§ 63.1310 - Applicability and designation of affected sources.

§ 63.1310 Applicability and designation of affected sources.

(a) Definition of affected source. The provisions of this subpart apply to each affected source. Affected sources are described in paragraphs (a)(1) through (a)(4) of this section.

(1) An affected source is either an existing affected source or a new affected source. Existing affected source is defined in paragraph (a)(2) of this section, and new affected source is defined in paragraph (a)(3) of this section.

(2) An existing affected source is defined as each group of one or more thermoplastic product process units (TPPU) and associated equipment, as listed in paragraph (a)(4) of this section that is not part of a new affected source, as defined in paragraph (a)(3) of this section, that is manufacturing the same primary product, and that is located at a plant site that is a major source.

(3) A new affected source is defined by the criteria in paragraph (a)(3)(i), (a)(3)(ii), or (a)(3)(iii) of this section. The situation described in paragraph (a)(3)(i) of this section is distinct from those situations described in paragraphs (a)(3)(ii) and (a)(3)(iii) of this section and from any situation described in paragraph (i) of this section.

(i) At a site without HAP emission points before March 29, 1995 (i.e., a “greenfield” site), each group of one or more TPPU and associated equipment, as listed in paragraph (a)(4) of this section, that is manufacturing the same primary product and that is part of a major source on which construction commenced after March 29, 1995;

(ii) A group of one or more TPPU meeting the criteria in paragraph (i)(1)(i) of this section; or

(iii) A reconstructed affected source meeting the criteria in paragraph (i)(2)(i) of this section.

(4) Emission points and equipment. The affected source also includes the emission points and components specified in paragraphs (a)(4)(i) through (vi) of this section that are associated with each applicable group of one or more TPPU constituting an affected source.

(i) Each waste management unit.

(ii) Maintenance wastewater.

(iii) Each heat exchange system.

(iv) Each process contact cooling tower used in the manufacture of poly (ethylene terephthalate) resin (PET) that is associated with a new affected source.

(v) Each process contact cooling tower used in the manufacture of PET using a continuous terephthalic acid high viscosity multiple end finisher process that is associated with an existing affected source.

(vi) Components required by, or utilized as a method of compliance with, this subpart, which may include control devices and recovery devices.

(5) TPPUs and associated equipment, as listed in paragraph (a)(4) of this section, that are located at plant sites that are not major sources are neither affected sources nor part of an affected source.

(b) TPPUs without organic HAP. The owner or operator of a TPPU that is part of an affected source, as defined in paragraph (a) of this section, but that does not use or manufacture any organic HAP shall comply with the requirements of either paragraph (b)(1) or (b)(2) of this section. Such a TPPU is not subject to any other provisions of this subpart and is not required to comply with the provisions of subpart A of this part.

(1) Retain information, data, and analyses used to document the basis for the determination that the TPPU does not use or manufacture any organic HAP. Types of information that could document this determination include, but are not limited to, records of chemicals purchased for the process, analyses of process stream composition, engineering calculations, or process knowledge.

(2) When requested by the Administrator, demonstrate that the TPPU does not use or manufacture any organic HAP.

(c) Emission points not subject to the provisions of this subpart. The affected source includes the emission points listed in paragraphs (c)(1) through (c)(9) of this section, but these emission points are not subject to the requirements of this subpart or to the provisions of subpart A of this part.

(1) Components and equipment that do not contain organic HAP and are located within a TPPU that is part of an affected source;

(2) Stormwater from segregated sewers;

(3) Water from fire-fighting and deluge systems in segregated sewers;

(4) Spills;

(5) Water from safety showers;

(6) Water from testing of deluge systems;

(7) Water from testing of firefighting systems;

(8) Vessels and equipment storing and/or handling material that contain no organic HAP and/or organic HAP as impurities only; and

(9) Equipment that is intended to operate in organic HAP service for less than 300 hours during the calendar year.

(d) Processes excluded from the affected source. The processes specified in paragraphs (d)(1) through (5) of this section are not part of the affected source and are not subject to the requirements of both this subpart and subpart A of this part:

(1) Research and development facilities;

(2) Polymerization processes occurring in a mold;

(3) Processes which manufacture binder systems containing a thermoplastic product for paints, coatings, or adhesives;

(4) Finishing processes including equipment such as compounding units, spinning units, drawing units, extruding units, and other finishing steps; and

(5) Solid state polymerization processes.

(e) Applicability determination of nonthermoplastic equipment included within the boundaries of a TPPU. If a polymer that is not a thermoplastic product is produced within the equipment (i.e., collocated) making up a TPPU and at least 50 percent of that polymer is used in the production of a thermoplastic product manufactured by the same TPPU, then the unit operations involved in the production of that polymer are considered part of the TPPU and are subject to this subpart, with the following exception. Any emission points from such unit operations that are subject to another subpart of this part with an effective date prior to September 5, 1996 shall remain subject to that other subpart of this part and are not subject to this subpart.

(f) Primary product determination and applicability. An owner or operator of a process unit that produces or plans to produce a thermoplastic product shall determine if the process unit is subject to this subpart in accordance with this paragraph. The owner or operator shall initially determine whether a process unit is designated as a TPPU and subject to the provisions of this subpart in accordance with either paragraph (f)(1) or (f)(2) of this section. The owner or operator of a flexible operation unit that was not initially designated as a TPPU, but in which a thermoplastic product is produced, shall conduct an annual re-determination of the applicability of this subpart in accordance with paragraph (f)(3) of this section. Owners or operators that anticipate the production of a thermoplastic product in a process unit that was not initially designated as a TPPU, and in which no thermoplastic products are currently produced, shall determine if the process unit is subject to this subpart in accordance with paragraph (f)(4) of this section. Paragraphs (f)(3) and (f)(5) through (f)(7) of this section discuss compliance only for flexible operation units. Other paragraphs apply to all process units, including flexible operation units, unless otherwise noted. Paragraph (f)(8) of this section contains reporting requirements associated with the applicability determinations. Paragraphs (f)(9) and (f)(10) of this section describe criteria for removing the TPPU designation from a process unit.

(1) Initial determination. The owner or operator shall initially determine if a process unit is subject to the provisions of this subpart based on the primary product of the process unit in accordance with paragraphs (f)(1)(i) through (iii) of this section. If the process unit never uses or manufactures any organic HAP, regardless of the outcome of the primary product determination, the only requirements of this subpart that might apply to the process unit are contained in paragraph (b) of this section. If a flexible operation unit does not use or manufacture any organic HAP during the manufacture of one or more products, paragraph (f)(5)(i) of this section applies to that flexible operation unit.

(i) If a process unit only manufactures one product, then that product shall represent the primary product of the process unit.

(ii) If a process unit produces more than one intended product at the same time, the primary product shall be determined in accordance with paragraph (f)(1)(ii)(A) or (B) of this section.

(A) The product for which the process unit has the greatest annual design capacity on a mass basis shall represent the primary product of the process unit, or

(B) If a process unit has the same maximum annual design capacity on a mass basis for two or more products, and if one of those products is a thermoplastic product, then the thermoplastic product shall represent the primary product of the process unit.

(iii) If a process unit is designed and operated as a flexible operation unit, the primary product shall be determined as specified in paragraphs (f)(1)(iii)(A) or (B) of this section based on the anticipated operations for the 5 years following September 12, 1996 at existing process units, or for the first year after the process unit begins production of any product for new process units. If operations cannot be anticipated sufficiently to allow the determination of the primary product for the specified period, applicability shall be determined (in accordance with paragraph (f)(2) of this section.

(A) If the flexible operation unit will manufacture one product for the greatest operating time over the specified 5 year period for existing process units, or the specified 1 year period for new process units, then that product shall represent the primary product of the flexible operation unit.

(B) If the flexible operation unit will manufacture multiple products equally based on operating time, then the product with the greatest expected production on a mass basis over the specified 5 year period for existing process units, or the specified 1 year period for new process units shall represent the primary product of the flexible operation unit.

(iv) If, according to paragraph (f)(1)(i), (ii), or (iii) of this section, the primary product of a process unit is a thermoplastic product, then that process unit shall be designated as a TPPU. That TPPU and associated equipment, as listed in paragraph (a)(4) of this section is either an affected source or part of an affected source comprised of other TPPU and associated equipment, as listed in paragraph (a)(4) of this section, subject to this subpart with the same primary product at the same plant site that is a major source. If the primary product of a process unit is determined to be a product that is not a thermoplastic product, then that process unit is not a TPPU.

(2) If the primary product cannot be determined for a flexible operation unit in accordance with paragraph (f)(1)(iii) of this section, applicability shall be determined in accordance with this paragraph.

(i) If the owner or operator cannot determine the primary product in accordance with paragraph (f)(1)(iii) of this section, but can determine that a thermoplastic product is not the primary product, then that flexible operation unit is not a TPPU.

(ii) If the owner or operator cannot determine the primary product in accordance with paragraph (f)(1)(iii) of this section, and cannot determine that a thermoplastic product is not the primary product as specified in paragraph (f)(2)(i) of this section, applicability shall be determined in accordance with paragraph (f)(2)(ii)(A) or (f)(2)(ii)(B) of this section.

(A) If the flexible operation unit is an existing process unit, the flexible operation unit shall be designated as a TPPU if a thermoplastic product was produced for 5 percent or greater of the total operating time of the flexible operating unit since March 9, 1999. That TPPU and associated equipment, as listed in paragraph (a)(4) of this section, is either an affected source, or part of an affected source comprised of other TPPU and associated equipment, as listed in paragraph (a)(4) of this section, subject to this subpart with the same primary product at the same plant site that is a major source. For a flexible operation unit that is designated as an TPPU in accordance with this paragraph, the thermoplastic product produced for the greatest amount of time since March 9, 1999 shall be designated as the primary product of the TPPU.

(B) If the flexible operation unit is a new process unit, the flexible operation unit shall be designated as a TPPU if the owner or operator anticipates that a thermoplastic product will be manufactured in the flexible operation unit at any time in the first year after the date the unit begins production of any product. That TPPU and associated equipment, as listed in paragraph (a)(4) of this section, is either an affected source, or part of an affected source comprised of other TPPU and associated equipment, as listed in paragraph (a)(4) of this section, subject to this subpart with the same primary product at the same plant site that is a major source. For a process unit that is designated as a TPPU in accordance with this paragraph, the thermoplastic product that will be produced shall be designated as the primary product of the TPPU. If more than one thermoplastic product will be produced, the owner or operator may select which thermoplastic product is designated as the primary product.

(3) Annual applicability determination for non-TPPUs that have produced a thermoplastic product. Once per year beginning September 12, 2001, the owner or operator of each flexible operation unit that is not designated as a TPPU, but that has produced a thermoplastic product at any time in the preceding 5-year period or since the date that the unit began production of any product, whichever is shorter, shall perform the evaluation described in paragraphs (f)(3)(i) through (f)(3)(iii) of this section. However, an owner or operator that does not intend to produce any thermoplastic product in the future, in accordance with paragraph (f)(9) of this section, is not required to perform the evaluation described in paragraphs (f)(3)(i) through (f)(3)(iii) of this section.

(i) For each product produced in the flexible operation unit, the owner or operator shall calculate the percentage of total operating time over which the product was produced during the preceding 5-year period.

(ii) The owner or operator shall identify the primary product as the product with the highest percentage of total operating time for the preceding 5-year period.

(iii) If the primary product identified in paragraph (f)(3)(ii) is a thermoplastic product, the flexible operation unit shall be designated as a TPPU. The owner or operator shall notify the Administrator no later than 45 days after determining that the flexible operation unit is a TPPU, and shall comply with the requirements of this subpart in accordance with paragraph (i)(1) of this section for the flexible operation unit.

(4) Applicability determination for non-TPPUs that have not produced a thermoplastic product. The owner or operator that anticipates the production of a thermoplastic product in a process unit that is not designated as a TPPU, and in which no thermoplastic products have been produced in the previous 5-year period or since the date that the process unit began production of any product, whichever is shorter, shall determine if the process unit is subject to this subpart in accordance with paragraphs (f)(4)(i) and (ii) of this section. Also, owners or operators who have notified the Administrator that a process unit is not a TPPU in accordance with paragraph (f)(9) of this section, that now anticipate the production of a thermoplastic product in the process unit, shall determine if the process unit is subject to this subpart in accordance with paragraphs (f)(4)(i) and (ii) of this section.

(i) The owner or operator shall use the procedures in paragraph (f)(1) or (f)(2) of this section to determine if the process unit is designated as a TPPU, with the following exception: For existing process units that are determining the primary product in accordance with paragraph (f)(1)(iii) of this section, production shall be projected for the five years following the date that the owner or operator anticipates initiating the production of a thermoplastic product.

(ii) If the unit is designated as a TPPU in accordance with paragraph (f)(4)(i) of this section, the owner or operator shall comply in accordance with paragraph (i)(1) of this section.

(5) Compliance for flexible operation units. Owners or operators of TPPUs that are flexible operation units shall comply with the standards specified for the primary product, with the exceptions provided in paragraphs (f)(5)(i) and (f)(5)(ii) of this section.

(i) Whenever a flexible operation unit manufactures a product in which no organic HAP is used or manufactured, the owner or operator is only required to comply with either paragraph (b)(1) or (b)(2) of this section to demonstrate compliance for activities associated with the manufacture of that product. This subpart does not require compliance with the provisions of subpart A of this part for activities associated with the manufacture of a product that meets the criteria of paragraph (b) of this section.

(ii) Whenever a flexible operation unit manufactures a product that makes it subject to subpart GGG of this part, the owner or operator is not required to comply with the provisions of this subpart during the production of that product.

(6) Owners or operators of TPPUs that are flexible operation units have the option of determining the group status of each emission point associated with the flexible operation unit, in accordance with either paragraph (f)(6)(i) or (f)(6)(ii) of this section, with the exception of batch process vents. For batch process vents, the owner or operator shall determine the group status in accordance with § 63.1323.

(i) The owner or operator may determine the group status of each emission point based on emission point characteristics when the primary product is being manufactured. The criteria that shall be used for this group determination are the Group 1 criteria specified for the primary product.

(ii) The owner or operator may determine the group status of each emission point separately for each product produced by the flexible operation unit. For each product, the group status shall be determined using the emission point characteristics when that product is being manufactured and using the Group 1 criteria specified for the primary product. (Note: Under this scenario, it is possible that the group status, and therefore the requirement to achieve emission reductions, for an emission point may change depending on the product being manufactured.)

(7) Owners or operators determining the group status of emission points in flexible operation units based solely on the primary product in accordance with paragraph (f)(6)(i) of this section shall establish parameter monitoring levels, as required, in accordance with either paragraph (f)(7)(i) or (f)(7)(ii) of this section. Owners or operators determining the group status of emission points in flexible operation units based on each product in accordance with paragraph (f)(6)(ii) of this section shall establish parameter monitoring levels, as required, in accordance with paragraph (f)(7)(i) of this section.

(i) Establish separate parameter monitoring levels in accordance with § 63.1334(a) for each individual product.

(ii) Establish a single parameter monitoring level (for each parameter required to be monitored at each device subject to monitoring requirements) in accordance with § 63.1334(a) that would apply for all products.

(8) Reporting requirements. When it is determined that a process unit is a TPPU and subject to the requirements of this subpart, the Notification of Compliance Status required by § 63.1335(e)(5) shall include the information specified in paragraphs (f)(8)(i) and (f)(8)(ii) of this section, as applicable. If it is determined that the process unit is not subject to this subpart, the owner or operator shall either retain all information, data, and analysis used to document the basis for the determination that the primary product is not a thermoplastic product, or, when requested by the Administrator, demonstrate that the process unit is not subject to this subpart.

(i) If the TPPU manufactures only one thermoplastic product, identification of that thermoplastic product.

(ii) If the TPPU is designed and operated as a flexible operation unit, the information specified in paragraphs (f)(8)(ii)(A) through (f)(8)(ii)(D) of this section, as appropriate, shall be submitted.

(A) If a primary product could be determined, identification of the primary product.

(B) Identification of which compliance option, either paragraph (f)(6)(i) or (f)(6)(ii) of this section, has been selected by the owner or operator.

(C) If the option to establish separate parameter monitoring levels for each product in paragraph (f)(7)(i) of this section is selected, the identification of each product and the corresponding parameter monitoring level.

(D) If the option to establish a single parameter monitor level in paragraph (f)(7)(ii) of this section is selected, the parameter monitoring level for each parameter.

(9) TPPUs terminating production of all thermoplastic products. If a TPPU terminates the production of all thermoplastic products and does not anticipate the production of any thermoplastic products in the future, the process unit is no longer a TPPU and is not subject to this subpart after notification is made to the Administrator. This notification shall be accompanied by a rationale for why it is anticipated that no thermoplastic products will be produced in the process unit in the future.

(10) Redetermination of applicability to TPPUs that are flexible operation units. Whenever changes in production occur that could reasonably be expected to change the primary product of a TPPU that is operating as a flexible operation unit from a thermoplastic product to a product that would make the process unit subject to another subpart of this part, the owner or operator shall re-evaluate the status of the process unit as a TPPU in accordance with paragraphs (f)(10)(i) through (iii) of this section.

(i) For each product produced in the flexible operation unit, the owner or operator shall calculate the percentage of total operating time in which the product was produced for the preceding five-year period, or since the date that the process unit began production of any product, whichever is shorter.

(ii) The owner or operator shall identify the primary product as the product with the highest percentage of total operating time for the period.

(iii) If the conditions in (f)(10)(iii)(A) through (C) of this section are met, the flexible operation unit shall no longer be designated as a TPPU and shall no longer be subject to the provisions of this subpart after the date that the process unit is required to be in compliance with the provisions of the other subpart of this part to which it is subject. If the conditions in paragraphs (f)(10)(iii)(A) through (C) of this section are not met, the flexible operation unit shall continue to be considered a TPPU and subject to the requirements of this subpart.

(A) The product identified in (f)(10)(ii) of this section is not a thermoplastic product; and

(B) The production of the product identified in (f)(10)(ii) of this section is subject to another subpart of this part; and

(C) The owner or operator submits a notification to the Administrator of the pending change in applicability.

(g) Storage vessel ownership determination. The owner or operator shall follow the procedures specified in paragraphs (g)(1) through (g)(7) of this section to determine to which process unit a storage vessel shall be assigned. Paragraph (g)(8) of this section specifies when an owner or operator is required to redetermine to which process unit a storage vessel is assigned.

(1) If a storage vessel is already subject to another subpart of 40 CFR part 63 on September 12, 1996, said storage vessel shall be assigned to the process unit subject to the other subpart.

(2) If a storage vessel is dedicated to a single process unit, the storage vessel shall be assigned to that process unit.

(3) If a storage vessel is shared among process units, then the storage vessel shall be assigned to that process unit located on the same plant site as the storage vessel that has the greatest input into or output from the storage vessel (i.e., said process unit has the predominant use of the storage vessel).

(4) If predominant use cannot be determined for a storage vessel that is shared among process units and if only one of those process units is a TPPU subject to this subpart, the storage vessel shall be assigned to said TPPU.

(5) If predominant use cannot be determined for a storage vessel that is shared among process units and if more than one of the process units are TPPUs that have different primary products and that are subject to this subpart, then the owner or operator shall assign the storage vessel to any one of the said TPPUs.

(6) If the predominant use of a storage vessel varies from year to year, then predominant use shall be determined based on the utilization that occurred during the year preceding September 12, 1996 or based on the expected utilization for the 5 years following September 12, 1996 for existing affected sources, whichever is more representative of the expected operations for said storage vessel, and based on the expected utilization for the first 5 years after initial start-up for new affected sources. The determination of predominant use shall be reported in the Notification of Compliance Status, as required by § 63.1335(e)(5)(vi).

(7) Where a storage vessel is located at a major source that includes one or more process units which place material into, or receive materials from the storage vessel, but the storage vessel is located in a tank farm (including a marine tank farm), the applicability of this subpart shall be determined according to the provisions in paragraphs (g)(7)(i) through (g)(7)(iv) of this section.

(i) The storage vessel may only be assigned to a process unit that utilizes the storage vessel and does not have an intervening storage vessel for that product (or raw material, as appropriate). With respect to any process unit, an intervening storage vessel means a storage vessel connected by hard-piping both to the process unit and to the storage vessel in the tank farm so that product or raw material entering or leaving the process unit flows into (or from) the intervening storage vessel and does not flow directly into (or from) the storage vessel in the tank farm.

(ii) If there is no process unit at the major source that meets the criteria of paragraph (g)(7)(i) of this section with respect to a storage vessel, this subpart does not apply to the storage vessel.

(iii) If there is only one process unit at the major source that meets the criteria of paragraph (g)(7)(i) of this section with respect to a storage vessel, the storage vessel shall be assigned to that process unit.

(iv) If there are two or more process units at the major source that meet the criteria of paragraph (g)(7)(i) of this section with respect to a storage vessel, the storage vessel shall be assigned to one of those process units according to the provisions of paragraphs (g)(3) through (g)(6) of this section. The predominant use shall be determined among only those process units that meet the criteria of paragraph (g)(7)(i) of this section.

(8) If the storage vessel begins receiving material from (or sending material to) a process unit that was not included in the initial determination, or ceases to receive material from (or send material to) a process unit, the owner or operator shall re-evaluate the applicability of this subpart to the storage vessel.

(h) Recovery operations equipment ownership determination. The owner or operator shall follow the procedures specified in paragraphs (h)(1) through (h)(6) of this section to determine to which process unit recovery operations equipment shall be assigned. Paragraph (h)(7) of this section specifies when an owner or operator is required to redetermine to which process unit the recovery operations equipment is assigned.

(1) If recovery operations equipment is already subject to another subpart of 40 CFR part 63 on September 12, 1996, said recovery operations equipment shall be assigned to the process unit subject to the other subpart.

(2) If recovery operations equipment is dedicated to a single process unit, the recovery operations equipment shall be assigned to that process unit.

(3) If recovery operations equipment is shared among process units, then the recovery operations equipment shall be assigned to that process unit located on the same plant site as the recovery operations equipment that has the greatest input into or output from the recovery operations equipment (i.e., said process unit has the predominant use of the recovery operations equipment).

(4) If predominant use cannot be determined for recovery operations equipment that is shared among process units and if one of those process units is a TPPU subject to this subpart, the recovery operations equipment shall be assigned to said TPPU.

(5) If predominant use cannot be determined for recovery operations equipment that is shared among process units and if more than one of the process units are TPPUs that have different primary products and that are subject to this subpart, then the owner or operator shall assign the recovery operations equipment to any one of said TPPUs.

(6) If the predominant use of recovery operations equipment varies from year to year, then predominant use shall be determined based on the utilization that occurred during the year preceding September 12, 1996 or based on the expected utilization for the 5 years following September 12, 1996 for existing affected sources, whichever is the more representative of the expected operations for said recovery operations equipment, and based on the first 5 years after initial start-up for new affected sources. The determination of predominant use shall be reported in the Notification of Compliance Status, as required by § 63.1335(e)(5)(vii).

(7) If a piece of recovery operations equipment begins receiving material from a process unit that was not included in the initial determination, or ceases to receive material from a process unit that was included in the initial determination, the owner or operator shall reevaluate the applicability of this subpart to that recovery operations equipment.

(i) Changes or additions to plant sites. The provisions of paragraphs (i)(1) through (i)(4) of this section apply to owners or operators that change or add to their plant site or affected source. Paragraph (i)(5) of this section provides examples of what are and are not considered process changes for purposes of this paragraph (i) of this section. Paragraph (i)(6) of this section discusses reporting requirements.

(1) Adding a TPPU to a plant site. The provisions of paragraphs (i)(1)(i) and (i)(1)(ii) of this section apply to owners or operators that add one or more TPPUs to a plant site.

(i) If a group of one or more TPPUs that produce the same primary product is added to a plant site, the added group of one or more TPPUs and associated equipment, as listed in paragraph (a)(4) of this section, shall be a new affected source and shall comply with the requirements for a new affected source in this subpart upon initial start-up or by June 19, 2000, whichever is later, except that new affected sources whose primary product, as determined using the procedures specified in paragraph (f) of this section, is poly(ethylene terephthalate) (PET) shall be in compliance with § 63.1331 upon initial start-up or February 27, 2001, whichever is later, if the added group of one or more TPPUs meets the criteria in either paragraph (i)(1)(i)(A) or (i)(1)(i)(B) of this section, and the criteria in either paragraph (i)(1)(i)(C) or (i)(1)(i)(D) of this section are met.

(A) The construction of the group of one or more TPPUs commenced after March 29, 1995.

(B) The construction or reconstruction, for process units that have become TPPUs, commenced after March 29, 1995.

(C) The group of one or more TPPUs and associated equipment, as listed in paragraph (a)(4) of this section, has the potential to emit 10 tons per year or more of any HAP or 25 tons per year or more of any combination of HAP, and the primary product of the group of one or more TPPUs is currently produced at the plant site as the primary product of an affected source; or

(D) The primary product of the group of one or more TPPUs is not currently produced at the plant site as the primary product of an affected source and the plant site meets, or after the addition of the group of one or more TPPUs and associated equipment, as listed in paragraph (a)(4) of this section, will meet the definition of a major source.

(ii) If a group of one or more TPPUs that produce the same primary product is added to a plant site, and the group of one or more TPPUs does not meet the criteria specified in paragraph (i)(1)(i) of this section, and the plant site meets, or after the addition will meet, the definition of a major source, the group of one or more TPPUs and associated equipment, as listed in paragraph (a)(4) of this section, shall comply with the requirements for an existing affected source in this subpart upon initial start-up; by June 19, 2001; or by 6 months after notifying the Administrator that a process unit has been designated as a TPPU (in accordance with paragraph (f)(3)(iii) of this section), whichever is later.

(2) Adding emission points or making process changes to existing affected sources. The provisions of paragraphs (i)(2)(i) through (i)(2)(ii) of this section apply to owners or operators that add emission points or make process changes to an existing affected source.

(i) If any components are replaced at an existing affected source such that the criteria specified in paragraphs (i)(2)(i)(A) through (i)(2)(i)(B) of this section are met, the entire affected source shall be a new affected source and shall comply with the requirements for a new affected source upon initial start-up or by June 19, 2000, whichever is later, as provided in § 63.6(b), except that new affected sources whose primary product is poly(ethylene terephthalate) (PET) shall be in compliance with § 63.1331 upon initial start-up or by February 27, 2001, whichever is later.

(A) The replacement of components meets the definition of reconstruction in § 63.1312(b); and

(B) Such reconstruction commenced after March 29, 1995.

(ii) If any components are replaced at an existing affected source such that the criteria specified in paragraphs (i)(2)(i)(A) through (i)(2)(i)(B) of this section are not met, and that replacement of components creates one or more Group 1 emission points (i.e., either newly created Group 1 emission points or emission points that change group status from Group 2 to Group 1) or causes any other emission point to be added (i.e., Group 2 emission points, equipment leak components subject to § 63.1331, continuous process vents subject to §§ 63.1316 through 63.1320, and heat exchange systems subject to § 63.1328), the resulting emission point(s) shall be subject to the applicable requirements for an existing affected source. The resulting emission points shall be in compliance by 120 days after the date of initial start-up or by the appropriate compliance date specified in § 63.1311 (i.e., February 27, 1998 for most equipment leak components subject to § 63.1331, and June 19, 2001 for most emission points other than equipment leaks), whichever is later.

(iii) If an addition or process change (not including a process change that solely replaces components) is made to an existing affected source that creates one or more Group 1 emission points (i.e., either newly created Group 1 emission points or emission points that change group status from Group 2 to Group 1) or causes any other emission point to be added (i.e., Group 2 emission points, equipment leak components subject to § 63.1331, continuous process vents subject to §§ 63.1316 through 63.1320, and heat exchange systems subject to § 63.1328), the resulting emission point(s) shall be subject to the applicable requirements for an existing affected source. The resulting emission point(s) shall be in compliance by 120 days after the date of initial start-up or by the appropriate compliance date specified in § 63.1311 (i.e., February 27, 1998 for most equipment leak components subject to § 63.1331, and June 19, 2001 for most emission points other than equipment leaks), whichever is later.

(iv) If any process change (not including a process change that solely replaces components) is made to an existing affected source that results in baseline emissions (i.e., emissions prior to applying controls for purposes of complying with this subpart) from continuous process vents in the collection of material recovery sections within the affected source at an existing affected source producing PET using a continuous dimethyl terephthalate process changing from less than or equal to 0.12 kg organic HAP per Mg of product to greater than 0.12 kg organic HAP per Mg of product, the continuous process vents shall be subject to the applicable requirements for an existing affected source. The resulting emission point(s) shall be in compliance by 120 days after the date of initial start-up or by June 19, 2001, whichever is later.

(3) Existing affected source requirements for surge control vessels and bottoms receivers that become subject to subpart H requirements. If a process change or addition of an emission point causes a surge control vessel or bottoms receiver to become subject to § 63.170 under this paragraph (i), the owner or operator shall be in compliance upon initial start-up or by June 19, 2001, whichever is later.

(4) Existing affected source requirements for compressors that become subject to the requirements of subpart H of this part. If a process change or the addition of an emission point causes a compressor to become subject to § 63.164 under this paragraph (i), the owner or operator shall be in compliance upon initial start-up or by the compliance date for that compressor as specified in § 63.1311(d)(1) through (d)(4), whichever is later.

(5) Determining what are and are not process changes. For purposes of paragraph (i) of this section, examples of process changes include, but are not limited to, changes in feedstock type, or process catalyst type, or the replacement, removal, or addition of recovery equipment, or equipment changes that increase production capacity. For purposes of paragraph (i) of this section, process changes do not include: Process upsets, unintentional temporary process changes, and changes that do not alter the equipment configuration and operating conditions.

(6) Reporting requirements for owners or operators that change or add to their plant site or affected source. Owners or operators that change or add to their plant site or affected source, as discussed in paragraphs (i)(1) and (i)(2) of this section, shall submit a report as specified in § 63.1335(e)(7)(iv).

(j) Applicability of this subpart.

(1) The emission limitations set forth in this subpart and the emission limitations referred to in this subpart shall apply at all times except during periods of non-operation of the affected source (or specific portion thereof) resulting in cessation of the emissions to which this subpart applies.

(2) The emission limitations set forth in subpart H of this part, as referred to in § 63.1331, shall apply at all times except during periods of non-operation of the affected source (or specific portion thereof) in which the lines are drained and depressurized, resulting in cessation of the emissions to which § 63.1331 applies.

(3) The owner or operator shall not shut down items of equipment that are required or utilized for compliance with this subpart during times when emissions (or, where applicable, wastewater streams or residuals) are being routed to such items of equipment, if the shutdown would contravene requirements of this subpart applicable to such items of equipment.

(4) General duty. At all times, the owner or operator must operate and maintain any affected source, including associated air pollution control equipment and monitoring equipment, in a manner consistent with safety and good air pollution control practices for minimizing emissions. The general duty to minimize emissions does not require the owner or operator to make any further efforts to reduce emissions if levels required by the applicable standard have been achieved. Determination of whether a source is operating in compliance with operation and maintenance requirements will be based on information available to the Administrator, which may include, but is not limited to, monitoring results, review of operation and maintenance procedures, review of operation and maintenance records, and inspection of the source.

(k) Affirmative defense for violation of emission standards during malfunction. In response to an action to enforce the standards set forth in this subpart, the owner or operator may assert an affirmative defense to a claim for civil penalties for violations of such standards that are caused by malfunction, as defined at § 63.2. Appropriate penalties may be assessed if the owner or operator fails to meet their burden of proving all of the requirements in the affirmative defense. The affirmative defense shall not be available for claims for injunctive relief.

(1) Assertion of affirmative defense. To establish the affirmative defense in any action to enforce such a standard, the owner or operator must timely meet the reporting requirements in paragraph (k)(2) of this section, and must prove by a preponderance of evidence that:

(i) The violation:

(A) Was caused by a sudden, infrequent, and unavoidable failure of air pollution control equipment, process equipment, or a process to operate in a normal or usual manner; and

(B) Could not have been prevented through careful planning, proper design or better operation and maintenance practices; and

(C) Did not stem from any activity or event that could have been foreseen and avoided, or planned for; and

(D) Was not part of a recurring pattern indicative of inadequate design, operation, or maintenance; and

(ii) Repairs were made as expeditiously as possible when a violation occurred; and

(iii) The frequency, amount, and duration of the violation (including any bypass) were minimized to the maximum extent practicable; and

(iv) If the violation resulted from a bypass of control equipment or a process, then the bypass was unavoidable to prevent loss of life, personal injury, or severe property damage; and

(v) All possible steps were taken to minimize the impact of the violation on ambient air quality, the environment, and human health; and

(vi) All emissions monitoring and control systems were kept in operation if at all possible, consistent with safety and good air pollution control practices; and

(vii) All of the actions in response to the violation were documented by properly signed, contemporaneous operating logs; and

(viii) At all times, the affected source was operated in a manner consistent with good practices for minimizing emissions; and

(ix) A written root cause analysis has been prepared, the purpose of which is to determine, correct, and eliminate the primary causes of the malfunction and the violation resulting from the malfunction event at issue. The analysis shall also specify, using best monitoring methods and engineering judgment, the amount of any emissions that were the result of the malfunction.

(2) Report. The owner or operator seeking to assert an affirmative defense shall submit a written report to the Administrator, with all necessary supporting documentation, that explains how it has met the requirements set forth in paragraph (k)(1) of this section. This affirmative defense report shall be included in the first periodic compliance report, deviation report, or excess emission report otherwise required after the initial occurrence of the violation of the relevant standard (which may be the end of any applicable averaging period). If such compliance report, deviation report, or excess emission report is due less than 45 days after the initial occurrence of the violation, the affirmative defense report may be included in the second compliance report, deviation report, or excess emission report due after the initial occurrence of the violation of the relevant standard.

[61 FR 48229, Sept. 12, 1996, as amended at 65 FR 38094, June 19, 2000; 66 FR 36937, July 16, 2001; 71 FR 20460, Apr. 20, 2006; 79 FR 17363, Mar. 27, 2014]