# National Emission Standards for Hazardous Air Pollutants for Source Categories: General Provisions; Final Rule ENVIRONMENTAL PROTECTION AGENCY

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URL: https://www.frixlaw.com/law-library/documents/fr%3A94-5312

## Record

- **Collection:** Federal Register
- **Document type:** Uncategorized Document
- **Published:** March 16, 1994

## Text

SUMMARY: On August 11, 1993, the EPA proposed General Provisions for
national emission standards for hazardous air pollutants (NESHAP) and
other regulatory requirements pursuant to section 112 of the Clean Air
Act as amended in 1990 (the Act). This action announces the EPA's final
decisions on the General Provisions.
The General Provisions, located in subpart A of part 63, codify
general procedures and criteria to implement emission standards for
stationary sources that emit (or have the potential to emit) one or
more of the 189 substances listed as hazardous air pollutants (HAP) in
or pursuant to section 112(b) of the Act. Standards for individual
source categories are being developed separately, and they will be
codified in other subparts of part 63. When sources become subject to
standards established for individual source categories in other
subparts of part 63, these sources also must comply with the
requirements of the General Provisions, except when specific General
Provisions are overridden by the standards.
This action also amends subpart A of parts 60 and 61 to bring them
up to date with the amended Act and, where appropriate, to make them
consistent with requirements in subpart A of part 63.

DATES: Effective Date. March 16, 1994.
Judicial Review. Under section 307(b)(1) of the Act, judicial
review of NESHAP is available only by filing a petition for review in
the U. S. Court of Appeals for the District of Columbia Circuit within
60 days of today's publication of this final rule. Under section
307(b)(2) of the Act, the requirements that are the subject of today's
notice may not be challenged later in civil or criminal proceedings
brought by the EPA to enforce these requirements.
Incorporation by Reference: The incorporation by reference of
certain publications in these General Provisions is approved by the
Director of the Office of the Federal Register as of March 16, 1994.

ADDRESSES: Docket. Docket No. A-91-09, containing information
considered by the EPA in developing the promulgated General Provisions,
is available for public inspection and copying between 8 a.m. and 4
p.m., Monday through Friday, including all non-Government holidays, at
the EPA's Air and Radiation Docket and Information Center, room M1500,
U.S. Environmental Protection Agency, 401 M Street, SW., Washington, DC
20460; telephone (202) 260-7548. A reasonable fee may be charged for
copying.
Background Information Document. A background information document
(BID) for the promulgated General Provisions may be obtained from the
National Technical Information Services, 5285 Port Royal Road,
Springfield, Virginia 22161; telephone (703) 487-4650. Please refer to
``General Provisions for 40 CFR Part 63, Background Information for
Promulgated Regulation'' (EPA-450/3-91-019b). The BID contains: (1) a
summary of the public comments made on the proposed General Provisions
and responses to the comments and (2) a summary of the changes made to
the General Provisions as a result of the Agency's responses to
comments that are not addressed in this Federal Register notice.

FOR FURTHER INFORMATION CONTACT: Ms. Shirley Tabler, Standards
Development Branch, Emission Standards Division (MD-13), U.S.
Environmental Protection Agency, Research Triangle Park, North Carolina
27711; telephone (919) 541-5256.

SUPPLEMENTARY INFORMATION: The information presented in this preamble
is organized as follows:

I. Background
II. Summary of Major Changes Since Proposal
III. Public Participation
IV. Significant Comments and Changes to the Proposed General
Provisions
A. Applicability Determinations
B. Potential to Emit
C. Relationship of General Provisions to Other Clean Air Act
Requirements
D. Monitoring and Performance Testing Requirements
E. Construction and Reconstruction
F. Operation and Maintenance Requirements: Startup, Shutdown,
and Malfunction Plans
G. Recordkeeping and Reporting Requirements
V. Administrative Requirements

I. Background

Section 301 of title III of the Clean Air Act Amendments of 1990,
Public Law 101-549, enacted on November 15, 1990, substantially amended
section 112 of the Act regarding promulgation of NESHAP. These NESHAP
are to be established for categories of stationary sources that emit
one or more of the 189 HAP listed in or pursuant to section 112(b).
Each standard established for a source category will be codified in a
subpart (or multiple subparts) of part 63. In order to eliminate the
repetition of general information and requirements within these
subparts, General Provisions that are applicable to all sources
regulated by subsequent standards in part 63 have been developed. The
General Provisions have the legal force and effect of standards, and
they may be enforced independently of relevant standards, if
appropriate.
The General Provisions codify procedures and criteria that will be
used to implement all NESHAP promulgated under the Act as amended
November 15, 1990. The provisions include administrative procedures
related to applicability determinations (including new versus existing
and area versus major sources), compliance extensions, and requests to
use alternative means of compliance. In addition, general requirements
related to compliance-related activities outline the responsibilities
of owners and operators to comply with relevant emission standards and
other requirements. The compliance-related provisions include
requirements for compliance dates, operation and maintenance
requirements, methods for determining compliance with standards,
procedures for performance testing and monitoring, and reporting and
recordkeeping requirements. Finally, the EPA is promulgating amendments
to the General Provisions for parts 60 and 61 to address new statutory
requirements and, where appropriate, to make portions of these existing
regulations consistent with the part 63 General Provisions.
Owners or operators who are subject to a subpart promulgated for a
specific source category under sections 112(d), 112(f), or 112(h) of
the Act are also subject to the requirements of the General Provisions.
The General Provisions also will be incorporated, as appropriate, into
requirements established under other section 112 authorities (e.g., the
early reduction program and case-by-case control technology
determinations). Nevertheless, in the development of a part 63 emission
standard applicable to a specific source category, the EPA may
determine that it is appropriate that the subpart contain provisions
that override one or more requirements of the General Provisions. When
this occurs, the EPA will describe in the subpart exactly which
requirements of the General Provisions are applicable to the specific
source category and which requirements have been overridden. If there
is a conflict between a specific requirement in the General Provisions
and a specific requirement of another subpart in part 63, the specific
requirement of the subpart will supersede the General Provisions.

II. Summary of Major Changes Since Proposal

In response to comments received on the proposed General
Provisions, numerous changes have been made in the final rule. A
significant number of these are clarifying changes, designed to make
the Agency's intent clearer as requested by commenters. In addition,
many changes have been made in the final rule wherever reasonable to
reduce the paperwork burden on sources affected by part 63 NESHAP and
on State agencies that will implement part 63 NESHAP once they have
been delegated the authority to do so.
Substantive changes made since proposal which have a broad impact
on the regulated community that will be subject to the General
Provisions are summarized in this section of the preamble. These, and
other substantive changes made since proposal, are described in more
detail in the following sections. The Agency's responses to public
comments that are not addressed in this preamble and a summary of
resulting changes in the final rule are contained in the BID for this
final rulemaking (see ADDRESSES section of this notice).
Many comments were received on the timing and content of
notifications and other reports required by the General Provisions and
on recordkeeping requirements. Comments from owners or operators of
facilities potentially subject to part 63 standards (and the General
Provisions) generally asked for more time to prepare submittals than
allowed in the proposed rule and for a reduction in the amount of
information that must be recorded or submitted. State and local
agencies that will be implementing the rule expressed concern about the
timing and volume of information that would be submitted to them and
about their ability to respond to these submittals. These agencies also
requested flexibility in implementing requirements of the General
Provisions.
The Agency made significant changes in the final rule from the
proposed rule in response to these comments. These changes
significantly reduce the burden on owners and operators but also
recognize the need that enforcement agencies have for timely and
adequate information to assess compliance with emission standards and
other requirements established under section 112 of the Act. These
significant changes are discussed below.

Initial Notification

Under Sec. 63.9(b) of the General Provisions, when a relevant part
63 standard is promulgated for a source category, owners or operators
of sources that are subject to the standard must submit a notification.
In the final rule, the time period allowed for submission of the
initial notification has been extended from 45 days to 120 days. Also,
the information required to be submitted with the initial notification
has been reduced greatly.

Requests for Compliance Extensions

Changes were made from proposal to Sec. 63.6(i), which deals with
compliance extension requests, to increase the allowable times for
Agency review and for owners or operators to provide additional
information. The EPA also added provisions to the final rule, pursuant
to section 112(i)(6) of the Act, that establish procedures for a source
to request a compliance extension if that source has installed best
available control technology (BACT) or technology to meet a lowest
achievable emission rate (LAER).

Excess Emission Reports

A major change was made in the recordkeeping and reporting
requirements concerning the need for, and frequency of, quarterly
excess emissions reports. In the proposed rule, if continuous
monitoring systems (CMS) data were to be used for direct compliance
determinations, a quarterly report on excess emissions or parameter
monitoring exceedances was required in Sec. 63.10(e)(3), even if there
were no occurrences of excess emissions or exceedances during that
reporting period (``negative reporting''). In the final rule, as long
as there are no occurrences of excess emissions or parameter monitoring
exceedances, semiannual reporting is sufficient. In addition, the
procedures for an affected source to reduce the frequency of required
reports have been clarified in the final rule.

Performance Tests and Performance Evaluations

The performance test deadline specified under Sec. 63.7(a)(2) was
extended from 120 days to 180 days after a source's compliance date.
Similarly, the Sec. 63.7(b) requirement to provide notice of the date
of the performance test was reduced from 75 days to 60 days before the
test. Observation of the test by the EPA (or the delegated State
agency) is intended to be optional, and this section was revised to
clarify this point. A similar change was made to Sec. 63.8(e)(2),
notice of performance evaluation (for CMS), to allow a 60-day
notification period rather than a 75-day period. Also, Sec. 63.7(g) was
revised to allow sources 60 days, instead of 45 days, to submit the
required performance test results to the enforcing agency.
A major comment related to performance tests concerned the proposed
requirement that sources submit site-specific performance test plans to
the Administrator for review and approval before a required performance
test is conducted. This requirement has been changed in the final rule
such that the test plan must be developed and made available for
review, but it does not need to be submitted for approval prior to a
required performance test unless it is requested by the EPA or
delegated State agency. A similar change has been made in the final
rule regarding the development and submittal of site-specific
performance evaluation test plans under Sec. 63.8(d).
Some commenters expressed confusion regarding the distinction
between performance tests and performance evaluations, and the EPA has
added definitions of ``performance test'' and ``performance
evaluation'' to the final rule to respond to this confusion. In
addition, the Agency has defined the phrase ``representative
performance'' in the final rule for the purpose of clarifying the
conditions for conducting performance tests.
Finally, the EPA clarified the situation when a final standard is
more stringent than a proposed standard and when a source would be
allowed to (1) conduct an initial performance test to demonstrate
compliance with the proposed standard and a second test to demonstrate
compliance with the final standard or (2) conduct an initial
performance test to demonstrate compliance with the final standard.

Startup, Shutdown, and Malfunction Plan

Commenters generally objected to the level of detail they perceived
to be required in the startup, shutdown, and malfunction plan
(Sec. 63.6(e)). The intent and purpose of the plan is explained further
in section IV.F.1 of this preamble and clarifying changes have been
made in the rule. Specifically, the rule has been revised to delete the
requirement for ``step-by-step'' procedures. Numerous comments were
received relating to the timing and circumstances of reports of
deviations from a source's plan. In response to the commenters'
concerns, the EPA has revised the rule to require reporting of actions
that are ``not consistent'' (rather than ``not completely consistent'')
with the plan. The Agency also has increased the time period for
sources to provide ``immediate'' reports of these actions from 24 hours
to 2 working days. The follow-up report is required within 7 working
days.

Other Changes to Reporting and Recordkeeping Requirements

The final rule includes provisions for EPA Regional Offices to
waive the duplicate submittal of notifications and reports at their
discretion. Also, the requirements relating to negotiated schedules
(i.e., ``mutual agreement provisions'') were revised from proposal to
more clearly reflect implementing agencies' prerogatives to comply with
the schedules outlined in the General Provisions. Finally, a
recordkeeping requirement has been added (in Sec. 63.10(b)(3)) for
owners and operators of area sources to maintain a record of the
determination of their area source status when this determination is
necessary to demonstrate that a relevant standard for major sources
does not apply to them.
There were also significant changes in other areas of the rule from
proposal. These are summarized below.

Monitoring

Several comments concerned the relevance and applicability of the
part 63 monitoring provisions to related monitoring provisions
contained in other parts (e.g., parts 60, 61, 64, and 70), as well as
the relationship between monitoring provisions in the General
Provisions and those in other subparts of part 63. The EPA has provided
additional clarification and made changes to specific provisions as a
result of these comments.

Repair Period for Continuous Monitoring Systems (CMS)

The Agency also received many comments on the proposed 7-day repair
period for CMS. After consideration of these comments, the EPA revised
Sec. 63.8(c)(1) of the rule to distinguish between routine and
nonroutine CMS malfunctions. The final rule requires the immediate
repair of ``routine'' CMS failures. In addition, the owner or operator
will be required to identify these routine malfunctions in the source's
startup, shutdown, and malfunction plan. Nonroutine failures of the CMS
must be reported and repaired within 2 weeks after commencing actions
inconsistent with the plan unless circumstances beyond the owner or
operator's control prevent the timely repair or replacement of the CMS.

Construction and Reconstruction

Many comments were received regarding the administrative procedures
for reviewing and approving plans for construction or reconstruction,
and several changes were made to the rule in response to these
comments. At the request of State and local agencies, the EPA has
deleted the provision in Sec. 63.5(c) that allowed an owner or operator
to request that the implementing agency prereview construction or
reconstruction plans. In addition, the final rule has been revised to
allow owners and operators of new or reconstructed major affected
sources greater discretion in the timing of submitting applications for
approval of construction or reconstruction. The final rule requires
that these applications be submitted ``as soon as practicable'' before
the construction or reconstruction is planned to commence, rather than
180 days in advance, as was proposed. The Agency also revised the
definition of reconstruction and the ensuing requirements for a
reconstructed source to clarify their applicability. The Agency
received several comments regarding reconstruction determinations,
especially where a source has installed control devices to meet
emission standards established for existing sources. In response, the
Agency has explained its policy on these issues and clarified that it
is not the Agency's intent to penalize sources that make changes to
comply with existing source maximum achievable control technology
(MACT) requirements by subjecting them to new source MACT requirements
to which they otherwise would not be subject.

Applicability

The rule has been revised in several places to clarify the
applicability of the General Provisions. Revisions were made to
Sec. 63.1 of the rule to clarify that a source that is subject to any
part 63 standard or requirement is also subject to the requirements of
the General Provisions unless otherwise specified in the General
Provisions or the relevant standard. Provisions have been added to
address two situations related to major and area source determinations.
As noted earlier, the Agency added a recordkeeping requirement in the
final rule to require sources that determine they are not subject to a
relevant standard to keep a record of their applicability
determination. The EPA also added provisions in the final rule to
address compliance dates for unaffected area sources that increase
their emissions such that they become major sources that are subject to
part 63 NESHAP.

Separate Rulemaking on Potential to Emit

Under section 112, the determination of whether a facility is a
major source or an area source is made on the basis of the facility's
``potential to emit'' HAP, ``considering controls.'' This is an
important determination, because different requirements may be
established in a part 63 standard for major and area sources, and area
sources in a source category may not be regulated by some standards.
The EPA's intended policy for implementing ``potential to emit
considering controls'' was reflected in the definition proposed in
Sec. 63.2 of the General Provisions for the term ``potential to emit.''
The proposed definition included the requirement that, for a physical
or operational limitation on HAP emissions (including air pollution
control devices) to be considered to limit a source's potential to emit
for the purposes of part 63, the limitation or the effect it would have
on emissions must be federally enforceable. A definition of ``federally
enforceable'' was also proposed.
Many comments were received on the topic of potential to emit. As
discussed later in this preamble, consistent with past Agency policies
on potential to emit, the EPA has retained in today's final rule the
same definition of potential to emit that was proposed. However,
substantive issues were raised by commenters on the mechanisms and
timeframe available for establishing the Federal enforceability of
potential to emit limitations that went beyond the scope of issues
addressed in the August 11, 1993 proposed rulemaking for the General
Provisions.
Because of this, and because of the importance of potential to emit
to determining the applicability of part 63 standards and other
requirements, the Agency is planning to propose a separate rulemaking
to address several specific potential to emit issues. This separate
notice of proposed rulemaking, which will appear in the near future in
the Federal Register, would amend the General Provisions to provide
mechanisms for validating limits on sources' potential to emit HAP
until permanent mechanisms for creating HAP potential to emit limits
are in place in States. In addition, this separate rulemaking would
specify deadlines by which major sources of HAP would be required to
establish the Federal enforceability of limitations on their potential
to emit in order to avoid compliance with otherwise applicable emission
standards or other requirements established in or under part 63.
The EPA will take final action on this separate proposal after
receiving and considering public comments. Until the Agency takes final
action on the proposal, any determination of potential to emit made to
determine a facility's applicability status under a relevant part 63
standard should be made according to requirements set forth in the
relevant standard and in the General Provisions promulgated today.

Cross Referencing in the Rule

Cross-references to other parts (e.g., regulations in part 71
establishing a Federal operating permit program) or subparts (e.g.,
subpart C, the list of hazardous air pollutants) were included in the
proposed General Provisions as a convenience to inform readers where
they may locate other general information. At present, no rules have
been proposed or promulgated in either subpart C or in part 71.
Consequently, these cross-references have been removed from the General
Provisions.

III. Public Participation

Prior to proposal of the General Provisions, interested parties
were advised by public notice in the Federal Register (56 FR 54576,
October 22, 1991) of a meeting of the National Air Pollution Control
Techniques Advisory Committee (NAPCTAC) to discuss the draft General
Provisions. That meeting was held on November 19-21, 1991. In addition,
a status report on the General Provisions was presented to the NAPCTAC
during the Committee's November 17-18, 1992 meeting. Both meetings were
open to the public and each attendee was given an opportunity to
comment on the draft General Provisions. In addition, numerous meetings
and correspondence occurred between the Agency and representatives from
affected industries, environmental groups, and State and local agencies
during the process of drafting the proposed General Provisions.
Documentation of these interactions can be found in docket A-91-09.
The proposed General Provisions were published in the Federal
Register on August 11, 1993 (58 FR 42760). The preamble to the proposed
General Provisions discussed the availability of the proposal BID
(``General Provisions for 40 CFR part 63, Background Information for
Proposed Regulation'' (EPA-450/3-91-019)), which provides an historical
perspective on precedents set by the EPA in implementing similar
General Provisions under the pre-1990 Act. Public comments were
solicited at the time of proposal, and copies of the BID were
distributed to interested parties.
The public comment period officially ended on October 12, 1993. A
public hearing was not requested; however, seventy-one comment letters
were received. The comments were carefully considered, and where
determined to be appropriate by the Administrator, changes were made in
the final General Provisions.

IV. Significant Comments and Changes to the Proposed General
Provisions

Comments on the proposed General Provisions were received from
industry, State and local air pollution control agencies, Federal
agencies, trade associations, and environmental groups. A detailed
discussion of comments and the EPA's responses can be found in the
promulgation BID, which is referred to in the ADDRESSES section of this
preamble. The major comments and responses are summarized in this
preamble.

A. Applicability Determinations

1. Overview
Sections 112 (c) and (d) of the amended Act require the EPA to list
and establish emission standards for major and area sources of the HAP
that are listed in or pursuant to section 112(b). A list of categories
of sources emitting listed HAP was published in the Federal Register on
July 16, 1992 (57 FR 31576). Each standard developed by the EPA for a
source category (referred to as a ``relevant standard'' or a ``source
category-specific standard'') will be proposed for public comment in
the Federal Register and when it is finalized, it will be codified in a
subpart (or multiple subparts) of part 63.
Each standard promulgated for a source category will apply to major
sources of HAP that contain equipment or processes that are defined and
regulated by that standard. Area sources of HAP also may be subject to
the standard if an area source category has been listed and the
standard specifies that it applies to area sources. Each standard will
include requirements for new and existing sources.
The determination of whether a source is a major source or an area
source is made on the basis of its ``potential to emit'' HAP. In
general, sources with a potential to emit, considering controls, 10
tons per year or more of any one listed HAP or 25 tons per year or more
of any combination of listed HAP are major sources. For the purposes of
implementing section 112, the major/area source determination is made
on a plant-wide basis; that is, HAP emissions from all sources located
within a contiguous area and under common control are considered in the
determination, unless specific provisions elsewhere in section 112
(e.g., for oil and gas wells under section 112(n)(4)) override this
general rule.
More than one source category on the EPA's source category list may
be represented within a plant that is a major source of HAP. This will
be the case, for example, at a large chemical manufacturing complex.
The major source determination will be made on the basis of HAP
emissions from all emission sources within the complex. However, there
could be many operational units within the complex, with each unit
producing a different petroleum or chemical product or intermediate.
The EPA source category list defines many categories on the basis of
product produced (e.g., polyether polyols production, chlorine
production). Standards for each of these categories will be developed
in separate rulemakings. The EPA believes that Congress intended that
all portions of a major source be subject to MACT regardless of the
number of source categories into which the facility is divided. Thus,
the EPA will set one or more MACT standards for a major source, and
sources within that major source will be covered by the standard(s),
regardless of whether, when standing alone, each one of those regulated
sources would be major.
As described earlier (as well as in the preamble to the proposed
General Provisions), the General Provisions promulgated with this
rulemaking are intended to bring together in one place (subpart A of
part 63) those general requirements applicable to all owners and
operators who must comply with standards established for the listed
source categories. The General Provisions for part 63 contain
provisions that are common to relevant standards such as definitions,
and requirements for initial notifications, performance testing,
monitoring, and reporting and recordkeeping. The establishment of
General Provisions for part 63 standards eliminates the need to repeat
common elements in each source category-specific standard. It is also
consistent with the approach taken previously by the EPA in developing
and implementing new source performance standards (NSPS) under section
111 of the Act and NESHAP under section 112 of the Act before the 1990
Clean Air Act Amendments. General Provisions for these programs are
contained in subpart A of part 60 and subpart A of part 61,
respectively.
The basic approach in the General Provisions promulgated today for
determining applicability (i.e., who is subject to these requirements)
is the same as was proposed. That is, applicability of the General
Provisions is determined by the applicability of relevant source
category-specific standards promulgated in other subparts of part 63.
Each owner or operator who is subject to a relevant source category-
specific standard in part 63 is also subject to the General Provisions,
except when the standard specifically overrides a specific General
Provisions requirement. Section 63.1(b) of the final General
Provisions, addressing initial applicability determinations for part
63, has been revised to clarify this approach for determining
applicability. Section 63.1(b)(1) of the proposed rule stated that the
owner or operator of any stationary source that is included in the most
up-to-date source category list and that emits or has the potential to
emit any HAP is subject to the provisions of part 63. The reference to
the source category list has been removed from the final rule, and a
paragraph has been added specifying that part 63 provisions apply to
any stationary source that ``emits or has the potential to emit any
hazardous air pollutant listed in or pursuant to section 112(b) of the
Act and is subject to any standard, limitation, prohibition or other
federally enforceable requirement established pursuant to [part 63].''
This clarifies that belonging to a listed category of sources alone
does not render a source subject to the provisions of part 63; rather,
the source must be subject to a part 63 standard or other requirement.
The term ``affected source'' is established and used in the General
Provisions to designate the specific ``source,'' or group of
``sources,'' that is subject to a particular standard. This term is
analogous to the term ``affected facility'' used in NSPS. Affected
sources will be defined explicitly in each part 63 standard promulgated
for a source category or established for a source on a case-by-case
basis. The individual pieces of equipment, processes, production units,
or emission points that will be defined as affected sources subject to
emission limits or other requirements under that relevant standard will
be determined in the development of the standard for the source
category or the source. An affected source within a source category
could be defined, for example, as a storage tank with greater than a
specified capacity and containing organic liquids with greater than a
specified vapor pressure. Within a major source, any individual
``source'' or group of ``sources'' that meets the definition of
affected source in a relevant standard would be subject to the
requirements in the standard for major sources.
In general, the timing of applicability (i.e., when does an owner
or operator become subject to the General Provisions) is determined by
when a relevant source category-specific standard is promulgated. The
effective date for standards promulgated under sections 112(d), 112(h),
and 112(f) of the Act is the date of promulgation. On the date of
promulgation of a relevant source category-specific standard, the
General Provisions also become applicable to owners or operators
subject to the standard for the source category.
The EPA received numerous comments relating to various definitions
of ``source,'' how these definitions relate to one another, and how
they determine which portions of a HAP-emitting industrial (or
commercial) facility will be regulated by emission standards or other
requirements under amended section 112. Some of these comments agreed
with the EPA's proposed approach to defining these terms, some
suggested alternative approaches, and many requested clarification on
these topics. Major comments and the EPA's responses on the definitions
of ``major source'' and ``area source,'' and on the definition of
``affected source,'' are discussed below. Comments on the relationship
of the General Provisions to relevant source category-specific
standards are discussed in section IV.C.1. Additional responses to
comments relating to applicability of the General Provisions are
included in the promulgation BID.
2. Definitions of Major Source and Area Source
Several commenters noted that the discussion in the proposal
preamble on ``major source,'' as defined in the proposed rule, suggests
inclusion of all stationary sources located on contiguous or adjacent
property. These commenters argue that the EPA's interpretation goes
beyond the statutory definition of major source in section 112(a)(1),
which does not use the term ``adjacent.'' Another commenter stated that
adding ``adjacent'' to the definition adds uncertainty to applicability
determinations.
The EPA disagrees with these commenters. First, the use of the term
``adjacent'' is consistent with the language of the statute. The common
dictionary definition of ``contiguous'' consists, in part, of ``nearby,
neighboring, adjacent.'' On this basis, the EPA has historically
interpreted ``contiguous property'' to mean the same as ``contiguous or
adjacent property'' in the development of numerous regulations to
implement the Act. Under this approach, the physical relationship of
emission units to production processes is irrelevant if the units are
adjacent geographically and under common ownership or control.
This approach clarifies, that as a practical matter, the fact that
all property at a plant site may not be physically touching does not
mean that separate plant sites exist. For example, it is common for a
railroad right-of-way or highway to cut across a plant site. However,
this does not create two separate plant sites. To claim that it does
would be an artificial distinction, and it is contrary to the intent of
the statutory definition of major source.
Many commenters asserted that the definition of ``major source'' in
the General Provisions should include reference to standard industrial
classification (SIC) codes as was done in the part 70 permit program
regulations implementing title V of the Act. However, other comments
were received that supported the proposed definition of ``major
source'' and expressed concern that the EPA might adopt the title V
approach to defining ``major source'' which, according to one
commenter, would be inconsistent with the definition in section
112(a)(1) of the Act.
The EPA believes that, because Congress included a definition for
``major source'' in section 112 that does not include reference to SIC
codes, Congress intended that major sources of HAP would encompass
entire contiguous (or adjacent) plant sites without being subdivided
according to industrial classifications. The separation of HAP emission
sources by SIC code would be an artificial division of sources that, in
reality, all contribute to public exposure around a plant site.
Furthermore, because of the different objectives of section 112 and
title V of the Act, and because section 112 contains its own
definition, the definition for ``major source'' in part 63 need not be
identical to the definition for ``major source'' currently promulgated
in part 70. The EPA believes that the definition for major source
adopted in the General Provisions is appropriate for implementing
section 112. The EPA will consider whether changes to the definition of
major source in part 70, as it relates to section 112, are appropriate.
If the EPA concludes that such changes are needed, the EPA will propose
changes to part 70 and take comment before reaching a final decision in
the Federal Register.
Comments were received that the definition of ``area source''
should be changed to ``affected area source.'' Also, commenters
suggested that the definitions of ``major source'' and ``area source''
should be revised to refer to emission units or groups of similar
emission units that are in a specific category of major sources located
within a contiguous area under common control and to clarify that area
sources are not affected by NESHAP established for major sources.
The EPA believes that it is more appropriate and less confusing to
define ``major source'' and ``area source'' consistent with the
definitions in section 112(a) of the Act. Nonetheless, for the purposes
of implementing section 112, consistent with the applicability
discussion above, ``area sources'' may be further divided into affected
area sources and unaffected area sources. An affected area source would
be a plant site that is not a major source but is subject to a relevant
part 63 emission standard that regulates area sources in that source
category.
One commenter requested that the EPA address the issue of a
compliance date for area sources that increase their emissions (or
potential emissions) such that they become major sources and therefore
subject to a relevant standard. The commenter said that this was a
particular concern in situations where the area source has not obtained
a construction permit.
The commenter is correct that the proposed General Provisions did
not address area sources that subsequently become major sources and
therefore subject to a relevant standard. Sections 63.6(b)(7) and
(c)(5) have been added to the final rule to address this situation.
Section 63.6(b)(7) states that an unaffected new area source that
increases its emissions of (or its potential to emit) HAP such that it
becomes a major source, must comply with the relevant emission standard
immediately upon becoming a major source. An unaffected existing area
source that increases its emissions (or its potential to emit) such
that it becomes a major source, must comply by the date specified for
such a source in the standard. If such a date is not specified, the
source would have an equivalent period of time to comply as the period
specified in the standard for other existing sources. However, if the
existing area source becomes a major source by the addition of a new
affected source, or by reconstructing, the portion of the source that
is new or reconstructed is required to comply with the standard's
requirements for new sources. These compliance periods apply to area
sources that become affected major sources regardless of whether the
new or existing area source was previously affected by that standard.
3. Definition of Affected Source
The EPA received numerous comments on the usefulness of the term
``affected source,'' in response to the Agency's specific request for
comments on this term in the proposal preamble. Comments were received
that supported the Agency's proposed use of ``affected source,'' and
others offered suggestions for changes or clarifications.
Some commenters stated that it is not clear how inclusive
``affected source'' is meant to be. For example, does it collectively
cover all equipment associated with the source category?
Some commenters argued that the definition of ``affected source''
in the General Provisions should be narrow, encompassing as few
emission points as possible. Others argued for a broad definition
consistent with the EPA's policy on defining the ``affected source''
during the development of specific NESHAP.
Several commenters suggested terms as alternatives to ``affected
source.'' Terms suggested included ``part 63 source'' and ``regulated
source.'' Commenters claimed that alternative terms would be more
appropriate and would reduce confusion about the applicability of a
variety of EPA regulations including NESHAP under part 61 and the title
IV acid rain regulations.
After a review of the suggestions made by commenters, the EPA
decided to retain the term ``affected source'' in the final rule. No
comments were received that disputed the need for a separate term to
designate the units that are subject to requirements in a source
category-specific standard. Further, the EPA did not find any of the
arguments for alternative terms compelling. For example, commenters did
not make it clear how the use of a term such as ``regulated source''
would be more descriptive and less confusing than ``affected source.''
Nevertheless, the EPA has endeavored to address any confusion that
might arise on a case-by-case basis. For example, the EPA has revised
the definition for the term ``affected source'' in part 63 to note that
it should not be confused with the same term used in title IV of the
Act and the rules developed to implement title IV, the acid rain
provisions. Despite this revision, the Agency believes States may wish
to draw a distinction in their regulations to implement the title V
permit program and in individual sources' title V permits in order to
avoid the possibility of confusion between the term affected source as
used in part 63 and the term affected source as used in the title IV
regulations. For example, the Agency believes it may be appropriate in
some instances for State permitting authorities, when dealing with
sources affected by both title IV and part 63 requirements, to refer to
sources affected by part 63 as ``part 63 affected sources.''
With regard to those comments that requested narrow or broad
definitions of the term ``affected source,'' the EPA believes these
comments would be addressed more appropriately in the context of
rulemakings that will establish standards for individual source
categories. The General Provisions merely define a term, ``affected
source,'' that refers to the collection of processes, equipment, or
groups of equipment that will be defined in each relevant standard
under part 63 (including case-by-case MACT standards or ``equivalent
emission limitations'') for the purposes of defining the scope of
applicability of that standard. Consistent with the approach of using
the nonspecific term ``affected source,'' the EPA believes it is
inappropriate for the General Provisions rule to restrict in advance
the definition of the affected source that may be developed for the
purposes of regulation by a particular standard established under part
63.

B. Potential to Emit

The EPA received many comments on the definition of potential to
emit that appeared in the proposed General Provisions. Many of these
comments questioned the appropriateness of considering only federally
enforceable controls or limitations in determining a source's potential
to emit. The commenters suggested that all operational controls or
limitations or, alternatively, all legally enforceable controls or
limitations, should be considered in determining potential to emit, not
just federally enforceable ones. One commenter further suggested that
all physical or operational limitations that keep a source below the
major source threshold are effectively federally enforceable, as any
operation with HAP emissions above the threshold values would violate
the title V permit and MACT standard compliance requirements for major
sources.
The Agency believes that these comments are similar in all relevant
respects to arguments the Agency already has considered and responded
to in a previous rulemaking that dealt with the Federal enforceability
of emissions controls and limitations at a source. For a thorough
discussion on this topic, see ``Requirements for the Preparation,
Adoption, and Submittal of Implementation Plans; Air Quality, New
Source Review; Final Rules'' that appeared in the Federal Register on
June 28, 1989 (54 FR 27274). (A copy of this notice has been included
in the docket for this rulemaking.) After careful consideration during
that rulemaking, the EPA decided to retain the requirement for Federal
enforceability. At this time, the Agency sees no reason to rescind its
decisions described in the June 28, 1989 Federal Register notice. On
the contrary, the Agency here is affirming the relevance of the Federal
enforceability requirements set forth in the June 28, 1989 notice in
the context of determinations of major source status under the new
Federal air toxics program.
In the context of implementing the air toxics program under amended
section 112, the purposes of the Federal enforceability requirements
are as follows: (1) To make certain that limits on a source's capacity
are, in fact, part of its physical and operational design, and that any
claimed limitations will be observed; (2) to ensure that an entity with
strong enforcement capability (i.e., the Federal government) has legal
and practical means to make sure that such commitments are actually
carried out; and (3) to support the goal of the Act that the EPA should
be able to enforce all relevant features of the air toxics program as
developed pursuant to section 112. The Agency continues to believe
that, if sources may avoid the requirements of a Federal air pollution
control program by relying on State or local limitations, it is
essential to the integrity of the National air toxics program that such
limitations be actually and effectively implemented. Thus, Federal
enforceability is both necessary and appropriate to ensure that such
limitations and reductions are actually incorporated into a source's
design and followed in practice. Further, Federal enforceability is
needed to back up State and local enforcement efforts and to provide
incentive to source operators to ensure adequate compliance. Federal
enforceability also enables citizen enforcement under section 304 of
the Act.
Thus, in the final General Provisions rulemaking, the Agency is
retaining the existing Federal enforceability requirement in the
definition of potential to emit for the purposes of implementing
section 112 of the Act as amended in 1990.
In the June 28, 1989 Federal Register notice, the EPA established
that, to be federally enforceable, emission limitations established for
a source must be practicably enforceable. To be practicably
enforceable, the limitations or conditions must ensure adequate
testing, monitoring, recordkeeping, and reporting to demonstrate
compliance with the limitations and conditions. Restrictions on
operation, production, or emissions must reflect the shortest
practicable time period (generally one month). ``Blanket'' emission
limitations such as calendar year limits (e.g., tons per year) are not
considered practicably enforceable. In contrast, hourly, daily, weekly,
or monthly rolling averages generally are considered acceptable.
Many of the comments requesting that the EPA credit controls that
are not federally enforceable in the potential to emit determination
were based on a concern over the limited mechanisms available by which
emission controls can qualify as federally enforceable. For example,
although the EPA will consider terms and conditions in a permit issued
under title V of the Act to be federally enforceable, approved State
title V permit programs are not yet in place. This effectively limits
the mechanisms available to sources subject to early MACT standards.
Comments were also received requesting further clarification on how the
Agency's potential to emit policy would be implemented, and on how this
policy could be implemented with the least burden on both States and
affected sources.
As noted earlier in this preamble, the EPA is preparing a separate
notice of proposed rulemaking to address potential to emit issues. This
notice will propose for public comment a thorough discussion on the
Agency's policy with regard to implementing potential to emit in the
air toxics program. Among other actions, this rulemaking would amend
the General Provisions to provide an interim mechanism for controls to
qualify as federally enforceable for HAP until permanent mechanisms are
in place. The Agency will consider comments on this proposal and take
final action on an expedited schedule.

C. Relationship of General Provisions to Other Clean Air Act
Requirements.

1. Relationship to Individual NESHAP.
The promulgated General Provisions to part 63 are applicable to all
source categories that will be regulated by part 63 NESHAP. Emissions
of HAP from all listed source categories eventually will be regulated
by NESHAP pursuant to section 112 of the Clean Air Act Amendments of
1990. The General Provisions provide basic, common requirements for all
sources subject to applicable standards, and they are intended to avoid
unnecessary duplication of information in all subsequent subparts. All
parts of the General Provisions apply to an affected source regulated
by an applicable standard, unless otherwise specified by the particular
standard.
The EPA recognizes that in the development of a standard applicable
to a specific source category, the Agency may determine that certain
General Provisions of subpart A may not be appropriate. Consequently,
as mentioned earlier, subpart A allows individual subparts to supersede
some of the requirements of subpart A. Should there be a conflict
between the requirements in the General Provisions and specific
requirements of another subpart in part 63, whether or not the subpart
explicitly overrides the General Provisions, the requirements of the
other subpart will prevail.
The Agency received many comments regarding the proposed
relationship between the General Provisions and part 63 standards for
specific source categories. A substantial number of commenters
expressed the opinion that the EPA should reverse the presumptive
relationship that the General Provisions apply unless specifically
overridden in a source category-specific standard. These commenters
argued that the General Provisions should not be applicable until
specifically incorporated by an applicable standard. Thus, instead of
automatic applicability to any regulated source, the General Provisions
would have no regulatory force until specifically incorporated by
individual subparts. Specific reasons cited by commenters for
advocating this approach focused on minimizing the potential for
conflict between the General Provisions and individual subparts and
reducing confusion on the part of owners or operators who must
establish which provisions are applicable. Some commenters also stated
that only generic requirements should be included in the General
Provisions, and more specific requirements should be left to individual
NESHAP.
The Agency believes that the alternative approach suggested by
these commenters is not appropriate. Consequently, the proposed
approach has been retained in the final rule. The Agency's concern is
that minimum regulatory requirements be established for the control of
HAP emissions from source categories. The General Provisions as
promulgated ensure an appropriate baseline level of requirements for
all sources, and they provide guidance at an early stage to sources
regarding the types of requirements that will ensue upon promulgation
of an applicable standard. The EPA believes that the provisions of
subpart A are the minimum generic requirements necessary for the
implementation of NESHAP. The EPA's experience with existing General
Provisions under parts 60 and 61 confirms that such provisions
eliminate repetition within individual standards. They also improve
consistency and understanding of the basic requirements for affected
sources among the regulated community and compliance personnel.
Despite the preceding discussion, the EPA does recognize the
potentially confusing task faced by owners and operators who must
determine which provisions of the General Provisions apply to them,
which are explicitly superseded by an applicable subpart, and which are
superseded because they conflict with a requirement in an individual
standard. Many commenters are concerned about the potential for
confusion regarding their compliance responsibilities. By establishing
a mechanism whereby all the provisions of subpart A are applicable to
an affected source unless otherwise specified, the EPA believes some
source responsibilities are directly clarified.
Furthermore, as the Agency continues to develop emission standards
for specific source categories, the EPA intends to indicate clearly in
these subsequent rulemakings which requirements of subpart A sources in
the category are subject to and which requirements are superseded by
the individual subpart. The public will have the opportunity to review
and comment on Agency decisions on which requirements of the General
Provisions are overridden in a source category-specific standard when
that standard is proposed in the Federal Register.
Other issues were raised by commenters pertaining to general
features of the relationship between the General Provisions and
individual MACT standards. Several commenters expressed concern with
the potential for a situation where there are conflicting provisions
between the individual subpart and subpart A, and the individual
subpart does not specifically supersede the General Provisions
requirement. Proposed Sec. 63.1(a)(13) stated that individual subparts
will specify which General Provisions are superseded. Certain
commenters believe that provisions in individual subparts should
prevail, even if they do not explicitly state that they supersede
General Provisions.
The EPA agrees with these commenters. It is the Agency's intent
that when there are conflicting requirements in the General Provisions
and a source category-specific standard, the requirements of the
standard will supersede the General Provisions. If a specific standard
does not address a requirement within the General Provisions, then the
General Provisions must be followed by the owner or operator. The
Agency intends to review thoroughly the appropriateness of applying the
General Provisions when developing each source category-specific
standard and to indicate clearly in the standard any requirements of
the General Provisions that are overridden. However, the Agency
appreciates the concerns of the commenters that a conflicting
requirement may be overlooked and not explicitly identified in the
standard. Therefore, to avoid confusion should a conflicting
requirement not be explicitly identified in the standard, the EPA has
deleted the statement in Sec. 63.1(a)(13) that individual subparts
always will specify which provisions of subpart A are superseded.
2. Relationship to Section 112(g), Section 112(j), and Section
112(i)(5) of the Act
Several comments were received on the relationship of the General
Provisions for part 63 to requirements under sections 112(g) and 112(j)
of the Act. Regulations to implement section 112(g) and section 112(j)
are being developed by the EPA in separate rulemakings. Section 112(g)
addresses the modification, construction, and reconstruction of major
sources after the effective date of title V permit programs and
primarily before source category-specific standards are promulgated.
Section 112(j) addresses equivalent emission limitations to be
established by the States through title V permits if the EPA fails to
promulgate a standard for a category of sources on the schedule
established under section 112(e).
Under both of these sections, States may be required to make case-
by-case MACT determinations for sources if the EPA has not yet
established an applicable emission limitation under section 112. For
example, under section 112(g)(2), after the effective date of a title V
permit program in any State, no person may modify a major source of HAP
in the State, unless the Administrator (or the State) determines that
the MACT emission limitation under section 112 for existing sources
will be met. This determination must be made on a case-by-case basis
where an applicable emission limitation has not been established by the
EPA. A similar determination involving new source MACT must be made
before a major source is constructed or reconstructed.
Several commenters stated that it was unclear if the General
Provisions are intended to be minimum requirements that would apply to
sources subject to case-by-case MACT standards established under
sections 112 (g) and (j).
The EPA is still considering the most appropriate way to link the
General Provisions to the case-by-case MACT standards established under
sections 112 (g) and (j). While the EPA believes that some requirements
of the General Provisions should apply to any MACT standard established
under section 112 (including case-by-case MACT standards), the Agency
also recognizes that there may be situations where blanket application
of the General Provisions to a particular source or source category may
not be appropriate. As discussed elsewhere in this preamble and as
stated in the applicability section of the final rule, an emission
standard established for a particular source category can override some
provisions of the General Provisions, as appropriate. The EPA is
reviewing whether it is appropriate to provide similar authority to
States with approved title V permit programs to override the General
Provisions in case-by-case MACT standards established under sections
112(g) and 112(j) and how such authority should be implemented. In
general, the EPA believes that the General Provisions provide an
appropriate framework for many aspects of demonstrating compliance with
case-by-case MACT determinations. The issue of the relationship of the
General Provisions to section 112(g) and section 112(j) will be
addressed in the rulemakings implementing these subsections or in
future EPA guidance material.
One commenter wanted the EPA to clarify that the General Provisions
are superseded by forthcoming subpart B regulations to implement
section 112(g).
The EPA disagrees with this commenter. From a general perspective,
it cannot be stated that the General Provisions would be superseded by
regulations established under section 112(g). Many definitions and
requirements of the General Provisions will be appropriate for
standards established under section 112(g) (e.g., definitions of key
terms such as ``major source'' and ``HAP''). However, as discussed in
the response to the previous comment, the EPA is reviewing whether it
is appropriate to allow case-by-case MACT standards developed under
section 112(g) to override individual requirements of the General
Provisions.
A commenter stated that the definition of ``federally enforceable''
in the proposed General Provisions was different from the definition
proposed in regulations to implement section 112(j) (58 FR 37778, July
13, 1993). This commenter further stated that only one definition
should appear, and that it should be in subpart A.
The EPA agrees with the commenter and intends that the definition
of federally enforceable in the General Provisions should apply to all
requirements developed pursuant to section 112 including standards
developed under section 112(j) and section 112(g). A definition of
``federally enforceable'' was included in the proposed regulations to
implement section 112(j) because those regulations were published
before the proposal date of the General Provisions. The final
regulations implementing section 112(j) of the Act and forthcoming
regulations implementing section 112(g) will defer to the definition of
federally enforceable that is included in the General Provisions.
One commenter argued that the issue of preconstruction review
should be left to the rule that will implement section 112(g) of the
Act. Further, the commenter stated that if the proposed preconstruction
review requirements in the General Provisions are adopted, they should
be consistent with procedures in the section 112(g) rule.
The EPA disagrees with these comments. The requirements for
preconstruction review included in the General Provisions are intended
to implement the preconstruction review requirements of section
112(i)(1) of the Act, which the EPA views as inherently different from
the preconstruction review requirements of section 112(g). Section
112(i)(1) requires review by the EPA (or a State with delegated
authority) prior to the construction or reconstruction of a major
source of HAP in cases where there is an applicable emission limitation
that has been promulgated by the EPA under sections 112 (d), (f), or
(h); that is, a national emission standard has been promulgated. The
requirements of a national emission standard undergo public review and
comment during development of the rule.
In contrast, requirements in section 112(g) for review prior to
construction, reconstruction, or modification of a major source address
situations where a national emission standard has not been promulgated
and MACT must be determined on a case-by-case basis. In this situation,
there has been no prior opportunity for public review of and comment on
applicable requirements.
This basic difference makes it appropriate to have separate
provisions implementing the preconstruction review requirements of
sections 112(i)(1) and 112(g) of the Act. In addition, section 112(g)
does not apply before the effective date of the title V permit program
in each State, whereas section 112(d) or 112(h) standards may go into
effect before the permit program and thus need independent regulatory
provisions governing preconstruction review.
One commenter said that the EPA should state that after the
effective date of a MACT standard established by the EPA, compliance
with that standard by a source would also constitute compliance with
section 112(g).
The EPA generally agrees that compliance with an applicable MACT
standard promulgated by the EPA under section 112(d) or section 112(h)
also would constitute compliance with section 112(g). Although section
112(g) requires an administrative determination that MACT will be met
whenever a major source is constructed, reconstructed, or modified, a
case-by-case MACT determination is required under section 112(g) only
when no applicable emission limitations have been established by the
EPA. The forthcoming rulemaking for section 112(g) will clarify the
streamlined nature of the section 112(g) administrative requirements
for major sources subject to already promulgated standards.
Several commenters were confused by the last sentence in proposed
Sec. 63.5(b)(6) that ``this paragraph is not intended to implement the
modification provisions of section 112(g) of the Act.'' One commenter
asked what this paragraph was intended to implement if not section
112(g).
Section 63.5(b) is intended to clarify the general compliance
requirements imposed by section 112 for sources subject to a relevant
emission standard that has been promulgated in part 63 (which may be
major or area sources). The emission units or emission points that are
subject to a NESHAP in a part 63 subpart applicable to a specific
source category are defined in each subpart and are designated as the
affected source. The intent of Sec. 63.5(b)(6) is simply to emphasize
that changes to an affected source (e.g., process changes or equipment
additions) that are within the definition of affected source in the
applicable subpart are considered to be part of that affected source
and, therefore, they also are subject to the standard. In the final
rule, additional language was added to Sec. 63.5(b)(6) to further
clarify that if the change consists of the addition of a new affected
source, the new affected source would be subject to requirements
established in the standard for new sources.
Section 112(g) requirements are much broader and different in that
they address changes to a major source, regardless of whether a
relevant emission limitation has been promulgated by the EPA. These
broader requirements are being addressed in the separate rulemaking to
implement section 112(g).
Upon review of the wording of the proposed General Provisions, the
EPA has concluded that the statement in proposed Sec. 63.5(b)(6)
indicating that this paragraph is not intended to implement section
112(g) creates confusion rather than clarifying the Agency's intent.
Therefore, it has been removed in the final rule.
The relationship between the General Provisions and section
112(i)(5) of the Act also has been clarified in the final rule. Section
112(i)(5) of the Act outlines provisions for extensions of compliance
for sources that achieve early reductions in HAP emissions. Under these
provisions, an existing source may comply with an emission limitation
promulgated pursuant to section 112(d) 6 years after the compliance
date, provided that the source achieves a 90 percent (95 percent, in
the case of particulates) reduction in emissions before the otherwise
applicable standard is first proposed. Regulations implementing section
112(i)(5) are contained in subpart D of part 63.
Section 63.1(c)(4) of the General Provisions addresses the
applicability of the General Provisions to such sources, and it has
been revised in the final rule. The revision to this section reflects
the fact that the General Provisions are applicable to other
requirements established pursuant to section 112 of the Act, except
when overridden. The proposed language required that an owner or
operator comply with the requirements of subpart A that are
specifically addressed in the extension of compliance. In the final
rule, Sec. 63.1(c)(4) has been revised to state that an owner or
operator who has received an extension of compliance under the early
reduction program in subpart D shall comply with all requirements in
the General Provisions except those requirements that are specifically
overridden in the extension of compliance. This revision to the rule
clarifies the Agency's intended relationship between these two subparts
of part 63.
3. State Options Under Section 112(l) of the Act
Several comments were received that States should be allowed
flexibility in implementing the requirements of the General Provisions.
General flexibility was requested as well as flexibility in
implementing specific aspects such as frequency of source reporting and
action timelines that may be impractical for some States. One commenter
stated that incorporation of the General Provisions into an existing
State or local program will interfere with the existing program.
Another commenter stated that existing State procedures and timelines
for preconstruction review should supersede the General Provisions.
The EPA believes that the opportunity for States to have
flexibility in implementing the General Provisions is provided through
the rulemaking that implements section 112(l) of the Act (see subpart E
of part 63). Under subpart E of part 63, each State may develop and
submit to the EPA for approval a program for the implementation and
enforcement of emission standards and other requirements promulgated
under section 112. The EPA may approve alternative requirements or
programs submitted by States as long as the State's alternatives are at
least as stringent as the Federal programs they replace. Thus, States
have the opportunity to propose to the EPA, through the subpart E
process, alternative requirements to the General Provisions.
Alternative requirements that could be proposed by a State include
those items (e.g., timelines and provisions for preconstruction review)
cited by commenters on the proposed General Provisions.
An alternative requirement to a General Provisions requirement that
is proposed by a State will be reviewed by the EPA to determine if it
would accomplish the same objective(s) as the comparable General
Provisions requirement and not compromise implementation and
enforcement of part 63 emission standards.
Subpart E of part 63 was promulgated in the Federal Register on
November 26, 1993 (58 FR 62262). This final rulemaking describes in
detail the process for a State to receive approval for alternative
requirements to those promulgated at the Federal level. Additional
guidance on this process is available, and information on how to obtain
it is discussed in section V of the subpart E proposal preamble (58 FR
29296, May 19, 1993).
Section 112(d)(7) of the Act and paragraph 63.1(a)(3) of the
applicability section of the General Provisions clearly indicate that
an emission limit or other applicable requirement more stringent than
the General Provisions may be issued under State authority. The EPA
believes that this, along with the opportunity provided through subpart
E for a State to propose alternative requirements, provides the
flexibility that the commenters are seeking without further revision to
the General Provisions. The EPA plans to supplement the guidance
developed thus far for implementing section 112(l) with additional
material to address approval criteria for alternative procedures that
may be proposed by a State in place of the General Provisions.
The EPA disagrees with the commenter who stated that existing
procedures and timelines for preconstruction review in a State should
automatically supersede the General Provisions. States seeking to
implement and enforce any provisions of their own programs in lieu of
regulations established by the EPA under section 112 must receive
approval under section 112(l).
4. Permitting of Section 112 Sources Under Title V
Title V of the Act instructs the EPA to establish the minimum
elements of a national air pollution control operating permit program
to be implemented by State or local agencies if they qualify. Owners or
operators are required to obtain a permit when a State's operating
permit program becomes effective. Furthermore, when sources become
subject to part 63 regulations, these regulations must be incorporated
into the permits for these sources. Permit requirements will be drawn
directly from the requirements in Federal regulations such as NESHAP.
Thus, the General Provisions in this part will form the basis for
specific permit conditions, as they form the basis for specific
requirements under subsequent part 63 rulemakings. The part 70
regulations implementing the title V permit program, promulgated at 57
FR 32250 (July 21, 1992), identify when a source of HAP is required to
obtain a permit. The promulgated General Provisions contain language
that informs owners or operators of some of the situations in which a
source of HAP would be required to apply for a permit.
Section 70.3(a) allows States to defer temporarily the requirement
to obtain a permit for any sources that are not major sources but would
otherwise be subject to title V. If the EPA approves a State program
with such a deferral provision, the EPA will complete a future
rulemaking to consider the appropriateness of any permanent exemption
for categories of nonmajor sources. Nonmajor sources subject to a
section 112 standard are addressed in Sec. 70.3(b), which states that
the EPA has authority to allow States to exempt or defer these nonmajor
sources from permitting requirements, and that the EPA will exercise
this authority, if at all, at the time of promulgation of a section 112
standard. Consistent with this provision, the EPA will determine in
each future rulemaking under part 63 that establishes an emission
standard that affects area sources whether to: (1) Give States the
option to exclude area sources affected by that standard from the
requirement to obtain a title V permit (i.e., by exempting the category
of area sources altogether from the permitting requirement); (2) give
States the option to defer permitting of area sources in that category
until the EPA takes a rulemaking action to determine applicability of
the permitting requirements; or (3) confirm that area sources affected
by that emission standard are immediately subject to the requirement to
apply for and obtain a title V permit in all States.
Although the EPA will decide whether and when to permit regulated
area sources in each applicable part 63 rulemaking, the Agency
believes, in general, that it is appropriate for all sources regulated
under part 63 to undergo the title V permitting process, as this will
enhance effective implementation and enforcement of the requirements of
section 112 of the Act. Unless a determination by the EPA is made by
rule that compliance with permitting requirements by regulated area
sources would be ``impractical, infeasible, or unnecessarily
burdensome'' and thus an exemption is appropriate or the EPA allows
States to exercise their option to defer permitting of area sources,
all affected sources under part 63, including area sources, will be
required to obtain a permit. Thus, affected area sources will be
immediately subject to part 70 when they become subject to a part 63
emission standard. (When area sources become subject to part 70 they
will have up to 12 months to apply for a permit.) Section 63.1(c)(2) of
the final General Provisions has been revised to clarify that emission
standards established in part 63 will specify what the permitting
requirements will be for area sources affected by those standards, and
that if a standard remains silent on these matters, then nonmajor
sources that are subject to the standard are also subject to the
requirement to obtain a title V permit without deferral.

D. Monitoring and Performance Testing Requirements

1. Monitoring
a. Relationship to part 64. Some commenters said that the part 63
monitoring requirements are duplicative of the part 64 enhanced
monitoring program. Alternatively, other commenters claimed that all of
the monitoring requirements should be included in each part 63 subpart.
The proposed part 64 enhanced monitoring program (58 FR 54648,
October 22, 1993) applies only to existing regulations and does not
apply to new regulations being developed under part 63. Furthermore,
the proposed part 64 provisions only apply to major sources, while the
General Provisions can apply to area sources as well. The EPA will
incorporate the concept of enhanced monitoring directly into all new
rules under part 63. This approach is consistent with the statement in
the preamble to the part 70 operating permits program (July 21, 1992,
57 FR 32250) that all future rulemakings will have no gaps in their
monitoring provisions. The General Provisions include generic
requirements that apply to all affected sources, while individual
subparts under part 63 will include additional monitoring provisions
specific to each source category.
b. Definition of ``continuous monitoring system.'' Commenters said
that the definitions for CMS and continuous emission monitoring systems
(CEMS) are very broad and appear to include total equipment. For
example, sample systems may be used to serve several analyzers, all of
which are considered one CMS. If one analyzer fails, the proposed rule
appears to assume that the entire CMS has failed, and data from
properly functioning analyzers may not be used because one analyzer has
failed to function properly.
Some commenters said that Sec. 63.8(c)(6) should be revised to
clearly distinguish between CEMS, continuous opacity monitoring systems
(COMS), and continuous parameter monitors. In particular, the
measurement devices used to monitor parameters such as temperature,
flow, and pressure are very stable and do not require frequent or
ongoing calibration error determinations. One commenter said that
language should be added that states: ``Continuous parameter monitoring
systems (CPMS's) must be calibrated prior to installation and checked
daily for indication that the system is responding. If the CPMS
includes an internal system check, results must be recorded and checked
daily for proper operation.''
One commenter said that the EPA should review Sec. 63.8 to amend
references to ``continuous monitoring systems'' whenever a requirement
should not apply to continuous parameter monitoring systems.
Another commenter said that the EPA should differentiate between
CMS and continuous parameter monitoring systems when setting
calibration drift provisions in Sec. 63.8(c)(1).
After review of these comments, the Administrator determined that
the definition of ``continuous monitoring system'' should be clarified.
The definition of CMS has been clarified to include any system used to
demonstrate compliance with the applicable regulation on a continuous
basis in accordance with the specifications for that regulation. The
definition has been changed as follows:

Continuous monitoring system (CMS) is a comprehensive term that
may include, but is not limited to, continuous emission monitoring
systems, continuous opacity monitoring systems, continuous parameter
monitoring systems, or other manual or automatic monitoring that is
used for demonstrating compliance with an applicable regulation on a
continuous basis as defined by the regulation.

This definition is intended to apply to the CMS required by the
regulation for a regulated pollutant or process parameter. If any
portion of such a CMS fails (e.g., flow analyzer), the CMS data cannot
be used for compliance determination and the entire CMS is out of
control. The repair of the faulty portion of the CMS and a subsequent
successful performance check of that portion would bring the entire CMS
back into operation.
If, for example, the regulation requires a CEMS for each of two
pollutants (e.g., SO2 and NOx) and the two CEMS share diluent
analyzers, failure of one of the pollutant analyzers (e.g., the
SO2 analyzer) would not necessarily put the NOx CEMS into an
out-of-control situation. The distinction is that these are two CEMS,
not one. On the other hand, if the diluent analyzer serving both CEMS
fails, both CEMS are out of control.
The definition of CMS was revised to include continuous parameter
monitoring system with the intent that basic performance requirements
that appear in the General Provisions would apply to all CMS including
continuous parameter monitoring systems. Responses to other comments
and subsequent revisions to the regulation further clarify that
performance specifications relevant to certain types of CMS would be
proposed and promulgated with accompanying new regulations, and would
indicate precisely what performance requirements apply and the
frequency of checks, and other requirements, beyond those in the
General Provisions.
The general CMS performance requirements outlined in the General
Provisions apply to any type of CMS, including continuous parameter
monitoring systems. The General Provisions sections that define daily
and other periodic performance checks and requirements for CMS
consistently refer to applicable performance specifications and
individual regulations for procedures and other specific requirements.
Individual regulations may include more or less restrictive performance
requirements, as appropriate.
c. Relevance of part 60 performance specifications. According to
some commenters, Secs. 63.8(c)(2), (c)(3), and (e)(4) of the proposed
General Provisions require continuous monitoring systems to meet
existing part 60 performance specifications, which were written for
criteria pollutant measurement and contain many items that are not
applicable to HAP. New methods, specific to HAP, should be proposed for
public comment.
The EPA agrees with the commenters. Therefore, all references to
part 60 CEMS performance specifications have been deleted. Specific
methods to evaluate CEMS performance will be included within the
individual subparts of part 63. It should be noted that, if
appropriate, these subparts may refer to Appendix B of part 60.
However, in all instances, the required performance specifications for
an individual subpart will be subject to public comment upon proposal.
d. Repair period for continuous monitoring systems. According to
some commenters, the proposed 7-day period for the repair of CMS in
Sec. 63.8(c)(1) is too restrictive, for example, in cases where a major
component has failed and replacement parts may not be available within
7 days. In addition, when a critical component fails and is replaced,
the entire monitoring system may have to undergo another performance
specification test and/or extensive recalibration. These requirements
may take up to 14 days to perform. The EPA should clarify that there is
no violation in situations where the repairs or adjustments require
more than 7 days, so long as the owner or operator responds with
reasonable promptness. The adoption of the part 64 approach, which
requires the submittal of a corrective action plan and schedule in the
event of a monitor failure, would be more reasonable than specifying a
specific time period and would increase the consistency between the two
rules. Alternatively, a longer time period for repair of systems should
be allowed either in the General Provisions or in each individual
standard. One commenter said that Sec. 63.8(c) should be revised to
allow up to 10 days of downtime per quarter. Finally, the EPA could
establish a minimum level of acceptable data collection frequency
(e.g., 75 to 95 percent monthly), which would provide up-front time
flexibility for repairs and adjustments without compromising
environmental benefit.
One commenter said that the EPA must provide downtime for routine
maintenance because proper maintenance of the equipment will extend the
life of the equipment as well as ensure the quality of data collected
by the CMS. Section 63.8(c)(4) should be revised to add the exclusion
of maintenance periods from the operation requirements. Another
commenter said that the owner or operator should not be required to
conduct sampling or daily zero and high-level checks if the
manufacturing process is not in operation, and that process shutdowns
should be included in the list of ``exempted'' periods under
Sec. 63.8(c)(4). Finally, one commenter said that Sec. 63.8(c)(4)
should be revised to include performance evaluations and other quality
assurance/quality control activities as exceptions to the downtime
reporting requirements.
After consideration of these comments, the EPA has revised
Sec. 63.8(c)(1) to require ``immediate'' repair or replacement of CMS
parts that are considered ``routine'' or otherwise predictable. The
startup, shutdown, and malfunction plan required by Sec. 63.6(e)(3)
will identify those CMS malfunctions that fall into the ``routine''
category, and the owner or operator is required to keep the necessary
parts for repair of the affected equipment readily available. If the
plan is followed and the CMS repaired immediately, this action can be
reported in the semiannual startup, shutdown, and malfunction report
required under Sec. 63.10(d)(5)(i).
For those events that affect the CMS and are considered atypical
(i.e., not addressed by the startup, shutdown, and malfunction plan),
the owner or operator must report actions that are not consistent with
the startup, shutdown, and malfunction plan within 24 hours after
commencing actions inconsistent with the plan. The owner or operator
must send a follow-up report within 2 weeks after commencing
inconsistent actions that either certifies that corrections have been
made or includes a corrective action plan and schedule. This approach
is similar to the approach in 40 CFR part 64 regarding monitor
failures. The owner or operator should be able to provide proof that
repair parts have been ordered or any other records that would indicate
that the delay in making repairs is beyond his or her control.
Otherwise, it would cause enforcement difficulties to decide when a
delay is caused in spite of best efforts and when the delay is caused
by less than best efforts. Therefore, all delays beyond the 2-week
period may be considered violations. As discussed in section 2.4.8 of
the promulgation BID, if the delay is caused by a malfunction and the
source follows its malfunction plan, that is not considered a
violation.
The Agency agrees with the commenter that routine maintenance of
all CMS is necessary and has revised Sec. 63.8(c)(4) to include
maintenance periods in the list of periods when CMS are excepted from
the monitoring requirements.
2. Performance Testing
a. Relationship to other testing requirements. Several commenters
had concerns regarding the relationship between the requirements in
Sec. 63.7, Performance testing requirements, and the testing
requirements that will be contained in other subparts of part 63. One
commenter noted a discrepancy between proposed Sec. 63.7(e), which
requires performance testing under representative conditions, and
Sec. 63.103(b)(3) of the proposed Hazardous Organic NESHAP (HON)
(December 31, 1992, 57 FR 62690), which requires performance testing at
``maximum'' representative operating conditions, and the commenter
asked that the EPA either make the performance test requirements
consistent for all part 63 subparts or allow sources to defer to the
HON requirement. Another commenter indicated that performance tests may
not always be meaningful, particularly in situations where the
applicable subpart requires the elimination of the use of HAP in the
process.
Other commenters stated that methods for performance testing should
be defined in each individual NESHAP under part 63 and that methods
under analysis by the EPA should be subject to comment by the regulated
community. Others objected to reference to methods contained in the
appendices of part 60 because they are for measuring criteria
pollutants and not HAP.
The testing requirements contained in Sec. 63.7 are general and
represent an infrastructure for performance testing as required by the
individual standards developed under part 63. The general testing
requirements contained in Sec. 63.7 specify when the initial
performance test must be conducted, under what operating conditions the
test must be conducted, the content of the site-specific test plan, how
long the Agency has to review the test plan (if review is required--see
next comment), how many runs are needed, procedures for applying for
the use of an alternative test method, procedures to request a waiver
of the performance test, and other general requirements. Each subpart
will include specific testing requirements, such as the test method
that must be used to determine compliance, the required duration and
frequency of testing, and any other testing requirements unique to that
standard.
As described in Sec. 63.7(a)(4), subparts may contain testing
provisions that supersede portions of Sec. 63.7. The example in the
proposed HON (subpart F) cited by the commenter is a prime illustration
of this situation. Section 63.103(b)(3) of the proposed subpart F
states that ``Performance tests shall be conducted according to the
provisions of Sec. 63.7(e), except that performance tests shall be
conducted at maximum representative operating conditions for the
process * * *.'' (December 31, 1992, 57 FR 62690). This section clearly
states that all of the requirements of Sec. 63.7(e) apply, except that
the test must be conducted at maximum operating conditions, instead of
at representative conditions, as required by Sec. 63.7(e). It is also
possible that the EPA could waive all performance testing requirements
for a particular standard if it is determined that performance tests
could not be used for determining compliance with the standard, and
other procedures, in lieu of performance testing, would be specified
for the determination of compliance.
For each subpart, the EPA will evaluate the possibility of using
existing test methods that are contained in parts 51, 60, and 61.
However, if a previously promulgated method is not appropriate, the EPA
will propose a new test method. Any requirement to test for HAP in part
63, other than the requirements in Sec. 63.7, and any new test
method(s), will be subject to public comment at the time the standard
and method are proposed.
b. Definition of ``representative performance.'' Several commenters
had concerns regarding the lack of a definition of ``representative
performance'' required for performance test conditions. One commenter
said that Sec. 63.7(e) should be revised to reflect maximum design
operating conditions that the source or control device will normally
experience. Several commenters stated that the source should be allowed
to determine representative operating conditions for a performance
test. One commenter thought that the source should determine
representative operating conditions, subject to EPA approval. Another
commenter stated that Sec. 63.7(e)(1) is acceptable as proposed.
The term ``representative performance'' used in Sec. 63.7(e) means
performance of the source that represents ``normal operating
conditions.'' At some facilities, normal operating conditions may
represent maximum design operating conditions. In any event,
representative performance or conditions under which the source will
normally operate are established during the initial performance test
and will serve as the basis for comparison of representative
performance during future performance tests. To clarify this intent, a
phrase has been added in Sec. 63.7(e) to indicate that representative
performance is that based on normal operating conditions for the
source.
c. Two performance tests. Commenters said that, for sources
constructed with the proposed rule in mind, the EPA should not require
two performance tests under Sec. 63.7(a)(2)(ix) if one will suffice. As
proposed, Sec. 63.7(a)(2)(ix) requires that, if the owner or operator
commences construction or reconstruction after proposal and before
promulgation of a part 63 standard and if the promulgated standard is
more stringent than the proposed standard, the owner or operator must
conduct a performance test to demonstrate compliance with the proposed
standard within 120 days of the promulgation (i.e., effective) date and
a second performance test within 3 years and 120 days from the
effective date of the standard to demonstrate compliance with the
promulgated standard. The commenter said that if the source can comply
with the more stringent promulgated standard within 120 days of the
effective date, it should only be required to perform one test.
The EPA does not believe that an additional performance test is an
unreasonable burden, given that the source is allowed an additional 3
years to come into compliance with the promulgated part 63 standard.
However, the EPA agrees with the commenter that if the source chooses
to comply with the promulgated standard within 180 days (changed from
120 days per the discussion in section IV.G.2.b of this preamble) of
the effective date, then a second performance test should not be
required. While this was always the intent of this section, the EPA
also agrees that this section of the proposed rule could have been
interpreted to require two source tests in all situations. Therefore,
Sec. 63.7(a)(2)(ix) has been revised to allow owners or operators of
new or reconstructed sources the option to comply with the promulgated
standards within 180 days after the standard's effective date.
d. Review of site-specific test plans. The provisions pertaining to
site-specific test plans contained in Sec. 63.7(c)(2) received a great
deal of attention from commenters. Several commenters indicated that
the level of detail required in the site-specific test plan would
create an unreasonable burden. One commenter estimated that it could
take up to 2 years to prepare a test plan with the level of detail
required in Sec. 63.7(c)(2). Many suggested that site-specific test
plans should be required only when there is a deviation from the
reference methods.
A number of commenters believe the proposed requirements that every
site-specific test plan be submitted to the Agency, and then approved
by the Agency within 15 days, would be extremely burdensome for both
the owners and operators and regulatory agencies.
As a result of these comments, significant changes have been made
to Sec. 63.7(c). Owners or operators still must prepare site-specific
test plans, and the required elements of such plans are the same as
those proposed. The EPA believes the requirements of the test plan are
basic and necessary to ensure that the test will be conducted properly.
However, the requirement that all site-specific test plans be submitted
to, and approved by, the Administrator has been deleted. The rationale
for these decisions is discussed in the following paragraphs.
The Agency believes that test plans should be prepared for all
performance tests. The test plan assures that all involved parties
understand the objectives and details of the test program. A well-
planned test program is vital to ensure that the source is in
compliance with the standard. The EPA does not believe that the
preparation of site-specific test plans is overly burdensome to
facilities. In fact, experienced testing professionals routinely
prepare site-specific test plans (including quality assurance programs)
that would meet the performance test requirements of Sec. 63.7(c)(2).
In addition, the EPA has created a guideline document,
``Preparation and Review of Site-Specific Test Plans'' (December 1991)
to assist owners, operators, and testing professionals in the
preparation of complete site-specific test plans. This guidance can be
downloaded from the EPA Office of Air Quality Planning and Standards
bulletin board, the Technology Transfer Network (TTN).
Upon review of the comments, particularly those from State and
local agencies, the EPA decided that it was appropriate to make
significant changes in the provisions requiring submittal and approval
of site-specific test plans. As noted above, each affected source owner
or operator must prepare a site-specific test plan. However, owners or
operators are only required to submit this plan to the Agency for
review and approval upon request from the Administrator (or delegated
State). In addition, the provisions relating to the approval of site-
specific test plans have been modified to allow greater flexibility;
that is, the timelines have been modified to allow more time for
interim activities performed by both the Administrator and the owner or
operator.
In order to be consistent with the changes made regarding
performance test plans, the EPA has also revised Sec. 63.8(d)(2) of the
General Provisions, and the submittal of a site-specific performance
evaluation test plan for the evaluation of CMS performance is also
optional at the Administrator's request.

E. Construction and Reconstruction

1. Definition of Reconstruction
In response to comments, the EPA has revised the definition of
reconstruction to make it clearer and easier to understand. The revised
definition clarifies that reconstruction may refer to an affected or a
previously unaffected source that becomes an affected source upon
reconstruction. This definition also clarifies that the source must be
able to meet the relevant standards established by the Administrator or
by a State. Major affected sources, or previously unaffected major
sources that reconstruct to become major affected sources, must undergo
preconstruction review in accordance with procedures described in
Secs. 63.5 (b)(3) and (d). Affected sources that are nonmajor or
previously unaffected nonmajor sources that reconstruct must submit a
notification in accordance with Sec. 63.5(b)(4), but they are not
required to undergo preconstruction review.
2. Construction/Reconstruction Plan Review
Comments also were received on the need for procedures governing
the review of construction and reconstruction plans under proposed
Sec. 63.5(c). State and local agencies commented that they do not have
the resources to conduct optional plan reviews at the source's request,
nor did they feel that this is an appropriate requirement for the
General Provisions.
Upon review of these comments, the Agency has decided to delete
Sec. 63.5(c) from the final rule. While the Agency encourages
communication between delegated authorities and owners or operators of
new or reconstructed sources that may be affected by a part 63 standard
during the preparation of construction/reconstruction applications, the
Agency has decided to reduce the burden on State and local agencies by
not mandating the informal review of plans in the General Provisions.
One State agency indicated that the General Provisions should allow
existing State construction permit programs to be used as the
administrative mechanism for performing preconstruction reviews for
sources subject to part 63 standards. As discussed in greater detail in
section IV.C.3 of this preamble, States can use existing construction
permit programs to implement the provisions in Sec. 63.5 if the
programs are approved under the section 112(l) approval process
developed in subpart E of part 63.
3. Determination of Reconstruction
Several commenters had concerns about the manner in which
reconstruction determinations would be made. One commenter indicated
that replacements ``in-kind'' and retrofitting should be exempt from a
reconstruction determination. Other commenters felt that the cost of
control devices to comply with existing source MACT, reasonably
available control technology, or any other emissions standard should
not be included.
The reconstruction determination formula is based upon factors
outlined in the rule, including a fixed capital cost comparison between
a replacement project and a comparable new source. This cost comparison
may include the cost of control equipment, consistent with the EPA's
existing policy as stated in the December 16, 1975 Federal Register
notice (see 40 FR 58416) that deals with modification, notification,
and reconstruction requirements under 40 CFR part 60. The preamble to
that regulation states that:

The term ``fixed capital cost'' is defined as the capital needed
to provide all the depreciable components and is intended to include
such things as the costs of engineering, purchase, and installation
of major process equipment, contractors' fees, instrumentation,
auxiliary facilities, buildings, and structures. Costs associated
with the purchase and installation of air pollution control
equipment (e.g., baghouses, electrostatic precipitators, scrubbers,
etc.) are not considered in estimating the fixed capital cost of a
comparable entirely new facility unless that control equipment is
required as part of the process (e.g., product recovery).

Retrofitting and replacements are the type of activities to which the
reconstruction provisions are intended to apply. In those instances
where changes are instigated specifically to comply with a relevant
part 63 standard, and the changes are integral to the process, it is
not the EPA's intent to penalize existing sources by subjecting them to
new source MACT requirements.
4. Application for Approval of Construction or Reconstruction
Several commenters objected to the requirement that new major
affected sources submit an application for approval of construction or
reconstruction 180 days before construction or reconstruction is
planned to commence.
Although the EPA does not agree with the commenters' contention
that the 180-day time period is overly burdensome, Sec. 63.5(d)(1)(i)
of the final rule has been revised to allow owners and operators of new
major affected sources greater discretion in the timing of submitting
applications. The final rule requires owners or operators to submit the
application ``as soon as practicable'' before the construction or
reconstruction is planned to commence. The burden is on the owner or
operator to ensure that the application is submitted in a timely
fashion, so that adequate review may take place under the procedures
specified in Sec. 63.5(e) and commencement of construction or
reconstruction will not be delayed. The EPA believes it is in owners'
and operators' best interests to submit preconstruction review
applications as early as is feasible. The requirements in
Sec. 63.9(b)(4)(i) and Sec. 63.9(b)(5) for a notification of intention
to construct or reconstruct a new major affected source or a new
affected source have also been revised to reflect this change in the
final rule.

F. Operation and Maintenance Requirements: Startup, Shutdown, and
Malfunction Plans

1. Content of Plans
Several commenters complained that the Sec. 63.6(e)(3)(i)
requirement that the startup, shutdown, and malfunction plan contain
detailed ``step-by-step'' procedures for operating and maintaining the
source during periods of startup, shutdown, and malfunction'' was
overly burdensome and did not allow the facility to devise maintenance
actions that would ensure compliance with the relevant emission
limitation. In addition, commenters said that the overall level of
detail required in the startup, shutdown, and malfunction plan was
excessive.
Commenters said that the plan should focus only on equipment that
is actually used to achieve and maintain compliance with a relevant
standard such as pollution abatement equipment, process equipment used
as the last piece of recovery equipment if not followed by emission
control equipment, emission or parameter monitoring equipment, and
recordkeeping equipment. Also, Sec. 63.6(e)(3)(i) should be revised to
clarify that the plan requirements apply to: ``malfunctioning process
and air pollution equipment used to comply with the relevant
standard.'' Another commenter said that process equipment should not be
included in the plan because companies already have adequate incentives
to maintain their process equipment.
Another comment concerned the timeframe under which the plan must
be developed and implemented. The commenter noted that
Sec. 63.6(e)(3)(i) implies that the source might have to develop the
plan before the compliance date for the relevant standard or startup.
The EPA intends the startup, shutdown, and malfunction plans to be
thorough. On the other hand, the EPA expects these plans to be based on
reasonable evaluations by the owner or operator, and the plans are
intended to provide flexibility to the owner or operator to act
appropriately at all times to reduce emissions during these events. The
requirement for ``step-by-step'' procedures has been deleted because it
conveys a level of detail that is not always needed. In addition, the
suggestion to limit the requirements to that equipment that can have an
effect on compliance with the relevant standard has been adopted as
well. Process equipment may be included, however, because process
equipment can affect emissions.
In general, the level of detail is left to the discretion of the
owner or operator who must decide how much detail plant personnel need
in order to ensure proper operation and maintenance of equipment during
startup, shutdown, and malfunction events. Excess emissions occur
during these events when air pollution is emitted in quantities greater
than anticipated by the applicable standard. Excess emissions are often
determined by compliance monitoring required by the applicable
standard. If excess emissions are not reasonably anticipated during
these events, the plans could be very simple. Alternatively, if excess
emissions are expected to occur during startup, shutdown, or
malfunction events, the plan needs to be correspondingly detailed to
ensure that appropriate actions are taken to control the emissions.
Excess emissions are typically direct indications of noncompliance
with the emission standard and, therefore, are directly enforceable.
Without demonstrating that a startup, shutdown, or malfunction event
caused the excess emissions, the owner or operator cannot certify
compliance. In such instances where the excess emissions occurred
during a startup, shutdown, or malfunction, the owner or operator must
also have followed the plan to certify compliance. If the owner or
operator prepares a deficient plan, the EPA can request that the plan
be upgraded and may consider enforcement actions.
Section 63.6(e)(3)(i) has been revised to clarify that the plan
must be developed before and implemented by the compliance date for the
source.
2. Option to Use Standard Operating Procedures
Commenters supported the use of standard operating procedures (SOP)
as a surrogate for the development of a separate startup, shutdown, and
malfunction plan. However, they pointed out two concerns with the use
of SOP. The first potential problem is that SOP generally are very
complex (at least at chemical plants), and they are developed to allow
the operator to respond to a wide variety of process conditions.
Commenters were concerned that an excessive amount of time could be
spent in educating permitting agencies regarding the contents of the
SOP. A second concern is that SOP may contain confidential business
information. Commenters said that the rules should provide that such
information will be kept confidential by the Agency.
One commenter noted that facilities covered by Occupational Health
and Safety Administration (OSHA) operating requirements should be
allowed to use the OSHA plan to meet the intent of Sec. 63.6(e),
Operation and maintenance requirements, and file a notification that
they are covered by OSHA in place of submitting a startup, shutdown,
and malfunction plan. Other plans such as hazardous waste emergency
response plans should be accepted as alternatives, too.
A few commenters also asked whether it is necessary to maintain a
separate plan if the startup, shutdown, and malfunction plan becomes
part of the operating permit. If SOP are used, they could simply be
referenced in the operating permit. Alternatively, commenters said that
SOP used for startup, shutdown, and malfunction plans should not be
required in permits and are not enforceable under part 70.
The intent of allowing the use of SOP is to provide the owner or
operator an option of complying with these requirements that may result
in reduced recordkeeping burden. If the owner or operator determines
that use of SOP is too cumbersome, he or she should develop a specific
startup, shutdown, and malfunction plan.
Because the need for startup, shutdown, and malfunction plans is
determined by Federal requirements, each plan would be incorporated by
reference into the source's part 70 operating permit. As such, the
plans would be considered public information; however, confidential
business information can be protected according to the procedures in
part 70 and Sec. 63.15 of the General Provisions. The EPA believes
that, while an owner or operator should not include confidential
information in the plan, if certain confidential information is
necessary for the plan to be used properly, the owner or operator
should discuss the situation with the enforcing agency.
Facilities would be allowed to use an OSHA or other plan (or any
portion thereof) in lieu of a startup, shutdown, and malfunction plan
only if it meets the requirements in Sec. 63.6(e). The burden is on the
source owner or operator to demonstrate that any plan not specifically
developed to comply with the requirements in Sec. 63.6(e) meets the
intent and all applicable requirements in that section.
3. Reporting Requirements
Some commenters said that startup, shutdown, and malfunction
reports should only be required (at least in the case of area sources)
when excess/reportable emissions to the atmosphere occurred as a direct
result. Commenters requested that the EPA should encourage sources to
discover ways not to emit amounts of pollutants in excess of applicable
standards, or not to exceed established parametric limits, during
periods of startup, shutdown, and malfunctions by inserting the concept
of ``emissions in excess of an otherwise applicable standard or
operation outside of established parametric requirements'' into the
definitions of startup, shutdown, and malfunction situations. If a
source does not experience a period where some emission or parameter
requirement is exceeded, no records or reports should be required,
according to commenters. In addition, commenters stated that the
requirement that a responsible corporate official certify a report of
action taken under a startup, shutdown, and malfunction plan is well
beyond statutory authority and should be withdrawn.
As discussed below, the EPA has changed the General Provisions to
clarify that startup, shutdown, and malfunction reports need only
address events that cause emissions in excess of an otherwise
applicable standard or operation outside of an established parametric
requirement. This change will encourage owners and operators to
maintain emissions at all times to the levels required by the standard.
When no excess emissions occur under this approach, no records or
reports are required. On the other hand, if an owner or operator fails
to record the necessary information when excess emissions do occur,
they cannot certify compliance with the startup, shutdown, and
malfunction plan.
Section 63.10(d)(5) has been revised to allow the reports to be
signed by the owner or operator or other responsible official. In some
cases, ``corporate'' officials may not be located at the plant site.
Also, smaller companies may not be incorporated and may only have a few
employees. For example, dry cleaning facilities are generally small
businesses, in which case the owner must sign the report.
Commenters also said that the EPA should provide flexibility to
owners and operators in correcting malfunctions rather than requiring
that actions be ``completely'' consistent with the source's startup,
shutdown, and malfunction plan. It is impossible for owners and
operators to develop plans that address every conceivable malfunction.
Instead, the EPA should require that actions be ``materially''
consistent with the plan.
One purpose of the startup, shutdown, and malfunction reports is to
provide an explanation of why the plan was not followed during a
startup, shutdown, or malfunction. Presumably, an owner or operator
cannot certify compliance with the standards for such events. In the
event of a startup, shutdown, or malfunction, the Agency believes there
is value in receiving these reports for actions that are not consistent
with the plan. These reports establish an historical record for review
by the enforcing agency. However, in order to respond to commenters'
concerns, the regulation has been revised to remove the word
``completely'' from the phrase ``completely consistent'' in
Secs. 63.6(e)(3) (iii) and (iv) and Sec. 63.10(b)(2)(v). This revision
still satisfies the Agency's intent to receive reports for actions that
are not consistent with the plan.
Commenters complained that immediate startup, shutdown, and
malfunction reports required under Sec. 63.10(d)(5)(ii) should not be
required because they are redundant with respect to reporting
requirements found in the Superfund Amendments and Reauthorization Act
(section 304) and the Comprehensive Environmental Response,
Compensation, and Liability Act (section 103), in the permit rules, and
in the individual standards themselves.
The alternate notification systems referred to by the commenter
generally are concerned with releases in quantities and under
conditions that may not be consistent with the reporting and compliance
needs of the authorities delegated the authority to enforce part 63
requirements. To the extent that other reporting mechanisms provide
duplicate information, they can be used to satisfy the part 63
requirements. This information would then be compiled in the source's
part 70 operating permit.
4. Reporting Timelines
Several commenters suggested changes to the required timelines in
Sec. 63.6(e)(3)(iv). In the case of reporting any actions taken that
are not ``completely consistent with the procedures in the affected
source's startup, shutdown, and malfunction plan'' within 24 hours,
commenters suggested that this requirement should be changed to be
``the next working day.'' Alternatively, the requirement could be
changed to be consistent with the title V emergency provisions that
require reporting within 2 working days.
Commenters suggested that because an event can last for several
days, the requirement to submit a follow-up report should be revised to
state that the report is due 7 days ``after the end of the event.''
Other commenters said that only deviations that are significant (e.g.,
last more than 24 hours) and which fail to correct or which prolong the
malfunction should be reportable in writing, and then only within 14
days of the occurrence. Other commenters said that quarterly reports
should be sufficient or that no reports should be required if the
events are recorded in the source's operating log.
Upon review and consideration of the comments, Secs. 63.6(e)(3)(iv)
and 63.10(d)(5)(ii) have been revised to require reporting of actions
that are not consistent with the plan within 2 working days instead of
within 24 hours. This allows the General Provisions and the operating
permits program established under title V to be consistent. In
addition, the regulation has been revised to require that follow-up
reports for deviations are due ``7 working days after the end of the
event.''
5. Compliance With Emission Limits
According to some commenters, the EPA should require that affected
sources meet otherwise applicable emission limits during startups,
shutdowns, and malfunctions. Commenters saw the assumption that
emissions can and will occur as inconsistent with the Agency's approach
in the part 61 NESHAP, which requires that sources comply with emission
limitations at all times. Also, some commenters stated that the EPA has
not shown that exceedance of standards is always necessary during these
periods or that malfunctions are not avoidable. These commenters
believed that difficulties in determining violations do not justify
relaxing standards.
Other commenters said that sources should take steps to minimize
emissions during startup, shutdown, and malfunction periods. For
example, a time limitation on the length of a startup or shutdown could
be established. Alternatively, the EPA should exempt facilities from
the requirements associated with the startup, shutdown, and malfunction
plans if they can comply with the standards during these events. A
simple notification that the source intends to comply at all times
rather than develop and implement the provisions of Sec. 63.6(e) (i.e.,
a startup, shutdown, and malfunction plan) should be added to recognize
this condition.
In contrast, other commenters wanted to strengthen the assumption
that excess emissions during these events is not a violation unless
specified in the relevant standard or a determination is made under
Sec. 63.6(e)(2) that acceptable operation and maintenance procedures
are not being followed.
The EPA believes, as it did at proposal, that the requirement for a
startup, shutdown, and malfunction plan is a reasonable bridge between
the difficulty associated with determining compliance with an emission
standard during these events and a blanket exemption from emission
limits. The purpose of the plan is for the source to demonstrate how it
will do its reasonable best to maintain compliance with the standards,
even during startups, shutdowns, and malfunctions. In addition,
individual standards may override these requirements in cases where it
is possible to hold sources to stricter standards. In some cases it may
be reasonable to require certain source categories to meet the emission
standards at all times.
Another point to consider is the beneficial effect of enhanced
monitoring. Once enhanced monitoring requirements are effective through
the individual standards, owners and operators will be required to pay
extremely close attention to the performance of their process and
emission control systems. If the enhanced monitoring requirements are
generated reflecting normal operational variations, the number of
potential noncomplying emissions should be minimized and only truly
significant malfunctions will need to be addressed in the plan.
Enhanced monitoring should drive sources to continuous good performance
that minimizes emissions and, thus, startup, shutdown, and malfunction
plans can focus on the less common events. In this way, concerns
regarding excess emissions during startups, shutdowns, or malfunctions
should lessen.
The EPA agrees that sources that can demonstrate that compliance
with the emission standards is not in question during periods of
startup, shutdown, and malfunctions should not be required to develop
and implement full-blown startup, shutdown, and malfunction plans.
Instead, these sources should demonstrate in their startup, shutdown,
and malfunction plan why standards cannot be exceeded during periods of
startup, shutdown, and malfunction.
In a related matter, the EPA has also clarified Sec. 63.6(e)(1)(i)
to state that sources must minimize emissions ``at least to the levels
required by all relevant standards'' to respond to a commenter's
concern that the original language to ``minimize emissions'' could
exceed the requirements of the Act.

G. Recordkeeping and Reporting Requirements

1. Notification Requirements
a. Applicability. A significant number of commenters supported the
proposed requirement that only affected major and area sources within a
category of sources for which a part 63 standard is promulgated be
required to submit an initial notification. On the other hand, four
commenters believe that all sources, affected and unaffected, should be
required to submit an initial notification to identify sources that may
be subject to a part 63 standard or other requirement. One of these
commenters stated that sources claiming that they are below the major
source threshold should notify both the EPA and the State and should
submit documentation of their claim (e.g., a copy of the permit showing
control requirements). One commenter suggested that delegated agencies
should be responsible for identifying affected sources, rather than
requiring initial notifications.
In addition, many commenters complained that the initial
notification requirement for affected sources was too detailed and
suggested a few ways to simplify the initial notification: (1) Include
only notification of name and address of owner or operator, address of
affected source, and compliance date; or (2) require only a letter of
notification identifying subject sources.
The EPA requested comments on the proposed requirement for initial
notification by only affected sources within a category of sources,
specifically on whether the proposed requirements offer sufficient
opportunity for the EPA or delegated agencies to identify sources that
may be subject to a part 63 standard, or other requirement, and to
review and confirm a source's determination of its applicability status
with regard to that standard or requirement. The EPA has evaluated the
comments received and has decided that the final General Provisions
will require initial notification by only affected sources within a
category of sources, the same as proposed. This would reduce the burden
on area sources, many of which are small businesses. The implementation
of the parts 70 and 71 permit programs will be the process to bring
overlooked or noncomplying sources into the regulatory program. In
addition, the MACT technical support documents defining the source
categories and well-designed toxics emission inventories also will help
agencies to identify affected sources. The EPA believes that these
mechanisms are sufficient for the EPA or delegated agencies to identify
additional sources that may be subject to a part 63 standard or other
requirement.
Although only affected sources will be required to submit an
initial notification, the EPA has added a requirement for the owner or
operator of an unregulated source to keep a record of the applicability
determination made for his or her source. Section 63.10(b)(3) requires
that an owner or operator who determines that his or her stationary
source is not subject to a relevant standard or other provision of part
63 keep a record of this applicability

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-5312. Public record. Not legal advice.