controlled emission rates'' for HAP, and in response to our 
question asking whether new emission testing should be required if an 
applicant lacks sufficient information to make meaningful estimates. 
Many commenters argued that estimated emission rates are not necessary, 
and that no new emission testing should be required. Commenters also 
argued that such information can be requested by the permitting 
authority in those instances where it may be needed.
    In evaluating these comments, we have considered whether estimates 
of controlled and uncontrolled emission rates are consistently needed 
to process a Part 2 application. In some instances, such emission data 
may be necessary to identify those emission points which would be 
subject to control under a proposed MACT standard, but we believe that 
the provision requiring the applicant to otherwise identify such 
emission points is sufficient in those instances where this is true. 
Such emission information may also be necessary in some cases to 
develop permit terms which apply the general requirements of a 
particular MACT standard or determination to the particular 
characteristics of an affected source. However, we believe that it is 
sufficient to assure that the permitting authority can request that an 
applicant provide specific emission information it needs for this 
purpose. We note that if such information is not provided in the Part 2 
application, the permitting authority will still be able to obtain it 
in the context of the permitting process which follows. Based on this 
analysis, we have decided to delete the provision requiring estimates 
of total uncontrolled and controlled HAP emission rates in Part 2 
applications, and to add a provision requiring the applicant to submit 
any additional emission data or other information specifically 
requested by the permitting authority.
    Commenters generally argued that the applicant should not be 
required to submit ``information relevant to establishing the MACT 
floor.'' We agree with this conclusion. We do not think applicants 
should be required to submit such information, but we do think they 
should be free to do so if they wish to propose an alternative to the 
floor determination set forth in the proposed MACT standard. 
Accordingly, we have deleted this information as a mandatory 
requirement, but have retained the provision permitting the applicant 
to suggest an alternative set of emission limitations or work practice 
provisions on a discretionary basis.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), we must 
determine whether a regulatory action is ``significant'' and, 
therefore, subject to Office of Management and Budget (OMB) review and 
the requirements of the Executive Order. The Executive Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.

[[Page 32598]]

    It has been determined that these final amendments are not a 
``significant regulatory action'' under the terms of Executive Order 
12866 and are, therefore, not subject to OMB review.

B. Paperwork Reduction Act

    As required by the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et 
seq., the OMB must approve any reporting and recordkeeping requirements 
that qualify as an information collection request (ICR) under the PRA.
    Approval of an ICR is not required for the General Provisions 
amendments because, for sources affected by CAA section 112 only, the 
General Provisions do not require any activities until source category-
specific standards have been promulgated or until title V permit 
programs become effective. The actual recordkeeping and reporting 
burden that would be imposed by the General Provisions for each source 
category covered by 40 CFR part 63 will be estimated when standards 
applicable to such category are promulgated.
    Approval of an ICR is not required for the section 112(j) rule 
amendments, either. The EPA fully expects to promulgate all remaining 
MACT standards before the Part 2 permit applications are due, thus 
eliminating the burden associated with preparing the application and 
developing case-by-case MACT determinations for individual sources.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

C. Regulatory Flexibility Act (RFA)

    The EPA has determined that it is not necessary to prepare a 
regulatory flexibility analysis in connection with these final 
amendments. The EPA has also determined that these amendments will not 
have a significant economic impact on a substantial number of small 
entities. For purposes of assessing the impact of today's rule 
amendments on small entities, small entities are defined as: (1) A 
small business whose parent company has fewer than 1,000 employees; (2) 
a small governmental jurisdiction that is a government of a city, 
county, town, school district or special district with a population of 
less than 50,000; or (3) a small organization that is any not-for-
profit enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of today's final amendments 
on small entities, EPA has concluded that this action will not have a 
significant economic impact on a substantial number of small entities.
    A regulatory flexibility analysis is not necessary for the General 
Provisions amendments because it is unknown at this time which 
requirements from the General Provisions will be applicable to any 
particular source category, whether such category includes small 
businesses, and how significant the impacts of those requirements would 
be on small businesses. Impacts on small entities associated with the 
General Provisions will be assessed when specific emission standards 
affecting those sources are developed. ``Small entities'' will be 
defined in the context of the applicability of those standards.
    Similarly, no analysis has been prepared for the amendments to the 
section 112(j) rule. The rule provides general guidance and procedures 
concerning the implementation of an underlying statutory requirement, 
but it does not by itself impose any regulatory requirements or 
prescribe the specific content of any case-by-case determination which 
might be made under section 112(j). Although the final amendments will 
not have a significant economic impact on a substantial number of small 
entities, EPA nonetheless has tried to reduce the impact of the rule 
amendments on small entities. We do not require the Part 2 permit 
applications until 60 days after the scheduled MACT standard 
promulgation date. We fully anticipate that all MACT standards will be 
promulgated before any Part 2 applications are due, thus eliminating 
the burden of submitting a Part 2 application.

D. Unfunded Mandates Reform Act

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

[[Page 32599]]

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires the EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' are 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 final amendments do not have federalism implications and will 
not have substantial direct effects on the States, on the relationship 
between the national Government and the States, or on the distribution 
of power and responsibilities among the various levels of Government, 
as specified in Executive Order 13132. Nevertheless, in the spirit of 
Executive Order 13132 and consistent with EPA policy to promote 
communications between EPA, State and local governments, EPA 
specifically solicited comment on the rule amendments from State and 
local officials.

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

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

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

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

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, Or Use

    These final amendments are not subject to Executive Order 13211 (66 
FR 26355, May 22, 2001), because they are not a significant regulatory 
action under Executive Order 12866.

I. National Technology Transfer and Advancement Act of 1995

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

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
SBREFA, generally provides that before a rule may take effect, the 
agency promulgating the rule must submit a rule report, which includes 
a copy of the rule, to each House of the Congress and to the 
Comptroller General of the United States. Therefore, we will submit a 
report containing the final amendments and other required information 
to the U.S. Senate, the U.S. House of Representatives, and the 
Comptroller General of the United States prior to publication of the 
rule in the Federal Register. A major rule cannot take effect until 60 
days after it is published in the Federal Register. These final 
amendments are not a ``major rule'' as defined by 5 U.S.C. 804(2), and 
therefore will be effective May 30, 2003.

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.

0
For the reasons cited in the preamble, part 63, title 40, chapter I of 
the Code of Federal Regulations is amended as follows:

[[Page 32600]]

PART 63--[AMENDED]

0
1. The authority citation for part 63 continues to read as follows:

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

Subpart A--[Amended]

0
2. Section 63.2 is amended by revising the first sentence in the 
definition of Malfunction to read as follows:


Sec.  63.2  Definitions.

* * * * *
    Malfunction means any sudden, infrequent, and not reasonably 
preventable failure of air pollution control and monitoring equipment, 
process equipment, or a process to operate in a normal or usual manner 
which causes, or has the potential to cause, the emission limitations 
in an applicable standard to be exceeded. * * *
* * * * *

0
3. Section 63.6 is amended by:
0
a. Revising paragraph (e)(1)(i);
0
b. Revising the first sentence in paragraph (e)(3)(i) introductory 
text;
0
c. Revising paragraph (e)(3)(i)(A);
0
d. Revising paragraph (e)(3)(iv);
0
e. Adding five sentences to the end of paragraph (e)(3)(v);
0
f. Revising paragraph (e)(3)(vi);
0
g. Revising the introductory text to paragraph (e)(3)(vii) and revising 
paragraph (e)(3)(vii)(B); and
0
h. Revising the last sentence in paragraph (e)(3)(viii).
0
The revisions and addition read as follows:


Sec.  63.6  Compliance with standards and maintenance requirements.

* * * * *
    (e) * * *
    (1)(i) At all times, including periods of startup, shutdown, and 
malfunction, the owner or operator must operate and maintain any 
affected source, including associated air pollution control equipment 
and monitoring equipment, in a manner consistent with safety and good 
air pollution control practices for minimizing emissions. During a 
period of startup, shutdown, or malfunction, this general duty to 
minimize emissions requires that the owner or operator reduce emissions 
from the affected source to the greatest extent which is consistent 
with safety and good air pollution control practices. The general duty 
to minimize emissions during a period of startup, shutdown, or 
malfunction does not require the owner or operator to achieve emission 
levels that would be required by the applicable standard at other times 
if this is not consistent with safety and good air pollution control 
practices, nor does it require the owner or operator to make any 
further efforts to reduce emissions if levels required by the 
applicable standard have been achieved. Determination of whether such 
operation and maintenance procedures are being used will be based on 
information available to the Administrator which may include, but is 
not limited to, monitoring results, review of operation and maintenance 
procedures (including the startup, shutdown, and malfunction plan 
required in paragraph (e)(3) of this section), review of operation and 
maintenance records, and inspection of the source.
* * * * *
    (3) Startup, shutdown, and malfunction plan. (i) The owner or 
operator of an affected source must develop and implement a written 
startup, shutdown, and malfunction plan that describes, in detail, 
procedures for operating and maintaining the source during periods of 
startup, shutdown, and malfunction, and a program of corrective action 
for malfunctioning process and air pollution control and monitoring 
equipment used to comply with the relevant standard. * * *
    (A) Ensure that, at all times, the owner or operator operates and 
maintains each affected source, including associated air pollution 
control and monitoring equipment, in a manner which satisfies the 
general duty to minimize emissions established by paragraph (e)(1)(i) 
of this section;
* * * * *
    (iv) If an action taken by the owner or operator during a startup, 
shutdown, or malfunction (including an action taken to correct a 
malfunction) is not consistent with the procedures specified in the 
affected source's startup, shutdown, and malfunction plan, and the 
source exceeds any applicable emission limitation in the relevant 
emission standard, then the owner or operator must record the actions 
taken for that event and must report such actions within 2 working days 
after commencing actions inconsistent with the plan, followed by a 
letter within 7 working days after the end of the event, in accordance 
with Sec.  63.10(d)(5) (unless the owner or operator makes alternative 
reporting arrangements, in advance, with the Administrator).
    (v) * * * The Administrator may at any time request in writing that 
the owner or operator submit a copy of any startup, shutdown, and 
malfunction plan (or a portion thereof) which is maintained at the 
affected source or in the possession of the owner or operator. Upon 
receipt of such a request, the owner or operator must promptly submit a 
copy of the requested plan (or a portion thereof) to the Administrator. 
The Administrator must request that the owner or operator submit a 
particular startup, shutdown, or malfunction plan (or a portion 
thereof) whenever a member of the public submits a specific and 
reasonable request to examine or to receive a copy of that plan or 
portion of a plan. The owner or operator may elect to submit the 
required copy of any startup, shutdown, and malfunction plan to the 
Administrator in an electronic format. If the owner or operator claims 
that any portion of such a startup, shutdown, and malfunction plan is 
confidential business information entitled to protection from 
disclosure under section 114(c) of the Act or 40 CFR 2.301, the 
material which is claimed as confidential must be clearly designated in 
the submission.
    (vi) To satisfy the requirements of this section to develop a 
startup, shutdown, and malfunction plan, the owner or operator may use 
the affected source's standard operating procedures (SOP) manual, or an 
Occupational Safety and Health Administration (OSHA) or other plan, 
provided the alternative plans meet all the requirements of this 
section and are made available for inspection or submitted when 
requested by the Administrator.
    (vii) Based on the results of a determination made under paragraph 
(e)(1)(i) of this section, the Administrator may require that an owner 
or operator of an affected source make changes to the startup, 
shutdown, and malfunction plan for that source. The Administrator must 
require appropriate revisions to a startup, shutdown, and malfunction 
plan, if the Administrator finds that the plan:
* * * * *
    (B) Fails to provide for the operation of the source (including 
associated air pollution control and monitoring equipment) during a 
startup, shutdown, or malfunction event in a manner consistent with the 
general duty to minimize emissions established by paragraph (e)(1)(i) 
of this section;
* * * * *
    (viii) * * * In the event that the owner or operator makes any 
revision to the startup, shutdown, and malfunction plan which alters 
the scope of the activities at the source which are deemed to be a 
startup, shutdown, or malfunction, or otherwise modifies the 
applicability of any emission limit, work practice requirement, or 
other requirement in a standard established

[[Page 32601]]

under this part, the revised plan shall not take effect until after the 
owner or operator has provided a written notice describing the revision 
to the permitting authority.
* * * * *

0
4. Section 63.9 is amended by revising the first sentence in paragraph 
(h)(2)(ii) and adding a sentence to the end of paragraph (h)(2)(ii) to 
read as follows:


Sec.  63.9  Notification requirements.

* * * * *
    (h) * * *
    (2) * * *
    (ii) The notification must be sent before the close of business on 
the 60th day following the completion of the relevant compliance 
demonstration activity specified in the relevant standard (unless a 
different reporting period is specified in the standard, in which case 
the letter must be sent before the close of business on the day the 
report of the relevant testing or monitoring results is required to be 
delivered or postmarked). * * * Notifications may be combined as long 
as the due date requirement for each notification is met.
* * * * *

0
5. Section 63.10 is amended by revising paragraphs (d)(5)(i) and (ii) 
to read as follows:


Sec.  63.10  Recordkeeping and reporting requirements.

* * * * *
    (d) * * *
    (5)(i) Periodic startup, shutdown, and malfunction reports. If 
actions taken by an owner or operator during a startup, shutdown, or 
malfunction of an affected source (including actions taken to correct a 
malfunction) are consistent with the procedures specified in the 
source's startup, shutdown, and malfunction plan (see Sec.  
63.6(e)(3)), the owner or operator shall state such information in a 
startup, shutdown, and malfunction report. Such a report shall identify 
any instance where any action taken by an owner or operator during a 
startup, shutdown, or malfunction (including actions taken to correct a 
malfunction) is not consistent with the affected source's startup, 
shutdown, and malfunction plan, but the source does not exceed any 
applicable emission limitation in the relevant emission standard. Such 
a report shall also include the number, duration, and a brief 
description for each type of malfunction which occurred during the 
reporting period and which caused or may have caused any applicable 
emission limitation to be exceeded. Reports shall only be required if a 
startup, shutdown, or malfunction occurred during the reporting period. 
The startup, shutdown, and malfunction report shall consist of a 
letter, containing the name, title, and signature of the owner or 
operator or other responsible official who is certifying its accuracy, 
that shall be submitted to the Administrator semiannually (or on a more 
frequent basis if specified otherwise in a relevant standard or as 
established otherwise by the permitting authority in the source's title 
V permit). The startup, shutdown, and malfunction report shall be 
delivered or postmarked by the 30th day following the end of each 
calendar half (or other calendar reporting period, as appropriate). If 
the owner or operator is required to submit excess emissions and 
continuous monitoring system performance (or other periodic) reports 
under this part, the startup, shutdown, and malfunction reports 
required under this paragraph may be submitted simultaneously with the 
excess emissions and continuous monitoring system performance (or 
other) reports. If startup, shutdown, and malfunction reports are 
submitted with excess emissions and continuous monitoring system 
performance (or other periodic) reports, and the owner or operator 
receives approval to reduce the frequency of reporting for the latter 
under paragraph (e) of this section, the frequency of reporting for the 
startup, shutdown, and malfunction reports also may be reduced if the 
Administrator does not object to the intended change. The procedures to 
implement the allowance in the preceding sentence shall be the same as 
the procedures specified in paragraph (e)(3) of this section.
    (ii) Immediate startup, shutdown, and malfunction reports. 
Notwithstanding the allowance to reduce the frequency of reporting for 
periodic startup, shutdown, and malfunction reports under paragraph 
(d)(5)(i) of this section, any time an action taken by an owner or 
operator during a startup, shutdown, or malfunction (including actions 
taken to correct a malfunction) is not consistent with the procedures 
specified in the affected source's startup, shutdown, and malfunction 
plan, and the source exceeds any applicable emission limitation in the 
relevant emission standard, the owner or operator shall report the 
actions taken for that event within 2 working days after commencing 
actions inconsistent with the plan followed by a letter within 7 
working days after the end of the event. The immediate report required 
under this paragraph (d)(5)(ii) shall consist of a telephone call (or 
facsimile (FAX) transmission) to the Administrator within 2 working 
days after commencing actions inconsistent with the plan, and it shall 
be followed by a letter, delivered or postmarked within 7 working days 
after the end of the event, that contains the name, title, and 
signature of the owner or operator or other responsible official who is 
certifying its accuracy, explaining the circumstances of the event, the 
reasons for not following the startup, shutdown, and malfunction plan, 
and describing all excess emissions and/or parameter monitoring 
exceedances which are believed to have occurred. Notwithstanding the 
requirements of the previous sentence, after the effective date of an 
approved permit program in the State in which an affected source is 
located, the owner or operator may make alternative reporting 
arrangements, in advance, with the permitting authority in that State. 
Procedures governing the arrangement of alternative reporting 
requirements under this paragraph (d)(5)(ii) are specified in Sec.  
63.9(i).
* * * * *

0
6. Section 63.13 is amended by revising the address for EPA Region IV 
in paragraph (a) to read as follows:


Sec.  63.13  Addresses of State air pollution control agencies and EPA 
Regional Offices.

    (a) * * *
    EPA Region IV (Alabama, Florida, Georgia, Kentucky, Mississippi, 
North Carolina, South Carolina, Tennessee). Director, Air, Pesticides 
and Toxics Management Division, Atlanta Federal Center, 61 Forsyth 
Street, Atlanta, GA 30303-3104.
* * * * *

Subpart B--[Amended]

0
7. Section 63.50 is amended by adding paragraph (c) and paragraph (d) 
to read as follows:


Sec.  63.50  Applicability.

* * * * *
    (c) The procedures in Sec. Sec.  63.50 through 63.56 apply for each 
affected source only after the section 112(j) deadline for the source 
category or subcategory in question has passed, and only until such 
time as a generally applicable Federal standard governing that source 
has been promulgated under section 112(d) or 112(h) of the Act. Once a 
generally applicable Federal standard governing that source has been 
promulgated, the owner or operator of the affected source and the 
permitting authority are not required to take any further actions to 
develop an equivalent

[[Page 32602]]

emission limitation under section 112(j) of the Act.
    (d) Any final equivalent emission limitation for an affected source 
which is issued by the permitting authority pursuant to Sec. Sec.  
63.50 through 63.56 prior to promulgation of a generally applicable 
Federal standard governing that source under section 112(d) or 112(h) 
of the Act shall be deemed an applicable Federal requirement adopted 
pursuant to section 112(j) of the Act. Each such equivalent emission 
limitation shall take effect upon issuance of the permit containing 
that limitation under section 112(j)(5) of the Act, and shall remain 
applicable to the source until such time as it may be revised or 
supplanted pursuant to the procedures established by Sec. Sec.  63.50 
through 63.56. Such a final equivalent emission limitation, and all 
associated requirements adopted pursuant to Sec.  63.52(f)(2), are 
directly enforceable under Federal law regardless of whether or not any 
permit in which they may be contained remains in effect.

0
8. Section 63.52 is amended by revising paragraphs (e)(1) and (e)(2)(i) 
through (ii) to read as follows:


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

* * * * *
    (e) Permit application review.
    (1) Each owner or operator who is required to submit to the 
permitting authority a Part 1 MACT application which meets the 
requirements of Sec.  63.53(a) for one or more sources in a category or 
subcategory subject to section 112(j) must also submit to the 
permitting authority a timely Part 2 MACT application for the same 
sources which meets the requirements of Sec.  63.53(b). Each owner or 
operator shall submit the Part 2 MACT application for the sources in a 
particular category or subcategory no later than the applicable date 
specified in Table 1 to this subpart. The submission date specified in 
Table 1 to this subpart for Miscellaneous Organic Chemical 
Manufacturing shall apply to sources in each of the source categories 
listed in Table 2 to this subpart. When the owner or operator is 
required by Sec. Sec.  63.50 through 63.56 to submit an application 
meeting the requirements of Sec.  63.53(a) by a date which is after the 
date for a Part 2 MACT application for sources in the category or 
subcategory in question established by Table 1 to this subpart, the 
owner or operator shall submit a Part 2 MACT application meeting the 
requirements of Sec.  63.53(b) within 60 additional days after the 
applicable deadline for submission of the Part 1 MACT application. Part 
2 MACT applications must be reviewed by the permitting authority 
according to procedures established in Sec.  63.55. The resulting MACT 
determination must be incorporated into the source's title V permit 
according to procedures established under title V, and any other 
regulations approved under title V in the jurisdiction in which the 
affected source is located.
    (2) Notwithstanding paragraph (e)(1) of this section, the owner or 
operator may request either an applicability determination or an 
equivalency determination by the permitting authority as provided in 
paragraphs (e)(2)(i) and (ii) of this section.
    (i) Each owner or operator who submitted a request for an 
applicability determination pursuant to paragraph (d)(1) of this 
section on or before May 15, 2002, which remains pending before the 
permitting authority on May 30, 2003, and who still wishes to obtain 
such a determination, must resubmit that request by July 29, 2003, or 
by the date which is 60 days after the Administrator publishes in the 
Federal Register a proposed standard under section 112(d) or 112(h) of 
the Act for the category or subcategory in question, whichever is 
later. Each request for an applicability determination which is 
resubmitted under this paragraph (e)(2)(i) must be supplemented to 
discuss the relation between the source(s) in question and the 
applicability provision in the proposed standard for the category or 
subcategory in question, and to explain why there may still be 
uncertainties that require a determination of applicability. The 
permitting authority must take action upon each properly resubmitted 
and supplemented request for an applicability determination within an 
additional 60 days after the applicable deadline for the resubmitted 
request. If the applicability determination is positive, the owner or 
operator must submit a Part 2 MACT application meeting the requirements 
of Sec.  63.53(b) by the date specified for the category or subcategory 
in question in Table 1 to this subpart. If the applicability 
determination is negative, then no further action by the owner or 
operator is necessary.
    (ii) As specified in paragraphs (a) and (b) of this section, an 
owner or operator who has submitted an application meeting the 
requirements of Sec.  63.53(a) may request a determination by the 
permitting authority of whether emission limitations adopted pursuant 
to a prior case-by-case MACT determination under section 112(g) that 
apply to one or more sources at a major source in a relevant category 
or subcategory are substantially as effective as the emission 
limitations which the permitting authority would otherwise adopt 
pursuant to section 112(j) for the source in question. Such a request 
must be submitted by the date for the category or subcategory in 
question specified in Table 1 to this subpart. Any owner or operator 
who previously submitted such a request under a prior version of this 
paragraph (e)(2)(ii) need not resubmit the request. Each request for an 
equivalency determination under this paragraph (e)(2)(ii), regardless 
of when it was submitted, will be construed in the alternative as a 
complete application for an equivalent emission limitation under 
section 112(j). The process for determination by the permitting 
authority of whether the emission limitations in the prior case-by-case 
MACT determination are substantially as effective as the emission 
limitations which the permitting authority would otherwise adopt under 
section 112(j) must include the opportunity for full public, EPA, and 
affected State review prior to a final determination. If the permitting 
authority determines that the emission limitations in the prior case-
by-case MACT determination are substantially as effective as the 
emission limitations which the permitting authority would otherwise 
adopt under section 112(j), then the permitting authority must adopt 
the existing emission limitations in the permit as the emission 
limitations to effectuate section 112(j) for the source in question. If 
more than 3 years remain on the current title V permit, the owner or 
operator must submit an application for a title V permit revision to 
make any conforming changes in the permit required to adopt the 
existing emission limitations as the section 112(j) MACT emission 
limitations. If less than 3 years remain on the current title V permit, 
any required conforming changes must be made when the permit is 
renewed. If the permitting authority determines that the emission 
limitations in the prior case-by-case MACT determination under section 
112(g) are not substantially as effective as the emission limitations 
which the permitting authority would otherwise adopt for the source in 
question under section 112(j), the permitting authority must make a new 
MACT determination and adopt a title V permit incorporating an 
appropriate equivalent emission limitation under section 112(j). Such a 
determination constitutes final action for purposes of judicial review 
under 40 CFR 70.4(b)(3)(x) and corresponding State title V program 
provisions.
* * * * *

[[Page 32603]]


0
9. Section 63.53 is amended by:
0
a. Redesignating paragraphs (b)(1) and (2) as paragraphs (b)(2) and 
(3);
0
b. Adding a new paragraph (b)(1); and
0
c. Revising newly designated paragraph (b)(2).
0
The addition and revision read as follows:


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

* * * * *
    (b) * * *
    (1) In compiling a Part 2 MACT application, the owner or operator 
may cross-reference specific information in any prior submission by the 
owner or operator to the permitting authority, but in cross-referencing 
such information the owner or operator may not presume favorable action 
on any prior application or request which is still pending. In 
compiling a Part 2 MACT application, the owner or operator may also 
cross-reference any part of a standard proposed by the Administrator 
pursuant to section 112(d) or 112(h) of the Act for any category or 
subcategory which includes sources to which the Part 2 application 
applies.
    (2) The Part 2 application for a MACT determination must contain 
the information in paragraphs (b)(2)(i) through (b)(2)(v) of this 
section.
    (i) For a new affected source, the anticipated date of startup of 
operation.
    (ii) Each emission point or group of emission points at the 
affected source which is part of a category or subcategory for which a 
Part 2 MACT application is required, and each of the hazardous air 
pollutants emitted at those emission points. When the Administrator has 
proposed a standard pursuant to section 112(d) or 112(h) of the Act for 
a category or subcategory, such information may be limited to those 
emission points and hazardous air pollutants which would be subject to 
control under the proposed standard.
    (iii) Any existing Federal, State, or local limitations or 
requirements governing emissions of hazardous air pollutants from those 
emission points which are part of a category or subcategory for which a 
Part 2 application is required.
    (iv) For each identified emission point or group of affected 
emission points, an identification of control technology in place.
    (v) Any additional emission data or other information specifically 
requested by the permitting authority.
* * * * *

0
10. Subpart B is amended by adding Tables 1 and 2 to the end of the 
subpart to read as follows:

Tables to Subpart B of Part 63

 Table 1 to Subpart B of Part 63.--Section 112(j) Part 2 Application Due
                                  Dates
------------------------------------------------------------------------
              Due date                           MACT standard
------------------------------------------------------------------------
10/30/03............................  Combustion Turbines.
                                      Lime Manufacturing.
                                      Site Remediation.
                                      Iron and Steel Foundries.
                                      Taconite Iron Ore Processing.
                                      Miscellaneous Organic Chemical
                                       Manufacturing (MON).\1\
                                      Organic Liquids Distribution.
                                      Primary Magnesium Refining.
                                      Metal Can (Surface Coating).
                                      Plastic Parts and Products
                                       (Surface Coating).
                                      Chlorine Production.
                                      Miscellaneous Metal Parts and
                                       Products (Surface Coating) (and
                                       Asphalt/Coal Tar Application--
                                       Metal Pipes).\2\
4/28/04.............................  Industrial Boilers, Institutional/
                                       Commercial Boilers and Process
                                       Heaters.\3\
                                      Plywood and Composite Wood
                                       Products.
                                      Reciprocating Internal Combustion
                                       Engines.\4\
                                      Auto and Light-Duty Truck (Surface
                                       Coating).
8/13/05.............................  Industrial Boilers, Institutional/
                                       Commercial Boilers, and Process
                                       Heaters.\5\
                                      Hydrochloric Acid Production.\6\
------------------------------------------------------------------------
\1\ Covers 23 source categories, see Table 2 to this subpart.
\2\ Two source categories.
\3\ Includes all sources in the three categories, Industrial Boilers,
  Institutional/Commercial Boilers, and Process Heaters that burn no
  hazardous waste.
\4\ Includes engines greater than 500 brake horsepower.
\5\ Includes all sources in the three categories, Industrial Boilers,
  Institutional/Commercial Boilers, and Process Heaters that burn
  hazardous waste.
\6\ Includes furnaces that produce acid from hazardous waste at sources
  in the category Hydrochloric Acid Production.


         Table 2 to Subpart B of Part 63.--MON Source Categories
------------------------------------------------------------------------
 
---------------------------------------------------------------------------
Manufacture of Paints, Coatings, and Adhesives.
Alkyd Resins Production.
Maleic Anhydride Copolymers Production.
Polyester Resins Production.
Polymerized Vinylidene Chloride Production.
Polymethyl Methacrylate Resins Production.
Polyvinyl Acetate Emulsions Production.
Polyvinyl Alcohol Production.
Polyvinyl Butyral Production.
Ammonium Sulfate Production-Caprolactam By-Product Plants.
Quaternary Ammonium Compounds Production.
Benzyltrimethylammonium Chloride Production.
Carbonyl Sulfide Production.
Chelating Agents Production.
Chlorinated Paraffins Production.
Ethylidene Norbornene Production.
Explosives Production.
Hydrazine Production.
OBPA/1,3-Diisocyanate Production.
Photographic Chemicals Production.
Phthalate Plasticizers Production.
Rubber Chemicals Manufacturing.
Symmetrical Tetrachloropyridine Production.
------------------------------------------------------------------------

[FR Doc. 03-13178 Filed 5-29-03; 8:45 am]
BILLING CODE 6560-50-P