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)

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[FRL-6949-7]

RIN 2060-AF31

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

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed amendments.

SUMMARY:

General Provisions (Subpart A).

On March 16, 1994, the EPA promulgated General Provisions for national emission standards for hazardous air pollutants (NESHAP) and other regulatory requirements that are established under section 112 of the Clean Air Act as amended in 1990 (CAA or Act) (59 FR 12408). In today's action, we are proposing amendments to the General Provisions that would revise and clarify several of the current provisions.

We are proposing these amendments, in part, as a result of decisions reached in settlement negotiations conducted between petitioners, who filed for review of the General Provisions, and the EPA. The proposed amendments also reflect internal EPA discussions on issues regarding implementation of the General Provisions.

Section 112(j) Provisions (Subpart B).

In addition, in today's action, we are proposing amendments to rules that establish equivalent emission limitations by permit under section 112(j) of the Act. The “section 112(j)” rule establishes requirements and procedures for owners or operators of major sources of hazardous air pollutants (HAP), and permitting authorities, to comply with section 112(j). The section 112(j) rule was promulgated on May 20, 1994 (59 FR 26429).

These proposed amendments have been developed in response to settlement negotiations conducted between petitioners, who filed for review of the section 112(j) rule, and the EPA. The proposed amendments also reflect internal EPA discussions regarding implementation of the section 112(j) rule.

DATES:

Comments.

Submit comments on or before May 22, 2001.

Public Hearing.

If anyone contacts us requesting to speak at a public hearing by April 2, 2001, a public hearing will be held on April 23, 2001.

ADDRESSES:

Comments.

Written comments should be submitted (in duplicate if possible) to: Air and Radiation Docket and Information Center (6102), Attention Docket Number A-2001-02, Part 63 General Provisions (Subpart A) and Section 112(j) Regulations (Subpart B) Litigation Settlement Amendments, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW, Washington, DC 20460. We request a separate copy also be sent to the appropriate contact person listed below in the

FOR FURTHER INFORMATION CONTACT

section.

Public Hearing.

If a public hearing is held, it will be held at 10:00 a.m. on April 23, 2001 in our Office of Administration Auditorium, Research Triangle Park, North Carolina, or at an alternate site nearby.

Docket.

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

FOR FURTHER INFORMATION CONTACT:

For further information about the proposed rule amendments, contact Mr. James Szykman, Emission Standards Division (MD-13), U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711, telephone (919) 541-5469, E-mail szykman.jim@epa.gov; or Mr. Rick Colyer, Emission Standards Division (MD-13), U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711, telephone (919) 541-5262, E-mail colyer.rick@epa.gov.

For questions about the public hearing, contact Ms. Dorothy Apple, Policy, Planning and Standards Group, Emission Standards Division (MD-13), U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711, telephone (919) 541-4487, E-mail

apple.dorothy@epa.gov.

SUPPLEMENTARY INFORMATION:

Comments.

Comments and data may be submitted by electronic mail (e-mail) to: a-and-r-docket@epa.gov. Electronic comments must be submitted as an ASCII file to avoid the use of special characters and encryption problems and will also be accepted on disks in WordPerfect® version 5.1, 6.1 or Corel 8 file format. All comments and data submitted in electronic form must note the docket number A-2001-02, Part 63 General Provisions (Subpart A) and section 112(j) Regulations (Subpart B) Litigation Settlement Amendments. No confidential business information (CBI) should be submitted by e-mail. Electronic comments may be filed online at many Federal Depository Libraries.

Commenters wishing to submit proprietary information for consideration must clearly distinguish such information from other comments and clearly label it as CBI. Send submissions containing such proprietary information directly to the following address, and not to the public docket, to ensure that proprietary information is not inadvertently placed in the docket: Attention: Mr. Rick Colyer, c/o OAQPS Document Control Officer (Room 740B), U.S. Environmental Protection Agency, 411 W. Chapel Hill Street, Durham, NC 27701. We will disclose information identified as CBI only to the extent allowed by the procedures set forth in 40 CFR part 2. If no claim of confidentiality accompanies a submission when we receive it, the information may be made available to the public without further notice to the commenter.

Public Hearing.

Persons interested in presenting oral testimony or inquiring as to whether a hearing is to be held should contact Ms. Dorothy Apple at least 2 days in advance of the public hearing. Persons interested in attending such a public hearing must also contact Ms. Apple to verify the time, date, and location of the hearing. The address, telephone number, and e-mail address for Ms. Apple are listed in the preceding

FOR FURTHER INFORMATION CONTACT SECTION.

If a public hearing is held, it will provide interested parties the opportunity to present data, views, or arguments concerning these proposed amendments.

Docket.

The docket is an organized and complete file of all the information considered by us in the development of this rulemaking. The docket is a dynamic file because material is added throughout the rulemaking process. The docketing system is intended to allow members of the public and industries involved to readily identify and locate documents so that they can effectively participate in the rulemaking process. Along with the proposed and promulgated standards and their preambles, the contents of the docket will serve as the record in the case of judicial review. (See section

307(d)(7)(A) of the CAA.) The regulatory text and other materials related to this rulemaking are available for review in the docket or copies may be mailed on request from the Air Docket by calling (202) 260-7548. A reasonable fee may be charged for copying docket materials.

Worldwide Web (WWW).

In addition to being available in the docket, an electronic copy of today's proposed rule amendments will also be available on the WWW through the Technology Transfer Network (TTN). Following the Administrator's signature, a copy of the rule will be posted on the TTN's policy and guidance page for newly proposed or promulgated rules http://www.epa.gov/ttn/oarpg. The TTN provides information and technology exchange in various areas of air pollution control. If more information regarding the TTN is needed, call the TTN HELP line at (919) 541-5384.

Regulated Entities.

Categories and entities potentially regulated by this action include all section 112 source categories listed under section 112(c) of the CAA.

Industry Group: Source Category

Fuel Combustion:

Combustion Turbines

Engine Test Facilities

Industrial Boilers

Institutional/Commercial Boilers

Process Heaters

Reciprocating Internal Combustion Engines

Rocket Testing Facilities

Non-Ferrous Metals Processing:

Primary Aluminum Production

Primary Copper Smelting

Primary Lead Smelting

Primary Magnesium Refining

Secondary Aluminum Production

Secondary Lead Smelting

Ferrous Metals Processing:

Coke By-Product Plants

Coke Ovens: Charging, Top Side, and Door Leaks

Coke Ovens: Pushing, Quenching, Battery Stacks

Ferroalloys Production: Silicomanganese and Ferromanganese

Integrated Iron and Steel Manufacturing

Iron Foundries Electric Arc Furnace (EAF) Operation

Steel Foundries

Steel Pickling—HCl Process Facilities and Hydrochloric Acid Regeneration

Mineral Products Processing:

Alumina Processing

Asphalt Concrete Manufacturing

Asphalt Processing

Asphalt Roofing Manufacturing

Asphalt/Coal Tar Application—Metal Pipes

Clay Products Manufacturing

Lime Manufacturing

Mineral Wool Production

Portland Cement Manufacturing

Refractories Manufacturing

Taconite Iron Ore Processing

Wool Fiberglass Manufacturing

Petroleum and Natural Gas Production and Refining:

Oil and Natural Gas Production

Natural Gas Transmission and Storage

Petroleum Refineries—Catalytic Cracking (Fluid and other) Units, Catalytic

Reforming Units, and Sulfur Plant Units

Petroleum Refineries—Other Sources Not Distinctly Listed

Liquids Distribution:

Gasoline Distribution (Stage 1)

Marine Vessel Loading Operations

Organic Liquids Distribution (Non-Gasoline)

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

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 your source category specific section 112 regulation. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding

FOR FURTHER INFORMATION CONTACT SECTION.

Outline.

The information presented in this preamble is organized as follows:

I. Background

A. General Provisions

B. Section 112(j) Provisions

II. Proposed Amendments to the General Provisions

A. Presumptive Applicability of the General Provisions

B. Definition of Affected Source

C. Other Definitions

D. Prohibited Activities and Circumvention

E. Preconstruction Review

F. Startup, Shutdown and Malfunction Plans

G. Compliance Provisions

H. Test Methods

I. Monitoring Requirements

J. Notification Requirements

K. Recordkeeping and Reporting Requirements

L. Lesser Quantity

M. Clarification and Consistency

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

A. Applicability

B. Definitions

C. Approval Process

D. Application Content

E. Preconstruction Review

F. Enforcement Liability

G. MACT Determinations

H. Case-by-Case MACT Requirements after Promulgation of a Subsequent MACT Standard

I. Section 112(j) Guidelines Document

IV. Additional Issues

A. Discussion of the Relationship Among Requirements Under Section 112(d), (g), and (j)

B. Potential to Emit

V. Administrative Requirements

A. Executive Order 12866, Regulatory Planning and Review

B. Executive Order 13132, Federalism

C. Executive Order 13084, Consultation and Coordination with Indian Tribal Governments

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

E. Unfunded Mandates Reform Act of 1995

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

et seq.

G. Paperwork Reduction Act

H. National Technology Transfer and Advancement Act of 1995

I. Background

A. General Provisions

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

The General Provisions to part 63 were developed in a collaborative process that included input from industry and other interested parties. On August 11, 1993, we proposed the General Provisions in the

Federal Register

(58 FR 42760). We received numerous comments on that proposal from industry groups, environmental groups, and State and local agencies, and those comments addressed a wide range of issues and requirements in the proposed rulemaking. We published our final decisions regarding the General Provisions in the

Federal Register

on March 16, 1994 (59 FR 12408). In the preamble to the promulgated rule, we discussed major comments on the proposal and our responses to those comments. We addressed other comments in the Background Information Document (BID) for the promulgated rulemaking (EPA-450/3-91-019b). In responding to comments, we made some changes and some clarifications to the final package and retained other provisions where the Agency believed it was appropriate to do so. On May 16, 1994, six petitioners filed for review of the General Provisions. They cited a variety of issues raised in comments on the proposed rule whose resolution they believed to be inappropriate. In addition, we have identified other changes that would clarify the EPA's original intent. The amendments to the General Provisions being proposed today constitute the outcome of settlement negotiations between the EPA and the petitioners and internal Agency discussions.

The amendments proposed in today's action would have the effect of clarifying certain sections of the General Provisions and of altering other sections.

B. Section 112(j) Provisions

The 1990 Amendments to section 112 of the CAA include a new section 112(j), which is entitled “Equivalent Emission Limitation by Permit.” Section 112(j)(2) provides that the provisions of section 112(j) apply if the EPA misses a deadline for promulgation of a standard under section 112(d) established in the source category schedule for standards. After the effective date of a title V permit program in a State, section 112(j)(3) requires the owner or operator of a major source in a source category, for which the EPA failed to promulgate a section 112(d) standard, to submit a permit application 18 months after the missed promulgation deadline. Section 112(j)(5) also specifies that if the applicable criteria for voluntary early reductions established under section 112(i)(5) are met, then this alternative emission limit satisfies the requirements of section 112(j), provided that the emission reductions are achieved by the missed promulgation date.

The proposed rule implementing section 112(j) of the CAA was published on July 13, 1993 (58 FR 37778). The public comments were considered, and changes we deemed appropriate were made in developing a final rule.

On May 20, 1994 (59 FR 26429), we issued a final rule for implementing section 112(j). That rule requires major source owners or operators to submit a permit application by the date 18 months after a missed date on the regulatory schedule. As required under section 112(j) of the Act, the section 112(j) rule establishes requirements for the content of permit applications, contains provisions governing the establishment of the maximum achievable control technology (MACT)-equivalent emission limitations by the permitting authority, includes the criteria for the reviewing authority to determine completeness, and allows the applicant up to 6 months to revise and resubmit the application. As required in subsection 112(j)(5) of the Act, the rule also establishes compliance dates:

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

Several petitioners filed for review of several provisions of the section 112(j) rule that they believed needed to be clarified or streamlined. The amendments to the section 112(j) rule being proposed today constitute the outcome of settlement negotiations between the EPA and the litigants. In addition, we have made other clarifying changes we consider to be appropriate.

II. Proposed Amendments to the General Provisions

A. Presumptive Applicability of the General Provisions

We are proposing to amend the presumptive applicability of 40 CFR part 63, subpart A (General Provisions). The promulgated rule applies, in its entirety (§§ 63.1 through 63.15), to owners or operators of an affected source subject to a relevant subpart established under 40 CFR part 63, unless otherwise indicated in the subpart. This presumption was intended to eliminate the repetition of requirements that would be applicable to all owners or operators affected by the General Provisions. To date, relevant subparts typically include a General Provisions applicability table that delineates the provisions that apply and do not apply.

We recognized concern that potential confusion could result by applying the General Provisions presumptively when they are not tailored to the circumstances of each relevant subpart. For example, a relevant subpart could indicate that all of the monitoring requirements of § 63.8 of the General Provisions apply. Some of the requirements in § 63.8 are inappropriate for some sources and may confuse an owner or operator (e.g., requirements for continuous opacity monitoring systems (COMS) in § 63.8 are not appropriate for all sources).

The objective of the General Provisions, i.e., to avoid repetitive redrafting of common provisions in each subpart of the part, is valid and should be preserved. Therefore, today we are proposing a revised applicability of the General Provisions that would retain the benefits and reduce or eliminate the potential for confusion. This proposed action would not reduce or narrow the scope of applicable requirements. Instead, it would reduce the confusion as to the actual requirements of each applicable subpart.

We have determined that the dual objectives of efficiency and clarity can best be met by including in each part 63 subpart a table that specifies precisely which subpart A General Provisions are and are not included in such subpart. Many existing part 63 subparts already include such a table, and this has been very helpful for both the regulatory authorities and the regulated community. These tables specify applicability down to the subparagraph level of detail so that there is no doubt as to the total universe of applicable General Provisions. In some instances, we have determined that a general provision should apply but that a very minor change to that provision is appropriate for a specific standard. In such cases, we may indicate in the table that the general provision does apply but with that minor change, or we may indicate in the table that the general provision does not apply. In the latter case, the appropriate requirement would be set out in its entirety in the subpart. Either approach is acceptable provided there is no compromise to clarity.

To streamline part 63 subparts and to avoid imposing conflicting requirements on sources subject to more than one part 63 subpart or to subparts under other parts, we have often allowed compliance with one subpart (sometimes with some changes) to constitute compliance with the other(s). We recognize that each subpart incorporates some or all of the General Provisions of the part under which it is promulgated. Therefore, if a part 63 subpart incorporates portions of other subparts, we will clarify the precise extent to which the General Provisions that are incorporated in other subparts become incorporated in the part 63 subpart in a table of General Provision applicability for each part, and we will explicitly state the resolution of any conflicts between applicable General Provisions of the various parts. It is important to note that, in addition to the changes to the presumptive applicability of the General Provisions, today's proposal includes changes to a number of other sections of the General Provisions (e.g., definitions). The effect of the proposed changes on relevant subparts that have already been promulgated depends on the manner in which the General Provisions were incorporated into the relevant subparts. If a relevant subpart specifically set out General Provisions that are subject to today's proposal (i.e., wrote the relevant General Provision in the relevant subpart itself), then that subpart is not affected since today's proposal pertains only to the General Provisions and does not include a proposal to change the specific provisions of promulgated subparts.

However, if a relevant subpart incorporates by reference General Provisions that are subject to today's proposal or if the General Provisions presumptively applied to a relevant subpart, then the changes to the General Provisions being proposed today would apply to the extent that the changed provisions are incorporated by reference into, or presumptively apply to, the existing relevant subpart. Based on an analysis of the potential impact of these proposed changes on promulgated subparts, we do not believe they have disrupted the integrity of the promulgated subparts. We have not identified any conflicts that would result in contradictory or incompatible effects from the promulgation of today's proposed amendments. Also, we identified no cross-reference conflicts due to adding or deleting paragraphs or subparagraphs that were cross-referenced by previously promulgated part 63 subparts. However, we are requesting comment on any conflicts identified by others that result solely from applying these proposed amendments to the General Provisions to promulgated part 63 subparts.

B. Definition of Affected Source

1. Background on the Term “Affected Source”

The General Provisions define the term “affected source” to be “* * * the stationary source, the group of stationary sources, or the portion of a stationary source that is regulated by a relevant standard or other requirement established pursuant to section 112 of the Act.” (40 CFR 63.2). We have defined and used this term primarily as

a means of specifying for each part 63 subpart what equipment or activities are affected. In practice, each source-category-specific section 112(d) or (h) standard (MACT standard) promulgated to date has either directly or implicitly defined affected source to be the collection of processes, activities, or equipment to which a specific MACT standard applies. Thus, the term “affected source” has been principally used to define the applicability of MACT standards.

The term “affected source” also serves a second purpose in conjunction with other terms and provisions contained in the General Provisions; it defines where new source MACT applies under a relevant standard. Specifically, the General Provisions define the terms “construction” and “reconstruction” with reference to the term “affected source” (40 CFR 63.2) and provide that new source MACT applies when construction and reconstruction occur (40 CFR 63.5). For example, if an affected source is defined in a relevant standard to be an integrated process unit, then new source MACT would be triggered under that relevant standard by constructing a new integrated process unit or reconstructing an existing integrated process unit, unless that relevant standard provides otherwise.

It is important to note that, while the term “affected source” currently functions both to define the applicability of relevant standards and to specify where new source MACT applies, it has not had a significant bearing on the process of determining the MACT floor or establishing MACT emission limitations. Specifically, our practice in developing MACT standards for source categories or subcategories is to organize, as appropriate, the available information for the HAP-emitting equipment and activities within the category or subcategory and to perform the analyses to determine MACT for the category or subcategory. Available information leads us to organize equipment and activities within source categories into related groups (i.e., tanks, process vents, equipment leaks) and to determine the MACT floor and MACT for each group. In other situations, we are able to use available information collectively for all the HAP-emitting equipment and activities within the source category or subcategory in determining the MACT floor and MACT. In either situation, we ensure that MACT is at least as stringent as the MACT floor for the HAP-emitting equipment and activities fulfilling the requirements of CAA section 112(d)(2) and (3).

2. Questions Raised by the Petitioners

The principal concerns of the petitioners regarding the definition and use of the term “affected source” relate to its role in defining the scope of a section 112(c) source category or subcategory covered by a MACT standard, determining where new source MACT applies, and certain reporting obligations (e.g., notifications and approvals under § 63.5). For example, the petitioners contend that new source MACT should only be triggered by constructing or reconstructing significant collections of equipment. In other words, they believe that new source MACT should not be triggered by the installation of small sources, such as a single valve or a single reactor that is part of a larger, integrated process. Instead, they believe that the applicability of new source MACT should be guided by consideration of size, functional relationship, and other factors that would prescribe a measure of significance in the new source MACT applicability analysis.

The petitioners' specific concerns relate to the fact that the existing definition of “affected source” provides, without limitation, that the affected source may be defined to be any size, even as small as a piece of a stationary source (e.g., a single pump or valve). Since “construction” and “reconstruction” are defined with reference to “affected source,” the possible result is that new source MACT may be prescribed inappropriately for small activities, a result that is contrary to the petitioners' legal and practical view as to where new source MACT should apply.

Moreover, the petitioners are concerned that the dual roles of the term “affected source” (i.e., defining the applicability of relevant standards and prescribing where new source MACT applies) are confusing and potentially inconsistent. For example, when considering the role of “affected source” in defining the applicability of relevant standards, it may be useful to define the term broadly so that all the equipment in the section 112(c) source category or subcategory can be accommodated within a single unified subpart. However, when considering the role of “affected source” in determining where new and existing source MACT apply, circumstances may dictate that new source MACT should apply to a collection of equipment that is smaller than the entire collection subject to the subpart. In such a case, the use of the one term “affected source” for two roles is potentially irreconcilable.

3. Discussion of Affected Source

Although our interpretation of the statute differs from the petitioners' interpretation, we agree that new source MACT should be applied to units for which new source MACT is reasonable. We believe that using tools available under the statute, such as applicability cutoffs, subcategorization, and emission averaging, achieves this result. However, as a first step toward addressing the petitioners' concerns, we and the petitioners reviewed promulgated subparts to determine how “affected source” was defined and to assess whether new source MACT has been applied reasonably to these affected sources.

We found that our decisions on affected sources have appropriately considered the application of MACT to new sources. We believe we have reasonably determined when construction of a collection of equipment should be subject to new source MACT. Specifically, where we have determined that new source MACT should apply to less than the entire collection of regulated equipment, the results have not produced the kind of unreasonable outcomes that were expressed by the petitioners.

As noted above, in selecting the affected source(s) for particular MACT standards, our primary task is to ensure that MACT is applied to all the HAP-emitting equipment within the source category being regulated and, therefore, affected by the MACT standards for that source category. The collection of equipment evaluated in determining MACT (including the MACT floor) is usually the collection of equipment used in defining the affected source. Because of the data structures for estimating the MACT floor and the interactions of equipment types within the source category, we have occasionally performed the MACT floor analysis on subsets of all the equipment in the category. While available data requires us to evaluate such subsets of equipment, the overall result of this evaluation is that MACT can be determined. Accordingly, the aggregated collection of equipment would constitute the affected source for the MACT standards. For example, MACT for equipment leaks of organic chemicals is based on an overall program of leak detection and repair that is not practicable for single pieces of equipment. Similarly, many process vents are controlled after they are brought together by a collection system. Such engineering solutions are common throughout the source categories for which MACT standards have been or

are being developed. For such situations, it is necessary to define the affected source broadly to address these practical considerations in determining and implementing MACT. We have occasionally defined the affected source differently for equipment affected by existing source MACT and equipment affected by new source MACT. This has resulted from the differences in existing source MACT and new source MACT, as well as a desire to provide owners with flexibility through emissions averaging across a broad array of existing equipment at plant sites. Some source categories are essentially comprised of a small number of independent HAP-emitting equipment that has no functional interactions at the process level and is controlled separately. In such cases, it may be reasonable from a MACT implementation perspective to have separate affected sources for purposes of focusing new source MACT applicability.

When a MACT standard is based on total emissions from all the equipment in a source category, we select an affected source based on such equipment. This approach makes sense for industries where a categorywide emission standard provides the opportunity and incentive for owners and operators to utilize control strategies that are significantly more cost effective than if standards were established for each emission point within a plant. In selecting such an affected source, we ensure that the overall emission reduction is equivalent to that obtained through a MACT standard established for each emission point within a plant. Examples of where we have adopted this approach include the standards for Wood Furniture Operations (40 CFR part 63, subpart JJ) and Polymers and Resins II (40 CFR part 63, subpart W).

In other situations, we have designated all or a portion of the collection of equipment within the source category or subcategory as the affected source. For example, in the NESHAP for Halogenated Solvent Cleaning (degreasing) (part 63, subpart T), the affected source is defined as each individual batch vapor, in-line vapor, in-line cold, and batch cold solvent cleaning machine that uses specified solvents. However, in the Hazardous Organic NESHAP (HON) (part 63, subparts F, G, and H), we selected an aggregate of all equipment in the chemical manufacturing process units (CMPU) at a major source in the synthetic organic chemical manufacturing industry as the affected source for existing source MACT. In this case, we developed MACT after evaluating equipment in groups (

e.g.

, tanks, process vents, and equipment leaks) with the affected source as the aggregated equipment, allowing emissions averaging provisions to be implemented. At the same time, we selected a major emitting CMPU as the basis for the affected source for new source MACT.

We recognize that an implication of selecting a narrow definition of affected source (

e.g.

, a dry cleaning tank and associated equipment) is that new source MACT requirements could be triggered more easily than if the affected source were defined as a plant or a collection of equipment. We believe that this is appropriate where the emission reduction and cost impacts are reasonable. For example, under the perchloroethylene dry cleaning standards, a new cleaning machine added to an existing facility in the source category would be a new source, subject to new source MACT. We determined that new source MACT controls were readily available and economically feasible for major source dry cleaners.

In most NESHAP promulgated thus far, existing source MACT and new source MACT have been determined to be equivalent or only slightly different in terms of the emission reduction that must be achieved. This is also the case in the degreasing and chrome electroplating NESHAP. Thus, as a practical matter, the control requirements for a new electroplating tank would have been the same, regardless of whether that tank was considered a separate new affected source or an addition to an affected source. However, we recognize that there is an additional burden on owners and operators attributable to a narrower definition of affected source, mainly associated with reporting requirements. The General Provisions already address this burden by requiring only a routine notification when adding a new nonmajor-emitting affected source and not the preconstruction review required for major new affected sources.

As indicated in the above discussion, we believe we have followed a reasonable decision-making process in developing all NESHAP under section 112(d) while appropriately exercising our discretion based on industry-specific circumstances. Furthermore, we believe that our approach has not resulted in significant inconsistencies in how new source MACT is applied and the burden that may be imposed. However, in light of concerns raised by the petitioners, we agree that the potential for such inconsistencies to arise in future relevant standards is greater if the decision-making process is not more formally defined. Accordingly, we agreed to clarify the basis for selecting affected sources. In addition, we are proposing a minor amendment to the General Provisions to address this concern. We are proposing that for each future relevant standard we develop, we will explicitly define the terms “affected source” and “new affected source.” The use of two terms will clarify the applicability of existing source MACT and determine where new source MACT should apply. As a general matter, we are proposing that the affected source for a particular relevant standard will consist of all existing HAP-emitting equipment and activities at a single contiguous site which are within a specific section 112(c) source category or subcategory. During the standards-setting process, we may find it appropriate, after gathering sufficient information, to combine several listed categories into one, or to further divide the category into subcategories. This does not affect our authority to distinguish among classes, types, and sizes of sources in establishing emission standards. The statute and associated legislative history afford us substantial latitude in defining an affected source, but we are electing to adopt this general approach to the affected source definition because it is responsive to the concerns articulated by the petitioners, and it will foster greater predictability and consistency of regulatory outcomes. As noted above, combining disparate types of equipment and activities within a single affected source does not preclude a separate assessment of the emissions from particular types of equipment or activities. Moreover, a standard for a larger affected source may still be a composite of sublimits or other elements expressly directed at particular types of equipment or activities.

Although we have decided that it is generally sensible to define an affected source broadly, our experience in developing and promulgating NESHAP indicates that there will be instances where a broad definition will result in significant administrative, practical, or implementation problems, and a narrower definition would resolve those problems. Thus, today's proposal would allow us to more narrowly define affected source in a particular MACT standard, but the MACT standard must be accompanied by a justification of why defining the affected source as all equipment in the section 112(c) source category or subcategory would result in significant administrative, practical, or implementation problems, and why the

narrower definition would resolve the problems.

Defining the “new affected source” for each relevant standard will ensure a more formal consideration of the implications of applying new source MACT to affected sources potentially subject to new source MACT. The “new affected source” is a collection of equipment or activities that, if constructed, would be required to comply with new source MACT. In deciding what will constitute the new affected source for MACT applicability purposes, we would consider the following factors: (1) Emission reduction impacts of controlling individual sources versus groups of sources; (2) cost effectiveness of controlling individual equipment; (3) flexibility to accommodate common control strategies; (4) cost/benefits of emissions averaging; (5) incentives for pollution prevention; (6) feasibility and cost of controlling processes that share common equipment (e.g. product recovery devices); (7) feasibility and cost of monitoring; and (8) other relevant factors.

When new source MACT can reasonably be applied considering the eight factors in the definition of “new affected source,” this collection may be different from the affected source. Accordingly, in selecting the new affected source, we would have considered whether an appropriate basis exists for establishing a definition for the new affected source that differs from the affected source definition. In selecting the new affected source, we will explain our basis for this selection. We will also consider the information and analyses that are offered by interested persons.

The new affected source definition will differ from the affected source definition in a particular MACT standard only where a distinction is warranted based on the foregoing identified factors. As discussed above, the proposal also affords us discretion to define affected source as different from all of the equipment in the source category or subcategory for a particular MACT standard where warranted based on special circumstances. Any exercise of our discretion with regard to the affected source definition is distinct from the question of the new affected source definition. Thus, even where we define affected source differently, we do not intend thereby to alter in any way the manner in which the foregoing specified factors will be applied to select an appropriate definition for new affected sources.

We believe that “new affected sources” defined in previously promulgated NESHAP are consistent with this new process. We are proposing the new process to ensure openness to the decisions on where to apply new source MACT. For example, in the HON rule, the affected source definition broadly encompasses a number of discrete processes at a facility. In this situation, it was reasonable to require new source MACT when a major-emitting chemical manufacturing process unit is constructed. The openness and consideration of relevant factors resulted in the reasonable application of new source MACT.

In setting a MACT standard, we will also consider whether a sufficient reason exists for defining “reconstruction” differently from the definition currently found in the General Provisions. The generic definition looks primarily to whether replaced equipment exceeds 50 percent of the fixed capital cost of an affected source, but also allows for consideration of technical and economic feasibility. We propose to amend the General Provisions to allow a different definition of “reconstruction” for specific MACT standards where warranted by technical and economic considerations. For example, we may find that because of the functional interrelationship of equipment encompassed by the affected source, it is reasonable to provide that new source MACT will apply only where 75 percent of the fixed capital cost of the source is replaced. We would then codify this definition of “reconstruction” into that specific MACT standard.

An explicit discussion of this decision-making process and the factors considered in developing standards under section 112(d) will also guide States in developing section 112(j) MACT determinations. In addition, we would also like to clarify that, if a State defines the new affected source in a section 112(j) determination as adding a major-emitting process or production unit (such as in 40 CFR 63.41), we would not object to such an approach.

C. Other Definitions

1. Construction

We are proposing to clarify in today's amendments the effect of relocating an existing source subject to MACT. The issue is whether or not a relocated source is “constructed,” and thus subject to new source MACT. In the Background Information Document for the Promulgated General Provisions Regulations for 40 CFR Part 63 (EPA 450/3-91-019b, Feb 94), which contains our response to comments for the part 63 General Provisions, we stated our intended outcome on the issue of relocation. In general, we stated that when an existing source relocates and no other changes are made to the source, the source retains its existing source status. Changes to the source means any changes to the source's process or control equipment, method of operation, or emissions. The source would be subject to new source requirements if, in the process of relocating, the source was reconstructed, i.e., significant replacement of components.

However, the definition of construction in the General Provisions does not lead to our intended outcome. The definition states that construction is “* * * the on-site fabrication, erection, or installation of an affected source.”

We are proposing to amend the definition of construction in § 63.2 by adding: “Construction does not include the removal of all equipment comprising an affected source from an existing location and reinstallation of such equipment at a new location. However, removal and reinstallation of an affected source will be construed as reconstruction if it satisfies the criteria for reconstruction as set forth below.” Adding this language to the definition of construction will achieve our original intent.

2. Major Source

We are proposing to clarify the definition of a “major source” in the General Provisions, specifically pertaining to the effect of a public right of way through a major source. If a source would be a major source, except for the fact that it is intersected by a public right of way, such as a public road, it will still be considered a major source. However, if the sources would be considered separate plant sites without the public right of way, then the public right of way in and of itself does not create a single (possibly major) source.

The following examples illustrate this clarification. Suppose a plant site is a major source and a public road is built that intersects the plant site. Even though the public road may divide the plant site into two potentially nonmajor sources, the plant site will still be considered a major source because the source was considered a single plant site before the public right of way was built.

Suppose a nonmajor source, located along a public road, decides to build a new nonmajor source directly across the road. Even though the public road divides these two potentially nonmajor sources, they will be considered a single major source as long as the two sources are under common control and together

equal more than the major source threshold.

Finally, suppose a nonmajor source located along a public road decides to build a new nonmajor source down the road from the nonmajor source (the two sources are on tracts of land that are offset along the public right of way, such that they do not touch). If, without the public road (public right of way), there would be two noncontiguous plant sites and not a single plant site, the public right of way in and of itself would not create a major source. Therefore, both plant sites are considered nonmajor sources.

3. Working Day

We propose to add a definition for “working day” to clarify timeline requirements expressed in working days within the General Provisions. For example, § 63.6(e)(3) (startup, shutdown and malfunction plan requirements) requires that an owner or operator record actions taken during a startup, shutdown, or malfunction that are inconsistent with a startup, shutdown and malfunction plan within 2 working days after commencing the inconsistent actions. We are proposing to add a definition to clarify that a “working day” is any day on which Federal government offices (or State government offices for a State that has obtained delegation under section 112(l)) are open for normal business. Saturdays, Sundays, and official Federal (or where delegated, State) holidays would not constitute a “working day.”

4. Compliance Plan

We are proposing to delete the “compliance plan” definition from the General Provisions. Representatives of sources have commented that compliance plans were required under title V and not under section 112 of the CAA. We assessed and agreed that there would not be an adverse or unintended effect from its deletion.

5. Part 70 Permit

We are proposing to delete the definition of “part 70 permit” because the definition of “title V permit” is more generic and deletion is consistent with other streamlining efforts in this proposal to remove unnecessary references to other authorities.

D. Prohibited Activities and Circumvention

We are proposing to delete § 63.4(b)(3) and create a new § 63.4(c) that clarifies our position on “fragmentation.” Section 63.4(b)(3) of the General Provisions prohibits circumvention of relevant standards by fragmenting an operation. Some have suggested that dividing production between various manufacturing facilities to reduce the potential to emit below regulatory thresholds at one or more facilities and, thus, avoid control requirements or permitting obligations, should be considered a legitimate compliance strategy. The prohibition against fragmentation is intended to prevent dividing an operation within the same facility among various owners and, thus, avoid applicability where there is no real change in control. Merely changing the name of the owner of a portion of a facility to a new corporate entity which is nonetheless still under common control should not be a compliance strategy that would legitimately avoid compliance.

Sources also cannot phase reconstruction activities to avoid applicable new source requirements. While we do not intend to circumscribe legitimate business or compliance strategies, we are proposing that activities that are fragmented or phased to stay within the 50 percent of fixed capital cost criteria in item (1) of the definition of “reconstruction” in § 63.2 shall be considered together for applying that criteria. Periodic replacement of equipment to maintain production to meet product demands should not be aggregated for determining whether reconstruction has occurred. To illustrate, if a process modernization project involves a new reactor, heat exchange system, separation devices and storage vessels, and separate contracts are awarded for various portions of the project, limiting each one to less than 50 percent of the replacement cost of a comparable new affected source, these contracts should be considered together in applying that 50 percent criteria. However, if the same process unit were expanded, debottlenecked, or upgraded over time by replacing these various components, the projects should not be considered together to determine whether the 50 percent of fixed capital cost is eventually exceeded since the projects were not phased (or fragmented) to avoid new source MACT.

E. Preconstruction Review

We are also proposing to amend the requirements for preconstruction review. We are proposing to amend the title of § 63.5 to more accurately reflect the contents of the section. The proposed title is “Preconstruction Review and Notification Requirements.” The following paragraphs discuss the more substantive proposed amendments.

1. Preconstruction Review Applicability

Under the current General Provisions, owners or operators of sources that commence construction or reconstruction after the proposal date of a relevant standard, but do not start up before the effective date of such standard, are required to undergo preconstruction review. We recognize that this requirement could cause costly delays as the owner or operator may be forced to cease construction or delay startup until a preconstruction review is completed.

We have concluded that sources commencing construction prior to the effective date of a relevant standard should not have to undergo preconstruction review under the General Provisions. We are proposing to amend § 63.5(a) of the General Provisions to exempt these sources from the requirement for preconstruction review. Thus, only sources that commence construction or reconstruction after the effective date of a relevant standard would be required to undergo such preconstruction review. However, regardless of whether preconstruction review is required, sources that commence construction or reconstruction after the proposal date of a relevant standard are subject to new source MACT requirements, and they must be in compliance at startup, or by the promulgation date of the NESHAP, if startup occurs prior to the promulgation date.

Similarly, we are proposing to amend § 63.5(a) to require preconstruction notification only for nonmajor-emitting affected sources that commence construction or reconstruction after the effective date (even though all affected sources commencing construction and reconstruction after proposal must meet new source MACT). The owners or operators of these sources, while not subject to preconstruction review, are subject to notification requirements. We are proposing to revise the related notification requirements in § 63.9(b)(5) to allow the source to request a reduction in the information required in the application to construct or reconstruct (§ 63.9(b)(5)(iii)). This flexibility should reduce the burden on smaller sources to comply with the notification requirements. However, in the event the permitting authority grants the source permission to not submit portions or all of the standard information, the source would still be required to keep this information on file and available for inspection.

We note that some owners and operators will be otherwise required to apply for and obtain a case-by-case

MACT determination under section 112(g) before commencing construction or reconstruction of a process or production unit. The proposed revisions of the preconstruction review requirements in the General Provisions do not alter in any way the obligation of an owner or operator to meet the separate requirements established by the EPA under section 112(g).

2. State Preconstruction Review

We evaluated the State preconstruction review requirements and recognized that owners or operators may object to another approval process when a source has already gone through a similar State preconstruction review process. We are proposing to allow States that have taken delegation of the General Provisions and of a relevant subpart to use their preconstruction review procedures to meet the preconstruction review requirements of § 63.5 when they are substantially equivalent (§ 63.5(f)(1)).

Under this proposal, we would allow owners or operators of affected sources to notify the Regional Office of a State's finding that their preconstruction review program requirements are substantially equivalent to the General Provision's preconstruction review requirements.This proposed change would allow States with existing programs for review of new sources for toxics to utilize their programs as long as they are “substantially equivalent” to those required under § 63.5 of the General Provisions. For an owner or operator of an affected source, it would also eliminate the burden of having to go through two similar preconstruction review procedures. This proposed change provides flexibility and reduces the potential burden for both the permitting authority and owners and operators of affected sources.

F. Startup, Shutdown, and Malfunction Plans

1. Incorporation in Title V Permit

The current General Provisions include a requirement that an affected source's startup, shutdown, and malfunction (SSM) plan “be incorporated by reference into the source's title V permit.” Some of the litigants, as well as some others in the regulated community, have expressed concern that this language could be construed to require permit revision procedures to be followed each time that an SSM plan is revised. We believe that it would be unduly burdensome and inappropriate to require that permit revision procedures be utilized each time an affected source revises its SSM plan.

We are proposing to delete the current language concerning “incorporation by reference,” replacing it with new language stating that the title V permit for an affected source must require that the owner or operator adopt a SSM plan and operate and maintain the source in accordance with the procedures specified in the plan. The new language makes it clear that, unless the permitting authority provides otherwise, an affected source may make appropriate revisions to a SSM plan without prior approval by the Administrator or the permitting authority. Further, because there are no requirements for prior review and approval of a SSM plan, permit revision procedures are not required in connection with revising the SSM plan, and the permit shield in CAA section 504(f) does not apply to the contents of a SSM plan.

In developing the new language, it became apparent that the current General Provisions do not adequately describe the procedures to be followed when an affected source revises its SSM plan. Accordingly, we are proposing to add new language requiring each affected source to report each revision to its SSM plan in the semiannual report required by § 63.10(d)(5). Moreover, the proposed language would require prior written notice to the permitting authority if an affected source intends to revise its SSM plan in a manner which would alter the scope of the activities that are deemed to be a startup, shutdown, or malfunction, or would otherwise modify the applicability of MACT requirements to the source.

Petitioners also expressed concern that the SSM plans must be submitted with the permit application because they are voluminous and may contain confidential information. Extracting the confidential business information parts of the plan for public submission would be a burdensome and needless exercise. If the permit writer deems it appropriate, then the SSM plan must be submitted. Additionally, the title V program requires the permit writer to make publicly available all parts of the permit, including plans, under 40 CFR 70.4(b)(3)(viii), which also limits confidential matters to those specified in CAA section 114(c). Thus, to minimize the unnecessary production of the SSM plan, the permit authority must require that the SSM plan be made publicly available only if requested by any person. However, if no person seeks a copy of the SSM plan, then there is no need for a source to submit it.

The source must develop, operate, maintain, and report according to such a plan. The owner or operator of an affected source must keep a copy of the SSM plan on record and available for inspection upon request by the Administrator. The Administrator may also request a copy of the SSM plan with confidential business information removed to provide to interested members of the public. In addition, the owner or operator is required to report on a semiannual basis that actions taken in response to SSM events were consistent with the SSM plan. If the owner or operator takes actions inconsistent with the SSM plan and the source exceeds the relevant emission standards, the owner or operator must report such actions periodically. An initial report is required within 2 working days after commencing actions inconsistent with the plan, and a followup letter is required within 7 working days after the end of the startup, shutdown, or malfunction event. We believe that the reporting and recordkeeping requirements associated with the SSM plan will ensure that owners and operators comply with the intent of the plan.

2. Enforceability of Operation and Maintenance Requirements

Section 63.6(e) of the General Provisions establishes the requirement for good operation and maintenance of air pollution control and monitoring equipment. We do not see this requirement as exposing a source to enforcement liability every time a source fails to follow an instruction in an owner's manual that has a zero or negligible impact on actually minimizing emissions. For example, if a control equipment manufacturer recommends that lubricants be changed on a regular schedule, and the source is late in making the change, we are not suggesting that this is inconsistent with good air pollution control practices for minimizing emissions. Vendor specifications are not necessarily the best or only indication of good operating practices. Where appropriate, sources may alter their operation and maintenance practices to accommodate their actual situation. We expect to use this section to control bad practices where there is an indication of an actual increase in emissions or a significant risk of the same.

We do not intend to seek double penalties for situations that involve simultaneous violations of the good operations and maintenance requirements and any otherwise applicable emission standard, including work practice requirements. We may

allege both violations in the alternative, but do not intend to seek double penalties. If a source has proof that it has complied with the emissions standard, then there should be no allegation of bad operation and maintenance during such period.

We are proposing to amend § 63.6(e)(1)(i) to clarify the “general duty” of owners or operators to “operate and maintain any affected source, including associated air pollution control and monitoring equipment, in a manner consistent with safety and good air pollution control practices for minimizing emissions to the levels required by the relevant standards.” However, this general duty does not require a source to reduce emissions below the level required by the standard. Furthermore, when the source is in a period such that the SSM plan applies, this general duty would not necessarily require the source to meet the standard so long as the source is in compliance with the plan.

We are proposing to amend language in § 63.6(e)(1)(ii) of the General Provisions by adding language to recognize that there will inevitably be situations at facilities that were not contemplated when the SSM plan was developed. Because there is no protocol in the SSM plan for such a situation, it would be impossible for a source to follow the plan. During such circumstances, a source must do the best it can, consistent with safety and good air pollution control practices, to minimize emissions, relying on its best engineering judgment, expertise and familiarity with the equipment, as well as on the protocols for similar malfunctions that are in the SSM plan, if any. Conversely, compliance with an inadequate or improperly developed SSM plan is no defense for failing to minimize emissions.

We also acknowledge that there may be situations that cannot be prevented by owners or operators through better design or preventive maintenance. Some petitioners commented that there may be instances that require an owner or operator to bypass emission control devices until emissions can be vented to other control equipment to avert personal injury, equipment failure, or property damages. It was always our intent to consider safety in addition to good air pollution control practices when operating and maintaining affected sources. Therefore, where appropriate, we are proposing to clarify this intent in the General Provisions.

As noted in the regulatory text, where such unusual situations arise, a report justifying the procedure followed must be filed. If the Administrator or designee responds to this report by requiring a revision to the SSM plan, then the source must do so. The incident may be minor in its consequences or unlikely to arise again, in which case the Administrator may determine that it is not necessary to revise the SSM plan. However, sources are not excused from exerting best efforts to minimize emissions merely because there is no protocol listed in the SSM plan for the unique circumstances. Failure to minimize emissions is a violation of operation and maintenance requirements established under section 112 of the CAA.

3. Report Submittal Requirements

We have identified reporting requirements in the current General Provisions that establish different timelines for related reporting requirements associated with the SSM plans. In order to facilitate reporting for the owner or operator, we are proposing to amend these timelines to make them consistent with each other.

Section 63.8(c)(1)(ii) requires that for those malfunctions (or other events) that affect the continuous monitoring system (CMS), the owner or operator must report actions not consistent with the SSM plans if the relevant standard is exceeded, within 24 hours after commencing actions inconsistent with the plan. A followup report is required within 2 weeks after commencing actions inconsistent with the plan. Section 63.6(e)(3)(iv) requires that an owner or operator who takes an action inconsistent with the SSM plan report such actions within 2 days after commencing such actions. This must be followed by a letter within 7 working days after the end of the event.

We have considered these provisions and agree that it is reasonable to require these reports on the same schedule. We are proposing to revise the requirements in § 63.8(c)(1) to ensure that SSM monitoring reports are filed consistently with the timeframes of reports required in § 63.6(e)(3)(iv), which would require an initial report within 2 working days and a followup report within 7 working days. Consistency in these provisions should have the effect of simplifying reporting requirements for owners and operators.

4. Applicability of the Startup, Shutdown and Malfunction Plan

We are proposing to clarify that the SSM plan includes procedures for operating and maintaining both air pollution control devices and monitoring equipment. Although the intent of coverage of the plan is explicitly stated at the beginning of § 63.6, we recognize that it is unclear that the provisions also apply to monitoring equipment in other parts of the section. Therefore, we are proposing to clarify where necessary that the SSM plan provisions apply to monitoring equipment, as well as control device equipment.

5. Routine Maintenance

We recognize that routine maintenance of air pollution control devices is essential to ensure that control devices function properly on a long-term basis and achieve the emissions reductions that they can achieve. Many facilities can plan and schedule the routine maintenance in conjunction with scheduled downtime of the process equipment that generates the streams being treated by the air pollution control device. In these instances, no compliance issues are raised by the outage of the control device for planned routine maintenance. We believe that this is the case for the majority of facilities that have emission sources subject to MACT standards.

However, we also recognize that there are times when planned routine maintenance of an air pollution control device cannot be scheduled to coincide with scheduled downtime of the process equipment. In these instances, the facility would have to shutdown the process equipment or install redundant air pollution controls. In some circumstances, shutdown to perform planned routine maintenance and subsequent startup would generate greater emissions than allowing some level of emissions to continue to be emitted from the source, either at a reduced control efficiency or uncontrolled.

We believe that relevant standards should incorporate flexibility as necessary to assure that emission control equipment is properly maintained without causing inappropriate disruptions of source operations or unnecessary increases in HAP emissions. There is no uniform approach to this issue which will be appropriate for every MACT standard. We encourage affected sources to suggest potential allowances for routine maintenance in each instance where it would be helpful for the relevant standard to expressly address this issue. We will consider all such suggestions, incorporate provisions addressing routine maintenance into MACT standards where we conclude that flexibility is appropriate, and explain our decision not to incorporate such provisions in circumstances where we conclude that it is not appropriate.

G. Compliance Provisions

1. Compliance Extensions

The petitioners requested us to provide additional opportunities for owners and operators to request compliance extensions under CAA section 112(i)(3). The General Provisions require an owner or operator to make such requests 12 months before the compliance date for a relevant standard. The petitioners pointed out that events could happen within the 12-month period before a compliance date that would warrant a compliance extension.

In general, we anticipate that most sources will have ample time to achieve compliance given the 3-year compliance period for many requirements. The compliance extension under section 112(i)(3) is available for adding controls and other compliance measures requiring time beyond that which we anticipated in establishing the compliance date for NESHAP. For example, other compliance measures may include obtaining or implementing technology hardware or software systems and process changes to accommodate pollution prevention or other emission reduction measures.

Such a compliance extension is not appropriate for the failure of an owner or operator to properly plan and carry out the installation by the compliance date. However, there may be situations where sources acting in good faith to anticipate and fulfill their compliance obligations can still not achieve compliance in a timely manner because of circumstances or events not entirely of their own making. Work stoppages at a control equipment supplier's factory are cited as one example of a reason that sources, acting in good faith, might not be able to achieve compliance on time. Shortages of skilled design and construction engineers who are needed to build new facilities to meet relevant standards, as well as shortages of available technology to meet the demand from sources who must comply with industry-specific MACT requirements, may also contribute to delays in achieving compliance. Based on the merits of such requests, we expect to issue compliance extensions.

We are proposing to revise this requirement, which is in § 63.6(i)(4)(i)(B), to allow requests up to 120 days before the compliance date. We are also proposing to add a new paragraph (C) to § 63.6(i)(4)(i) to allow requests during the last 120 days before the compliance date, if the need arose during that 120 days and if the need was due to circumstances beyond the reasonable control of the owner or operator.

We recognize that there may be some situations where applicants for a compliance extension recognize that, for the reasons stated above, they are unable to comply, and hence file an extension request shortly before the compliance date, as is now provided by the General Provisions. Operating affected sources after the compliance date of a NESHAP creates a potential enforcement situation for companies which, despite their best efforts, are unable to meet the deadlines for MACT compliance. As a practical matter, companies may choose to shut down operations rather than operate without a compliance extension. For sources who act in good faith in filing an extension request, we will try to act promptly. In the interim, we intend to use other temporary measures to address the situation. In such cases, we intend to be receptive to entering administrative consent orders without penalty during the pendency of the review if the company complies with such an order and cooperates by providing all requested information to us for processing the good faith extension request.

For a standard promulgated under CAA section 112(f), § 63.6(i)(4)(ii) requires a source to submit a request for compliance extension within 15 days after the effective date of the NESHAP. We are proposing to increase the time allowed for a source to submit a request for a compliance extension from 15 to 90 calendar days after the effective date of a relevant standard promulgated under CAA section 112(f). The longer time period appears needed and reasonable to allow source owners or operators sufficient time to prepare a complete request. We are also proposing to eliminate the requirement in § 63.6(i)(4)(i)(B) that establishes a different timeframe for sources that include emission points in an emissions average. We believe that this specific issue is better dealt with in the respective NESHAP.

We are proposing to delete the interim milestone information required in a § 63.6(i)(6) request for a compliance extension under § 63.6(i)(4) and direct the focus of the request toward supplying information on the date and manner in which final compliance would be achieved.

2. Title V Enforcement

Several sections in the current General Provisions refer to title V obligations and general compliance obligations. We are proposing to delete these cross references because they are redundant or unnecessary. For example, § 63.4(a)(5) requires an owner or operator of a source subject to a relevant standard to comply with the requirements of that standard regardless of whether a title V permit has been issued to the source incorporating the standard. It is clear from section 113(b)(2) and (c)(1) that standards promulgated under section 112 are enforceable apart from their incorporation into title V permits, and nothing in title V or the part 70 operating permits rules suggests the contrary. We are also proposing to delete the severability clause of § 63.4(c) because it is unnecessary.

We are proposing to delete § 63.5(b)(5), which states that no person may operate without complying with the General Provisions and the relevant standard unless that person has obtained a compliance extension or exemption under § 63.6. We believe the § 63.6 requirements are sufficient to define compliance obligations.

3. Area Sources That Become Major

We are proposing to revise § 63.6(b)(7) and (c)(5) of the General Provisions. These paragraphs address the compliance timing requirements that result when an area source subsequently increases emissions, thus becoming a major source after 1 or more applicable NESHAP have been proposed. These sections establish the timing requirements when a subsequently affected source at the former area source is considered a new source or an existing source under the relevant standard.

The current General Provisions require new source MACT for area sources that become major after the effective date of the relevant standard, regardless of when the portion of the source affected by the standard (the affected source) actually commenced construction (including those that commenced construction long before the proposal date of the NESHAP). This would cause affected sources to unnecessarily retrofit new source control measures on existing equipment not designed to accommodate such measures. We are proposing to revise § 63.6(b)(7) and (c)(5) to require new source MACT only on affected sources that commenced construction or reconstruction after the proposal date of the NESHAP. Those affected sources must comply with new source MACT upon startup. Affected sources at former area sources that become major that have not constructed or reconstructed after the proposal date of the NESHAP would be subject only to existing source MACT, and would comply by the date

specified in the standard for existing area sources that become major, or if no such compliance date is specified, be given the same amount of time to comply as specified for existing sources in the standard. These revisions are consistent with the definition of new source in section 112(a)(4) of the CAA, which defines a new source as one that commences construction or reconstruction after the Administrator first proposes NESHAP under section 112 establishing an emission standard applicable to such a source. Such a source would be able to reasonably anticipate control requirements and construct the source to include such controls as Congress intended in the CAA.

H. Test Methods

1. Performance Test Dates

We are proposing to streamline the performance test date requirements of § 63.7(a)(2). As currently written, the section outlines several different scenarios for establishing performance test dates. However, all are tied to a 180-day period of some triggering event, usually the compliance date. Upon review, these multiple scenarios add more confusion than clarity, and we propose to replace them with a blanket requirement that sources conduct their performance tests with 180 days of the compliance date. Section 63.7(a)(2)(i) through (viii) would be reserved as a result. However, we would retain § 63.7(a)(2)(ix) to address the scenario where a relevant standard is promulgated that is more stringent than the proposed standard.

2. Alternative Test Methods

We propose to amend § 63.7(c)(3)(ii)(B) to ensure that a request to use an alternative test method does not delay the performance test process. If amended, the section would authorize the owner or operator to conduct the performance test using an alternative method in the absence of notification of approval after submitting the site-specific test plan or the request to use an alternative method. The performance test would then be conducted within 60 days after authorization to conduct the test. A source owner or operator's decision to proceed with using an alternative method in the absence of a notification that the method is approved would not preclude the owner or operator's legal responsibility to comply with the applicable provisions of the relevant standard. We are also proposing conforming amendments in § 63.7(f), use of an alternative test method, to implement this approach.

3. Approval of Alternative Test Methods and Monitoring Requirements

In 1998, we issued guidance regarding delegation of the 40 CFR part 63 General Provisions authorities to State and local air pollution control agencies (Memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, to Regional Air Division Directors, July 10, 1998). In our September 14, 2000, promulgation of revisions to 40 CFR part 63, subpart E (65 FR 55810), we have codified this guidance. We are now proposing a number of revisions to §§ 63.7 and 63.8 of the General Provisions, which cover performance testing and monitoring requirements, to harmonize these sections with the 1998 guidance and subpart E rulemaking, particularly in regard to Administrator approval of alternative test methods and monitoring requirements. The specific revisions and sections affected are explained below.

First, the 1998 guidance and subpart E rulemaking introduced a new category of changes or alternatives to test methods and monitoring referred to as “intermediate changes.” Because this new category modifies the major alternative category previously referred to in §§ 63.7 and 63.8, we are proposing to revise §§ 63.7(e)(2)(i) and (ii), 63.7(f)(1), 63.8(b)(1)(i) and (ii), and 63.8(f)(1) to cite the definitions for minor, intermediate, and major changes to test methods and monitoring requirements in § 63.90(a).

Second, we have noted recent confusion in distinguishing test methods from monitoring for the purposes of deciding who has the delegated authority for approving alternatives; consequently, we are proposing revisions to the language in § 63.8(f)(4)(iv) and (5)(i) to clarify this difference.

Third, we have also noticed significant inconsistencies regarding the instruments for requesting and granting approval of intermediate and major changes to test methods, in specific, the combination of the site-specific test plan/test plan approval versus a letter of request coupled with an official letter of approval. In consideration of the significance of approvals of major and intermediate changes on the compliance decision, and a level of documentation appropriate to the decision itself, we believe that only an official letter should be used to approve intermediate and major changes to test methods. Also, the potential delegated authorities for approval of test plans versus those for approval of intermediate or major changes to test methods are often not the same. We are, therefore, proposing revisions to § 63.7(c)(3)(ii), 63.7(e)(2)(i), and (e)(3) to clarify that major and intermediate changes to test methods cannot be requested through test plans nor approved in the course of test plan approval. To parallel this approach for monitoring, we are proposing the addition of language to § 63.8(f)(4)(iv) to allow requests for minor changes to monitoring to be submitted in the site-specific performance evaluation plan and for these changes, where appropriate, to be approved in conjunction with approval of this plan.

In addition, we are updating the information in § 63.7(c)(4)(i) regarding contacts for requesting performance audit materials. We are also clarifying the requirements for proposing an alternative monitoring system by citing in § 63.8(f)(4)(ii) and adding to § 63.2 a definition of the basic elements that constitute a monitoring system.

I. Monitoring Requirements

1. Combined Emission Streams

We are proposing to change the requirement that a continuous monitoring system be installed on each emission stream that is combined prior to release to the atmosphere or on each emission point for mass emissions standards. We recognize that there may be cases where a blanket requirement that each stream have a CMS may not add compliance assurance but would add costs and burden to the owner or operator. Therefore, we are proposing a change to § 63.8(b)(2) that would allow for the use of a single CMS for monitoring combined emission streams, provided that the monitoring is sufficient to demonstrate compliance with the relevant standard. This will be evaluated in the development of each standard.

For example, a relevant standard could specify the use of a condenser for which compliance could be demonstrated by monitoring and maintaining the temperature of the cooling coils below a specified level. The compliance temperature level would not be compromised by controlling one or more emission streams. Therefore, a single CMS for monitoring combined emission streams would be sufficient to demonstrate compliance.

Alternatively, the combination of emission streams for monitoring could result in the inadvertent averaging of affected and nonaffected sources. For example, if the CMS is designed to monitor the concentration of a compound in the stream, a nonaffected source stream with a low concentration of the compound would mask a high

concentration of the compound in the affected stream. Where the combined stream might meet the relevant standard, the single affected stream would not. In this case, the individual standard requirements might override the General Provisions to prevent the “dilution” of the streams from occurring.

2. Monitor Readouts

We are clarifying in the proposed amendments the owner or operator's obligation regarding the accessibility of readouts from monitoring systems required for compliance with emission standards. In today's proposed amendments, we are proposing language in § 63.8(c)(2) that requires monitor readouts to be “readily accessible on site.” This phrase “readily accessible on site” means the monitor readout must be in plain view or in close proximity where the operators normally are located when operating such equipment. This requirement does not mean that the monitor readout must be in plain view of the operator at all times, but that the device is readily or reasonably accessible so the operator or an inspector can view the readout without unnecessary delay.

J. Notification Requirements

1. Initial Notification Requirements

We are proposing to reduce the source description information that an owner or operator of an affected source subject to a relevant standard is required to submit in the initial notification under § 63.9(b). The intent of the initial notification is to identify and alert the EPA and/or delegated State agencies of those sources for which a relevant standard applies.

We have evaluated and decided that it was both unnecessary for us to receive and burdensome for sources to supply information regarding the operating design capacity of an affected source and the identity of each emission point for each emitted HAP in the initial notification. Therefore, we are proposing that the initial notification not require that an owner or operator report the operating design capacity of the source, and only require that the owner or operator identify the types of emission points and HAP emitted in lieu of each emission point for each emitted HAP.

As discussed in section II.E of this preamble, we are proposing to revise § 63.9(b)(5) to allow a nonmajor emitting source that is not subject to the requirements to submit an application for preconstruction review and approval and to request a reduction in the information required in the application to construct or reconstruct. This flexibility should reduce the burden on smaller sources to comply with the notification requirements.

In general, we propose to streamline the requirements of § 63.9(b), initial notifications, to eliminate duplicative or unnecessary information (e.g., § 63.9(b)(4)(ii) through (iv)). We are proposing to delete § 63.9(b)(3) and revise § 63.9(b)(4) and (5) to clarify the applicability and responsibility of sources under these requirements. In particular, we would clarify the responsibilities of sources that have an initial startup date before the effective date of the relevant standard, as well as sources that construct or reconstruct after the effective date of the relevant standard.

2. Performance Test Notification

Section 63.7(b) of the General Provisions provides performance test notification requirements that we and/or delegated State agencies be notified at least 60 calendar days before the scheduled date of the performance test. In cases where circumstances did not allow for such notice, the requirement was that the notice be submitted within 5 days of the date that an affected source intends to conduct the performance test.

Performance tests often are conducted by persons contracted to do the work, and an owner or operator may not be able to control when a performance test will be performed. We agree that if an owner or operator cannot inform the Administrator that it is unable to conduct a performance test because of unforeseeable circumstances, the intent of the provisions would be met as long as an owner or operator notifies the Administrator as soon as practicable and without delay of an intent to conduct a performance test. Therefore, we are proposing to amend § 63.7(b)(2) accordingly.

3. Area Source Analysis

We are proposing to eliminate the requirement in § 63.9(h)(2)(i)(E) that an owner or operator of an area source submit, as part of the Notification of Compliance Status when a relevant standard applies to both major and area sources, the analysis demonstrating that the source is an area source. After further review, we decided that submission of an analysis demonstrating that the source is not major is only necessary for enforcement purposes when a relevant standard applies to both major and area sources. The proposed change would eliminate the need for nonaffected area sources to submit an analysis, and the need for affected area sources to submit the analysis with their compliance notification. This proposed change does not relieve an owner or operator of a source from the responsibility to determine whether the source is a major source or an area source. Refer to section II.K of this preamble for the discussion on the applicability determination recordkeeping requirement for unaffected sources.

K. Recordkeeping and Reporting Requirements

1. Recordkeeping Requirement for Unaffected Sources

The current General Provisions include a requirement in §§ 63.1(b)(3) and 63.10(b)(3) for sources both to determine applicability and to keep a record of this determination if the source determines that it is not an affected source for a relevant standard. In enacting this provision, it was our intent to enable an owner or operator of a source in a given source category to document its determination that the source is not subject to a NESHAP promulgated for that source category. However, an unintended interpretation of the General Provisions could be to require owners and operators of any source, including facilities not in the source category being regulated, to perform applicability determinations each time any NESHAP are promulgated. It was not our intent that the General Provisions require owners and operators to make a determination that they are not subject to every NESHAP that is issued. In this proposal, we are clarifying our intent. We are proposing to revise the language in §§ 63.1(b)(3) and 63.10(b)(3) to limit requirements to the sources within the source category of the relevant standards. Area sources that would be required to retain a certified applicability determination include sources that are subject to limitations on the source's potential to emit; sources that are specifically excluded from the relevant standards (e.g., research and development facilities); and sources that are below applicability thresholds established in the source category-specific rule (e.g., annual raw material use, production thresholds, emissions). If a source has failed to retain the documentation of its original determination but can reestablish that documentation to the satisfaction of the Administrator and proves that it has not been and is not subject to the relevant standard affecting the source category, we will consider such a violation to be a low enforcement priority.

In addition, we are proposing to amend § 63.10(b)(3) to clarify that the requirements to determine the applicability of a relevant standard under § 63.1(b)(3) and to record the results of that determination under § 63.10(b)(3) do not by themselves create an obligation for the owner or operator to obtain a title V operating permit.

2. Preconstruction Review Application Submittal

We are proposing to change the submittal requirements for an application for approval of construction or reconstruction. The current General Provisions require owners or operators of an affected source to submit an application for approval of the construction of a new major affected source, the reconstruction of a major affected source, or the reconstruction of a major source such that the source becomes a major affected source subject to the relevant standard. The application submittal is required as soon as practicable before the date that construction or reconstruction is planned to commence, but no sooner than the effective date of a relevant standard. The application submittal for an affected source for which construction or reconstruction had commenced and initial startup had not occurred before the NESHAP effective date is required as soon as practicable before startup but no later than 60 days after the effective date.

The petitioners commented that specified time constraints for application submittal were unnecessary because an owner or operator would not risk constructing or reconstructing a source without receiving approval. We specified timeline submittal requirements to ensure that owners or operators proceeded through the preconstruction review application process in such a way as to allow us sufficient time for review. We agree that it is in an owner's or operator's best interest to obtain approval for construction or reconstruction before expending time and money, which should provide a sufficient incentive for sources to submit applications as early as possible. Therefore, we are proposing to require that the application be submitted as soon as practicable before construction or reconstruction is planned without specifying time constraints (§ 63.5(d)(1)(i)). However, even though we would not specify time constraints within the relevant standard, we would recommend that owners or operators allow us at least 90 days for the review process.

L. Lesser Quantity

The petitioners expressed concern that the definition of “lesser quantity” in § 63.2 could create serious compliance problems and inequities in situations where equipment/operations in more than one source category are present at a facility. For example, the petitioners have noted that equipment/operation in each of two or more source categories at an area source when a relevant section 112 standard is adopted would not be subject to the standard, unless the section 112 standard applied to area sources. However, if a lesser quantity determination is subsequently made for a HAP emitted by the equipment/operations in one of the source categories at the facility such that facility became a major source, the other regulated source categories would also then become major sources without regard to the HAP they emit.

As part of today's amendments, we are proposing to delete the definition of lesser quantity from § 63.2 of the General Provisions. It is not our intent by deleting the definition of “lesser quantity,” to indicate one way or other whether we agree with the litigants' concerns. It is our intent that, if a lesser quantity determination would affect the major/area source status of sources in categories for which a section 112 standard was previously promulgated, we would address appropriate applicability and compliance procedures when such a determination is made.

M. Clarification and Consistency

We are proposing other changes to the General Provisions where necessary for clarification and consistency. These are not substantive changes and do not change the requirements of the General Provisions. Instead, these proposed changes would make the General Provisions easier to understand and to use. Minor editorial and clarifying changes are discussed by way of example in the following paragraphs. More substantive changes are addressed in other sections of this preamble.

1. Preconstruction Review and Title V Interaction

In the current General Provisions, several paragraphs under § 63.5 (e.g., paragraphs (b)(3), (4), and (5)) include the phrase “whether or not an approved permit program is effective in the State in which an affected source is (or would be) located.” The intent of this phrase is to indicate that the preconstruction review provisions that are included in the General Provisions are established pursuant to section 112(i) of the CAA. These preconstruction review provisions do not rely upon a title V permit program for implementation; rather, they are completely independent and are implemented solely through the General Provisions. Consequently, this phrase does not affect the requirements for preconstruction review; it merely distinguishes those requirements from other requirements that may subsequently come into place under an approved title V program. Upon review, we have determined that this phrase may be confusing to owners or operators who must comply with the relevant standard or to State and local agencies required to implement the relevant standard. Therefore, we are proposing to delete this phrase from the General Provisions.

2. Continuous vs. Continuous Parameter Monitoring Systems

We are proposing clarifying changes to § 63.8(c)(6) to identify those requirements that are for continuous parameter monitoring systems (CPMS) versus those that apply to CMS. The change is intended to avoid possible confusion by the owner or operator as to which provisions apply when the requirements are not clearly delineated in a relevant standard.

3. Applicability of Standards Developed Under the CAA

We are proposing to clarify in § 63.1(a)(3) that the Administrator can specify in a relevant standard that an affected source subject to other provisions under the CAA need only comply with the provisions of that standard. This clarification reflects what is already being done in relevant standards. We do this in relevant standards so that an owner or operator of an affected source subject to other standards under the CAA is not burdened with the need to determine the “more stringent” requirements for compliance purposes or to duplicate recordkeeping and reporting for each standard. Both the HON and petroleum refineries NESHAP specify in the applicability section the requirements that would apply when there are overlapping requirements with other standards developed under the CAA. For example, in the Petroleum Refineries NESHAP (60 FR 43244), we specified that after the compliance dates for that NESHAP, a storage vessel that is part of an existing source that is subject to 40 CFR part 60, subpart Kb, would only be required to comply with 40 CFR part 60, subpart Kb.

4. Unnecessary Additional Information

We are proposing to delete unnecessary additional information from the General Provisions. For example, we are proposing to delete § 63.1(a)(7) and (8) because they discuss the content of 40 CFR part 63, subparts D and E, and do not provide information or requirements relevant for compliance with the General Provisions.

5. Actual Emissions or Control Efficiency Data

We are proposing to eliminate the requirement in § 63.5(d)(2) to submit “actual” emissions or control efficiency data with the Notification of Compliance Status when a relevant standard does not require this information to demonstrate compliance. We believe that this requirement as stated can cause confusion because it is often not feasible or required that “actual” emissions or control efficiency data be submitted for “affected sources” to demonstrate compliance.

6. Commence Versus Begin Actual Construction

Section 63.5(d) of the current General Provisions contains requirements for new and reconstructed affected sources. The petitioners commented that the use of the term “commence construction” as a trigger for submittal of the application was inappropriate. Similarly, they commented that the expectation that the notification of intent to construct a new major affected source include “the expected commencement date of the construction or reconstruction” was inappropriate. The General Provisions define “commenced” in such a way that an owner or operator would be obligated to submit an application for construction or reconstruction if they enter into a contractual obligation to undertake and complete a construction or reconstruction. Petitioners explained that such contractual obligations may be in place, but actual construction plans or design information necessary for completion of an application may be unknown.

We evaluated those places within the current General Provisions, § 63.5(d), where petitioners commented that the use of the terms “commence” or “commencement” are inappropriate. We are proposing to amend the regulatory language to specify the beginning of actual construction rather than the commencement of construction. This proposal reflects our original intent and addresses the petitioners' concerns.

7. Consistency With Statutory Language

In some cases, the current General Provisions contain terminology that is inconsistent with what is in the CAA. We have corrected inconsistent language where appropriate. For example, § 63.1(a)(3) contains language inconsistent with the parallel language of section 112(d)(7) of the CAA. We are proposing parallel regulatory language to match that of the CAA.

8. Use of Alternative Test Methods

We are proposing to amend § 63.7(f)(2)(ii) to clarify that the use of defined aspects of Method 301 procedures may be sufficient to validate the data and the test method used to obtain the data. Currently, the language implies that a complete Method 301 validation would be required to make this demonstration in all cases, which was not our intent.

Method 301 establishes acceptance criteria as well as a demonstration procedure for test method development and validation and alternative method demonstrations. Such criteria and procedures did not exist before Method 301; therefore, the many emission test methods in the United States and abroad did not have a standard procedure underlying their validation. Method 301 defines how good a proposed method is in terms of bias and precision either standing alone or compared to an existing (reference) method.

During the proposal and promulgation of Method 301, we recognized that other acceptable validation procedures for demonstrating a method's acceptance (precision and bias) do exist, e.g., ASTM. We acknowledged this in Sections 1.1.1 and 12 of Method 301, which allow different validation approaches under certain conditions, including other reasonable statistical approaches, ruggedness testing of method modifications, similar exhaust matrix demonstrations, etc.

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

We are proposing to clarify and correct the existing rules (59 FR 26429) (part 63, subpart B, §§ 63.50 through 63.56) promulgated May 20, 1994, implementing section 112(j) of the CAA to better address timing and applicability issues. A key point of clarification is how and when new source MACT and the associated new affected source are defined. The current rules establish the section 112(j) hammer date as the date for determining whether new source MACT should apply and what it should be. However, because this date could occur before a source had received a title V permit containing MACT emission limitation requirements for new sources, sources would be left to “guess” at what new source MACT would be. If the source didn't guess correctly, and new source MACT were different than anticipated at the commencement of construction, it may incur significant rebuilding expense or delays to accommodate new MACT controls when finally issued in a title V permit. Although we considered this difficulty in knowing the exact nature of new source MACT, and discussed it extensively in the promulgation preamble (59 FR 26435), the petitioners pointed out that our solution was unworkable.

With these amendments, we are proposing an alternative remedy to the timing requirements associated with new source MACT determinations. As discussed in section III.C of this preamble, we propose to change the new source MACT applicability date to the date on which an affected source is issued a title V permit containing requirements establishing new and existing source MACT for that affected source. From this date onward, future changes at the facility can be made with knowledge of what new source MACT is for that facility. This change in the applicability date also affects area sources (i.e., nonmajor sources) that become major sources. For example, an existing area source (in a category or subcategory for which the section 112(j) permit hammer date has passed) that increases emissions such that the source becomes a major source would be subject to existing source MACT because the new source MACT applicability date has not yet been established for the source.

The other major clarification we are proposing today is the creation of a two-part MACT application process. Part 1 would be a brief informational submittal, followed by a substantive application for MACT requirements, or Part 2. We discuss this process in more detail in section III.D of this preamble.

A. Applicability

We are proposing several changes to clarify § 63.50 applicability requirements. We have reorganized § 63.50(a) to clarify that the section 112(j) program places obligations on source owners and operators (§ 63.50(a)(2)(i)) and on permitting authorities (§ 63.50(a)(2)(ii)). We also propose to exempt research or laboratory activities whose primary purpose is to conduct research and development into new processes and products. This proposed exemption (§ 63.50(a)(1)) would remain until research and development activities are listed as a source category for regulation pursuant to section 112(c)(7) of the

CAA. We propose to add a definition to § 63.51 for research or laboratory facilities, which is discussed in more detail in section III.B of this preamble.

We are proposing to amend § 63.50(a)(2)(i) to clarify that only equipment or activities within the relevant source category or subcategory located at major sources are affected by the regulatory requirements implementing section 112(j). Currently, the rule could be interpreted to apply to emission sources at the facility but outside of the relevant category or subcategory, which was not our intent. For example, assume that a source is subject to section 112(j) emission limitations for operations in a relevant category or subcategory. Other operations at the same facility in a different category or subcategory would not be subject to section 112(j) emission limitations unless and until the section 112(j) deadline for this different category or subcategory passes.

We are also proposing to clarify the relationship of section 112(j) applicability to the effective date of the permitting authority's title V program in § 63.50(a)(2)(i). In particular, petitioners raised the concern that, in the case of a title V program that receives source category-limited interim approval, section 112(j) should apply only to those sources subject to permitting in that title V program, or should apply only to sources located in those geographic areas covered by the title V permit program receiving partial approval in a given State. We agree that if the approved title V program is limited to specific source categories or subcategories, then section 112(j) should not be triggered for sources in categories or subcategories not covered by the title V program.

The petitioners objected to the language in § 63.50(b) which states that the current rule does not prevent a State or local regulatory authority from imposing more stringent requirements than those contained in the rule. They contended that limitations established under section 112(j) must be equivalent to section 112(d) limitations, and that States can only be more stringent as a matter of State law. The petitioners interpreted the current language as articulating a State's ability to be more stringent than MACT as a matter of Federal law.

We plan to retain the current language. As noted in the promulgation preamble (59 FR 26433; May 20, 1994), many State and local regulatory authorities maintain regulatory programs that involve air toxic pollutant reviews for stationary sources. Section 63.50(b) clarifies that section 112(j) does not pre-empt any requirements of these programs that are at least as stringent as the current rule. However, we are requesting comment on this issue and will consider revising § 63.50(b) in the promulgated amendments if further clarification is needed.

Finally, we are proposing to delete § 63.50(c) because the requirement that States must have legal authority to incorporate and enforce requirements of section 112(j) is found in 40 CFR part 70. Deletion of this provision does not remove the obligation of a permitting authority to have section 112(j) authority as a prerequisite for title V permit program approval.

B. Definitions

We are proposing to amend several of the § 63.51 definitions for clarity and consistency. Other proposed changes are more substantive and, in some cases, are needed to implement broader concepts being addressed elsewhere in this preamble. For example, we are proposing to add or amend several definitions related to the concept of affected source as discussed in section II.B of this preamble. We are proposing to add definitions of “affected source” and “new affected source” to § 63.51 as they relate to implementation of this concept. We are proposing to revise the definition of “similar source” to be consistent with implementing the new affected source concept. We are proposing to define “similar source” as “that equipment or collection of equipment that by virtue of its structure, operability, type of emissions and volume and concentration of emissions is substantially equivalent to the new affected source and employs control technology that is practical for use on the new affected source.” “Practical for use” contemplates that the State permitting authority would consider whether the control technology would achieve similar efficiencies. We are proposing to delete the definitions of “emission point,” “emissions unit,” “existing major source,” “new emission unit,” and “new major source” in § 63.51 for consistency in implementing both subparts A and B proposed amendments. Where appropriate, we are proposing edits that reflect these proposed definition changes when these terms are used.

1. Available Information

We are proposing to revise the “available information” definition to specify the type and timing of information that the owner or operator must submit in an equivalent MACT determination application under the section 112(j) rule. As promulgated, the deadline for submission of this information is the section 112(j) deadline, which is the date on which the section 112(j) hammer falls. However, consistent with proposed changes in §§ 63.52 and 63.53 to make the permit application a two-part process, the substantive information required by the permitting authority to make its case-by-case MACT determination is now tied to submittal of the Part 2 MACT application.

As part of the section 112(j) MACT determination process, the proposed concept of “available information” is used in such a way as to limit the introduction of “new” information to the MACT determination process beyond the date on which the first Part 2 MACT application is filed for an equivalent emission limitation for a source in the relevant source category or subcategory in the State or jurisdiction. This approach of setting a date certain to limit the universe of “available information” is consistent with the approach being proposed in the new source review program. For example, the development of a new emission control technology after the date of the first Part 2 MACT application would not be considered “available information” for another source's MACT determination. However, if the technology were developed before the first Part 2 MACT application, but the information was only brought to the permitting authority's attention after that date, this information would be considered “available,” and it could be used in making the MACT determination. Also, we propose to add language to the definition of “available information” to make clear that permitting authorities can and should consider information from the public as well as from the applicant. The proposed definition would require the permitting authority to consider any information submitted by the applicant or others before or during the public comment period on the section 112(j) equivalent emission limitation.

We believe that both the States and the sources will have substantial incentive to identify and obtain the full body of information that should be considered in the case-by-case MACT determination as expeditiously as possible. We also note that available information includes, among other things, “additional relevant information that can be expeditiously provided by the Administrator” before the date on which the first Part 2 application is filed for a source in the relevant source category or subcategory in the State or jurisdiction. For example, such available information could include

relevant information provided on EPA's Air Toxics Home Page before the first Part 2 application date. The better supported a section 112(j) MACT determination is, the more likely it is that the effects of subsequent section 112(d), 112(h), and 112(g) standards on the affected source will be minimal.

We are proposing to move the content of items 6, 7, and 8 of the definition to the introductory text of the definition to clarify the role and timing of the more general types of “available” information that may be provided to the permitting authority. The intent of the current language is preserved with the change.

2. Research and Development Activities

We propose to add a definition of “research or laboratory activities” to clarify proposed language in § 63.50(a)(1) that certain research and development activities are exempt from this subpart. We would limit this exemption to sources that are not engaged in the manufacture of products for commercial sale, except in a de minimis manner, and where the source is not subject to a source category specifically addressing research or laboratory activities that is listed pursuant to section 112(c)(7) of the CAA. Section 112(c)(7) requires the Administrator to establish a separate category covering research or laboratory facilities, as necessary to assure the equitable treatment of such facilities.

3. Other Definition Changes

We propose to amend the definition of “equivalent emission limitation.” We are proposing to replace the phrase “at least as stringent as” with “equivalent to” so that the language in this definition is consistent with the language in the CAA. Similarly, the proposed definition of “maximum achievable control technology (MACT) floor” contains minor amendments to ensure consistency with the definition in the Act. We are also proposing a minor change to the definition of “section 112(j) deadline” to clarify that the deadline is the date 18 months after the date on which a relevant standard is scheduled to be promulgated. We are also proposing to delete the definition of “United States,” which is considered unnecessary in the context of the rule. Finally, we are proposing to amend the definition of “permitting authority” to clarify that this term means a permitting authority under either 40 CFR part 70 or part 71.

C. Approval Process

We are proposing to expand and modify § 63.52 with proposed new paragraphs (a) through (d) to clarify the obligations of owners or operators of major sources that include one or more sources in a category or subcategory for which the Administrator fails to promulgate an emission standard under this part on or before the applicable section 112(j) deadline. As discussed in section IV.A of this preamble, the purpose of some of these proposed changes is to ensure that existing MACT determinations (e.g., those developed under the section 112(g) program) are given appropriate consideration and weight in the section 112(j) MACT determination process.

We have identified three situations for major sources related to the timing of applicability of section 112(j) to a source and related to existing requirements in a source's permit that could be affected by the section 112(j) rule. Revised § 63.52(a) through (c) address each of these situations.

The first situation, described in proposed § 63.52(a), covers major sources that include, as of the section 112(j) deadline, one or more sources in a category or subcategory for which the Administrator has failed to promulgate an emission standard. Owners or operators of these sources would be required to submit a Part 1 MACT application to the permitting authority by the section 112(j) deadline if the owner or operator can reasonably determine that one or more sources at the major source belong to a category or subcategory that would be subject to the section 112(j) MACT requirements. We believe, in most cases, that it will be clear to owners or operators which affected sources are subject to section 112(j) MACT requirements. However, in a few instances, there may be legitimate confusion as to the applicability of the requirements. In these cases, proposed § 63.52(a)(2) would require the owner or operator to submit a Part 1 MACT application within 30 days of being notified in writing by the permitting authority that one or more sources at the major source belong to a section 112(j) category or subcategory.

The proposed language would require the permitting authority to notify the owner or operator within 120 days of the section 112(j) deadline that section 112(j) requirements apply to a facility. We believe that permitting authorities will have information available at the time of the section 112(j) deadline through existing title V permits and permit applications, as well as information from the EPA and other sources, to identify and notify owners or operators within a fairly short time period. The purpose of placing a cap on the notification period is to provide major sources with some certainty that, if they and the permitting authority both determine that their facilities are not subject to section 112(j), then they will not be brought into the section 112(j) process months or years after a good-faith determination was made. We request comment on whether the 120-day time period is sufficient for permitting authorities to act.

Also addressed in proposed § 63.52(a) is the case where an owner or operator has a title V permit that addresses the emission limitation requirements of section 112(g) by the section 112(j) deadline. Such an owner or operator would be required to submit a Part 1 MACT application, but additional provisions would allow the owner or operator to request a determination that the section 112(g) emission limitations already in its permit are “substantially as effective as” the requirements otherwise adopted under section 112(j) for the source. As discussed in section IV.A of this preamble, we believe that MACT determinations made under separate programs should be substantially equivalent when the same procedures for determining MACT are used. Therefore, an affected source with a section 112(g) new source MACT determination should, in most cases, already be subject to applicable requirements substantially as effective as those that would be required under section 112(j). In these cases, the source's title V permit must be revised to reflect that the source's continued compliance with the section 112(g) MACT determination satisfies the requirements of section 112(j).

The second situation, addressed in proposed § 63.52(b), covers owners or operators of sources in a category or subcategory affected by a section 112(j) deadline, but who were not subject to section 112(j) emission limitations at the time of the deadline. Proposed § 63.52(b)(1) would address sources that install equipment in a category or subcategory subject to section 112(j) requirements, and where the installation does not trigger the section 112(g) process (i.e., the new equipment is not a major-emitting source). These sources may be major sources before the installation, or they may become major sources as a result of the installation. In either case, the owner or operator must submit a Part 1 MACT application within 30 days after startup of the source.

Proposed § 63.52(b)(2) is similar to proposed § 63.52(a)(3) in that it addresses sources that have entered the section 112(g) process through installation of a major-emitting source. In the case of proposed § 63.52(b)(2), the source installs a major-emitting source

after the section 112(j) deadline for sources in the same category or subcategory. Where the source already has a title V permit addressing section 112(g) requirements, the owners or operators of these sources would be required to submit a Part 1 MACT application to revise the title V permit addressing section 112(g) requirements. The Part 1 MACT application must be submitted within 30 days after startup of the source. Where the source has applied for but not yet received a title V permit addressing section 112(g) requirements, the owners or operators of these sources would be required to submit a Part 1 MACT application to revise the title V permit to address section 112(j) requirements within 30 days after issuance of the title V permit addressing section 112(g) requirements. Once the Part 1 MACT application is submitted, the permitting authority would make an equivalency determination for the source as discussed above for sources subject to proposed § 63.52(a)(3).

The relevant provisions of current § 63.52(f), which address area (i.e., nonmajor) sources that become major sources, were incorporated and expanded in the proposed new § 63.52(b)(3) and (4) to consolidate in proposed § 63.52(b) the applicable requirements for sources that become subject to section 112(j) after the section 112(j) deadline. These provisions address the status of area sources that become major sources after the section 112(j) deadline either through the relaxation of a federally enforceable limitation on potential to emit or because the source becomes major because the EPA established a lesser quantity emission rate pursuant to section 112(a) of the CAA.

In one case, we are proposing to change the Part 1 MACT application submittal date from the current § 63.52(f) provisions. The current rule requires the source to comply with the section 112(j) emission limitations on or before the date of becoming a major source. Under today's proposal, if an area source increases its potential to emit HAP such that the source becomes a major source subject to subpart B, due to a relaxation in any federally enforceable emission limitation, then the owner or operator must submit a Part 1 MACT application within 30 days after the source becomes a major source. We are proposing this change to implement the concept discussed earlier that the resulting affected source is subject to existing source MACT and should have timing requirements similar to other sources that become subject to section 112(j) requirements after the section 112(j) deadline.

A similar situation exists for area sources that subsequently become major due to the establishment of a lesser quantity emissions rate under section 112(a) of the CAA for an affected source at the area source. Currently, owners or operators of sources in categories or subcategories subject to 112(j) requirements must submit a MACT application within 6 months of the date such a source becomes a major source. We solicit comments on whether this timeline should be retained, or whether it would be beneficial to make it more consistent with the application deadline requirements for other sources, i.e., 30 days from the triggering event.

The third situation is addressed in proposed § 63.52(c). This section covers owners or operators of sources who have a title V permit that addresses the requirements of section 112(j), and subsequent actions occur at the source that trigger section 112(j) requirements. In the simplest case, when events such as the addition of a new process unit occur, the permit already contains the relevant section 112(j) requirements, and the source complies with the permit conditions. In other cases, the permit may not contain sufficient requirements to address the section 112(j) requirements. For example, a source in a given category or subcategory may have a title V permit that addresses section 112(j) emission limitations for the production of chemical “A.” If the source then installs a new process unit to produce chemical “B,” and the new process unit includes equipment that is in the same source category but was not previously addressed in the source's title V permit, section 112(j) emission limitations would need to be developed to address this scenario. In this case, the owner or operator must submit a Part 1 MACT application within 30 days after beginning construction. In the case where a new affected source is constructed after the issuance of the permit, the owner or operator must obtain a title V permit revision with applicable limits prior to startup of the new affected source.

We are proposing to add § 63.52(d) to provide a process by which the owner or operator of a source could obtain up front determinations from the permitting authority. Proposed § 63.52(d)(1) would allow the owner or operator to request an applicability determination from the permitting authority in the case of uncertainty regarding the source's status with respect to section 112(j) requirements. The form of the request would be the submission of a Part 1 MACT application. Some sources might prefer to obtain an up front determination from the permitting authority rather than wait 120 days for the permitting authority to notify them of their applicability or in order to have documentation of their nonapplicability.

Proposed § 63.52(d)(2) provides that an owner or operator of a new affected source may submit an application for a Notice of MACT Approval before construction, under § 63.54. This provision is contained in the current rule as § 63.52(a)(4).

Proposed § 63.52(e) would incorporate the two-part permit application process. The rationale and content of each of the two applications are discussed in section III.D of this preamble. The timing of the submittal of the Part 1 application has already been addressed in the proposed changes to § 63.52, paragraphs (a) through (d). The focus of proposed § 63.52(e) is the review process for the Part 2 MACT application.

Proposed § 63.52(e)(1) would require submittal of the Part 2 MACT application within 6 months after submittal of the Part 1 MACT application. This timeline is analogous to the current rule, which allows a source 6 months to submit a revised application upon determination that the original application, submitted at the section 112(j) deadline, is incomplete. Today's proposal would provide this 6-month extension as a matter of course in recognition of the fact that the Part 1 MACT application is not required to be complete enough to support a MACT determination.

Proposed § 63.52(e)(2) would provide a process by which both equivalency determinations and applicability determinations can proceed. An owner or operator who requests an applicability determination under proposed § 63.52(d)(1) must comply with the remaining provisions of this subpart if the permitting authority determines the source is subject to section 112(j) requirements. If the permitting authority determines the section 112(j) requirements do not apply to the source, no further action by the owner or operator is necessary.

Given the importance of the outcome in an equivalency determination under proposed § 63.52(a)(3) or (b)(2), the proposed process for an equivalency determination includes the opportunity for full public, EPA, and affected State review. If the permitting authority determines that the existing section 112(g) permit terms and conditions satisfy the section 112(j) requirements, the requirements of section 112(j) are satisfied once the source's title V permit

is revised to reflect that the source's continued compliance with the section 112(g) MACT determination satisfies the requirements of section 112(j). If the permitting authority determines that the section 112(g) permit terms and conditions are not sufficient to satisfy the section 112(j) requirements, the source must proceed with submittal of a Part 2 MACT application.

Proposed application completeness provisions in § 63.52(e)(3) and (4) would provide that if the permitting authority fails to notify the source that the application is incomplete, in writing and within 60 days, the MACT application would be considered complete. A Part 2 MACT application is considered complete if the information is sufficient to begin or continue processing the application. Similarly, as provided in proposed § 63.52(e)(4), a completeness determination should not limit the permitting authority's ability to request additional information from the source owner or operator; such a request should receive a timely response.

We are proposing minor edits to § 63.52(c)(2) to use more generic terms when referring to the title V permit process. The use of these terms in this paragraph and throughout the rule is to ensure that the rules implementing the section 112(j) provisions of the CAA can be used in the context of the title V permitting process under parts 70 and 71.

Proposed amended § 63.52(e)(5) would clarify that, given timely submittal of a complete application, a failure to receive a permit under section 112(j) within 18 months would not be a violation of section 112(j).

We are proposing to retitle § 63.52(d) from “Emission limitation” to “Permit content” to more accurately reflect the contents of the section. In addition, we are proposing to clarify § 63.52(f) to ensure that the permit contains notification, operation and maintenance, performance testing, monitoring, and reporting and recordkeeping requirements consistent with the part 63, subpart A, General Provisions. In addition, proposed § 63.52(f)(2)(i) replaces the term “Federal enforceability” with “practicable enforceability.” The former term was borrowed from the EPA's June 28, 1989

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notice (54 FR 27274) on potential to emit. There, “Federal enforceability” was used as a short-hand reference to several attributes, including enforceability as a practical matter. Today's change would clarify the intent of this provision to ensure achievement of this goal.

We are proposing clarifications to make the compliance date for a new affected source the date of startup of the new affected source, as opposed to the date the title V permit is issued, as currently promulgated.

We are proposing § 63.52(f)(1) to implement the requirement for the permitting authority to include in each permit implementing section 112(j) the definition of affected source and new affected source arising from each case-by-case MACT determination. As discussed elsewhere, delineation of these terms is integral to the proposed changes to clarify the approval process for new and existing sources under the section 112(j) program.

We are proposing to add § 63.52(g) to clarify the dates by which a permit must be issued. In most cases, that date is within 24 months after submittal of the Part 1 MACT application. However, if the source's owner or operator requests an applicability or equivalency determination under proposed § 63.52(e)(2), the permitting authority must issue the permit within 18 months after receiving the Part 2 MACT application.

We propose to redesignate § 63.52(e) as § 63.52(h) and clarify its existing position on enhanced monitoring. In particular, we expect States to incorporate monitoring, recordkeeping and reporting mechanisms and other means of assuring compliance, such as posting all compliance reports on a publicly available electronic bulletin board, that comport with the enhanced monitoring approach in section 114(a)(3). This is the approach we endeavor to utilize in the development of new MACT standards under section 112(d). In many instances, this will require an improvement over existing compliance assurance provisions, if the source has such preexisting requirements, to provide the superior enforceability contemplated in the MACT program.

We are proposing to add § 63.52(i) to clarify for all affected sources which sources must comply with MACT for existing sources versus MACT for new sources. The application of new source MACT is limited to new affected sources, as defined in the title V permit addressing section 112(j) MACT emission limitations for those affected sources. This language reflects our proposed approach to implement the concepts of “affected source” and “new affected source.”

For example, as currently promulgated, an existing area source could become a major source subject to new source MACT through the addition of a single piece or collection of equipment such that the source's potential to emit increases by only a small amount (e.g., from 9.9 tons/year to 10.1 tons/year). We agree with the petitioners that the possible costs and burdens faced by a source in this case could be unreasonable because the change in status could entail installation of new source MACT on existing equipment. Therefore, we are proposing to limit new source MACT to sources that become major emitters because they add a new affected source as defined by § 63.51; new source MACT would only apply to the new affected source. This approach is also consistent with the proposed definition of “new affected source.”

D. Application Content

We are proposing to delete current § 63.53(a) because it is redundant given the provisions in § 63.55, which address MACT determinations for affected sources subject to case-by-case determination of equivalent emission limitations.

We are proposing to revise and move § 63.53(b) and proposing to add new § 63.53(b) to reflect the proposed change from a single MACT permit application due on the section 112(j) deadline to a 2-part MACT permit application due over a 6-month time period, as discussed in the previous section. However, the majority of currently required information is included in proposed new § 63.53(a) and (b).

Proposed § 63.53(a) describes the required content of the Part 1 MACT application, which includes basic information such as name, address, a brief description of the relevant major source, and an identification of the relevant source category and types of emission units belonging to the relevant source category. Sources for which a section 112(g) determination has been made should identify any relevant equipment or activities as well. The purpose of allowing the more streamlined Part 1 application at the section 112(j) deadline rather than a complete permit application is in acknowledgment that the source may require more time to compile the detailed information required for the permitting authority to make a MACT floor determination, and that the determination process is an iterative one with the permitting authority. The Part 1 application content is analogous to the § 63.9(b) initial notification content.

Proposed § 63.53(b) describes the contents of the Part 2 MACT application and lists additional relevant process, pollutant, and control information. Proposed § 63.53(b) incorporates the “affected source” language, where applicable. Requirements for new affected sources to report the expected

date of commencement of construction and the expected date of completion of construction were deleted because this information is irrelevant to the overall application review process. We are also proposing to add the phrase “in the relevant source category” in § 63.53(b)(1)(ii) to clarify that information is not required for HAP emissions from source categories other than the relevant source categories. We are also proposing to add the phrase “estimated total uncontrolled and controlled emission rate” to clarify that information on both uncontrolled and controlled emission rates is needed.

Proposed § 63.53(b)(1)(iii) language includes the phrase “Federal, State, or local limitations or requirements” to clarify the universe of potentially applicable requirements that could be considered by the permitting authority. Current § 63.53(b)(8), which includes a request for detailed capacity utilization information, would be eliminated because we believe this information would not be generally available at the time the permit application is due. However, the requirement to include information on uncontrolled emissions would be incorporated into the proposed § 63.53(b)(1)(ii) language. Similarly, we are proposing to delete the language regarding controlled emissions at maximum capacity from § 63.53(b)(9), but other required information would be retained in proposed § 63.53(b)(1)(iv) such as the requirement to include identification of control technology in place.

We are proposing to delete the current § 63.53(b)(10) requirement to include the MACT floor because the floor determination will be made by the permitting authority, thereby obviating the mandate for the source to report information on the floor to the permitting authority. This change is consistent with proposed changes to § 63.55, discussed in section III.F of this preamble. While a MACT floor determination is not required of the owner or operator, proposed § 63.53(b)(1)(v) would allow the owner or operator the option of recommending a MACT floor.

The information currently required in promulgated § 63.53(b)(11) through (13) would be retained in proposed § 63.53(b)(2), but only as optional information to be provided at the source's discretion. Proposed § 63.53(b)(1)(vi) mirrors the current § 63.53(b)(14) language allowing the permitting authority to request any other information reasonably needed in the permit application. The information provided under § 63.53(b)(1)(vi) is subject to the confidential business information protections provided under the CAA.

E. Preconstruction Review

We are proposing clarifying language to the introduction of § 63.54 to emphasize that the purpose of the section is to describe alternative review processes that the permitting authority may select from to make a MACT determination for new affected sources. We believe that preconstruction review, although optional in the context of section 112(j), is a useful tool for States and sources in making case-by-case MACT determinations for new affected sources. Therefore, we do not want to preclude the ability of the States to employ existing preconstruction review programs or to develop “enhanced” review programs using the § 63.54(b) optional administrative procedures for sources subject to the section 112(j) provisions.

We are proposing to delete § 63.54(e) and (f) because language in proposed § 63.52(f)(2)(iii) addresses the issues raised by these sections.

F. Enforcement Liability

Petitioners raised several questions regarding exposure to enforcement liability that relate to sources which have not been clearly identified as sources within the particular source category that are subject to section 112(j) requirements. We hope that all such questions of applicability for a source will be clarified before the section 112(j) permit application is due so that these issues will not arise. However, there may initially be a lack of clarity, and it is also possible that some applicability issues may not be resolved before a final section 112(d) MACT standard is issued. Accordingly, certain hypothetical situations are discussed below in order to provide guidance regarding our intent in implementing section 112(j).

The first situation involves a source that the permitting authority has identified in the section 112(j) process as not being a source covered by section 112(j). If a subsequently promulgated section 112(d) MACT standard clarifies that this source is indeed covered, does the source face liability for not complying with section 112(j) previously? We have concluded that such a source would not face any liability so long as it came into compliance with the section 112(d) standard as required, since it had no regulatory duty under section 112(j), and provided that the permitting authority actually identified the source in the section 112(j) process as not being a source covered by section 112(j).

A second situation involves a source that obtains assurance from the appropriate officials within the permitting authority that the source is not in the section 112(j) source category and is, thus, not covered by section 112(j). If a citizen disagrees and sues arguing that the source should be in the source category, what liability exposure does the source face? It is our position that the source should face no liability in such a circumstance, provided that the source did obtain assurances from the appropriate officials within the permitting authority that it is not in the section 112(j) source category. The source is only obligated to abide by the requirements under section 112(j) as articulated by the permitting authority. If a citizen wishes to assert that the section 112(j) applicability criteria are inappropriate, then the remedy is to convince or force the permitting authority to modify its regulatory requirements.

A third concern involves a situation where the permitting authority or EPA has not clearly defined the source category and the source does not submit an application by the deadline. If, however, the permitting authority later determines that the source is in the section 112(j) source category and, thus, an application is due, what enforcement liability does the source face for failing to submit the application by the deadline? Again, in all instances involving the section 112(j) program, either the permitting authority or the EPA should identify the source category with sufficient specificity to eliminate any such problem. But in case such a situation should arise, it is unreasonable to assert that a source is liable if the source was not provided sufficient notice that an application was due. In other words, the permitting authority and the EPA are responsible for defining the section 112(j) source category with sufficient clarity so that a source can reasonably determine whether it falls within that source category. Absent such clarity and adequate notice—provided within the original source category description, in subsequent EPA documents (either in the

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or on EPA's Air Toxics Home Page, provided that specific notice is made in the

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to the availability of such a document on the Air Toxics Home Page) or through subsequent notification by the permitting authority pursuant to proposed § 63.52(a)(2)—a source should not be liable for failing to submit a section 112(j) application. On the other hand, a source would be liable for failing to submit a section 112(j)

application if the section 112(j) source category was clearly defined.

G. MACT Determinations

In today's action, we are proposing to delete § 63.55(a) because it is redundant given the other changes proposed today, and it results in an unintended presumptive effect on the section 112(j) standard development process. For example, the contents of current § 63.55(a)(3) and (4) are found largely in the proposed Part 2 application requirements although the information may now be supplied on an optional basis unless specifically requested by the permitting authority. This movement from a requirement to an optional submission reflects the concept that the MACT determination process is iterative, and that the responsibility for determining MACT lies with the permitting authority.

We are proposing to delete § 63.55(a)(1) because it suggests that a proposed relevant emission standard is a presumptive MACT determination. While a proposed relevant standard should be given serious consideration in the MACT determination process, there have been instances where key elements of a proposed MACT standard change significantly between proposal and promulgation. Similarly, retaining the language in § 63.55(a)(2) would result in the presumptive use of any “guidance or distributed information establishing a MACT floor finding for the source category or subcategory by the section 112(j) deadline.” We agree that the quality of information embraced by this provision could vary widely and may not have been developed with the benefit of public notice and comment.

Proposed § 63.55(a) contains new language to ensure that there are no gaps in the MACT determination process between obtaining the application and making the determination. We are proposing to revise § 63.55(a)(2) and (3) to clarify that the MACT determination will be established according to the requirements of section 112(d)(3) of the CAA and based on available information. The revisions to the definition of “available information,” discussed in section III.B of this preamble, would ensure that the permitting authority has the needed information to make the MACT determination. The proposed deletion of the explicit consideration of “information provided in public comments” would eliminate redundant information. The section 112(j) process already requires the inclusion of provisions for notice and public comment. We are proposing to delete § 63.55(b)(4) and (5) consistent with deleting related requirements regarding the presumptive use of proposed rules and other MACT floor guidance in the current § 63.55(a)(1) and (2).

H. Case-by-case MACT Requirements After Promulgation of a Subsequent MACT Standard

Section 63.56 describes the case-by-case handling of requirements for determining equivalent emission limitations after promulgation of a subsequent MACT standard. We are proposing to amend § 63.56(a) to clarify the relevance of emission standards to affected sources. We are proposing to revise § 63.56(b) to clarify that the subsequently promulgated MACT standard will be incorporated into the title V permit upon its renewal. Section 63.56(b) would also assure affected sources that the period for compliance for existing sources would be no shorter than the time provided in the promulgated MACT standard.

We are proposing to amend the introductory text to § 63.56(c) by revising § 63.56(c)(1) and adding § 63.56(c)(2). Section 63.56(c)(1) would clarify that the permitting authority does not need to change the emission level in the permit to the promulgated MACT standard level of control if the level of control in the permit is substantially as effective as the level of control in the promulgated MACT standard. This language implements the concepts discussed in section IV.A of this preamble. We are proposing to add § 63.56(c)(2) to state that the permitting authority must not incorporate any less stringent emission limitation of the promulgated standard in the title V permit and may consider more stringent terms due to the requirements of section 112(d) and (h). This section precludes the possibility of sources being required to change previously approved control technologies when the “new” standard is found to be as substantially as effective as the previous MACT determination, but it also precludes sources from changing controls in the case the “new” standard is less stringent than the previous MACT determination. Taken together, § 63.56(c)(1) and (2) maintains the status quo of previous MACT determinations that are found to be substantially as effective as a subsequent MACT.

I. Section 112(j) Guidelines Document

We have published a guidance document titled “Guidelines for MACT Determinations under Section 112(j),” EPA 453/R-94-026, May 1994. The purpose of the document is to give permitting authorities additional guidance in making MACT determinations based on the principles established in proposed § 63.55. We have revised this document to incorporate relevant clarifications and revisions proposed today. The draft revised document is available on the TTN (

SUPPLEMENTARY INFORMATION

). Comments on the draft revised document should be submitted together with comments on today's proposed rule changes. The guidance document contains procedures for evaluating whether a control technology is consistent with the minimum requirements established in section 112(d) of the CAA. Because section 112(j)(5) requires that case-by-case MACT determinations be “equivalent to the limitation that would apply to such source if an emission standard had been promulgated in a timely manner under subsection (d),” we believe that consideration of this guidance document is a crucial component of the section 112(j) case-by-case MACT determination process.

IV. Additional Issues

A. Discussion of the Relationship Among Requirements Under Section 112(d), (g), (h), and (j)

1. Background and Summary of Issue

One area of concern the petitioners identified involves the substantive relationship between a case-by-case MACT emission limitation issued under section 112(j) and a MACT standard subsequently issued under section 112(d) or (h). Petitioners are also concerned regarding the relationship between a case-by-case MACT determination under section 112(g) and a subsequently issued case-by-case MACT emission limitation under section 112(j), or MACT standard under section 112(d) or (h). In general, the petitioners believe that compliance with a case-by-case MACT determination should constitute compliance with a subsequent case-by-case MACT determination or MACT standard.

Throughout the development of the section 112 program, we have maintained as one of our primary goals consistency among the different section 112 requirements of the CAA. As stated in the final section 112(j) rule, “EPA's primary goal is to create as much consistency as possible between case-by-case MACT determinations under section 112(j) and implementation of subsequent 112(d) standards * * * the agency intends to ensure the greatest possible consistency among section 112(d), (g), and (j) provisions.”

In general, we do not disagree with the petitioners in that if the four MACT standard setting provisions of the CAA

are appropriately implemented, they will be based on substantially similar types of information concerning emission controls and will reflect similar regulatory policies concerning the feasibility of further emission reductions. However, we do not agree that it would be appropriate to conclude that a previous case-by-case MACT limitation automatically satisfies subsequent section 112 MACT requirements.

With respect to the subsequent applicability of a section 112(d) or (h) standard or a section 112(j) MACT determination to a source for which a section 112(g) MACT determination has been made, this issue is resolved by the section 112(g) regulations and accompanying preamble, promulgated on December 27, 1996 at 61 FR 68399. Consistent with that

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action, a source that receives a case-by-case MACT determination under section 112(g) must comply with the subsequent case-by-case MACT determination or MACT standard, although the source may have a period of up to 8 years to achieve such compliance. The subsequent case-by-case MACT determination or MACT standard may stipulate that compliance with the prior case-by-case MACT constitutes compliance with the subsequent determination or standard.

In general, we believe that requiring a source that has received a case-by-case MACT determination under section 112(g) to comply with subsequently adopted MACT requirements will not result in any inappropriate regulatory burden. This is primarily because we have required the implementation of section 112(g) only with respect to construction or reconstruction of major sources of HAP, and the resultant case-by-case determination would require new source MACT. Even though any section 112(g) MACT determination will incorporate MACT for new sources, the major source in question will likely be considered an existing source by the time of issuance of any subsequent MACT limitation for the source under section 112(j) or MACT standard applicable to the source under section 112(d) or (h).

We note that any case-by-case MACT limitation adopted for a source under section 112(j) will normally be made by the same permitting authority that would have issued any prior case-by-case MACT determination for the same source under section 112(g). We believe that it is appropriate to afford the permitting authority some discretion to consider the substantive adequacy of existing section 112(g) requirements when it makes a subsequent decision concerning the emission limitations required by section 112(j).

We believe that the concerns petitioners expressed are most significant in the context of a potential transition from a case-by-case MACT determination made by the permitting authority under section 112(j) for an individual source to a generally applicable MACT standard adopted by the EPA under section 112(d) or (h). Although the statutory criterion for establishing the subsequent standard under section 112(d) or (h) may be identical to the criterion governing the issuance of the case-by-case MACT determination under section 112(j), in practice there may be differences in the conclusions reached by the permitting authority and the EPA. Such differences could easily arise due to differing data bases, differing approaches to analysis of the same data, or differences in the form of the standard adopted. Thus, unless the permitting authority has some measure of discretion to reconcile the different regulatory outcomes, the potential exists for sources subject to a case-by-case MACT determination to be forced to take action to respond to control, monitoring, recordkeeping, and reporting requirements that differ from those required by a subsequent case-by-case MACT or generally applicable MACT standard, even though the results of the case-by-case requirements do not differ from the standard in any consequential way. We see this as an irrational outcome that would undermine effective and efficient environmental policy, and we do not believe that Congress intended substantial additional burdens to be imposed (e.g., capital investments in new emission controls) regardless of the significance of the resultant impact on actual emission reductions.

Accordingly, we are proposing two basic clarifications in which sequential MACT requirements under section 112(d), (g), (h), and (j) will be implemented by the responsible permitting authority. First, the permitting authority would adopt a prior case-by-case new source MACT determination for a process or production unit under section 112(g) as its case-by-case MACT limitation under section 112(j) for the same process or production unit if the permitting authority determines that the prior requirements are “substantially as effective” in controlling HAP emissions as the requirements which the permitting authority would otherwise have adopted under section 112(j). Similarly, if the permitting authority determines that the controls required by a prior case-by-case MACT limitation for a source under section 112(j) are “substantially as effective” in controlling HAP emissions as a MACT standard governing that same source subsequently promulgated under section 112(d) or (h), the permitting authority would construe compliance with the prior section 112(j) emission limitation as compliance with the promulgated standard and revise the operating permit accordingly. As explained below, we and the petitioners evaluated several approaches to define quantitatively the criterion “substantially as effective” and concluded that it is appropriate to leave it qualitative with substantial discretion vested in the permitting authority. Also as explained below, this discretion will be tempered by use of the title V process to ensure public, EPA, and affected State review of the permitting authorities' conclusions.

2. Legal Authority and Statutory Limitations

We believe that our authority to implement a policy that allows the permitting authority to use the “substantially as effective” test is supported by both the language of section 112(j) and the

Alabama Power

de minimis doctrine. The language in section 112(j) implies a measure of statutory flexibility with regard to this issue. The language in section 112(j)(6) states, “* * * the Administrator (or the State) shall revise such permit upon the next renewal to reflect the standard promulgated by the Administrator providing such source a reasonable time to comply, but no longer than 8 years * * *” We believe that this language requires the Administrator or State to consider the subsequent section 112(d) standard in revising the source's permit.

The de minimis doctrine set forth in

Alabama Power Co.

v.

Costle

, 636 F.2d 323 (D.C. Cir. 1979), allows the EPA to promulgate a “categorical exemption . . . as an exercise of agency power inherent in most statutory regimes” if: (1) “Congress has (not) been extraordinarily rigid,” id. at 361; and (2) “the burdens of regulation (would) yield a gain of trivial or no value,” id., “in the sense of furthering goals of the statute,”

Sierra Club

v.

EPA

, 719 F.2d 436, 462 (D.C. Cir. 1983). We believe that both t

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