[Federal Register Volume 59, Number 97 (Friday, May 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-10971]
[[Page Unknown]]
[Federal Register: May 20, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 9 and 63
[FRL-4881-9]
RIN 2060-AE00
Hazardous Air Pollutants: Regulations Governing Equivalent
Emission Limitations by Permit
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is promulgating regulations governing the
establishment of equivalent emission limitations by permit, pursuant to
section 112(j) of the Clean Air Act (Act), as amended. This rule
establishes requirements and procedures for owners or operators of
major sources of hazardous air pollutant(s) (HAP), and permitting
authorities, to follow in order to comply with section 112(j). After
the effective date of a title V permit program in a State, each owner
or operator of a major source in a source category for which the EPA
was scheduled to, but failed to promulgate a maximum achievable control
technology (MACT) standard will be required to submit a permit
application 18 months after the EPA's missed promulgation date. This
rule establishes requirements for the contents of these applications.
In addition, the rule contains provisions governing the establishment
of MACT-equivalent emission limitations by the permitting authority.
EFFECTIVE DATE: The rule and guidance announced herein take effect on
June 20, 1994.
ADDRESSES: Docket. Supporting information used in developing the
proposed and final rules contained in Docket Number A-93-32. The docket
is available for public inspection and copying from 8:30 a.m.-12 p.m.
and 1:30 p.m.-3:30 p.m., Monday through Friday, at the EPA's Air Docket
Section, Waterside Mall, room M1500, U.S. Environmental Protection
Agency, 401 M Street, SW., Washington, DC 20460. A reasonable fee may
be charged for copying.
FOR FURTHER INFORMATION CONTACT: For information on today's final rule,
please contact Ms. Katherine Kaufman, Emission Standards Division (MD-
13), U.S. Environmental Protection Agency, Research Triangle Park,
North Carolina, 27711, telephone (919) 541-0102. For information about
the guidance document ``MACT Determinations under Section 112(j)'' (EPA
450/3-92-007a), please contact Ms. Lynn Hutchinson, Emission Standards
Division (MD-13), U.S. Environmental Protection Agency, Research
Triangle Park, North Carolina, 27711, telephone (919) 541-5624.
SUPPLEMENTARY INFORMATION: The information presented in this preamble
is organized as follows:
I. Summary of Final Rule
II. Background Discussion
A. Clean Air Act Amendments: Section 112
B. Clean Air Act Amendments: Provisions for Equivalent Emission
Limitation by Permit.
C. Implementation Principles
III. Significant Comments and Changes to the Proposed Rule
A. Sec. 6.50--Applicability
B. Sec. 6.51--Definitions
C. Sec. 6.52--Approval Process for New and Existing Emission
Units
D. Sec. 6.53--Application Content for a Case-by-Case MACT
Determination
E. Sec. 6.54--Preconstruction Procedures for New Emission Units
F. Sec. 6.55--Maximum Achievable Control Technology (MACT)
Determinations for Emission Units Subject to Case-by-Case
Determination of Equivalent Emission Limitations
G. Sec. 6.56--Requirements for Case-by-Case Determination of
Equivalent Emission Limitations After Promulgation of a Subsequent
MACT Standard
IV. Discussion of the Relationship of the Proposed Requirements to
Other Requirements of the Act
A. Section 112(g) Requirements for Constructed, Reconstructed,
and Modified Major Sources; and Subsequent Standards under Section
112(d) or Section 112(h).
B. Section 112(l) Delegation Process
C. Section 112(i)(5) Early Reductions Program
V. Administrative Requirements
A. Docket
B. Executive Order 12866
C. Regulatory Flexibility Act
D. Paperwork Reduction Act
This preamble provides an overview of the rule implementing the
requirements of the section 112(j) program, and a detailed discussion
of the changes made to the proposed regulation.
The first section provides an overview of the requirements of the
regulation being promulgated today.
The second section provides background information on section
112(j) in the context of the 1990 amendments to the Act.
The third section provides a detailed discussion of the
requirements of the rule, including significant comments as well as
significant changes made since the proposal.
The fourth section of this preamble discusses the relationship of
the requirements of section 112(j) to other requirements of the Act
under other subsections of section 112 of the Act.
The fifth section of this preamble demonstrates that the rulemaking
is consistent with a number of federal administrative requirements.
This preamble makes use of the term ``State,'' usually meaning the
State air pollution control agency which will be the permitting
authority implementing the section 112(j) program. The reader should
assume that use of the word ``State'' also applies, as defined in
section 302(d) of the Act, to the District of Columbia and territories
of the United States, and may also include reference to a local air
pollution control agency. These agencies can either be the permitting
authority for the area of their jurisdiction or assist the State or the
EPA in implementing the section 112(j) program. In some cases, the term
``permitting authority'' is used and can refer to both State agencies
and to local agencies (when the local agency directly makes the
determinations or assists the State in making the determinations). The
term ``permitting authority'' may also apply to the EPA, in rare cases
where the EPA is the title V permitting authority responsible for the
program.
This preamble makes a number of references to a regulation which
has not yet been promulgated. That is the rule governing constructed,
reconstructed, or modified major sources under section 112(g) of the
Act, which EPA has proposed on April 1, 1994, in the Federal Register
at 59 FR 15504.
I. Summary of Final Rule
Today's rule implements the requirements of section 112(j) of the
Clean Air Act, as amended in 1990. Section 112(j) establishes
requirements for regulation of major sources of hazardous air
pollutants in the event that EPA lags more than 18 months behind
schedule in issuing a control technology standard for an industry.
Section 112 requires EPA to set MACT standards for all categories
of major sources of hazardous air pollutants. Specifically, the Act has
required EPA to issue a schedule for regulating all source categories
within 2, 4, 7, or 10 years of enactment. The source category schedule
for standards was published on December 3, 1993 (58 FR 63941).
Section 112(j) is triggered on the date 18 months after the
deadline listed in the final schedule for a source category, if the EPA
has failed to promulgate a MACT standard for that source category by
that date. These deadlines are displayed in Table 1. Upon this 18-month
deadline, the owner or operator of each major source with emission
units in that category must apply for a case-by-case MACT determination
by the title V permitting authority. There are four possible section
112(j) deadlines, as displayed in Table 1 below.
Table 1.--Section 112(J) Deadlines
------------------------------------------------------------------------
MACT standard deadline Section 112(j) deadline Comments
------------------------------------------------------------------------
2-year standards: May 15, 1994 [but not The EPA has
November 15, 1992. before effective date promulgated the 2-
of Title V permit year standards. This
program]. deadline will not be
triggered.
4-year standards: May 15, 1996........... This is the earliest
November 15, 1994. that section 112(j)
could be triggered.
7-year standards: May 15, 1999
November 15, 1997.
10-year standards: May 15, 2002
November 15, 2000.
------------------------------------------------------------------------
The EPA has fulfilled its requirements with respect to the 2-year
MACT standards, so there are essentially three possible dates upon
which section 112(j) requirements could take effect: (1) May 15, 1996,
(2) May 15, 1999, and (3) May 15, 2002. Section 112(j) cannot take
effect before the effective date of a title V permit program in a
State; the EPA expects that permit programs will be operative in all
States by May 15, 1996.
If the deadline for a particular category passes, section 112(j)
requires that any source associated with that category, that is part of
a major source, must obtain an ``equivalent emission limitation by
permit.'' ``By permit'' means that the emission limitation is recorded
in the title V operating permit. ``Equivalent emission limitation''
means a limitation, determined on a case-by-case basis by the
permitting authority, that is judged to be equivalent to the limit the
EPA would have established had the federal MACT standard been
published.
The rule uses the term ``emission unit'' rather than the term
``source'' which appears in section 112(j). The term ``source'' is used
to describe the extent of coverage of standards issued pursuant to
section 112(d) and section 112(h). The EPA is concerned that if the
term ``source'' is used in reference to section 112(j), there may be
potential misperceptions that section 112(j) determinations could
constrain the EPA's definition of ``source'' in a subsequent
rulemaking.
A. Requirements for Existing Emission Units
For emission units in existence at major source plant sites as of
the section 112(j) deadline, today's rule contains some important
clarifications of the Act. The statute is clear that applicants must
submit an application by the section 112(j) deadline, and that the
title V permitting process must be followed in establishing permit
conditions within an 18-month time frame thereafter. Within this
overall framework, the statute is less prescriptive regarding: (1) The
contents of the permit application, (2) the process that is used within
the 18-month permit issuance time frame to establish equivalent
emission limitations, and (3) the nature of the terms and conditions
that must be established in the permit.
Section 6.52 is intended to provide further clarity to the permit
review process. The requirements for permit application content are
listed in Sec. 6.53. Principles governing the establishment of MACT
emission limitations, including the nature of the terms and conditions,
are outlined in Sec. 6.55, and in a more detailed guidance document
titled: ``MACT Determinations under Section 112(j)'' (EPA 450/3-92-
007a), which EPA is making available today.
B. Requirements for New Emission Units
For new emission units subject to the requirements of section
112(j), today's rule provides a number of important statutory
interpretations, and provides a clarification of the minimum
administrative requirements of the Act.
When newly constructed emission points are added to an existing
major source plant site, those emission points could be considered as
either: (1) An addition to an existing ``emission unit'' for which an
existing source level of control would be required, or (2) an entirely
new ``emission unit'' for which new source MACT would be required.
Today's rule contains a definition of ``emission unit'' which gives
broad discretion to the permitting authority to determine whether a
given emission point or points should be treated as ``new.''
Another important clarification in the rule is the date which
triggers new source requirements. Today's rule defines as ``new'' an
emission unit for which construction commences after the section 112(j)
deadline or after proposal of a section 112 (d) or (h) MACT standard,
whichever comes first.
Section 112(j) of the statute does not mandate a preconstruction
review for new emission units subject to section 112(j). However, the
EPA recognizes that there are important reasons for permitting
authorities and affected source owners and operators to follow a
preconstruction or pre-operation review process. The rule contains, as
Sec. 6.54, an optional preconstruction or pre-operation review process
that can be used for this purpose.
C. Relationship to Subsequently Promulgated MACT Standards
The Act provides for a compliance extension when an emission unit
covered by a case-by-case MACT emission limitation under section 112(j)
is later affected by a subsequent federal MACT standard promulgated
pursuant to section 112(d) or section 112(h) of the Act. This provision
is addressed in Sec. 6.56 of today's rule.
II. Background Discussion
A. Clean Air Act Amendments: Section 112
The Clean Air Act Amendments of 1990 [Pub. L. 101-549] contain
major changes to section 112 of the Act pertaining to the control of
HAP emissions. Section 112(b) includes a HAP list that is composed of
189 chemicals, including 172 specific chemicals and 17 compound
classes. Section 112(c) requires publication of a list of source
categories and subcategories of major sources emitting these HAPs, and
also requires the listing of area sources that the EPA determines
warrant regulation. Section 112(d) requires promulgation of emission
standards for each listed source category or subcategory according to a
schedule set forth in section 112(e).
B. Clean Air Act Amendments: Provisions for Equivalent Emission
Limitation by Permit
1. General Requirements of Section 112(j)
The amendments to section 112 include new section 112(j). This
section is entitled ``Equivalent Emission Limitation by Permit.''
Subsection 112(j)(2) of the Act provides that section 112(j) applies if
EPA misses a deadline for promulgation of a standard under section
112(d) established
in the source category schedule for standards: In the event that the
Administrator fails to promulgate a standard for a category or
subcategory of major sources by the date established pursuant to
subsection (e) (1) and (3), and beginning 18 months after such date
(but not prior to the effective date of a permit program under title
V), the owner or operator of any major source in such category or
subcategory shall submit a permit application.
Subsection 112(j)(3) requires the owner or operator to submit a
permit application 18 months after the missed promulgation deadline:
By the date established by paragraph (2), the owner or operator
of a major source subject to this subsection shall file an
application for a permit.
Subsection 112(j)(3) also requires EPA to establish requirements for
permit applications, including content and criteria for the reviewing
agency to determine completeness. In addition, subsection 112(j)(3)
provides that if the reviewing agency deems the application incomplete,
or disapproves the application, then the applicant has up to 6 months
to revise and resubmit the application.
Subsection 112(j)(5) establishes a requirement for case-by-case
MACT determinations:
The permit shall be issued pursuant to title V and shall contain
emission limitations for the hazardous air pollutants subject to
regulation under this section and emitted by the source that the
Administrator (or the State) determines, on a case-by-case basis, to
be equivalent to the limitation that would apply to such source if
an emission standard had been promulgated in a timely manner under
subsection (d).
Subsection 112(j)(5) also establishes compliance dates:
No such pollutant may be emitted in amounts exceeding an
emission limitation contained in a permit immediately for new
sources and, as expeditiously as practicable, but not later than the
date 3 years after the permit is issued for existing sources or such
other compliance date as would apply under subsection(i).
Finally, subsection 112(j)(5) specifies that if the applicable
criteria for voluntary early reductions, established under section
112(i)(5), are met, then this alternative emission limit satisfies the
requirements of section 112(j), provided that the emission reductions
are achieved by the missed promulgation date.
In the event that EPA promulgates a given MACT standard for the
applicable source category before the permit application is approved,
the permit must reflect this promulgated standard, rather than the
case-by-case MACT determination. The source is required to comply with
this standard by the date provided under subsection(i). In this case,
the owner or operator of an existing source has no more than 3 years to
comply, and the owner or operator of a new source must comply
immediately upon startup, except that a new source that commenced
construction or reconstruction between proposal and promulgation of the
MACT standard may elect to comply with the proposed standard for 3
years in lieu of the promulgated MACT standard, if the promulgated MACT
standard is more stringent than the proposal.
In the event that EPA promulgates a given MACT standard after the
permit containing case-by-case emission limits is issued, section
112(j)(6) allows a longer compliance period:
If the Administrator promulgates a standard under subsection (d)
* * * after the date on which the permit has been issued, the
Administrator (or the State) shall revise such permit upon the next
renewal to reflect the standard promulgated by the Administrator
providing such source a reasonable time to comply, but no longer
than 8 years after such standard is promulgated or 8 years after the
date on which the source is first required to comply with the
emissions limitation established by paragraph (5), whichever is
earlier.
C. Implementation Principles
In designing guidance for case-by-case MACT determinations, the
EPA's thinking is guided primarily by the need for section 112(j)
standards to be substantively equivalent to section 112(d) MACT
standards. Subsection 112(j)(5) requires that a case-by-case MACT
determination be ``equivalent to the limitation that would apply to
such source if an emission standard had been promulgated in a timely
manner under subsection (d),'' and subsection 112(j)(6) requires
eventual compliance with subsequently promulgated section 112(d)
standards. Consistency in standard-setting will smooth a major source's
eventual transition from compliance with section 112(j) to compliance
with section 112(d), making implementation of toxics control easier on
both States and industry.
The EPA's other major goal in establishing section 112(j)
requirements is to achieve and maintain consistency across section 112
programs. The EPA intends for administrative and operational
requirements under section 112(j) to be consistent with the
requirements of section 112(g) rules for construction, reconstruction,
and modification of major sources (proposed at 59 FR 15504 on April 1,
1994, as Sec. 63.40 through 63.49 of subpart B) and with the general
provisions for section 112 (published at 59 FR 12408 on March 16, 1994,
as subpart A of this part). Section IV. A. of this preamble discusses
likely overlapping requirements and major substantive differences
across these programs.
III. Significant Comments and Changes to the Proposed Rule
This section of the preamble is organized by each topic area in
subpart B, and contains a detailed discussion of the principal
regulatory issues and changes made in the final rule, particularly in
response to public comments. It also discusses some comments that did
not result in regulatory changes.
A. Section 63.50--Applicability
1. Section 63.50(a)--Applicability
Paragraph 63.50(a) of today's rule indicates that the intent of the
rule is to implement section 112(j) of the Act. This paragraph
indicates that section 112(j) applies to the owner or operator of a
major source of HAPs after the ``effective date of a Title V program''
in each State, but not before May 15, 1994.
(a) Effective date of title V. The meaning of ``effective date of a
Title V program'' is indicated in the final regulations for
implementation of title V of the Act. Under these regulations, States
were required to submit a permit program for review by the EPA on or
before November 15, 1993. The EPA is required to approve or disapprove
the permit program within one year after receiving the submittal. The
EPA's program approval date is termed the ``effective date.''
The effective date of title V permit programs is defined in section
502(h) of the Act, which says ``The effective date of a permit program,
or partial or interim program, approved under * * * [Title V] * * *
shall be the date of promulgation.'' This language refers to two types
of title V programs: One type where the EPA ``approves'' the title V
program under 40 CFR part 70 and another type where the EPA
``promulgates'' a program. Programs ``approved'' by the EPA under part
70 will be developed by the State or local area and submitted to the
EPA for approval. The language in section 502(h) of the Act makes these
programs immediately effective upon EPA approval. Programs
``promulgated'' by the EPA are anticipated to be rare, and they occur
only where a State failed to submit a program, submitted a program that
EPA could not approve, or has failed to adequately administer an
approved program. For example, the EPA is required by section 502(d)(3)
of the Act to promulgate and administer a title V program if, by
November 1995, the EPA has not approved the State program. The language
in section 112(j), because it refers to the effective date of a title V
program in any State (and not by any State), means that the program
will apply to both the EPA ``approved'' and ``promulgated'' programs.
The title V regulations provide for approval of ``interim'' and
``partial'' programs in certain limited circumstances. The EPA believes
that, because partial programs must ensure compliance with ``all
requirements established under section 112 applicable to `major
sources' and `new sources','' and interim programs must ``substantially
meet the requirements of [title V],'' an interim or partial program
would trigger the requirements of section 112(j) for those sources
covered by the interim program.
(b) Major source. Section 112(j) applies only to an owner or
operator of a major source. Section 112(a)(1) of the Clean Air Act
defines major source as any stationary source or group of stationary
sources located within a contiguous area and under common control that
emits or has the potential to emit considering controls, in the
aggregate, 10 tons per year or more of any hazardous air pollutant or
25 tons per year or more of any combination of hazardous air
pollutants. The requirements of section 112(j) apply to all sources
that comprise a major source, but do not apply to nonmajor sources--
i.e. ``area sources.''
The determination of whether a source is major is based on the
source's ``potential to emit'', which is defined in subpart A of this
part. A source's potential to emit is based on its capacity to emit
hazardous air pollutants considering federally enforceable limits on
that capacity. If a source's potential to emit is equal to or greater
than 10 tons/yr of a single HAP, or 25 tons/yr of any combination of
HAPs, the source is a major source. The EPA is currently developing a
rule to further define a source's potential to emit for section 112
standards. This rule will also provide ways for an owner or operator of
a source to establish voluntary, federally-enforceable restrictions to
limit the source's potential to emit below the major source threshold.
This rule will also address the requirements for major sources that
subsequently reduce their emissions to less than major amounts. If a
source meets conditions in subpart A of this part for limiting its
potential to emit to below the major source threshold within the
timeframe established in the potential to emit rule, then it will not
be subject to the provisions of section 112(j) as long as the source
maintains its emission status.
2. Section 63.50(b)--Relationship to State and Local Requirements
Many State and local regulatory agencies maintain regulatory
programs that involve toxic air pollutant reviews for stationary
sources. This paragraph clarifies that the requirements of section
112(j) do not pre-empt any requirements of these programs that are at
least as stringent as today's rule.
3. Section 63.50(c)--Retention of State Permit Program Approval
Some States may not currently have specific legislative or
administrative authority sufficient to establish the case-by-case
emission limitations required by section 112(j). Paragraph 63.50(c)
requires that States obtain such statutory authority as a condition of
retaining their part 70 permit program approval.
B. Section 6.51--Definitions
1. Terms Defined in the General Provisions
A number of terms used in the proposed rule are defined for all of
40 CFR Part 63 in subpart A of this Part. The terms defined in subpart
A include:
* * * Administrator
* * * Area source
* * * Effective date
* * * Federally enforceable
* * * Hazardous air pollutant
* * * Major source
* * * Permit program
* * * Potential to emit
* * * Relevant standard
* * * Title V permit
The Subpart A General Provisions include a definition of
``federally enforceable'' which lists the types of limitations and
conditions that are considered federally enforceable. The preamble to
Subpart A outlines a set of principles that States and sources should
follow in order to ensure practicable enforceability. The EPA believes
that Subpart B should ensure that the case-by-case determinations are
practicably enforceable in the same way that Subpart A does for section
112(d) and section 112(h) MACT standards. Therefore, the EPA refers the
reader to the discussion of ``practicable enforceability'' in the
preamble to Subpart A for a discussion of the kinds of requirements
that the EPA would consider sufficient to ensure practicable
enforceability for case-by-case MACT determinations. In addition, a
more detailed discussion of the elements necessary to ensure federal
enforceability is contained in section III.E. of this preamble.
2. Terms Related to Maximum Achievable Control Technology
Definitions for the following terms related to levels of control
technology are included in Sec. 63.51 of today's rule:
* * * Maximum Achievable Control Technology
* * * Control Technology
* * * Maximum Achievable Control Technology (MACT) Floor
* * * Maximum Achievable Control Technology (MACT) Emission
Limitation for Existing Sources
* * * Maximum Achievable Control Technology (MACT) Emission
Limitation for New Sources
The basis for all of these definitions is statutory language
contained in section 112(d) of the Act. The term ``maximum achievable
control technology'' appears only in section 112(g) of the Act, and
does not appear elsewhere in section 112. There is, however,
considerable legislative history indicating that this term refers to
the level of control required by section 112(d) emission standards.
This term was used in this context in the House Bill, H.R. 3030. For
purposes of the definitions in today's rule, the EPA assumes that
``maximum achievable control technology'' is a reference to the
``maximum degree of reduction in emissions'' language contained in
section 112(d)(3). The minimum control technology requirements of
section 112(d), often referred to as the ``MACT floor'' are cited a
number of times in today's rule. To avoid repeating these requirements
each time, the regulation includes a definition of ``MACT floor.''
3. Terms Affecting the Extent of Coverage by Maximum Achievable Control
Technology
The following terms are used to describe equipment subject to a
MACT determination:
* * * Emission point
* * * Emission unit
* * * Emission limitation
* * * New emission unit
An ``emission point,'' in this regulation, is defined narrowly to
refer to any individual point of release to the atmosphere. However, an
individual MACT determination will often be made at once for a number
of emission points. The term ``emission unit'' is used to refer to the
collection of all emission points considered when a MACT determination
is made. The term ``emission limitation'' retains the meaning given to
it in section 302(k) of the Act.
New emission unit. The term new emission unit refers to an emission
unit for which construction or reconstruction is commenced after the
section 112(j) deadline for a relevant standard, or after proposal of a
relevant standard under section 112(d) or section 112(h) of the Act,
whichever comes first. For the purposes of section 112(j), new emission
units are those emission units that trigger new source MACT
requirements (see discussion of the definition of ``emission unit''
below). New source is defined in Clean Air Act section 112(a)(4) as
follows:
``* * * a stationary source the construction or reconstruction
of which is commenced after the Administrator first proposes
regulations under this section establishing an emission standard
applicable to such source.''
Section 112(j) requires States to establish case-by-case MACT
limitations where EPA has failed to promulgate a relevant standard, and
there may be instances when a section 112(j) MACT limitation is
required for a source category for which a standard has not yet been
proposed under section 112(d). Since section 112(j)(5) refers
explicitly to case-by-case standards for new sources, the EPA has
determined that the Act did not intend that the EPA's failure to
propose a standard implies that no sources in that source category, no
matter what the date of construction, could ever be considered ``new.''
At proposal the EPA had selected the section 112(e) scheduled deadline
as the date, under a section 112(j) case-by-case MACT determination,
most closely equivalent to the section 112(d) proposal date for the
purposes of defining ``new emission unit,'' because had EPA met the
schedule in setting a standard under section 112(d) the proposal could
not have been any later than the date in the schedule. The EPA
requested comment on this definition. Three commenters supported the
proposed definition. However, upon consideration of the practical
concerns raised by this definition, the EPA has determined that the
section 112(j) deadline would be a more reasonable date beyond which
commencing construction of an emission unit would be considered
``new.''
The following timeline illustrates the EPA's reasoning:
TR20MY94.002
Under the proposed rule, a source would have needed to know, up to 2
years or more in advance of the section 112(j) deadline, that the EPA
was going to miss its scheduled promulgation deadline by 18 months. If
``new source'' requirements were triggered by the section 112(e)
deadline, owners and operators would need to know this in order to plan
what control to build in to their new emission units, and perhaps in
order to apply for preconstruction review. In addition, if an owner or
operator plans to construct between the scheduled promulgation date and
the section 112(j) deadline, and there is a subsequent proposal (as
illustrated in the timeline), then whether the emission unit will be
considered new would depend upon a later event--whether the section
112(j) deadline will pass with no federal MACT standard. The EPA
believes that it is not reasonable to expect owners and operators to be
able to predict the likelihood of EPA missing a promulgation deadline
by 18 months; nor is it reasonable to expect them to make such a
prediction as much as 2 years before its occurrence.
Thus, if EPA proposes a MACT standard before the section 112(j)
deadline, any emission unit for which construction commences after that
proposal will be considered new. If the section 112(j) deadline is
reached without EPA having proposed a standard, then an emission unit
for which construction commences after the section 112(j) deadline will
be considered new. This approach removes the uncertainty raised by the
possibility of EPA proposing a MACT standard during the 18 months
between the section 112(e) schedule deadline and the section 112(j)
deadline. The EPA believes this to be the most reasonable and equitable
way to define which emission units are new for purposes of section
112(j).
Emission unit definition; applicability to new source MACT. MACT
determinations must be made on a wide variety of emitting equipment at
major sources in different source categories. Today's rule defines
emission unit in a way designed to allow permitting authorities broad
flexibility in designing case-by-case MACT emission limitations. This
flexibility is essential because of the variety of source categories,
diverse in size and complexity, that may be subject to section 112(j).
A narrower definition of emission unit would make it difficult for
permitting authorities to tailor MACT determinations to the equipment
specific to a particular source category. Emission unit as defined in
this rule is intended to be synonymous with the term ``source'' as used
in section 112(d). Thus, the State permitting authorities implementing
section 112(j) will have as much flexibility in defining emission unit
as EPA has in defining ``source.'' The definition of source used in
section 112 originated in section 111 a number of years ago. That
definition--any building, structure, facility, or installation which
emits or may emit any (hazardous) air pollutant--has been interpreted
over the years to encompass a broad range of things including
individual process units, production lines and entire plants.
The EPA requested comment both on the desirability of requiring or
not requiring new source MACT on all new emission units, and on the
question of whether new source MACT should be required only on those
emission units that are in and of themselves ``major'' at a major
source.
An approach the EPA considered, but rejected, would be to require
new source MACT only on those emission units that are in and of
themselves ``major'' at a major source--i.e. those emission units at a
major source which themselves emit at least 10 tons per year or more of
a single HAP, or 25 tons per year or more of a combination of HAPs.
This approach generated significant comment. Some commenters disagree
with this approach and support the approach taken in the rule. Many
commenters support the alternative approach.
The EPA agrees with the commenters who support application of new
source MACT to all constructed and reconstructed emission units.
Section 112(j) is intended to stand in place of section 112(d) where
EPA has missed the section 112(e) scheduled date for a category of
major sources. Under section 112(d), when a MACT standard is written
for a major source category it will apply to all sources within that
category. Depending on how the category is defined many of the covered
sources will be a less than 10 ton portion of a major source. These are
not area sources.
Many major sources will be covered by multiple MACT standards, and
the portion of a major source covered by any one MACT standard may well
be less than major by itself. In addition, a major source could contain
several emission units that are all covered by the same MACT standard,
but are separate sources that in combination exceed 10 or 25 tons but
do not exceed the major source threshold individually. In contrast,
area sources in the same category will not be subsets of major sources.
Section 112(j) does not apply to categories of area sources.
Other commenters assert that EPA's interpretation runs counter to
either the Clean Air Act itself, or to the Congressional intent behind
the language in the Act. For the reasons discussed below and in the
preamble to the proposed rule (58 FR 37778), the EPA disagrees with
these commenters.
Prior to a missed promulgation deadline, through section 112(g) the
statute clearly requires new source MACT only on constructed or
reconstructed major sources. Any other equipment added to an existing
major source would be a modification (unless specifically exempted from
regulation by section 112(g)), and would be subject to existing source
MACT levels of control. However, the language of section 112(j) is
somewhat different from that of section 112(g). Section 112(j), while
applying only to major sources, does not limit the application of new
source MACT to new major-emitting equipment, as section 112(g) does.
The EPA believes that the standards developed through section
112(j) must anticipate and reflect the likely requirements of section
112(d) and section 112(h). The basis for the applicability of new
source MACT selected is the section 112(j)(5) requirement that case-by-
case MACT standards must be:
Emission limitations for the hazardous air pollutants * * * emitted
by the source that the Administrator (or the State) determines, on a
case-by-case basis, to be equivalent to the limitation that would
apply to such source if an emission standard had been promulgated in
a timely manner under subsection (d).
It is the judgment of EPA that section 112(j) case-by-case MACT
standards must require new source MACT to be applied to those same
sources, within a covered major source, to which a standard promulgated
under section 112(d) would apply new source MACT. Therefore, it is
necessary to determine what entity is considered a new source under
section 112(d) for the purpose of implementing MACT standards.
Section 112(a) provides that new source shall mean a ``stationary
source the construction or reconstruction of which is commenced after
the Administrator first proposes regulations under this section
establishing an emission standard applicable to such source.'' Section
112(a)(3) gives ``stationary source'' the same meaning as under section
111(a), i.e. any new ``building, structure, facility, or
installation''; thus the term stationary source clearly is not limited
to major sources under section 112(a)(3). Section 112(d) requires MACT
standards to be set for ``sources,'' and ``sources'' can be major,
area, or portions of a major source. Once there is a section 112(d)
standard in place, any new source will be required to meet new source
MACT emission limitations, as defined by the standard. Thus, under
section 112(j), any new emission unit that is either part, or all, of a
major source will be required to meet new source MACT.
If, however, the language of section 112(g) were interpreted as
dispositive of whether new or existing source MACT must be applied to
any given increase in emissions, new sources within the definition in
section 112(a)(4) would escape having to comply with new source MACT
under section 112(j). If a MACT standard under section 112(d) may
establish a definition of source that would apply to a portion of a
``major source,'' then section 112(j) case-by-case MACT determinations
would not satisfy the requirement that they be ``equivalent to the
limitation that would apply to such source * * *''
In addition, under this reading, major sources adding new sources
that are not major by themselves could avoid new source MACT on those
new sources. But if MACT is then set under section 112(d) for area
sources in that category, any new area source would have to meet new
source MACT, while new parts of a major source would not. This would be
an anomalous result. Therefore today's rule requires new source MACT on
all emission units that are constructed or reconstructed at a major
source plant site.
C. Section 6.52--Approval Process for New and Existing Emission Units
Existing emission units. Section 6.52 of the rule requires that
case-by-case MACT determinations for existing emission units be
established through the title V permit process. The owner or operator
of an existing major source must submit a permit application for all
emission units in a source category not later than 18 months after the
missed promulgation date for that source category. The State must then
review and approve or disapprove the permit in accordance with the
procedures and principles set out in Part 70 and in Sec. 63.55 of
today's rule. Section 63.52(b)(1) of today's rule implements the
requirement in section 112(j)(4) of the Act that if an owner or
operator's permit application is deemed incomplete or disapproved by
the permitting authority, the owner or operator has up to 6 months to
resubmit and meet the requirements of the permitting authority. The
final rule clarifies the intent of the Act that the owner or operator
provide complete information within 6 months of the date the permitting
authority ``first'' identifies its objections. The addition of the word
``first'' is intended to clarify that the applicant may not prolong the
process by resubmitting an incomplete application. In order to ensure
that the application indeed satisfies this 6-month deadline, applicants
will probably wish to respond sooner than 6 months.
For existing emission units, the permitting authority at its
discretion may require compliance as expeditiously as practicable, but
no later than 3 years from permit issuance. In addition, the permitting
authority may allow an extra year, on a case by case basis, when
necessary for the installation of controls. This approach is consistent
with section 112(j)(5), which requires the case-by-case MACT standards
to ensure compliance ``* * * immediately for new sources and, as
expeditiously as practicable, but not later than the date three years
after the permit is issued for existing sources or such other
compliance date as would apply under subsection (i).''
New emission units. Section 63.52 describes the relationship of the
MACT review process for new emission units to the operating program
requirements pursuant to Title V of the Act Amendments. The
requirements for title V permits, contained in 40 CFR part 70, were
published on July 21, 1992 (57 FR 32250). For existing emission units,
the approach to establishing an administrative process for
determinations under section 112(j) of the Act is to rely on the title
V review process as the mechanism for establishing MACT requirements.
For new emission units, however, the EPA believes that reliance on the
title V permit process may not be sufficient. First, the title V
requirements clearly do not require a new ``greenfield'' plant to apply
for an operating permit until 1 year after the plant begins operation.
Because the title V permit must be issued within 18 months of the
application, it could be up to 30 months after commencement of
operation before section 112(j) requirements would be incorporated into
the permit. Second, the title V requirements do not ensure that a MACT
determination will be conducted before construction. While in some
cases permitting authorities with title V programs may require
preconstruction reviews as part of the operating permit process, this
will not always be the case.
Therefore, while for existing emission units the title V permit
process is sufficiently comprehensive to handle section 112(j) reviews,
the EPA believes, based upon the above considerations, that when the
title V process does not occur until after construction has begun, new
emission units should be subject to preconstruction or at least pre-
operation review. However, the statutory language of section 112(j)
does not authorize EPA to mandate either process.
While many commenters also challenged the legality of requiring
preconstruction review, several others agreed with EPA's reasons, as
stated in the proposed rule, in support of a preconstruction review.
Commenters noted that without preconstruction review, owners and
operators will not know their requirements before startup, making it
more difficult for them to design equipment with controls that the
permitting authority is guaranteed to approve. In addition, some
permitting authorities will be deprived of the authority they need to
make appropriate new source MACT determinations. In addition, it was
noted that some permitting authorities will be prohibited from adopting
preconstruction review programs unless they are federally mandated.
The EPA believes that most new equipment covered by section 112(j)
will require some type of State preconstruction permit, for criteria
pollutants if not for HAP. Although the Act does not mandate the
communication of section 112(j) requirements until the eventual
operating permit process, the EPA believes that it would be in the best
interests of both the owner or operator and the permitting authority to
resolve section 112(j) issues as part of its upfront review.
Regardless of the timing for incorporation of section 112(j) new
source MACT determinations into the operating permit, there are certain
requirements that apply. The title V permit must be revised or issued
according to procedures set forth in Sec. 70.7 and 70.8, or issued as a
general permit. In addition, the permit must incorporate the compliance
provisions of Sec. 70.6. If, during the EPA's review of the section
112(j) determination, it becomes apparent that the determination is not
in compliance with the Act, then EPA must object to the issuance or
revision of that permit.
These requirements are obviously satisfied either when part 70
requires revision to an existing title V permit before construction, or
when the permitting authority otherwise requires incorporation of
conditions into a title V permit as a step in the section 112(j) new
source case-by-case MACT determination process. However, even when
there is no formal incorporation of conditions into a title V permit
before operation, subsequent additional title V review may effectively
be avoided if the State's section 112(g) or optional section 112(j)
process is ``enhanced'' to include the important title V procedures,
thereby allowing for later incorporation into the title V permit by
administrative amendment. (The optional procedures contained in
Sec. 63.54 of the rule are intended to provide an example of such an
``enhanced'' process).
Section 70.7(d) of the operating permits rule defines an
``administrative amendment'' to include a revision that
``[i]ncorporates into the part 70 permit the requirements from
preconstruction review permits authorized under an EPA-approved
program, provided that such a program meets procedural requirements
substantially equivalent to those contained in Sec. 70.7 and 70.8 of
this Part . . . and compliance requirements substantially equivalent to
those contained in Sec. 70.6 of this part.'' This process of
``enhancement'' of preconstruction procedures was discussed in the
preamble to the operating permits rule in the context of existing State
new source review programs (see 57 Fed. Reg., at 32289), but was not
discussed in relation to section 112(j) because the procedures
associated with section 112(j) determinations had not yet been
articulated. However, the language of Sec. 70.7(d)(v) would allow for
use of administrative amendments for an enhanced preconstruction review
process, and the EPA believes such use is clearly within the intent of
that provision.
Enhancement of the preconstruction review process may be partial
only, incorporating some elements of the required part 70 review or
compliance provisions in the preconstruction review process itself,
with the remaining elements occurring during the title V process. For
instance, public review of the MACT determination that meets the
requirements of Sec. 70.7(h) need not be repeated at the time of
incorporation into the title V permit. However, for the administrative
amendment procedures to be available for determinations that have been
through an enhanced process, the public, EPA and affected States must
have had the opportunity to review all aspects of the MACT
determination, including any compliance provisions required under
Sec. 70.6. Thus, public review during the preconstruction review
process would not suffice for purposes of title V if the process did
not specify the application of compliance provisions substantially
equivalent to those in Sec. 70.6, including monitoring, reporting,
recordkeeping, and compliance certification.
Finally, Sec. 6.52(d) of today's rule establishes that new emission
units must comply with case-by-case MACT determinations at permit
issuance. This requirement is unchanged from proposal. At proposal the
EPA solicited comment on the implementation consequences for sections
section 112(j) and section 112(d) when preconstruction review is not
required, and on the likely consequences of the lack of an adequate
enforcement mechanism at the federal level for compliance earlier than
permit issuance. Commenters noted the need to prevent situations in
which some sources might have to retrofit in response to subsequent
rulemaking under section 112(d). Commenters also pointed out the likely
negative effect on the public of the compliance delays inherent in
section 112(j) for new emission units, as well as the inability of some
permitting agencies to adopt requirements more stringent than mandated
by the federal government.
In addition, precedent across the board in federal air regulation
requires new sources to comply with control requirements upon startup.
The EPA believes that new emission units should undergo preconstruction
or pre-operation review. However, the EPA believes that the language of
section 112(j)(5), which specifies that ``[n]o such pollutant may be
emitted in amounts exceeding an emission limitation contained in a
permit immediately for new sources,'' does not give the Agency
authority to require compliance with case-by-case MACT by new emission
units until a permit is issued.
The EPA believes that, especially when project lead time is
sufficient, that the best approach would be for a permitting authority
to provide for an ``enhanced'' preconstruction review process that
would assure the source that it would be in compliance with section
112(j). Because the ``enhanced'' review would yield terms and
conditions that could be incorporated into the title V permit by
administrative amendment, ``permit issuance'' would thus be
accomplished upon startup rather than 12-30 months later. In this case,
the source would be in compliance with federally enforceable case-by-
case MACT at the time of administrative amendment to its title V
permit.
Subsequent changes to a major source. The EPA believes that section
112(j) emission limitations apply to subsequent changes made at major
sources already complying with case-by-case MACT limitations under
section 112(j), when EPA has not promulgated a final standard for the
source category under section 112(d). The EPA requires, in subpart A of
this Part, that subsequent changes to a major source already complying
with a section 112(d) or (h) standard shall comply with established
MACT emission limitations for the source to which changes are made.
Therefore requiring subsequent changes to portions of major sources
already meeting case-by-case MACT emission limitations under section
112(j) satisfies the section 112(j)(5) statutory requirement that case-
by-case MACT determinations under section 112(j) be ``equivalent to the
limitation that would apply to such source if an emission standard had
been promulgated in a timely manner under subsection(d).'' Emission
limitations governing those changes would be incorporated into a
source's title V permit according to procedures established pursuant to
title V.
The EPA requested comment on this approach, as well as on the
alternative approach of treating section 112(j) as a one time
permitting requirement applicable 18 months after EPA fails to set a
relevant MACT standard. This would require subsequent changes at major
sources with section 112(j) permits to comply only with section 112(g).
The EPA received a few comments on this issue, most of which agree with
EPA's approach, and one which asserts that prior determinations under
section 112(g) should be deemed to satisfy section 112(j). The EPA
believes that determinations made under section 112(g) that require
MACT control should be considered by the permitting agency to be
sufficient to satisfy the control requirements of section 112(j).
Therefore the EPA retains the interpretation contained in the proposed
rule. (See also the discussion of potential differences in section
112(g) and section 112(j) requirements in section IV. A. of this
preamble).
General permits. The EPA recognizes that there are cases for which
sources would prefer to minimize delays in the process, particularly
for operations which change relatively frequently, and when the owner
or operator is willing to control emissions from those changes with
technologies that could be recognized as best available controls (i.e.
those controls which achieve ``the emission control that is achieved in
practice by the best controlled similar source'' (section 112(d)(3) of
the Act)). General permit procedures, outlined in 40 CFR 70.6(d), could
be available for such situations.
The general permit would have application for section 112(j)
determinations when the permitting authority is able to make a
presumptive determination of MACT for a given type of source. The
general permit would have to set forth the controls required by Part
70. Once the general permit is issued, application of the MACT
determination to a particular emission unit would involve merely a
determination that the emission unit falls within the source category
covered by the general permit. In this way, a single permitting process
could be used to address the section 112(j) requirements for a number
of facilities, rather than conducting a separate process for each
facility. Such a general permit process would not relieve the owner or
operator from the obligation of submitting an ``application'' by the
section 112(j) deadline. The EPA envisions, however, that permitting
authorities could provide guidance to the affected facilities, before
the section 112(j) deadline, of its intention to use the general permit
process such that the burdens of the application are minimized.
As discussed in the preamble to the operating permit regulation,
general permits may be issued to cover discrete emissions units at
permitted facilities. 57 Fed. Reg., at 32279. While a general permit
cannot be used to modify the terms of an existing title V permit, it
may be issued to cover a change at an existing plant, such as addition
of a new emission unit, that would otherwise be eligible to apply for a
new individual permit. In that case, the requirements of the general
permit could be incorporated into the permit for the facility at permit
renewal.
Several commenters agree that using the general permit procedures
is a good idea, in order to streamline MACT determinations under
section 112(j). The EPA agrees that general permits could be used both
for existing and new emission units.
Area sources that become major sources. Today's rule states that
section 112(j) requirements apply to all major sources in a source
category for which EPA has missed its scheduled promulgation deadline.
Implicit in that requirement is the assumption that the requirements of
section 112(j) apply to area sources that increase their emissions or
their potential to emit such that they become major sources after the
section 112(j) deadline.
Subpart A of this part, recently promulgated, explicitly
establishes, for MACT standards under section 112(d) or (h), that area
sources which increase their emissions, or their potential to emit,
such that they become major sources after the applicable date of a
relevant standard, are subject to the requirements of that standard.
Therefore EPA has added Sec. 63.52(f)(1) to today's rule to clarify
that the requirements of section 112(j) likewise apply to area sources
that increase their emissions or their potential to emit such that they
become major sources after the section 112(j) deadline.
One commenter requests clarification on the status of area sources
which, after the section 112(j) deadline, become major sources when EPA
determines that a ``lesser quantity'' of emissions defines ``major
source'' for that source category (see section 112(a)(1)). Therefore
EPA has added Sec. 63.52(f)(2) to today's rule to clarify that the
requirements of section 112(j) apply to all major sources at the point
at which they are determined to be ``major sources'' under section
112(a). These sources are required to submit permit applications within
6 months of becoming major sources. Given the relative siginificance of
the regulation these sources, the EPA believes that requiring permit
applications within 6 months is reasonable.
As discussed previously, the rule generally treats emission units
as ``new'' if constructed after the section 112(j) deadline. However,
in the case where that area source becomes major because the EPA has
set a lesser quantity emission rate after the section 112(j) deadline
for the relevant source category, the EPA recognizes that it would be
inequitable to require new source MACT for such an emission unit at an
existing area source plant site. It would be difficult for any source
constructed at an earlier date to immediately meet new source MACT upon
permit issuance. Such a position would require sources to retrofit to a
new source MACT level of control, despite the fact that, at the time of
a MACT proposal or the section 112(j) deadline, those sources would not
have any reason to anticipate that section 112(j) would appply.
Therefore today's rule has been clarified to provide that, where a
source is not subject to section 112(j) on the section 112(j) deadline,
but becomes subject to section 112(j) at a later date by becoming a
major source, new source MACT will be limited to those emission units
for which construction or reconstruction has commenced after the date
that the source becomes major. This avoids the inequitable outcome of
requiring such sources to retrofit new source MACT.
The rule provides two exceptions to this approach. Consistent with
subpart A (59 FR 12408), if the owner or operator wishes to construct
or reconstruct an emission unit that would cause the plant site to now
become a major source, that emission unit would be treated as ``new.''
Or, if a source, which has been constructed or reconstructed after the
section 112(j) deadline and which has been an area source by virtue of
a limitation on its potential to emit, becomes a major source by virtue
of a relaxation of its emission limitation, then the emission units
whose emission limitations increase would be treated as ``new.'' (This
latter exception is intended to be consistent with subpart A of this
part, and with provisions in Sec. 52.21(r)(4) in the criteria pollutant
program). For these reasons, the definition of new source says ``. . .
except as provided for in Sec. 63.52(f)(1),'' and Sec. 63.52(f)(1)
clarifies these exceptions.
D. Section 63.53--Application Content for a Case-by-Case MACT
Determination
Section 63.53 of today's rule describes the information the owner
or operator is required to provide with an application for a MACT
determination. These information requirements are designed to identify
the emission units to be controlled and to demonstrate that MACT will
be met.
E. Section 63.54--Preconstruction Procedures for New Emission Units
Section 112(j), when read together with title V, presents certain
ambiguities which must be resolved in this rulemaking. Section 112(j)
requires case-by-case determinations of MACT for new as well as
existing sources. Section 112(j)(5) directs that case-by-case MACT is
to be ``equivalent to the limitation that would apply to such source if
an emission standard had been promulgated in a timely manner under
subsection(d).'' The timing for application for new sources subject to
any standard promulgated under section 112(d) is in turn articulated in
section 112(i)(1), which prohibits the construction of a new major
source or reconstruction of an existing major source except when there
has been a determination that the construction or reconstruction will
meet the MACT standard.
However, the timing of this determination for new sources under
section 112(j) is different than the timing required by the statute for
section 112(d) standards. Section 112(j) requires that the permit
containing the case-by-case determination of MACT be ``reviewed and
approved or disapproved according to the provisions of section 505''
(section 112(j)(4)) and issued ``pursuant to Title V,'' (section
112(j)(5)). This conflicts with a requirement for preconstruction or
pre-operation review for new sources subject to only section 112(j),
because title V does not give EPA discretion to require applications
for sources newly subject to the title earlier than 12 months after
commencing operation. (Section 503(c)). (States may, however, opt to do
so). Because the Part 70 permit must be issued within 18 months of the
application, it could be up to 30 months after operation before section
112(j) requirements would be incorporated into the title V permit.
While several commenters state that section 112(j) MACT
determinations should be subject to preconstruction review, a number of
others argued that section 112(j) contains no authority for
preconstruction review. A number of commenters addressed the
relationship of section 112(j) to section 112(g). Several of these
commenters argued that both sections should be reviewed, and the more
stringent requirement applied in each case. Other commenters stated
that the two sections should be applied consistently.
The EPA agrees that section 112(j) determinations for new sources
should be subject to preconstruction or pre-operation review. However,
the Agency acknowledges, as pointed out by other commenters, that
section 112(j) does not provide the EPA with independent authority to
require such review. Therefore, in the final rule EPA is not changing
its proposal that section 112(g) provide the mechanism for review for
modifications to major sources and construction of new major sources.
An optional preconstruction review process is provided in this rule for
the benefit of new emission units not covered by section 112(g).
As noted above in Section III.C. of this preamble, the EPA believes
that sources subject to case-by-case MACT determinations should undergo
upfront review. While in some cases States may require review under the
Part 70 program to occur in the preconstruction phase (or an
``enhanced'' preconstruction process deemed equivalent), the Act does
not authorize EPA to mandate this result. It follows that, while title
V is sufficiently comprehensive to handle the section 112(j) review
process for existing emission units, it is not broad enough in its
mandatory coverage to implement section 112(j) for new emission units.
EPA believes that the preconstruction or pre-operation review
requirements for control technology determinations under section 112(g)
will be applicable to many new sources subject to section 112(j). For
example, construction of all new major sources, and all new emission
units constructed as part of a modification to an existing major
source, would require preconstruction or pre-operation review under
section 112(g). Permitting authorities also have the option of
establishing an administrative process for preconstruction or pre-
operation review of new emission units subject to section 112(j), to
cover those emission units not subject to the requirements of section
112(g). In addition, section 112(j) requirements should be considered
for new emission units requiring other preconstruction permits under a
permit authority's overall air quality program.
As an alternative to relying on the upfront review procedures of
section 112(g) for new major sources, EPA had considered relying on the
language of section 112(i)(1) to require preconstruction review of new
sources under section 112(j). However, section 112(i)(1) requires
preconstruction review only for major-emitting sources. Such major-
emitting sources would already be required to undergo preconstruction
review under the requirements of section 112(g). Therefore adding a
requirement for preconstruction review under section 112(j) based on
section 112(i)(1) adds nothing to the process. For this reason EPA
rejected reliance on section 112(i)(1) authority.
Section 63.54 of today's rule describes an optional preconstruction
review process for new emission units not required to undergo upfront
review under section 112(g). Permitting authorities need not provide
this additional preconstruction review opportunity. Moreover, since the
preconstruction review process set forth in Sec. 63.54 is optional,
permitting authorities may provide for a different process. The
procedures set forth in Sec. 63.54 contain the elements EPA believes to
be necessary for an ``enhanced'' review process that can be
incorporated into the title V permit by administrative amendment. One
important aspect of such ``enhanced'' procedures is to ensure Federal
enforceability. In addition to the discussion in this preamble, the
preamble to subpart A of this part discusses the kinds of requirements
that the EPA would consider sufficient to ensure federal enforceability
for MACT determinations under Clean Air Act sections section 112(d) and
(h); the EPA believes that these same requirements would ensure federal
enforceability for case-by-case MACT determinations under section
112(j), and refers the reader to that discussion.
The EPA believes that the majority of new emission units subject to
section 112(j) will be subject to section 112(g) preconstruction or
pre-operation review requirements prior to filing their permit
applications under Part 70. The overall process for MACT determinations
contained in Sec. 63.54 of today's rule is shown in Figures 1 and 1a.
For those sources not subject to review under section 112(g), the
optional ``enhanced'' review process begins with a MACT application
consistent with the principles described in Sec. 63.55. The owner or
operator provides an application for a MACT determination to the
permitting authority. The contents of this application are outlined in
Sec. 63.53. This application for a MACT determination is then evaluated
by the permitting authority according to procedures described in
Sec. 63.54(b). If approved, the permitting authority would issue a
Notice of MACT Approval containing the basic elements described in
Sec. 63.52(c). Provisions dealing with compliance with the requirements
of the Notice of Approval are described in Sec. 63.54(c) through (g).
Terms and conditions of this Notice could be incorporated into the
operating permit by an administrative amendment.
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The EPA believes that there are substantial implementation
advantages to upfront review for emission units subject to section
112(j), as noted above in section III.C. of this preamble. Without such
review, owners and operators cannot be assured that they will meet a
``new source MACT'' level of control when submitting a title V permit
application.
The preconstruction or pre-operation process outlined in Sec. 63.54
begins with a completeness determination. Once a complete application
is received, approval or an intent to disapprove the application is
required. If an intent to disapprove is issued, the owner or operator
is given the opportunity to provide further information.
Section 63.54(b) establishes an administrative process for
reviewing a request by an owner or operator for a MACT determination.
The proposed decision to either approve or disapprove the application
is then subject to public review. (See discussion in the proposed rule
at 58 FR 37778.) Today's rule would provide for public review through
issuance of a notice containing all the relevant background information
about the application and 30 days for the public to comment on whether
the application should or should not be granted. Section 63.54(d)
establishes the opportunity for EPA to review and veto the application
consistent with the requirements of the title V process. In order to
expedite approval of noncontroversial case-by-case MACT determinations,
today's rule would allow such determinations to be made final following
the close of the comment period if no adverse comments have been
received. If adverse comments are received, a final notice should be
published either approving or disapproving the application and
addressing the comments. The EPA envisions that the permitting
authority would exercise its discretion in determining, where
warranted, that a public hearing should be held.
Emission limits that are federally enforceable include limits on
the allowable capacity of the equipment; requirements for the
installation, operation and maintenance of pollution control
technologies; limits on hours of operation; and restrictions on amounts
of materials combusted, stored, or produced. These limitations or
conditions should be practicably enforceable and ensure adequate
testing, monitoring, and recordkeeping to demonstrate compliance with
the limitations and conditions. These conditions are based on the five
criteria for Federal enforceability established in 40 CFR parts 51 and
52 (54 FR 27274). Part of the criteria for conferring Federal
enforceability to a State or locally established emission limitation
requires the emission limitation to undergo some public scrutiny and be
kept in standardized files in EPA's Regional Offices. In addition, the
emission limitation must be enforceable as a legal and practical
matter. The preamble to the proposed rule contains a more detailed
discussion of the kinds of permit conditions the EPA considers
necessary to establish Federal enforceability.
The end result of the administrative review process for new
emission units is a determination set forth in a document that is
termed a ``Notice of MACT Approval.'' Necessary elements for this
Notice are provided in paragraph 63.52(c) of today's rule. This Notice
should contain the emission limitations, notification, operating and
maintenance, performance testing, reporting, recordkeeping, compliance
dates, and any other requirements needed to ensure that the case-by-
case MACT emission limitation will be met.
The Notice of MACT Approval serves to ensure that the new emission
unit is built with controls that meet the requirements of section
112(j). If the Notice is approved through an ``enhanced'' process, it
can be incorporated into the title V permit through administrative
amendment.
F. Section 63.55--Maximum Achievable Control Technology (MACT)
Determinations for Emission Units Subject to Case-by-Case Determination
of Equivalent Emission Limitations
As discussed previously, Sec. 63.52 requires case-by-case MACT
determinations after the effective date of a title V permit program in
a State. MACT determinations will be conducted for all HAP-emitting
equipment that is located at a major source and is in a source category
for which the Agency has failed to promulgate a relevant maximum
achievable control technology (MACT) standard within 18 months of the
scheduled promulgation date. This section of the preamble discusses
principles and procedures for making these MACT determinations. These
include procedures needed to establish a MACT emission limitation and a
corresponding MACT control technology. In the rule, the overall process
for MACT determinations is outlined in Sec. 63.55.
The primary emphasis is on the procedures for case-by-case MACT
determinations when no applicable MACT standard has been proposed by
the EPA. The procedures for determinations after MACT standards have
been proposed are more straightforward.
Section 63.55 contains general principles that would govern MACT
determinations under today's rule. In general, the purpose of a case-
by-case MACT determination is to develop technology-based limitations
for HAP emissions that the Administrator (or a permitting agency to
whom authority has been delegated) approves as equivalent to the
emission limitations required for the source category if promulgated
MACT standards were in effect under section 112(d) or section 112(h) of
the Act.
The EPA believes that if a MACT standard has been proposed, but not
yet promulgated, this proposed standard is the best estimator of the
Agency's final action, and therefore should be considered in
establishing a case-by-case MACT emission limitation. Accordingly,
paragraph 63.55(a)(1) requires that in the absence of a supportable
alternative, the equivalent emission limitation should be at least as
stringent any such proposed standard. (Permitting authorities retain
the option of requiring MACT that is different from EPA's MACT
determination, provided that the alternative can be supported. An
example of such a supportable alternative would be the case where a
permitting authority possesses additional data that would support
amending EPA's floor finding).
When no MACT standard has been proposed, the rule requires that the
case-by-case MACT determination be consistent with the overall
requirements described in section 112(d) of the Act.
Section 112(d)(3) of the Act describes the general considerations
for a MACT determination. A MACT level of control is ``the maximum
degree of reduction in emissions of the hazardous air pollutants * * *
that the Administrator, taking into consideration the cost of achieving
such emission reduction, and any non-air quality health and
environmental impacts and energy requirements, determines is achievable
for new and existing sources in the category or subcategory * * *''
This paragraph of the Act continues to describe a number of items that
might be considered in designing MACT standards such as material
substitutions, enclosure of processes, capture and control of
emissions, design and work practice standards, and operational
standards. This list of items is included in the definition of
``control technology'' in Sec. 63.51 of today's rule.
Section 112(d) also imposes certain minimum requirements on the
determination of ``maximum achievable control technology.''
Collectively, these minimum requirements are defined in the rule as the
``MACT floor.''
For existing emission units, the MACT floor for the case-by-case
determination, consistent with section 112(d) of the Act, is an
emission limitation equal to the average emission limitation achieved
by the best performing 12 percent of existing sources in the category
for categories or subcategories with 30 or more sources, or the average
emission limitation achieved by the best 5 sources for categories with
fewer than 30 sources.
In rules currently under development, the EPA is considering two
interpretations of the statutory language concerning the MACT floor for
existing sources. One interpretation groups the words ``average
emission limitation achieved by'' the best performing 12 percent. This
interpretation places the emphasis on ``average.'' It would correspond
to first identifying the best performing 12 percent of the existing
sources, then determining the average emission limitation achieved by
these sources as a group. Another interpretation groups the words
``average emission limitation'' into a single phrase and asks what
``average emission limitation'' is ``achieved by'' all members of the
best performing 12 percent. In this case, the ``average emission
limitation'' might be interpreted as the average reduction across the
HAP emitted by an emission point over time. Under this interpretation,
the EPA would look at the average emission limits achieved by each of
the best performing 12 percent of existing sources, and take the
lowest. This interpretation would correspond to the level of control
achieved by the source at the 88th percentile if all sources were
ranked from the most controlled (100th percentile) to the least
controlled (1st percentile).
The EPA has proposed to adopt the first interpretation and has
solicited comment in other rulemakings on its interpretation of ``the
average emission limitation achieved by the best performing 12 percent
of existing sources'' (section 112(d)(3)(A) of the Act). The guidance
document, MACT Determinations under Section 112(j) (EPA-450/3-92-007a),
explains how a MACT floor might be determined using EPA's proposed
interpretation. Should the EPA adopt a different methodology for
determining the MACT floor, the guidance document will be amended to
explain this approach.
The MACT floor for existing sources also takes into account sources
achieving the ``lowest achievable emission rate'' (LAER) as defined for
the criteria pollutant new source review program under section 171 of
the Act, and excludes these limitations from the floor calculation for
sources who have achieved LAER within 18 months before proposal or
within 30 months before promulgation of a standard. The EPA interprets
the ``best performing 12 percent'' to mean the best performing 12
percent of sources in the United States, because all sources in each
category are in the United States. The phrase ``in the United States''
is added to the existing source MACT floor definition in order to
clarify that territories and possessions of the United States are
included.
When a MACT floor has been determined by EPA or the permitting
authority, the rule requires that the MACT emission limitation achieve
an equal or greater level of control than that MACT floor. In
determining whether to require a MACT emission limitation that achieves
a level of control greater than the MACT floor, the permitting
authority should consider the costs, non-air quality health and
environmental impacts and energy requirements of achieving that level
of control. (See section 112(d)(2) of the Act).
For new emission units, the MACT floor for a case-by-case MACT
determination, consistent with section 112(d), is the level of control
that is achieved in practice by the best controlled similar source. The
EPA believes that the legislative history of section 112 suggests that
the ``best controlled similar source'' could be located outside of the
United States. See, Statement of Senator Durenberger, Cong. Rec. S.
17239 (October 26, 1990). The definition of MACT floor for new source
MACT is therefore not restricted to sources in the United States, but
could instead be based on a technology known to be used in practice on
a similar source located anywhere.
The Act states that ``the maximum degree of reduction that is
deemed achievable for new sources in a category or subcategory shall
not be less stringent than the emission control that is achieved in
practice by the best controlled similar source, as defined by the
Administrator.'' The Act does not specifically define the term ``best
controlled similar source.'' In addition, unlike for existing sources
for which the Act states, `` the average emission limitation achieved
by the best performing 12 percent of the existing sources * * * in the
category or subcategory for categories or subcategories with 30 or more
sources,'' the Act does not specifically indicate that the
determination of the best controlled similar source should be limited
to sources within that same source category. The guidance document
``MACT Determinations under Section 112(j)'' provides a detailed
discussion of the criteria that should be used to determine if a source
is ``similar.''
The EPA believes that because the Act specifically indicates that
existing source MACT should be determined from within the source
category, and does not make this distinction for new source MACT, that
Congress intends for transfer technologies to be considered when
establishing the minimum criteria for new sources. The EPA also
believes that the use of the word ``similar'' provides additional
support for this interpretation. The EPA believes that Congress could
have explicitly restricted the minimum level of control for new
sources, but did not. The use of the term ``best controlled similar
source'' rather than ``best controlled source within the source
category'' suggests that the intent is to require a consideration of
transfer technologies when appropriate.
The EPA believes that there will be cases when such technology
transfers are entirely reasonable. For example, suppose that the best
controlled tank within a source category did not have state-of-the-art
controls. Yet, tanks from outside the source category storing similar
organic liquids use state-of-the-art controls vented to an emission
control device. The EPA believes that such tanks are clearly
``similar'' within the language of section 112(d). The EPA also
believes that the Act does not compel all such technology transfers in
all cases, and that emission types and the ability to install such
controls are strong factors in determining when sources should be
considered similar. For example, within source category X, spray booths
tend to be uncontrolled due to gas streams with low concentrations and
relatively high airflows. The EPA does not believe that controls from
another category should be considered in determining the best
controlled similar source when emissions from that category's spray
booths are of high concentration and low airflow. The emissions from
these sources are clearly not similar. However, if it is
technologically feasible, these same controls could be considered in
establishing the new source level of control if consideration is given
to cost, non-air quality health and environmental impacts and energy
requirements.
Subcategorization
When the notice of initial list of categories of sources under
section 112(c)(1) of the Act was published in the Federal Register (57
FR 31579), the EPA listed broad categories of major and area sources
rather than narrowly defined categories. The EPA chose to establish
broad source categories at the time the source category list was
developed because there was too little information to anticipate
specific groupings of similar sources that are appropriate for defining
MACT floors for the purposes of establishing emission standards. During
the standard setting process, the EPA may find it appropriate to
further divide categories to distinguish among classes, types and sizes
of sources, as the Act provides.
The lack of subcategorization and broad nature of the source
category may pose some difficulty in establishing a case-by-case
emission limitation. The source category list contains categories that
will regulate more than one process type. It may be appropriate to
consider all process and emission units as one source when determining
the MACT floor level of control; or, after gathering information on the
source category, the EPA may find that, where there are basic
technological differences between different types of processes or
emission units, grouping all units into one source category is
inappropriate and a more accurate and realistic MACT floor finding can
be made by subcategorizing the industry. Criteria to consider include
air pollution control differences, process operation (including
differences between batch and continuous operation), emission
characteristics, control device applicability and costs, safety, and
opportunities for pollution prevention.
Several commenters encouraged EPA to further subcategorize the
source category list for the purposes of case-by-case MACT
determinations. While this option may provide for the greatest
consistency in MACT determinations from all permitting authorities, the
feasibility of this option is questionable. The EPA did not
subcategorize source categories because there was insufficient
information to properly characterize each source category at the time
the source category list was developed under section 112(c)(1).
Although additional information may be collected for a given category
before the section 112(j) deadline, such information may not always be
sufficient to support subcategorization.
Information burden/MACT floor finding. A significant issue for this
rulemaking is how to avoid placing unmanageable information-gathering
burdens on sources and permitting authorities while ensuring that
emissions limitations under section 112(j) are equivalent to standards
that the EPA would have issued. Commenters raised a variety of concerns
about the resource burden, legality, and sensibility of requiring each
individual source to provide its own MACT floor determination in its
permit application.
Because all section 112(j) MACT determinations occur for a
particular source category within a limited time frame, the EPA agrees
that it would be duplicative and burdensome for each individual source
to initiate a MACT floor finding, and that it would be more efficient
and consistent for EPA or permitting agencies to determine the MACT
floor.
In addition, consistent MACT determinations across sources are in
the interests of both sources and permitting agencies. MACT
determinations would be more likely to be at least as stringent as the
eventual section 112(d) standard if either EPA or the permitting
agency, as opposed to each individual source, provided the initial
floor analysis. If the MACT floor is not determined consistently under
section 112(j), then chances increase that some sources would install
controls under section 112(j) that do not achieve an emission
limitation equivalent to eventual section 112(d) requirements. These
sources would then be required later to retrofit the emission unit with
different controls when the section 112(d) MACT standard is eventually
promulgated (once the compliance extension provided for in Sec. 63.56
has expired).
If section 112(j) requirements are triggered, the EPA anticipates
that a substantial amount of information on the source category will
have been collected, allowing EPA to conduct a MACT floor analysis.
When it appears that the section 112(j) requirements will take effect,
the EPA intends to make the findings of this analysis available to the
public. For example, the floor determination may be readily available
in EPA-developed Background Information Document (BID). The EPA
believes that for such cases it would be reasonable to expect that such
a BID would be taken into consideration in establishing a case-by-case
MACT emission limitation. Regardless of the format in which the MACT
floor finding is presented, the EPA expects that its finding would
include the EPA's view of the definition of source or emission unit, as
well as a delineation of applicable subcategories. However, nothing in
today's rule should be read to diminish the discretion of the
permitting authority to use its own floor finding, if the permitting
authority can present evidence for a MACT floor finding different from
that which the EPA has determined. Such evidence could be, for example,
data provided by affected owners or operators that supports a
correction to the EPA's MACT floor finding.
Although the EPA believes that it holds the greatest responsibility
for making MACT floor findings and MACT determinations available in
cases where the requirements of section 112(j) are triggered, the EPA
must still provide for those instances in which a MACT floor
determination will not be available at the time of the section 112(j)
deadline. The EPA agrees with commenters who argue, as outlined above,
that in such cases the burden for making MACT floor findings should
rest with the permitting agency, not the individual applicant. (In such
cases, the EPA may still have collected a great deal of information on
the industry, which the EPA anticipates sharing with permitting
agencies).
Section 63.55(a)(3) provides that if neither the EPA nor the
permitting authority makes a MACT floor finding by the section 112(j)
deadline, then the source shall submit a permit application, by the
section 112(j) deadline, that will be considered complete if it
contains all relevant information on emissions and controls (as set out
in Sec. 63.53(b)(1)..(9)), but no MACT floor finding or MACT
determination. Section 63.55(a)(3)(i) adds that the source may choose
to include a recommended MACT determination in its permit application.
Section 63.55(b) provides that the source's final permit must
contain a MACT determination which, based on information ``available to
or generated by'' the permitting authority, is at least as stringent as
the MACT floor. In cases where a floor has not been established by the
section 112(j) deadline by the EPA, the EPA believes that the data
collected in the permit application process, in combination with
information already collected by the EPA, can be used to establish
minimum requirements for permits. The EPA envisions that permitting
agencies can share information received in these applications, and that
such information will be reported to EPA's national database. In
addition, information generated by industry trade groups and the public
may be of assistance.
The proposed rule contained a requirement for permitting
authorities to submit copies to the Administrator of all Notice of MACT
Approvals or Title V permits within 60 days of issuance. The EPA
received many comments affirming the need for a mandatory reporting
requirement to a National database. Commenters believe this is
necessary to assure that the information used to determine the MACT
floor is representative of the full range and frequency of controls
achieved by sources in the category or subcategory. The EPA agrees that
information should be submitted to the Administrator to facilitate
information exchange between the permitting agencies making section
112(j) MACT determinations. However, the EPA believes that this
information would be most useful if received before issuance of the
permit or Notice of MACT Approval. Therefore, Sec. 6.55(c) has been
changed to require owners or operator to provide, to the Administrator,
an additional copy of any Notice of MACT Approval or title V permit
submitted to a permitting authority to comply with the requirements of
this rule.
The EPA considered requiring that, in each permit application, the
owner or operator would make a control technology recommendation
evaluating the impacts of alternative control levels and evaluating
whether, in its judgement, the recommended control technology achieves
emission reductions equal to or greater than the MACT floor. The EPA is
concerned that, while such a requirement would satisfy the requirements
of the Act, it may be overly burdensome to require each affected owner
to prepare a separate analysis of costs, environmental impacts, etc.,
needed for such a recommendation.
In today's rule, owners and operators are strongly encouraged to
provide such recommendations at the time of the application, but are
not required to do so. At a minimum, however, the owner or operator is
required to submit information on HAP emissions and current controls
for each emission point, as well as any additional information deemed
necessary by the permitting authority to evaluate control alternatives.
The EPA wishes to clarify that the requirements in Sec. 63.53
(b)(8) and (b)(9) to list emission rates is intended as background
information to enable the permitting authority to identify the
pollutants requiring MACT controls. The EPA recognizes that there is
often a significant effort required to obtain precise estimates of HAP
emission rates and speciation. The EPA does not intend in this
paragraph to require a greater level of detail than is necessary for
evaluating applicability and emission control issues.
The EPA envisions, in cases where a MACT determination has not been
provided by the Administrator, that a multi-stage process will be
involved before issuance of the final title V permit. For the first
stage, affected owners and operators would submit an initial
application identifying the current level of control and data pertinent
to the evaluation of control alternatives. Permitting authorities would
review the application and provide the owner or operator with feedback
on any additional information required. The owner or operator would be
required to supply complete information no later than 6 months from the
date of the initial application. For the second stage, the permitting
authority would, in tandem with other permitting authorities, determine
an emission limitation for each application that represents a MACT
emission limitation for each emission unit. In the last stage, the
emission limitation would be formally incorporated into the permit
through the normal title V processes (public review, etc.)
G. Section 63.56--Requirements After Promulgation of a Subsequent
Standard Under Section 112(d).
Section 63.56 of today's rule sets out requirements for
incorporating subsequent standards into an operating permit after the
owner or operator has submitted a permit application for a section
112(j) case-by-case MACT determination, or after a case-by-case MACT
determination has been made under section 112(j). Section 63.56
implements the specific requirements of subsection 112(j)(6) of the
Act.
Section 63.56 provides, as required in the Act, that if the EPA
promulgates a section 112(d) standard for a source category before
approval of a section 112(j) permit application for a source in that
source category, then the permit must reflect the section 112(d)
standard. New sources must comply upon startup with the section 112(d)
rule except that, if the MACT standard is more stringent than the
proposal, sources commencing construction or reconstruction between
proposal and promulgation may comply with the proposal for 3 years,
then meet the final MACT standard.
If EPA promulgates a section 112(d) standard after issuance of a
section 112(j) permit for a source in the relevant source category,
then the permit must be revised upon renewal to reflect the section
112(d) standard. However, the compliance period must be no longer than
a total of 8 years from the initial section 112(j) compliance date, or
the section 112(d) promulgation date, whichever is earlier.
Paragraph 63.56(c) clarifies a permitting authority's
responsibilities when a case-by-case MACT standard is more stringent
than a subsequent section 112(d) standard, and a permit containing that
case-by-case standard has been issued. In that instance, the permitting
authority is not required to revise the permit to reflect the less
stringent section 112(d) standard, but may presume that the more
stringent case-by-case determination satisfies the requirements of both
section 112(j) and section 112(d). The EPA believes that nothing in
section 112 of the Clean Air Act requires pre-emption of these more
stringent State standards. The initial responsibility for determining
whether a case-by-case MACT determination is more stringent rests with
the permitting authority. The permitting authority should expect that
EPA, in reviewing the permit at permit renewal, would look to the
criteria in subpart E for guidance in approving this determination.
IV. Discussion of the Relationship of Today's Rule to Other
Requirements of the Act
A. Section 112(g) Requirements for Constructed, Reconstructed, and
Modified Major Sources; and Subsequent Standards Under Section 112(d)
or Section 112(h)
States and sources implementing the requirements of section 112 of
the Clean Air Act need to understand the potentially complex
relationships among several interlocking provisions. At proposal the
EPA requested comment on different interpretations of the relationship
among the requirements of sections 112 (d), (g) and (j).
Internal Consistency
As discussed in section II.C. of this preamble, EPA's primary goal
is to create as much consistency as possible between case-by-case MACT
determinations under section 112(j) and implementation of subsequent
section 112(d) standards for those same source categories. In addition,
the Agency desires to rationalize the section 112(j) provisions with
the section 112(g) provisions requiring case-by-case MACT
determinations for constructed, reconstructed, and modified major
sources. While some of the specific substantive requirements of section
112(g) differ from the substantive requirements of section 112(j) and
section 112(d), the EPA intends to ensure the greatest possible
consistency among sections 112 (d), (g), and (j) provisions. This
discussion outlines EPA's preferred approach in implementing section
112(g) and achieving a consistent relationship across sections 112(d),
112(g), and 112(j). EPA recently proposed a rule implementing section
112(g) and a final determination on the relationship between these
provisions will be made in that rulemaking.
One fundamental principal guiding the design of regulations under
all three provisions is that case-by-case maximum achievable control
technology requirements under section 112(g) are applicable only until
the effective date of a section 112(j) or section 112(d) standard for a
source category. After the effective date of a section 112(j) or a
section 112(d) MACT standard, any more stringent emission limitations
required under section 112(j) or section 112(d) supersede the specific
emission limitations required under section 112(g).
The EPA considered an alternative approach, i.e. the finding that
section 112(g) governs all changes and additions of new emission units
at existing sources whether or not a section 112 (d) or (j) standard
exists. This issue generated numerous comments. Some commenters argue
that the requirements of section 112(g) should not be superseded when a
MACT emission limitation is established under either section 112(j) or
section 112(d) is promulgated. A few commenters argue that a control
technology selected for a particular standard under section 112 (j) or
(d) should not remain fixed, and that the way to continually require
better controls is through section 112(g). Others argue that because
section 112(j) does not contain the word ``modification'', that all
modifications should be handled by section 112(g).
Many argue that EPA's approach to coordinating sections section 112
(j), (d), and (g) would result in unnecessary regulatory burdens, such
as: (1) regulating sources that emit below ``de minimis'' amounts under
section 112(g) as new sources, (2) stifling technological advance and
delay needed process changes through over-regulation, and (3)
subjecting some sources to repeated MACT determinations, and perhaps
forcing sources to replace controls required under section 112(g) with
controls required under section 112(j).
Other commenters endorsed EPA's approach to coordinating section
112(j), (g), and (d), by asserting that since section 112(j) standards
will apply to an entire source category, it is important that they be
established according to a philosophy compatible with section 112(d).
The EPA recognizes that changes to a source subject to a section
112(d) MACT standard will be subject to the same control requirements
that already apply under section 112(d). The EPA believes that section
112(g) establishes case-by-case MACT to cover those major sources who
make modifications before a promulgated MACT standard applies.
Therefore consistency would suggest that similarly, changes to a source
subject to a case-by-case MACT standard under section 112(j)--which
acts in place of a section 112(d) standard--should be subject to the
same control requirements that already apply under section 112(j).
While under this approach section 112(g) continues to require
assessment of whether a modification has occurred after a section
112(d) or section 112(j) standard is in effect, it will not dictate the
level of control when the requirements of section 112(d) or section
112(j) are more stringent. The EPA believes that the internal
consistency of this approach would yield a more consistent application
of controls on major sources than would prolonging the use of case-by-
case MACT under section 112(g).
Moreover the EPA does not intend that case-by-case controls applied
under section 112(j) will result in subjecting sources to repeating and
conflicting MACT determinations. The EPA expects that case-by-case MACT
determinations under section 112(j) will require updates to those made
under section 112(g) only in rare cases.
A further reason for rejecting the approach that section 112(g)
control extends to sources covered by more stringent section 112(d) or
section 112(j) standards is that it leads to the conclusion that many
new sources within the section 112(a)(4) definition of new source would
forever escape having to apply a new source MACT level of control.
Section 112(a)(4) defines a new source as ``a stationary source the
construction or reconstruction of which is commenced after the
Administrator first proposes regulations under this section
establishing an emission standard applicable to such source.'' Thus,
once a standard has been set under section 112(d), any new source will
be subject to new source MACT. The MACT standard will define the
portion of a facility that is considered a ``source'' for the purposes
of the particular standard. Such source may be either an entire major
source, or one or more sources within the major source. (Of course a
MACT standard can also be set for area sources, which are stationary
sources that are not part of a major source; but as section 112(j) does
not apply to area sources, that is not relevant here).
Section 112 (g) applies to construction, reconstruction, or
modification of major sources, and in many cases will have an effect on
sources earlier than section 112 (d) or (j) standards. However, section
112 (g) only requires new source MACT on ``constructed'' major sources,
and considers any other new emission unit to be a modification of an
existing major source. As a ``modification,'' such a new emission unit
will be required to apply for existing source case-by-case MACT
determination under section 112(g). Therefore if section 112(g) were to
constrain the application of a subsequent section 112(j) or section
112(d) standard, many new emission units under the section 112(a)(4)
definition of ``new source'' would never be required to comply with new
source MACT.
In addition, under section 112(g) a new emission unit might not
even be required to meet an existing source MACT level of control.
Section 112(g) allows for modifications to either: (1) comply with a
case-by-case ``existing source'' MACT determination under section
112(g); (2) offset emissions increases in lieu of applying section
112(g) existing source MACT requirements; or (3) if its emissions were
below section 112(g) de minimis levels, not be subject to any control
requirements at all. The EPA believes that section 112(g) thus provides
major sources with a great deal of needed flexibility before sections
112 (d) or (j) standards are set; but that once those standards are in
place the Act intends that these sources must comply with the specific
control technology requirements of those standards instead of those of
section 112(g).
Finally, the interpretation that section 112(g) governs the control
requirements on new emission units at major sources to which section
112 (d) or (j) standards already apply would have some anomalous
implications. One example would be a new emission unit whose emissions
are below section 112(g) de minimis levels for a particular hazardous
air pollutant. If that emission unit were added to a major source, it
would be exempt from the requirements of section 112(g), but would be
required to apply new source MACT control under section 112(j).
However, if that emission unit were not below section 112(g) de minimis
levels, it would be required to comply with section 112(g). If section
112(g) requirements limit the application of section 112(j), then the
source would be required to apply existing source MACT. In this
instance, a smaller emission unit would be required to control more
stringently than a larger emission unit.
Another example of anomalies resulting from this reading of the
statute would be a section 112(d) standard that sets new source MACT
for new area sources in a source category. Under this reading, major
sources adding new sources could avoid new source MACT, but any new
area source would have to meet new source MACT. Again, a smaller unit
would be required to control more stringently than a larger emission
unit.
Several commenters argue that the requirements of section 112(j)
should only apply to new and existing major sources once, at the time
the hammer falls, and that subsequent construction of new major
sources, or additions to existing major sources should not be subject
to section 112(j) requirements. These commenters state that such
subsequent changes should be governed by section 112(g) requirements.
The EPA does not believe that section 112(j) is only applicable at
the time that the hammer falls. Section 112(j) is intended to take the
place of section 112(d) standards, and thus should apply to all sources
in the relevant category until the section 112(d) standard takes over.
Thus, a new source constructed after the hammer date, but before a MACT
standard is promulgated, should be subject to section 112(j) to the
same extent as a source that is covered by section 112(j) on the date
the hammer falls.
The EPA believes that under its preferred approach, the substantive
control requirements of section 112(g) would be pre-empted by the more
stringent requirements of a relevant section 112(j) or section 112(d)
standard. Relying on section 112(g) to cover new emission units after
the section 112(j) deadline is insufficient because it does not require
application of the equivalent of section 112(d) standards to all
sources in the relevant source category.
Similarly, some commenters argue that if a major source has
complied with section 112(g), it should have to do no more under
section 112(j). Under the EPA's preferred approach, in most cases
compliance with section 112(g) will be sufficient under section 112(j),
but there are some situations where section 112(j) may require more
control. For example, an existing major source that has been modified
and has met case-by-case MACT under section 112(g) may not have
installed MACT on all emission units in a given source category,
because some emission units may have offset out of control, and
emission units below section 112(g) de minimis emission rates will not
have applied control. Under the EPA's preferred approach, section
112(j) would require case-by-case MACT on all the emission units within
the major source that are included in the category for which the
section 112(j) deadline has passed. However in most cases where
existing source MACT controls have been applied under section 112(g),
those controls under section 112(g) will suffice for emission units
required to install existing source MACT under section 112(j). (There
may be rare cases where section 112(j) will require new source MACT on
some emission units that only have to meet existing source MACT under
section 112(g). For example, an emission unit constructed after
proposal of a section 112(d) MACT standard, but before the section
112(j) deadline, would have to meet existing source MACT under section
112(g) and later new source MACT under section 112(j). This distinction
will require more stringent control in cases where the permitting
authority finds new source MACT to be more stringent than existing
source MACT). Again, this discussion outlines the EPA's preferred
approach in implementing section 112(g) and achieving a consistent
relationship across sections 112(d), 112(g), and 112(j). The EPA
recently proposed a rule implementing section 112(g) and a final
determination on the relationship between these provisions will be made
in that rulemaking.
Administrative consistency. Voluntary administrative procedures for
new sources under section 112(j), as outlined in Sec. 63.54 of today's
rule, are intended to be analogous to administrative requirements that
will be established for modified, constructed, and reconstructed
sources under section 112(g) of the Act. These requirements were
proposed in Sec. 63.40 through 63.48 of this subpart, at 59 FR 15504
(April 1, 1994).
Figure 1 illustrates the link between the voluntary section 112(j)
preconstruction review process and the proposed section 112(g)
administrative requirements. Although the EPA believes that section
112(j) does not provide authority for an upfront review of all new
sources, the EPA believes, as a matter of policy, that whether
preconstruction or pre-operation review is done under the authority of
section 112(g) or section 112(j), the MACT determination can be
incorporated directly into the title V permit by administrative
amendment if the review process contains the elements necessary to make
it an ``enhanced'' process, as discussed in section III.C. of this
preamble.
Before the section 112(j) deadline, such sources will be required
to make a case-by-case MACT determination under section 112(g). After
the section 112(j) deadline, these sources will be required to make a
case-by-case MACT determination under section 112(j). Many of these
sources may still be subject to preconstruction or pre-operation review
under section 112(g). Sources applying for approval of a case-by-case
MACT determination under section 112(g), but who will be subject to
section 112(j) new source MACT, need to know this before they
construct, in order to install the right equipment.
In addition there will be new sources that may not be covered by
section 112(g), but who may be required to install new source MACT
under section 112(j). For example, an owner/operator may intend to make
an offset showing that would avoid a case-by-case MACT determination
under section 112(g). Or a new unit's emissions may fall below a
section 112(g) de minimis level for a specific pollutant. In both of
these cases, the owner or operator should know in advance of the
section 112(j) deadline that they may be required to install new source
MACT under section 112(j).
Therefore, any owner or operator planning to construct a new major
source, or any existing major source planning to install a new emission
unit after a scheduled promulgation date for a source category, is
encouraged to undergo ``enhanced'' preconstruction or pre-operation
review under section 112(j). This is the only way to satisfy the
requirements of title V to allow incorporation of section 112(j) MACT
emission limits in the operating permit by administrative amendment.
B. Section 112(l) Delegation Process
Under section 112(l) of the Act, States have the option of
developing and submitting to the Administrator a program for
implementing the requirements of section 112, including section 112(j).
The EPA rule implementing section 112(l) is contained in Sec. 63.90
through Sec. 63.96 of 40 CFR part 63.
The EPA believes that section 112(l) approvals do not have a great
deal of overlap with the section 112(j) provision, because section
112(j) is designed to use the title V permit process as the primary
vehicle for establishing requirements. There may be, however, some
instances where section 112(l) approvals could streamline the process.
For example, a State may have an existing rule for a source category
for which it could be demonstrated that all sources are achieving a
level of control no less stringent than required under the case-by-case
MACT requirements of section 112(j). The EPA believes that there may be
advantages in obtaining approval under subpart E for such instances.
C. Section 112(i)(5) Early Reductions Program
Section 112(i)(5) of the Act allows EPA to grant a source a 6 year
compliance extension from a section 112(d) MACT standard if the source
achieves ``early reductions'' of its emissions. An early reduction is
defined as a 90 percent reduction in a source's hazardous air pollutant
emissions (95 percent reduction in a source's particulate emissions)
before the relevant MACT standard is proposed. The source's commitment
to achieve early reductions must be federally enforceable, must be
included in the title V permit, and must be submitted to EPA within 120
days of establishment of a title V permit program, or, if later, before
the relevant section 112(d) standard for that source category is
proposed. These commitments to reduce emissions early become classified
as alternative emission limitations throughout the 6 year extension
period. Alternative emission limitations are the ``applicable emission
requirements'' for the early reduction source.
However, Sec. 63.52(c) provides that an alternative emission
limitation established for the purpose of early reduction credit can be
included as a MACT emission limitation in the permit, so long as the
reduction was achieved by the date established in the source category
schedule for standards. This requirement is established pursuant to the
specific provisions of section 112(j)(5).
V. Administrative Requirements
A. Docket
The docket for this regulatory action is A-93-32. The docket is an
organized and complete file of all the information submitted to, or
otherwise considered by, EPA in the development of this rulemaking. The
principal purposes of the docket are:
(1) To allow interested parties a means to identify and locate
documents so that they can effectively participate in the rulemaking
process, and
(2) To serve as the record in case of judicial review. The docket
is available for public inspection at the EPA's Air Docket, which is
listed under the ADDRESSES section of this document.
B. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, 10/04/94), the Agency
must determine whether the regulatory action is ``significant'' and
therefore subject to OMB review and the requirements of the Executive
Order. The Order defines ``significant'' regulatory action as one that
is likely to lead to a rule that may:
(1) Have an annual effect on the economy of $100 million or more,
or adversely and materially affect a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local or tribal governments or communities;
(2) Create a serous inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligation of recipients
thereof;
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, the EPA has
determined that this action is a ``significant regulatory action''
within the meaning of the Executive Order, because it may materially
affect the environment, public health, and State and local governments.
For this reason, this action was submitted to the OMB for review.
Changes made in response to the OMB's suggestions or recommendations
will be documented in the public record.
Any written comments from OMB to the EPA and any written EPA
response to any of those comments will be included in the docket listed
at the beginning of today's notice under ADDRESSES. The docket is
available for public inspection at the EPA Air Docket Section, (LE-
131), ATTN: Docket No. A-93-32, U.S. Environmental Protection Agency,
401 M St., SW., Washington, DC 20460.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et. seq.) requires the
EPA to consider potential impacts of proposed regulations on small
entities. If a preliminary analysis indicates that a proposed
regulation would have a significant economic impact on 20 percent or
more of small entities, then a regulatory flexibility analysis must be
prepared.
Present Regulatory Flexibility Act guidelines indicate that an
economic impact should be considered significant if it meets one of the
following criteria: (1) Compliance increases annual production costs by
more than 5 percent, assuming costs are passed on to consumers; (2)
compliance costs as a percentage of sales for small entities are at
least 10 percent more than compliance costs as a percentage of sales
for large entities; (3) capital costs of compliance represent a
``significant'' portion of capital available to small entities,
considering internal cash flow plus external financial capabilities; or
(4) regulatory requirements are likely to result in closures of small
entities.
This regulation does not affect a significant number of small
businesses, small governmental jurisdictions, or small institutions,
because this regulation only affects major sources of hazardous air
pollutants. Pursuant to the provisions of 5 U.S.C. 605(b), I hereby
certify that today's rule will not have a significant economic impact
on a substantial number of small entities.
D. Paperwork Reduction Act
The information collection requirements in this rule have been
approved by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and has been assigned
the OMB control no. 2060-0266. An Information Collection Request (ICR)
document has been prepared by the EPA (ICR No. 1648.01), and a copy may
be obtained from Sandy Farmer, Information Policy Branch (PM-2136),
U.S. Environmental Protection Agency, 401 M Street SW., Washington, DC
20460, or by calling (202) 260-2740.
This collection of information is estimated to have an average
annual public reporting burden of approximately 200 hours per
respondent. This includes time for reviewing instructions, searching
existing data sources, gathering and maintaining the data needed, and
completing and reviewing the collection of information.
Send comments regarding the burden estimate or any other aspect of
this collection of information, including suggestions for reducing this
burden to Chief, Information Policy Branch (PM-2136), U.S.
Environmental Protection Agency, 401 M Street SW., Washington, DC
20460; and to the Office of Information and Regulatory Affairs, Office
of Management and Budget, Washington, DC 20503, marked ``Attention:
Desk Officer for EPA.''
List of Subjects
40 CFR Part 9
Reporting and recordkeeping requirements.
40 CFR Part 63
Environmental protection, Administrative practices and procedures,
Air pollution control, Hazardous substances, Intergovernmental
relations, Reporting and recordkeeping requirements.
Dated: April 29, 1994.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, title 40, chapter I, of
the Code of Federal Regulations is amended as follows:
PART 9--[AMENDED]
1. The authority citation for part 9 continues to read as follows:
Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003,
2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33
U.S.C. 1251 et seq., 1311, 1313d, 1314, 1321, 1326, 1330, 1344, 1345
(d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 1971-1975 Comp.
p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g, 300g-1, 300g-2,
300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2, 300j-3, 300j-4,
300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 7542, 9601-9657,
11023, 11048.
2. Section 9.1 is amended by adding a new entry to the table under
the indicated heading to read as follows:
Sec. 9.1 OMB approvals under the Paperwork Reduction Act.
* * * * *
------------------------------------------------------------------------
40 CFR citation OMB control No.
------------------------------------------------------------------------
*****
National Emission Standards for Hazardous Air
Pollutants for Source Categories:
63.52-63.56....................................... 2060-0266
*****
------------------------------------------------------------------------
PART 63--[AMENDED]
1. The authority citation for part 63 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
2. Part 63 is amended by adding a new subpart B, consisting of
Secs. 63.40 through 63.56 to read as follows:
Subpart B--Requirements for Control Technology Determinations for Major
Sources in Accordance With Clean Air Act Sections, Sections 112(g) and
112(j)
Sec.
63.40-63.49 [Reserved]
63.50 Applicability.
63.51 Definitions.
63.52 Approval process for new and existing emission units.
63.53 Application content for case-by-case MACT determinations.
63.54 Preconstruction review procedures for new emission units.
63.55 Maximum achievable control technology (MACT) determinations
for emission units subject to case-by-case determination of
equivalent emission limitations.
63.56 Requirements for case-by-case determination of equivalent
emission limitations after promulgation of a subsequent MACT
standard.
Subpart B--Requirements for Control Technology Determinations for
Major Sources in Accordance With Clean Air Act Sections, Sections
112(g) and 112(j)
Secs. 63.40-63.49 [Reserved]
Sec. 63.50 Applicability.
(a) General applicability. The requirements of Secs. 63.50 through
63.56 implement section 112(j) of the Clean Air Act (as amended in
1990). The requirements of Secs. 63.50 through 63.56 apply in each
State beginning on the effective date of an approved title V permit
program in such State. These requirements apply to the owner or
operator of a major source of hazardous air pollutants which includes
one or more stationary sources included in a source category or
subcategory for which the Administrator has failed to promulgate an
emission standard under this part by the section 112(j) deadline.
(b) Relationship to State and local requirements. Nothing in
Secs. 63.50 through 63.56 shall prevent a State or local regulatory
agency from imposing more stringent requirements than those contained
in these subsections.
(c) Retention of State permit program approval. In order to retain
State permit program approval, a State must, by the section 112(j)
deadline for a source category, obtain sufficient legal authority to
establish equivalent emission limitations, to incorporate those
requirements into a title V permit, and to incorporate and enforce
other requirements of section 112(j).
Sec. 63.51 Definitions.
Terms used in Secs. 63.50 through 63.56 of this subpart that are
not defined below have the meaning given to them in the Act, in subpart
A of this part.
Available information means, for purposes of conducting a MACT
floor finding and identifying control technology options for emission
units subject to the provisions of this subpart, information contained
in the following information sources as of the section 112(j) deadline:
(1) A relevant proposed regulation, including all supporting
information;
(2) Background information documents for a draft or proposed
regulation;
(3) Any regulation, information or guidance collected by the
Administrator establishing a MACT floor finding
and/or MACT determination;
(4) Data and information available from the Control Technology
Center developed pursuant to section 112(l)(3) of the Act, and
(5) Data and information contained in the Aerometric Informational
Retrieval System (AIRS) including information in the MACT database, and
(6) Any additional information that can be expeditiously provided
by the Administrator, and
(7) Any information provided by applicants in an application for a
permit, permit modification, administrative amendment, or Notice of
MACT Approval pursuant to the requirements of this subpart.
(8) Any additional relevant information provided by the applicant.
Control technology means measures, processes, methods, systems, or
techniques to limit the emission of hazardous air pollutants including,
but not limited to, measures which:
(1) Reduce the quantity, or eliminate emissions, of such pollutants
through process changes, substitution of materials or other
modifications;
(2) Enclose systems or processes to eliminate emissions;
(3) Collect, capture, or treat such pollutants when released from a
process, stack, storage or fugitive emissions point;
(4) Are design, equipment, work practice, or operational standards
(including requirements for operator training or certification) as
provided in 42 USC 7412(h); or
(5) Are a combination of paragraphs (1) through (4) of this
definition.
Emission point means any part or activity of a major source that
emits or has the potential to emit, under current operational design,
any hazardous air pollutant.
Emission unit means any building, structure, facility, or
installation. This could include an emission point or collection of
emission points, within a major source, which the permitting authority
determines is the appropriate entity for making a MACT determination
under section 112(j), i.e., any of the following:
(1) An emission point that can be individually controlled.
(2) The smallest grouping of emission points, that, when collected
together, can be commonly controlled by a single control device or work
practice.
(3) Any grouping of emission points, that, when collected together,
can be commonly controlled by a single control device or work practice.
(4) A grouping of emission points that are functionally related.
Equipment is functionally related if the operation or action for which
the equipment was specifically designed could not occur without being
connected with or without relying on the operation of another piece of
equipment.
(5) The entire geographical entity comprising a major source in a
source category subject to a MACT determination under section 112(j).
Enhanced review means a review process containing all
administrative steps needed to ensure that the terms and conditions
resulting from the review process can be incorporated into the title V
permit by an administrative amendment.
Equivalent emission limitation means an emission limitation,
established under section 112(j) of the Act, which is at least as
stringent as the MACT standard that EPA would have promulgated under
section 112(d) or section 112(h) of the Act.
Existing major source means a major source, construction or
reconstruction of which is commenced before EPA proposed a standard,
applicable to the major source, under section 112 (d) or (h), or if no
proposal was published, then on or before the section 112(j) deadline.
Maximum achievable control technology (MACT) emission limitation
for existing sources means the emission limitation reflecting the
maximum degree of reduction in emissions of hazardous air pollutants
(including a prohibition on such emissions, where achievable) that the
Administrator, taking into consideration the cost of achieving such
emission reductions, and any non-air quality health and environmental
impacts and energy requirements, determines is achievable by sources in
the category or subcategory to which such emission standard applies.
This limitation shall not be less stringent than the MACT floor.
Maximum achievable control technology (MACT) emission limitation
for new sources means the emission limitation which is not less
stringent than the emission limitation achieved in practice by the best
controlled similar source, and which reflects the maximum degree of
reduction in emissions of hazardous air pollutants (including a
prohibition on such emissions, where achievable) that the
Administrator, taking into consideration the cost of achieving such
emission reduction, and any non-air quality health and environmental
impacts and energy requirements, determines is achievable by sources in
the category or subcategory to which such emission standard applies.
Maximum Achievable Control Technology (MACT) floor means:
(1) For existing sources:
(i) The average emission limitation achieved by the best performing
12 percent of the existing sources in the United States (for which the
Administrator has emissions information), excluding those sources that
have, within 18 months before the emission standard is proposed or
within 30 months before such standard is promulgated, whichever is
later, first achieved a level of emission rate or emission reduction
which complies, or would comply if the source is not subject to such
standard, with the lowest achievable emission rate (as defined in
section 171 of the Act) applicable to the source category and
prevailing at the time, in the category or subcategory, for categories
and subcategories of stationary sources with 30 or more sources; or
(ii) The average emission limitation achieved by the best
performing five sources in the United States (for which the
Administrator has or could reasonably obtain emissions information) in
the category or subcategory, for a category or subcategory of
stationary sources with fewer than 30 sources;
(2) For new sources, the emission limitation achieved in practice
by the best controlled similar source.
New emission unit means an emission unit for which construction or
reconstruction is commenced after the section 112(j) deadline, or after
proposal of a relevant standard under section 112(d) or section 112(h)
of the Clean Air Act (as amended in 1990), whichever comes first,
except that, as provided by Sec. 63.52(f)(1), an emission unit, at a
major source, for which construction or reconstruction is commenced
before the date upon which the area source becomes a major source,
shall not be considered a new emission unit if, after the addition of
such emission unit, the source is still an area source.
New major source means a major source for which construction or
reconstruction is commenced after the section 112(j) deadline, or after
proposal of a relevant standard under section 112(d) or section 112(h)
of the Clean Air Act (as amended in 1990), whichever comes first.
Permitting authority means the permitting authority as defined in
part 70 of this chapter.
Section 112(j) deadline means the date 18 months after the date for
which a relevant standard is scheduled to be promulgated under this
part. The applicable date for categories of major sources is contained
in the source category schedule for standards.
Similar source means an emission unit that has comparable emissions
and is structurally similar in design and capacity to other emission
units such that the emission units could be controlled using the same
control technology.
Source category schedule for standards means the schedule for
promulgating MACT standards issued pursuant to section 112(e) of the
Act.
United States means the United States, its possessions and
territories.
Sec. 63.52 Approval process for new and existing emission units.
(a) Application. (1) Except as provided in Sec. 63.52(a)(3), if the
Administrator fails to promulgate an emission standard under this part
on or before an applicable section 112(j) deadline for a source
category or subcategory, the owner or operator of an existing major
source that includes one or more stationary sources in such category or
subcategory, shall submit an application for a title V permit or
application for a significant permit modification, whichever is
applicable, by the section 112(j) deadline.
(2) If the Administrator fails to promulgate an emission standard
under this part on or before an applicable section 112(j) deadline for
a source category or subcategory, the owner or operator of a new
emission unit in such source category or subcategory shall submit an
application for a title V permit or application for a significant
permit modification or administrative amendment, whichever is
applicable, in accordance with procedures established under title V.
(3) (i) The owner or operator of an existing major source that
already has a title V permit requiring compliance with a limit that
would meet the requirements of section 112(j) of the Act, shall submit
an application for an administrative permit amendment, by the section
112(j) deadline, in accordance with procedures established under title
V.
(ii) The owner or operator of a new emission unit that currently
complies with a federally enforceable alternative emission limitation,
or has a title V permit that already contains emission limitations
substantively meeting the requirements of section 112(j), shall submit
an application for an administrative permit amendment confirming
compliance with the requirements of section 112(j), in accordance with
procedures established under title V, and not later than the date 30
days after the date construction or reconstruction is commenced.
(4) In addition to meeting the requirements of Sec. 63.52(a)(2),
the owner or operator of a new emission unit may submit an application
for a Notice of MACT Approval before construction, pursuant to
Sec. 63.54.
(b) Permit review. (1) Permit applications submitted under this
paragraph will be reviewed and approved or disapproved according to
procedures established under title V, and any other regulations
approved under title V in the jurisdiction in which the emission unit
is located. In the event that the permitting authority disapproves a
permit application submitted under this paragraph or determines that
the application is incomplete, the owner or operator shall revise and
resubmit the application to meet the objections of the permitting
authority not later than six months after first being notified that the
application was disapproved or is incomplete.
(2) If the owner or operator has submitted a timely and complete
application for a title V permit, significant permit modification, or
administrative amendment required by this paragraph, any failure to
have this permit will not be a violation of the requirements of this
paragraph, unless the delay in final action is due to the failure of
the applicant to submit, in a timely manner, information required or
requested to process the application.
(c) Emission limitation. The permit or Notice of MACT Approval,
whichever is applicable, shall contain an equivalent emission
limitation (or limitations) for that category or subcategory determined
on a case-by-case basis by the permitting authority, or, if the
applicable criteria in subpart D of this part are met, the permit or
Notice of MACT Approval may contain an alternative emission limitation.
For the purposes of the preceding sentence, early reductions made
pursuant to section 112(i)(5)(A) of the Act shall be achieved not later
than the date on which the relevant standard should have been
promulgated according to the source category schedule for standards.
(1) The permit or Notice will contain an emission standard or
emission limitation to control the emissions of hazardous air
pollutants. The MACT emission limitation will be determined by the
permitting authority and will be based on the degree of emission
reductions that can be achieved, if the control technologies or work
practices are installed, maintained, and operated properly. Such
emission limitation will be established consistent with the principles
contained in Sec. 63.55.
(2) The permit or Notice will specify any notification, operation
and maintenance, performance testing, monitoring, reporting and
recordkeeping requirements. The permit or Notice will include the
following information:
(i) In addition to the MACT emission limitation required by
paragraph (c)(1) of this section, additional emission limits,
production limits, operational limits or other terms and conditions
necessary to ensure federal enforceability of the MACT emission
limitation;
(ii) Compliance certifications, testing, monitoring, reporting and
recordkeeping requirements that are consistent with requirements
established pursuant to title V, Sec. 63.52(e), and, at the discretion
of the permitting authority, to subpart A of this part;
(iii) A statement requiring the owner or operator to comply with
all requirements contained in subpart A of this part deemed by the
permitting authority to be applicable;
(iv) A compliance date(s) by which the owner or operator shall be
in compliance with the MACT emission limitation, and all other
applicable terms and conditions of the Notice.
(d)(1) Compliance date. The owner or operator of an existing major
source subject to the requirements of this paragraph shall comply with
the emission limitation(s) established in the source's title V permit.
In no case will such compliance date exceed 3 years after the issuance
of the permit for that source, except where the permitting authority
issues a permit that grants an additional year to comply in accordance
with section 112(i)(3)(B), or unless otherwise specified in section
112(i), or in subpart D of this part.
(2) The owner or operator of a new emission unit subject to the
requirements of this paragraph shall comply with a new source MACT
level of control immediately upon issuance of the title V permit for
the emission unit.
(e) Enhanced monitoring. In accordance with section 114(a)(3) of
the Act, monitoring shall be capable of detecting deviations from each
applicable emission limitation or other standard with sufficient
reliability and timeliness to determine continuous compliance over the
applicable reporting period. Such monitoring data may be used as a
basis for enforcing emission limitations established under this
subpart.
(f) Area sources that become major sources. (1) After the effective
date of this subpart, the owner or operator of a new or existing area
source that increases its emissions of, or its potential to emit,
hazardous air pollutants such that the source becomes a major source
that is subject to this subpart shall submit an application for a title
V permit or application for a significant permit modification, or
administrative amendment, whichever is applicable, by the date that
such source becomes a major source.
(i) If an existing area source becomes a major source by the
addition of an emission unit or as a result of reconstructing, that
added emission unit or reconstructed emission unit shall comply with
all requirements of this subpart that affect new emission units,
including the compliance date for new emission units established in
Sec. 63.52(d).
(ii) If an area source, constructed after the section 112(j)
deadline, becomes a major source solely by virtue of a relaxation in
any federally enforceable emission limitation, established after the
section 112(j) deadline, on the capacity of an emission unit or units
to emit a hazardous air pollutant, such as a restriction on hours of
operation, then that emission unit or units shall comply with all
requirements of this subpart that affect new emission units, on or
before the date of such relaxation.
(2) After the effective date of this subpart, if the Administrator
establishes a lesser quantity emission rate under section 112(a)(1) of
the Act that results in an area source becoming a major source, then
the owner or operator of such major source shall submit an application
for a title V permit or application for a significant permit
modification, or administrative amendment, whichever is applicable, on
or before the date 6 months from the date that such source becomes a
major source. If an existing area source becomes a major source as a
result of the Administrator establishing a lesser quantity emission
rate, then any emission unit, at that source, for which construction or
reconstruction is commenced before the date upon which the source
becomes major shall not be considered a new emission unit.
Sec. 63.53 Application content for case-by-case MACT determinations.
(a) MACT Demonstration. Except as provided by Sec. 63.55(a)(3), an
application for a MACT determination shall demonstrate how an emission
unit will obtain the degree of emission reduction that the
Administrator or the State has determined is at least as stringent as
the emission reduction that would have been obtained had the relevant
emission standard been promulgated according to the source category
schedule for standards for the source category of which the emission
unit is a member.
(b) MACT Application. The application for a MACT determination
shall contain the following information:
(1) The name and address (physical location) of the major source;
(2) A brief description of the major source, its source category or
categories, a description of the emission unit(s) requiring a MACT
determination pursuant to other requirements in this subpart, and a
description of whether the emission unit(s) require new source MACT or
existing source MACT based on the definitions established in
Sec. 63.51;
(3) For a new emission unit, the expected date of commencement of
construction;
(4) For a new emission unit, the expected date of completion of
construction;
(5) For a new emission unit, the anticipated date of startup of
operation;
(6) The hazardous air pollutants emitted by each emission point,
and an estimated emission rate for each hazardous air pollutant.
(7) Any existing federally enforceable emission limitations
applicable to the emission point.
(8) The maximum and expected utilization of capacity of each
emission point, and the associated uncontrolled emission rates for each
emission point;
(9) The controlled emissions for each emission point in tons/year
at expected and maximum utilization of capacity, and identification of
control technology in place;
(10) Except as provided in Sec. 63.55(a)(3), the MACT floor as
specified by the Administrator or the permitting authority.
(11) Except as provided in Sec. 63.55(a)(3), recommended emission
limitations for the emission unit(s), and supporting information,
consistent with Sec. 63.52(c) and Sec. 63.55(a).
(12) Except as provided in Sec. 63.55(a)(3), a description of the
control technologies that will apply to meet the emission limitations
including technical information on the design, operation, size,
estimated control efficiency, and any other information deemed
appropriate by the permitting authority, and identification of the
emission points to which the control technologies will be applied;
(13) Except as provided in Sec. 63.55(a)(3), parameters to be
monitored and frequency of monitoring to demonstrate continuous
compliance with the MACT emission limitation over the applicable
reporting period.
(14) Any other information required by the permitting authority
including, at the discretion of the permitting authority, information
required pursuant to subpart A of this part.
Sec. 63.54 Preconstruction review procedures for new emission units.
(a) Review process for new emission units. (1) If the permitting
authority requires an owner or operator to obtain or revise a title V
permit before construction of the new emission unit, or when the owner
or operator chooses to obtain or revise a title V permit before
construction, the owner or operator shall follow the administrative
procedures established under title V before construction of the new
emission unit.
(2) If an owner or operator is not required to obtain or revise a
title V permit before construction of the new emission unit (and has
not elected to do so), but the new emission unit is covered by any
preconstruction or pre-operation review requirements established
pursuant to section 112(g) of the Act, then the owner or operator shall
comply with those requirements, in order to ensure that the
requirements of section 112(j) and section 112(g) are satisfied. If the
new emission unit is not covered by section 112(g), the permitting
authority, in its discretion, may issue a Notice of MACT Approval, or
the equivalent, in accordance with the procedures set forth in
paragraphs (b) through (h) of this section, or an equivalent permit
review process, before construction or operation of the new emission
unit.
(3) Regardless of the review process, the MACT determination shall
be consistent with the principles established in Sec. 63.55. The
application for a Notice of MACT Approval or a title V permit, permit
modification, or administrative amendment, whichever is applicable,
shall include the documentation required by Sec. 63.53.
(b) Optional administrative procedures for preconstruction or pre-
operation review for new emission units. The permitting authority may
provide for an enhanced review of section 112(j) MACT determinations
that provides for review procedures and compliance requirements
equivalent to those set forth in paragraphs (b) through (h) of this
section.
(1) The permitting authority will notify the owner or operator in
writing as to whether the application for a MACT determination is
complete or whether additional information is required.
(2) The permitting authority will approve an applicant's proposed
control technology, or the permitting authority will notify the owner
or operator in writing of its intention to disapprove a control
technology.
(3) The owner or operator may present in writing, within a time
frame specified by the permitting authority, additional information,
considerations, or amendments to the application before the permitting
authority's issuance of a final disapproval.
(4) The permitting authority will issue a preliminary approval or
issue a disapproval of the application, taking into account additional
information received from the owner or operator.
(5) A determination to disapprove any application will be in
writing and will specify the grounds on which the disapproval is based.
(6) Approval of an applicant's proposed control technology will be
set forth in a Notice of MACT Approval (or the equivalent) as described
in Sec. 63.52(c).
(c) Opportunity for public comment on Notice of MACT Approval. The
permitting authority will provide opportunity for public comment on the
preliminary Notice of MACT Approval prior to issuance, including, at a
minimum,
(1) Availability for public inspection in at least one location in
the area affected of the information submitted by the owner or operator
and of the permitting authority's tentative determination;
(2) A period for submittal of public comment of at least 30 days;
and
(3) A notice by prominent advertisement in the area affected of the
location of the source information and analysis specified in
Sec. 63.52(c). The form and content of the notice will be substantially
equivalent to that found in Sec. 70.7 of this chapter.
(4) An opportunity for a public hearing, if one is requested. The
permitting authority will give at least 30 days notice in advance of
any hearing.
(d) Review by the EPA and Affected States. The permitting authority
will send copies of the preliminary notice (in time for comment) and
final notice required by paragraph (c) of this section to the
Administrator through the appropriate Regional Office, and to all other
State and local air pollution control agencies having jurisdiction in
the region in which the new source would be located. The permitting
authority will provide EPA with a review period for the final notice of
at least 45 days, and will not issue a final Notice of MACT approval
unless EPA objections are satisfied.
(e) Effective date. The effective date for new sources under this
subsection shall be the date a Notice of MACT Approval is issued to the
owner or operator of a new emission unit.
(f) Compliance date. New emission units shall comply with case-by-
case MACT upon issuance of a title V permit for the emission unit.
(g) Compliance with MACT Determinations. An owner or operator of a
major source that is subject to a MACT determination shall comply with
notification, operation and maintenance, performance testing,
monitoring, reporting, and recordkeeping requirements established under
Sec. 63.52(e), under title V, and at the discretion of the permitting
authority, under subpart A of this part. The permitting authority will
provide the EPA with the opportunity to review compliance requirements
for consistency with requirements established pursuant to title V
during the review period under paragraph (d) of this section.
(h) Equivalency under Section 112(l). If a permitting authority
requires preconstruction review for new source MACT determinations
under this subpart, such requirement shall not necessitate a
determination under subpart E of this part.
Sec. 63.55 Maximum achievable control technology (MACT) determinations
for emission units subject to case-by-case determination of equivalent
emission limitations.
(a) Requirements for emission units subject to case-by-case
determination of equivalent emission limitations. The owner or operator
of a major source submitting an application pursuant to Sec. 63.52 or
Sec. 63.54 shall include elements specified in Sec. 63.53, taking into
consideration the following requirements:
(1) When the Administrator has proposed a relevant emission
standard for the source category pursuant to section 112(d) or section
112(h) of the Act, then the control technologies recommended by the
owner or operator under Sec. 63.53(b)(12), when applied to the emission
points recommended by the applicant for control, shall be capable of
achieving all emission limitations and requirements of the proposed
standard unless the application contains information adequate to
support a contention that:
(i) different emissions limitations represent the maximum
achievable control technology emission limitations for the source
category, or
(ii) requirements different from those proposed by EPA will be
effective in ensuring that MACT emissions limitations are achieved.
(2) When the Administrator or the permitting authority has issued
guidance or distributed information establishing a MACT floor finding
for the source category or subcategory by the section 112(j) deadline,
then the recommended MACT emission limitations required by
Sec. 63.53(b)(11) must be at least as stringent as the MACT floor,
unless the application contains information adequately supporting an
amendment to such MACT floor.
(3)(i) When neither the Administrator nor the permitting authority
has issued guidance or distributed information establishing a MACT
floor finding and MACT determination for a source category or
subcategory by the section 112(j) deadline, then the owner or operator
shall submit an application for a permit or application for a Notice of
MACT Approval, whichever is applicable, containing the elements
required by Sec. 63.53(b) (1) through (9) and (14), by the section
112(j) deadline.
(ii) The owner or operator may recommend a control technology that
either achieves a level of control at least as stringent as the
emission control that is achieved in practice by the best controlled
similar source, or obtains at least the maximum reduction in emissions
of hazardous air pollutants that is achievable considering costs, non
air quality health and environmental impacts, and energy requirements.
(4) The owner or operator may select a specific design, equipment,
work practice, or operational standard, or combination thereof, when it
is not feasible to prescribe or enforce an equivalent emission
limitation due to the nature of the process or pollutant. It is not
feasible to prescribe or enforce a limitation when the Administrator
determines that a hazardous air pollutant (HAP) or HAPs cannot be
emitted through a conveyance designed and constructed to capture such
pollutant, or that any requirement for, or use of, such a conveyance
would be inconsistent with any Federal, State, or local law, or the
application of measurement methodology to a particular class of sources
is not practicable due to technological and economic limitations.
(b) Requirements for permitting authorities. The permitting
authority will determine whether the permit application or application
for a Notice of MACT Approval is approvable. If approvable, the
permitting authority will establish hazardous air pollutant emissions
limitations equivalent to the limitation that would apply if an
emission standard had been issued in a timely manner under subsection
112 (d) or (h) of the Act. The permitting authority will establish
these emissions limitations consistent with the following requirements
and principles:
(1) Emission limitations will be established for all emission units
within a source category or subcategory for which the section 112(j)
deadline has passed.
(2) Each emission limitation for an existing emission unit will
reflect the maximum degree of reduction in emissions of hazardous air
pollutants (including a prohibition on such emission, where achievable)
that the permitting authority, taking into consideration the cost of
achieving such emission reduction and any non-air quality health and
environmental impacts and energy requirements, determines is achievable
by emission units in the category or subcategory for which the section
112(j) deadline has passed. This limitation will not be less stringent
than the MACT floor, and will be based upon available information and
information generated by the permitting authority before or during the
application review process, including information provided in public
comments.
(3) Each emission limitation for a new emission unit will not be
less stringent than the emission limitation achieved in practice by the
best controlled similar source, and must reflect the maximum degree of
reduction in emissions of hazardous air pollutants (including a
prohibition on such emissions, where achievable) that the permitting
authority, taking into consideration the cost of achieving such
emission reduction, and any non-air quality health and environmental
impacts and energy requirements, determines is achievable. This
limitation will be based at a minimum upon available information and
information provided in public comments.
(4) When the Administrator has proposed a relevant emissions
standard for the source category pursuant to section 112(d) or section
112(h) of the Act, then the equivalent emission limitation established
by the permitting authority shall ensure that all emission limitations
and requirements of the proposed standard are achieved, unless the
permitting authority determines based on additional information that:
(i) Different emissions limitations represent the maximum
achievable control technology emission limitations for the source
category; or
(ii) Requirements different from those proposed by EPA will be
effective in ensuring that MACT emissions limitations are achieved.
(5) When the Administrator or the permitting authority has issued
guidance or collected information establishing a MACT floor finding for
the source category or subcategory, the equivalent emission limitation
for an emission unit must be at least as stringent as that MACT floor
finding unless, based on additional information, the permitting
authority determines that the additional information adequately
supports an amendment to the MACT floor. In that case, the equivalent
emission limitation must be at least as stringent as the amended MACT
floor.
(6) The permitting authority will select a specific design,
equipment, work practice, or operational standard, or combination
thereof, when it is not feasible to prescribe or enforce an equivalent
emission limitation due to the nature of the process or pollutant. It
is not feasible to prescribe or enforce a limitation when the
Administrator determines that a hazardous air pollutant (HAP) or HAPs
cannot be emitted through a conveyance designed and constructed to
capture such pollutant, or that any requirement for, or use of, such a
conveyance would be inconsistent with any Federal, State, or local law,
or the application of measurement methodology to a particular class of
sources is not practicable due to technological and economic
limitations.
(7) Nothing in this subpart will prevent a State or local
permitting authority from establishing an emission limitation more
stringent than required by Federal regulations.
(c) Reporting to National Data Base. The owner or operator shall
submit additional copies of its application for a permit, permit
modification, administrative amendment, or Notice of MACT Approval,
whichever is applicable, to the EPA by the section 112(j) deadline for
existing emission units, or by the date of the application for a permit
or Notice of MACT Approval for new emission units.
Sec. 63.56 Requirements for case-by-case determination of equivalent
emission limitations after promulgation of a subsequent MACT standard.
(a) If the Administrator promulgates an emission standard that is
applicable to one or more emission units within a major source before
the date a permit application under this paragraph is approved, the
permit shall contain the promulgated standard rather than the emission
limitation determined under Sec. 63.52, and the owner or operator shall
comply with the promulgated standard by the compliance date in the
promulgated standard.
(b) If the Administrator promulgates an emission standard under
section 112 (d) or (h) of the Act that is applicable to a source after
the date a permit is issued pursuant to Sec. 63.52 or Sec. 63.54, the
permitting authority shall revise the permit upon its next renewal to
reflect the promulgated standard. The permitting authority will
establish a compliance date in the revised permit that assures that the
owner or operator shall comply with the promulgated standard within a
reasonable time, but not longer than 8 years after such standard is
promulgated or 8 years after the date by which the owner or operator
was first required to comply with the emission limitation established
by permit, whichever is earlier.
(c) Notwithstanding the requirements of paragraph (a) or (b) of
this section, if the Administrator promulgates an emission standard
that is applicable to a source after the date a permit application is
approved under Sec. 63.52 or Sec. 63.54, the permitting authority is
not required to change the emission limitation in the permit to reflect
the promulgated standard if the level of control required by the
emission limitation in the permit is at least as stringent as that
required by the promulgated standard.
[FR Doc. 94-10971 Filed 5-19-94; 8:45 am]
BILLING CODE 6560-50-P
