EPA-450/3-91-019
General Provisions for
40 CFR Part 63 :
National Emission Standards for
Hazardous Air Pollutants for
Source Categories
Background Information
for Proposed Regulation
Emission Standards Division
U.S. ENVIRONMENTAL PROTECTION AGENCY
Office of Air and Radiation
Office of Air Quality Planning and Standards
Research Triangle Park, North Carolina 27711
June 1993
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DISCLAIMER
This report has been reviewed by the Emission Standards
Division of the Office of Air Quality Planning and
Standards, EPA, and approved for publication. Mention of
trade_names or commercial products is not intended to
constitute endorsement or recommendation for use. Copies of
this report are available through the Library Services
Office (MD-35) , U. S. Environmental Protection Agency,
Research Triangle Park, North Carolina 27711, telephone
(919) 541-2777 and from National Technical Information
Services, 5285 Port Royal Road, Springfield, Virginia •
22161, telephone (703) 487-4650.
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ENVIRONMENTAL PROTECTION AGENCY
Background Information
for General Provisions for 40 CFR Part 63
Prepared by:
6ruce C.Jordan Date
Director, Ejriission Standards Division
U. S. Environmental Protection Agency
Research Triangle Park, NC 27711
1. The proposed General Provisions would eliminate the
repetition of general information and requirements within
national emission standards for hazardous air pollutants
(NESHAP) to be established subsequent to.the Clean Air Act
Amendments of 1990. Under section 112 of the Clean Air Act
as amended, the EPA is authorized to promulgate national
standards to control emissions of hazardous air pollutants
from categories of stationary sources of these pollutants.
The proposed General Provisions, to be located in subpart A
of part 63 of title 40 of the Code of Federal Regulations,
would codify procedures and criteria to implement NESHAP for
source categories.
2. Copies of this document have been sent to the following
Federal Departments: Labor, Health and Human Services,
Defense, Transportation, Agriculture, Commerce, Interior,
and Energy; the National Science Foundation; the Council on
Environmental Quality; members of the State and Territorial
Air Pollution Program Administrators; the Association of
Local Air Pollution Control Officials; EPA Regional
Administrators; and other interested parties.
3. The comment period for review of this document is 60 days
from the date of publication of the proposed rule in the
Federal Register. Mr. Fred Dimmick or Ms. Michele Dubow may
be contacted at (919) 541-5625 or (919) 541-3803 regarding
the date of the comment period.
4. For additional information contact:
Ms. Michele Dubow
Standards Development Branch (MD-13)
U. S. Environmental Protection Agency
Research Triangle Park, NC 27711
Telephone: (919) 541-3803
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5. Copies of this document may be obtained from:
U. S. EPA Library (MD-35)
Research Triangle Park, NC
Telephone: (919) 541-2777
27711
National Technical Information Services
5285 Port Royal- Road
Springfield, VA 22161
Telephone: (703) 487-4650
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GENERAL PROVISIONS - 40 CFR PART 63
TABLE OF CONTENTS
LIST OF ABBREVIATIONS AND ACRONYMS iii
LIST OF TABLES
Table 1 - Outline of Existing General
Provisions - 40 CFR Part 60,
Subpart A 7
Table 2 - Outline of Existing General
Provisions - 40 CFR Part 61,
Subpart A. 8
Table 3 - Outline for Proposed General
Provisions - 40 CFR Part 63,
Subpart A. 9
Table 4 - Outline of Section 112 of Clean Air
Act Amendments of 1990 - Hazardous
Air Pollutants, 67
I. INTRODUCTION
Purpose of General Provisions 1
Purpose of Background Information
Document 4
II. WHY PROVISIONS ARE NEEDED / REVIEW OF CONTENT AND
HISTORY OF EXISTING GENERAL PROVISIONS /
REQUIREMENTS OF CLEAN AIR ACT AMENDMENTS OF 1990
Chapter 1 - Applicability 11
Chapter 2 - Definitions 13
Chapter 3 - Units and Abbreviations 17
Chapter 4 - Prohibited Activities and
Circumvention 19
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GENERAL PROVISIONS - 40 CFR PART 63
Chapter 5 - Construction, Reconstruction, and
Modification 21
Chapter 6 - Compliance with Standards and
Maintenance Requirements 31
Chapter 7 - Testing and Monitoring
Requirements 41
Chapter 8 - Notification, Recordkeeping, and
Reporting Requirements 47
Chapter 9 - Compliance with Permit Program
Requirements 51
Chapter 10- List of Pollutants 55
Chapter 11- List of Source Categories and
Schedule for Regulation . 57
Chapter 12- State Authority 59
Chapter 13- Addresses of State Air Pollution
Control Agencies and the EPA
Regional Offices ; . . 61
Chapter 14- Incorporations by Reference 63
Chapter 15- Availability of Information
and Confidentiality. . , 65
III.STATUTORY REQUIREMENTS OF THE CLEAN AIR ACT THAT ARE
RELEVANT TO THE GENERAL PROVISIONS FOR 40 CFR PART 63
Title I - Section 112 (as amended in
1990) 69
Title I - Section 114 (as amended in
1990) 99
Title V - Sections 501-504 (as added in
1990) 103
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GENERAL PROVISIONS - 40 CFR PART 63
LIST OF ABBREVIATIONS AND ACRONYMS
Act
BDT
BID
CAAA
CFR
EPA
HAP
MACT
NESHAP
NSPS
O/O
Clean Air Act, amended 1977
Best Demonstrated Technology
Background Information Document
Clean Air Act Amendments of 1990
Code of Federal Regulations
Environmental Protection Agency
Hazardous Air Pollutant(s)
Maximum Achievable Control Technology
National Emission Standard(s) for Hazardous
Air Pollutant(s)
New Source Performance Standard(s)
Owner or Operator(s)
iii
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GENERAL PROVISIONS - 40 CFR PART 63
IV
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GENERAL PROVISIONS - 40 CFR PART 63
I. INTRODUCTION
PURPOSE OF GENERAL PROVISIONS
The existing General Provisions (subpart A of parts 60
and 61 of title 40 of the Code of Federal Regulations (CFR))
codify procedures and criteria used to implement new source
performance standards (NSPS) and national emission standards
for hazardous air pollutants (NESHAP). They eliminate the
repetition of general information in these standards,
promurgated under sections 111 and 112 of the Clean Air Act
(the Act) and codified in subsequent subparts of parts 60
and 61. The General Provisions concern compliance with
standards, emission testing and monitoring, construction,
reconstruction and modification, waivers of compliance, and
requests to use an alternative design, piece of equipment,
work practice, or operation in place of one specified by a
standard. The existing General Provisions also include
definitions of terms, units and abbreviations, lists of
pollutants and source categories to which the General
Provisions (and subsequent regulations) apply, addresses of
State air pollution control agencies and Environmental
Protection Agency (EPA) Regional Offices to which
implementation and enforcement authority has been delegated,
incorporations by reference of technical materials,
prohibited activities, and requirements for reporting,
notifications, and recordkeeping. The complete contents of
the existing General Provisions are listed in Tables 1
and 2.
General Provisions are being proposed for 40 CFR part
63, a new part, that would include technology-based
standards for source categories emitting one or more of the
189 chemicals or chemical classes to be regulated as
hazardous air pollutants (HAP) under new section 112 (title
III) of the Clean Air Act Amendments of 1990 (CAAA).
Failure to propose and promulgate new General Provisions
would seriously impair implementation of the "maximum
achievable control technology" (MACT) and other standards
required under new section 112.
A new part in the CFR is needed for NESHAP and their
General Provisions that will be established pursuant to the
CAAA in order to distinguish them from existing NESHAP that
are in part 61. Section 112(q) of the CAAA adds a "savings
provision" that preserves the legality of existing NESHAP
until they are amended. It says that "any standard under
[section 112] promulgated before the date of enactment of
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GENERAL PROVISIONS - 40 CFR PART 63
the [CAAA] shall remain in force and effect after such date
unless modified as provided in this section before the date
of enactment of such Amendments or under such Amendments."
The
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GENERAL PROVISIONS - 40 CFR PART 63
section 111 are either criteria pollutants or non-criteria,
non-HAP.
New section 112, however, requires the Administrator to
promulgate technology-based emission standards for source
categories that emit hazardous air pollutants that are
listed in section 112(b) of the CAAA. The basis for the
standards is a new definition of "achievable" technology,
developed for the purposes of section 112, that combines
elements from the standard-setting criteria from both
section 111 and the previous section 112. These include a
health-based HAP list (as in former section 112),
consideration of cost and other non-health impacts (as in
section 111), and permission to specify a design, equipment,
work practice, or operational standard instead of an
emission standard (as in both sections). Furthermore,
emission standards (or approved alternatives) promulgated
for hazardous air pollutants under new section 112 may be
different for new and existing sources.
To reflect the nature of new section 112 standards, the
proposed General Provisions combine elements from both
previous sets of General Provisions. The General Provisions
being proposed are similar to those already promulgated for
parts 60 and 61 with some notable differences:
* The proposed General Provisions are organized to group
all related provisions under the same section, e.g.,
provisions concerning procedures to approve source
construction and reconstruction are now in one section
with appropriately labeled subsections.
* The proposed General Provisions have been adapted
to meet the technical and legal requirements of the
CAAA; provisions are included to address new
compliance requirements under title III, permit
program requirements under title V, and other
statutory requirements.
* While the proposed compliance, monitoring and
enforcement requirements are similar to those
currently used under section 111 and section 112
standards, consideration has been given to
correcting past problems encountered in
implementing part 60 and part 61 standards. For
example, to address the problem of owners or
operators (0/0) failing to plan adequately for
compliance tests, the General Provisions for part
63 would require O/O to prepare a site-specific
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GENERAL PROVISIONS - 40 CFR PART 63
test plan and have it approved by the enforcement
agency before a required performance test.
The proposed General Provisions distinguish between
major and area sources where it is necessary to do so
to implement statutory requirements that apply only to
major sources.
PURPOSE OF BACKGROUND INFORMATION DOCUMENT
This Background Information Document (BID) was created
for two major reasons: (l) to assist the process of
developing new General Provisions for part 63, and (2) to
reduce the amount of documentation that must appear in the
preamble to this regulation. This document does not contain
descriptions of the contents of the new General Provisions
for part 63, but, rather, it provides an historical sense of
perspective on precedents set by the EPA in implementing the
General Provisions under the old Act.
In addition to discussions about the purpose of General
Provisions and the purpose of this document, part I of the
BID also contains outlines of the existing General
Provisions for parts 60 and 61 (Tables 1 and 2) and an
outline for the proposed General Provisions for part 63
(Table 3). Subsequent to this introduction (part I), this
document contains two other parts.
Part II contains 15 chapters that each discuss one
component of General Provisions language in parts 60 and 61
(except for Chapter 9 that deals with permit program
requirements). The titles and ordering of these chapters
closely mimic that of the General Provisions themselves.
Each chapter in part II contains three sections: "Why
needed," "Relevant Requirements and History of Parts 60 and
61," and "Statutory Requirements of CAAA." The first
section in part II states why such language should' be
included in a general provisions section of a regulation.
The second section in part II provides the requirements and
history of the existing General Provisions in parts 60 and
61, and the third section summarizes the statutory
requirements of the CAAA of 1990 that affect the proposed
General Provisions.
The requirements and history of the existing General
Provisions were gleaned from a thorough examination of these
provisions and all the Federal Register notices that pertain
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GENERAL PROVISIONS - 40 CFR PART 63
to them. (Relevant Federal Register notices may be found in
the Docket for this rulemaking.)
Part III of the BID contains, the statutory requirements
of the CAAA that are relevant to the General Provisions for
40 CFR part 63. Sections featured are comprised primarily
of those in new section 112 and sections 501-504 of title V.
These requirements are reproduced from the new amendments.
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GENERAL PROVISIONS - 40 CFR PART 63
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GENERAL PROVISIONS - 40 CFR PART 63
TABLE 1
OUTLINE OF EXISTING GENERAL PROVISIONS -
40 CFR PART 60. STTBPART A
Section
60.1 Applicability.
60.2 Definitions.
60.3 Units and abbreviations.
60.4 Address.
60.5 Determination of construction or modification.
60.6 Review of plans.
60.7 Notification and record keeping.
60.8 Performance tests.
60.9 Availability of information.
60.10 State authority.
60.11 Compliance with standards and maintenance
requirements.
60.12 Circumvention.
60.13 Monitoring requirements..
60.14 Modification.
60.15 Reconstruction.
60.16 Priority list.
60.17 Incorporation by reference.
60.18 General control device requirements.
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GENERAL PROVISIONS - 40 CFR PART 63
TABLE 2
OUTLINE OF EXISTING GENERAL PROVISIONS
40 CFR PART 61. SUBPART A
Section
61.01 Lists of pollutants and applicability of part 61,
61.02 Definitions.
61.03 Units and abbreviations.
61.04 Address.
61.05 Prohibited activities.
61.06 Determination of construction or'modification.
61.07 Application for approval of construction or
modification.
61.08 Approval of construction or modification.
61.09 Notification of startup.
61.10 Source reporting and request for waiver of
compliance.
61.11 Waiver of compliance.
61.12 Compliance with standards and maintenance
requirements.
61.13 Emission tests and waiver of emission tests.
61.14 Monitoring requirements.
61.15 ' Modification.
61.16 Availability of information.
61.17 State authority.
61.18 Incorporations by reference.
61.19 Circumvention.
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GENERAL PROVISIONS - 40 CFR PART 63
TABLE 3
OUTLINE OF PROPOSED GENERAL PROVISIONS -
40 CFR PART 63. SUBPART A
Section
63.1 Applicability.
63.2 Definitions.
63.3 Units and abbreviations.
63.4 Prohibited activities and circumvention.
63.5 Construction and reconstruction.
63.6 Compliance with standards and maintenance
requirements.
63.7 Performance testing requirements.
63.8 Monitoring requirements.
63.9 Notification requirements.
63 .10 Recordkeeping and reporting requirements.
63 .11 Control device requirements.
63 .12 State authority and delegations.
63.13 Addresses of State air pollution control agencies
and the EPA Regional offices.
63.14 Incorporations by reference.
63.15 Availability of information and confidentiality.
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GENERAL PROVISIONS - 40 CFR PART 63
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GENERAL PROVISIONS - 40 CFR PART 63
II. WHY PROVISIONS ARE NEEDED / REVIEW OF
CONTENT AND HISTORY OF EXISTING GENERAL
PROVISIONS / REQUIREMENTS OF CLEAN AIR ACT
AMENDMENTS OF 1990
CHAPTER 1 - APPLICABILITY
(1) WHY NEEDED:
A section on applicability is needed in order to
implement and enforce the standards because it is necessary
to specify to whom or to what the standards apply. The
section on applicability also highlights when compliance
with requirements established under other titles may be
required. In addition, for the purposes of 40 CFR part 63,
existing- and future NESHAP need to be distinguished.
(2) RELEVANT REQUIREMENTS AND HISTORY OF PARTS 60 AND 61:
For part 61 NESHAP, the General Provisions were/are
applicable to an 0/0 of any stationary source that
emitted/emits a HAP for which a standard was prescribed
under this part.
Except as provided in the subparts specified in §60.1,
the General Provisions for part 60 NSPS apply to stationary
sources containing an "affected facility" which commences
construction, reconstruction, or modification after the date
of the proposed, or published standard (whichever is earlier)
applicable to that facility. (Under part 60, the term
"affected facility" is used to designate the unit subject to
a standard.)
(3) STATUTORY REQUIREMENTS OF CAAA:
Summary
Standards established under new section 112 are
applicable to source categories that emit one or more of the
HAP that are listed in the CAAA, are added by petition to
the list of pollutants to be regulated, or are added by the
Administrator to the list of pollutants, and that are not
deleted from the list. The "Initial List of Categories of
Sources Under Section 112(c)(1) of the Clean Air Act
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GENERAL PROVISIONS - 40 CFR PART 63
Amendments of 1990" was published on July 16, 1992 (57 FR
31576). The General Provisions would apply to all source
categories for which standards are promulgated under
sections 112(d), 112(h), and 112(f) of the Act, for which
alternative emissions limitations are granted under section
112(i)(5), and for which case-by-case emissions limitations
are established under sections 112(g) and 112(j) (except as
otherwise specified in the regulations established to
implement these subsections).
Standards promulgated under section 112 before the CAAA
were enacted remain in effect after the date of enactment
unless they are modified before the date of enactment or
under the Amendments. Categories of sources previously
regulated under section 112 may be listed by the ;
Administrator for regulation under new section 112 (57 FR
31576, July 16, 1992).
Special rules for radionuclides emitted from a variety
of sources are included in new section 112(q) (2)- (4).
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GENERAL PROVISIONS - 40 CFR PART 63
CHAPTER 2 - DEFINITIONS
(1) WHY NEEDED:
A section with definitions is needed to define the
terms that will be used in the General Provisions and
subsequent subparts that establish NESHAP regulations. The
definitions in the General Provisions for parts 60 and 61
need to be updated to reflect the needs of current or future
regulations in parts 63, 70, and 71.
(2) RELEVANT REQUIREMENTS AND HISTORY OF PARTS 60 AND 61:
In 44 FR 55173, September 25, 1979, the list of
definitions in part 60 is rearranged alphabetically to
facilitate its use and to make additions easier. New
additions are to be added alphabetically. In 44 FR 55174,
September 25, 1979, the list of definitions in §61.02 is
rearranged alphabetically. .
Specifically, in §60.2 (NSPS), definitions are included
for STANDARD, AFFECTED FACILITY, EXISTING FACILITY,
MODIFICATION, STATIONARY SOURCE, NEW SOURCE, CAPITAL
EXPENDITURE, ALTERNATIVE METHOD, ACT, ADMINISTRATOR,
CONSTRUCTION, CONTINUOUS MONITORING SYSTEM, EQUIVALENT
METHOD, ISOKINETIC SAMPLING, MALFUNCTION, MONITORING DEVICE,
NITROGEN OXIDES, ONE-HOUR PERIOD, OPACITY, OWNER OR
OPERATOR, PARTICULATE MATTER, PROPORTIONAL SAMPLING,
REFERENCE METHOD, RUN, SHUTDOWN, SIX-MINUTE PERIOD, STANDARD
CONDITIONS, STARTUP, VOLATILE ORGANIC COMPOUND.
In §61.02 (NESHAP), definitions are included for ACT,
ADMINISTRATOR, ALTERNATIVE METHOD, CAPITAL EXPENDITURE,
COMMENCED, COMPLIANCE SCHEDULE, CONSTRUCTION, EFFECTIVE
DATE, EXISTING SOURCE [section 111(a)], MONITORING SYSTEM,
NEW SOURCE [section 112(a) (2)], OWNER OR OPERATOR [section
111(a)], REFERENCE METHOD, RUN, STANDARD [section
112(b)(1)(B) and (e)(l)], STARTUP, STATIONARY SOURCE
[section 111(a)].
Some of these definitions in §61.02 have a statutory
basis; some have proven controversial and have had to be
changed in the Federal Register in the past. For example,
"affected facility" and "existing facility," regulatory
counterparts of the statutory definitions for new source and
existing source in section 111, were amended; also,
"alternative method" was amended by removing the reference
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GENERAL PROVISIONS - 40 CFR PART 63
to "equivalent method" so that all methods that are not
reference methods but that may be used to determine
compliance are defined as alternative methods. These
changes were discussed and promulgated in 49 FR 23520 (June
6, 1984) .
In formulating a definition for standard in part 63,
the EPA examined the statutory history of the definition of
'^standard" in parts 60 and 61. The definition of "standard"
in §61.02 is "a national emission standard including a
design, equipment, work practice or operational standard for
a HAP proposed or promulgated under this part" [emphasis
added]. The wording of "standard" for part 61 was derived
from former section 112(e)(5). The definition is consistent
with that of the Act. (See 50 FR 46286, November 7, 1985.)
In the past, the EPA has confirmed that, by promulgating a
definition of standard consistent with section 112, the EPA
was not attempting to address any questions regarding the
work practice requirements of any particular standard (the
case in question was vinyl chloride; 50 FR 46290, November
7, 1985) .
The definition of "standard" for part 60 is "a standard
of performance proposed or promulgated under this part"
[emphasis added]. Depending on the source being regulated,
a standard of performance means emission limitations and
percent reductions in emissions, emission limitations, or
any applicable standard that meets specified conditions
[section 111(a) (1) (A) -(C)]. A standard of performance
"shall reflect the degree of emission limitation and the
percentage reduction achievable through application of the
best technological system of continuous emission reduction
which^ (taking into consideration the cost of achieving such
emission reduction, any non-air quality health and
environmental impact and energy requirements) the
Administrator determines has been adequately demonstrated"
[section 111(a)(1)(C)]. For convenience, this is referred
to as "best demonstrated technology" or "BDT" (51 FR 42796,
November 25, 1986).
In former section 112, "hazardous air pollutant" meant
"an air pollutant to which no ambient air quality standard
is applicable and which...causes, or contributes to, air
pollution which may reasonably be anticipated to result in
an increase in mortality or an increase in serious
irreversible, or incapacitating reversible, illness"
[section 112(a)(1)]. This definition is changed in the new
section 112 (now section 112(a)(6)).
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GENERAL PROVISIONS - 40 CFR PART 63
In former section 112, "new source" meant a stationary
source the construction or modification of which is
commenced after an applicable emission standard is proposed
[section 112(a) (2)]. In section 111, "new source" means
"any stationary source the construction or modification of
which is commenced after publication of regulations (or, if
earlier, proposed regulations) prescribing a standard of
performance under this section which will be applicable to
such source" [emphasis added] [section 111(a)(2); also, see
§60.14 for the definition of "modification" in the context
of section 111].
(3) STATUTORY REQUIREMENTS OF CAAA:
Summary
For the purposes of air toxics regulations to be
established under new section 112, sources are divided into
two categories: "major sources" and "area sources." The
difference between them has to do with the quantity of HAP
they emit, or have the potential to emit, considering
controls, per year. Generally, major sources emit 10 tons
per year or more of any HAP or 25 tons per year of any
combination of HAP; by definition, area sources are those
that emit less than these quantities. The Administrator may
establish lesser quantity cutoff criteria for major sources
based on health considerations.
The term "stationary source" means any facility or
installation which emits or has the potential to emit any
HAP. A major source (or an area source) is defined 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 the quantities of HAP already
mentioned.
Of particular importance to the General Provisions is
that the meaning of "modification" of a source has changed
under the new Act. While under former section 112,
modification meant a physical or operational change in a
stationary source that resulted in an increase in the rate
of emission of a HAP to which a standard applied, for NESHAP
promulgated under new section 112, modification will mean
any physical or operational change in a major source that
increases the actual emissions of any HAP by more than a de
minimis amount or that results in the emission of any HAP
not previously emitted in more than a de minimis amount.
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GENERAL PROVISIONS - 40 CFR PART 63
Moreover, an increase in the amount of any HAP emitted will
not be considered a modification if such an increase1 is
offset by an equal or greater decrease in the amount of
another HAP or HAPs, provided the other pollutant(s) is(are)
considered more hazardous, or the quantity of emissions is
considered more hazardous, depending on how this issue is
resolved after public comment. (The EPA plans to take
comments on both approaches when guidance implementing the
modification provisions of amended section 112 is
published.) Also, unlike section 111, a modification under
new section 112 does not mean a source is "new," and,
therefore, it does not mean that modified sources must
comply with standards for new sources.
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GENERAL PROVISIONS - 40 CFR PART 63
CHAPTER 3 - UNITS AND ABBREVIATIONS
(1) WHY NEEDED:
This section is needed to standardize abbreviations and
units of measure that will be used in standards.
(2) RELEVANT REQUIREMENTS AND HISTORY OF PARTS 60 AND 61:
Sections 60.3 and 61.3 are subdivided into four
categories: (a) SI units of measure, (b) other, (c)
chemical nomenclature, and (d) miscellaneous.
The International System of Units (SI) is used in all
EPA regulations issued under parts 60 and 61 with common
equivalents provided in parentheses where desirable. The
Metric Conversion Act of 1975 established U.S. policy
regarding use of the metric system.
Authority comes from section 111, former section 112,
and section 301(a) of the Act.
(3) STATUTORY REQUIREMENTS OF CAAA:
None.
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GENERAL PROVISIONS - 40 CFR PART 63
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GENERAL PROVISIONS - 40 CFR PART 63
CHAPTER 4 - PROHIBITED ACTIVITIES AND CIRCUMVENTION
(1) WHY NEEDED:
Provisions on prohibited activities and circumvention
establish the legal (regulatory) basis for a determination
of a violation of the Act under section 111 and 112. They
also clearly prohibit an O/O from using devices or
techniques that conceal, rather than control, emissions to
comply with standards of performance for new sources (39 FR
9308, March 8, 1974), and by analogy, they prohibit the
concealment of emissions to comply with emission standards
(or their approved alternatives) for new and existing
sources subject to regulation under section 112.
(2) RELEVANT REQUIREMENTS AND HISTORY OF PARTS 60 AND 61:
Compliance requirements exist for: (a) approval of
construction or modification, (b) operating new sources, (c)
operating existing sources, (d) reporting source tests, (e)
dates by which compliance is required.
.The EPA considered it preferable to state clearly what
is prohibited and to use the Administrator's authority to
specify the conditions for compliance testing in each case
to ensure that prohibited concealment is not used (39 FR
9308, March 8, 1974). For both parts -60 and 61, no 0/0
shall conceal an emission that would, otherwise constitute a
violation of an applicable standard. What constitutes
concealment is listed for each part. This provision appears
in §60.12, Compliance with Standards and Maintenance
Requirements, and §61.19, Circumvention.
For part 61 NESHAP, after a standard becomes effective,
approval from the Administrator is required to construct or
modify a stationary source subject to that standard (this
includes sources that begin construction or modification
after the publication date of the proposed standard)
[section 112(c) (2)]. Exceptions are allowed by Presidential
exemption. After the effective date, no person may operate
a new stationary source subject to that standard in
violation of the standard except under a Presidential
exemption. An existing source must be in compliance 90 days
after the effective date except under a Presidential
exemption or waiver by the Administrator.
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GENERAL PROVISIONS - 40 CFR PART 63
Compliance with reporting requirements is also
required.
(3) STATUTORY REQUIREMENTS OF CAAA:
Summary
Sources must be in compliance with the applicable
standards (or alternative emission limitations) and permit
program requirements by the dates specified in the CAAA.
Emitting HAP in violation of such a standard or without a
permit, if one is required, is a violation of the Act.
Specific provisions concerning circumvention or the
prevention of prohibited activities are not included in the
CAAA, but General Provisions like those in parts 60 and 61
are included in the proposed General Provisions for part 63
to address these issues.
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GENERAL PROVISIONS - 40 CFR PART 63
CHAPTER 5 -
CONSTRUCTION. RECONSTRUCTION.
AND MODIFICATION
(1) WHY NEEDED:
In parts 60 and 61, the General Provisions governing
construction, reconstruction, and modification determine
when a NSPS or NESHAP becomes applicable. Standards apply
to newly constructed sources, according to the definition of
"new source" in the Act, and to existing sources that
undergo modification or reconstruction. The provisions
define modification and reconstruction for regulatory
purposes and specify how emissions will be determined
(measured or estimated) for the purposes of section 111 and
former section 112. The provisions allow the Administrator
to implement and enforce NSPS and existing NESHAP by keeping
track of new source construction and existing source
modification/reconstruction.
Similar provisions are needed in part 63 for the
reasons given above; however, because modification is
defined in the 1990 Amendments differently from how it was
defined in former section 112, the content of the part 63
rules must be different in order to implement new section
112(g), "Modifications." One difference between the old and
the new Act is that emission offsets are now allowed when a
determination of modification is made. Another difference
is that all major sources that are newly constructed,
reconstructed, or modified must have a permit to operate,
whether or not they are subject to a standard or other
requirement under new section 112 (provided a permit program
is effective in that State). If a source is not subject to
a standard, the Administrator (or the State with an approved
permit program) must include in the source's permit an
emission limitation that is equivalent to what the standard
would have been for an existing source in the case of a
modification and for a new source in the case of new or
reconstructed sources. If an applicable standard is
subsequently promulgated, the source's permit must be
revised upon renewal to reflect the level of control in the
promulgated standard.
Previously, upon modification, an existing source
became a new source for each HAP for which the emission rate
increased and to which a standard applied. Under the new
Act, a modified source for which a standard is set on a
case-by-case basis must meet the standard for existing
sources.
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GENERAL PROVISIONS - 40 CFR PART 63
Also, under new section 112(i)(1), an O/O must obtain
approval from the Administrator to construct a new major
source or reconstruct an existing major source after a
relevant standard in part 63 is promulgated. This
requirement applies whether or not an approved 'permit
program is effective in the State in which the affected
source is located.
(2) RELEVANT REQUIREMENTS AND HISTORY OF PARTS 60 AND 61:
New Construction and Modification
The construction of a new source or modification of an
existing source covered by the standards in parts 60 and 61
cannot begin without approval of the Administrator (38 FR
8826, April 6, 1973). In order to grant approval for a
(re)construction or modification, the Administrator must
determine that the (re)constructed or modified source will
not cause emissions in violation of a standard if the source
is properly operated. Reconstructed sources become affected
facilities that are subject to applicable NSPS.
For Part 61 NESHAP:
Under former section 112(a)(3), the definition of
modification was the same as under section 111(a)(4).
Section 111(a)(4) defines modification as "any physical
change in, or change in a method of operation of, a
stationary source which increases the amount of any air
pollutant emitted by such source or which results in the
emission of any air pollutant not previously emitted."
Because in practice this definition proved to be; vague,
revisions were proposed to the General Provisions to clarify
both the definition and the degree of its impact on sources
in order to clear up confusion outside the EPA (39 FR 36946,
October 15, 1974) [section 111(a)(4); §60.2(h)]. Also,
there was a need to define an increase in emissions because
this was not done in the Act. For part 61, any physical or
operational change resulting in an increase in the rate of
emission to the atmosphere of a HAP to which a standard
applies has been considered a modification. Upon
modification, an existing source became a new source for
each HAP for which the emission rate increased and to which
a standard applied. This is different now for part 63.
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GENERAL PROVISIONS - 40 CFR PART 63
As stated in the preamble to one of the revisions (49
FR 23520, June 6, 1984), "In both sections, modification has
the same definition and the same basic, intent - to require a
stationary source which has increased the amount of its
emissions as a result of a physical or operational change to
meet the emission standards for new sources. Therefore, the
Administrator would generally use the same criteria for
determining modification for sources subject to part 61 as
were proposed and promulgated for part 60".
Emission rates currently are expressed as kilograms per
hour (kg/hr) of HAP. Emission rates are determined by (1)
emission factors, or (2) material balances, monitoring data,
or manual emission tests, depending on whether emission
factors do or do not demonstrate clearly that an emission
rate will or will not increase. "Only where the resulting
change in emission rate is ambiguous, or where a dispute
arises as to the result obtained by the use of emission
factors, will other methods be used" (40 FR 58416, December
16, 1975). The General Provisions for part 61 say emission
tests from §61.13(a) (emission testing required by an
applicable subpart) may be used, if approved by the
Administrator; if manual tests are used, the Student's t
test procedure requires 3 runs before and 3 runs after the
change (to test statistically significant increases as
opposed to routine fluctuations (39 FR 36946, October 15,
1974)); operating parameters must be held constant.
Regulatory exceptions to modification for NESHAP
included: routine maintenance/repair; an increase in the^
production rate with no capital expenditure; an increase in
hours of operation; conversion to coal (section 111(a)(8));
relocation or change in ownership of the source (but these
must be reported according to §61.15(d)(5) as described
under §61.10(c)). (Relocation of a source by itself does
not constitute a modification since this change does not
increase emissions (50 FR 46290, November 7, 1985)).
New and existing sources of HAP generally were subject
to the same emission limits under former section 112.
However, consideration was given to setting separate
standards for new and existing sources during the standard-
setting process (40 FR 23571, June 6, 1984). Generally, the
only difference in the standards for new and existing
sources was the time by which a source had to comply with
the standard. Also, an existing source could request a
waiver of compliance for up to 2 years after the effective
date of the standard if it was unable to comply within 90
days after the effective date. New sources were not
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GENERAL PROVISIONS - 40 CFR PART 63
eligible for waivers. Thus, modification mainly affected
existing sources operating under a waiver of compliance.
Modified sources had to comply upon startup.
For part 61 NESHAP, capital expenditure rather than
operating design capacity (40 FR 58416, December 16, 1975)
was used as a criterion for exemption for production rate
increases in determining modification. The idea here was to
be less vague since "operating design capacity" is difficult
to define and for some industries the design capacity bears
little relationship to the actual operating capacity of the
source. An increase in production rate without a capital
expenditure was not considered a modification. This is
consistent with the revision to the same exemption in part
60 (40 FR 58416, December 16, 1975).
Specific components of the part 61 modification
provisions are noted below:
* An 0/0 may submit to the Administrator a written
application for a determination of whether actions
intended to be taken constitute construction or
modification. The Administrator has 30 days after
receiving sufficient information to notify the O/O.
* The O/O shall submit to the Administrator an
application for approval of the construction of any
new source or the modification of any existing
source within the time period specified in the
General Provisions. A separate application is
required for each stationary source. The required
application contents are listed in the General
Provisions in §61.7.
* The Administrator will notify the O/O of the
approval or intention to deny approval within 60
days after receipt of sufficient information.
(Note: "Will" is preferred by the EPA to "shall"
to describe actions the Administrator will take
through the General Provisions.) Grounds for
approval and denial are specified in-the General
Provisions. The criterion for approval is that the
new source will be able to meet the applicable
standard. Before denying an application, the
Administrator will notify the applicant of an
intention to deny. The applicant has an
opportunity to present additional information
before^the final determination. The -final
determination is to be made in writing 60 days
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GENERAL PROVISIONS - 40 CFR PART 63
after the additional information is presented or
would have been presented.
Neither submission of an application for approval
nor approval of construction or modification
relieves an 0/0 of responsibility for compliance
with all Federal, State, and local requirements, or
prevents the Administrator from implementing or
enforcing the provisions of part 61 or any other
action covered under the Act.
For Part 60 NSPS:
The definition of modification in section 111(a)(4) is
"any physical change in, or change in a method of operation
of, a stationary source which increases the amount of any
air pollutant emitted by such source or which results in the
emission of any air pollutant not previously emitted." The
legislative history for section 111 allows considerable
latitude in interpreting phrases such as "increases the
amount of any air pollutant emitted" (39 FR 36946, October
15, 1974) . . .
For part 60 NSPS, modification is the same as in part
61, except that it applies to any pollutant to which a
standard applies. In 45 FR 5616, January 23, 1980,
modification is defined as "any physical change in the
method of operation of an existing facility which increases
the amount of any air pollutant (to which a standard
applies) emitted into the atmosphere by that facility or
which results in the emission of any air pollutant (to which
a standard applies) into the atmosphere not previously
emitted." Upon modification, an "existing facility" becomes
an "affected facility."
As mentioned in the part 61 section earlier, revisions
were proposed to section 111(a)(4) to clear up its intent.
As stated in the preamble to one of the revisions (49 FR
23520, June 6, 1984), "In both sections, modification has
the same definition and the same basic intent - to require a
stationary source which has increased the amount of its
emissions, as a result of a physical or operational change to
meet the emission standards for new sources. Therefore, the
Administrator would generally use the same criteria for
determining modification for sources subject to part 61 as
were proposed and promulgated for part 60."
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GENERAL PROVISIONS - 40 CFR PART 63
Emission rates are expressed and determined the same
ways as above. By defining "increase in emissions" in terms
of kg/hr, the regulations could not be interpreted as
considering an increase in opacity of emissions as a
modification unless there is a corresponding increase in
mass rate of pollutant emissions (30 FR 36946, October 15,
1974).
The addition of an affected facility to a stationary
source as an expansion or replacement "[does] not by itself
bring within the applicability of this part any other
facility within that source" [§60.14(c)].
In addition to those listed above for part 61,
exceptions to modification in part.60 include: (1) the use
of an alternative fuel or raw material if the facility was
designed to accommodate the alternative; (2) the addition or
use of air pollution control equipment, except when it is
removed or an inferior one replaced; (3) special provisions
in subparts that supersede conflicting provisions in this
section of the General Provisions. (The EPA stated its
belief that the exemption to modification for the addition
of air pollution control equipment is inappropriate for part
61 General Provisions because of the hazardous nature of the
subject pollutants (i.e., for public health reasons)).
For NSPS (as well as for NESHAP), capital expenditure
rather than operating design capacity (40 FR 58416, December
16, 1975) is to be used as a criterion for exemption for
production rate increases in determining a modification (39
FR 36946, October 15, 1974).
Specific components of the part 60 provisions for
construction and modification are noted below:
* Compliance must be achieved within 180 days of
completion of the modification.
*
*
Construction includes reconstruction.
If an O/O requests, the Administrator will review
plans for construction or modification for the
purpose of providing technical advice. This
provision applies to NSPS only. Requirements for
the request are specified.
Neither the request for review nor advice furnished
by the Administrator relieves the 0/0 of
responsibility for compliance or prevents the
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GENERAL PROVISIONS - 40 CFR PART 63
Administrator from implementing or enforcing any
provision or action authorized by the Act.
Reconstruction
For the purposes of section 111 and part 60, an
existing facility becomes an affected facility upon
reconstruction. regardless of any change in emission rate.
Reconstruction means the replacement of components of an
existing facility such that the fixed capital cost equals at
least 50 percent of what it would cost to build a comparable
new facility (the definition of fixed capital cost is given
(40 FR 58416, December 16, 1975)), and it is technologically
and economically feasible to meet the applicable standards
set forth in part 60. Essentially, reconstruction meeting
these specifications constitutes new construction rather
than modification and is subject to NSPS.
The purpose of this provision is to discourage the
perpetuation of a facility instead of its replacement at the
end of its useful life with a newly constructed affected
facility. As NSPS are proposed for additional source
categories, replacements that will be considered
reconstruction will be identified in the subparts (39 FR
36946, October 15, 1974). It was the EPA's intent in this
provision to prevent circumvention of the law (40 FR 58416,
December 16, 1975).
Specific components of the part 60 reconstruction
provisions are noted below:
* If the fixed capital cost is greater than or equal
to 50 percent of the cost of a new facility, the
O/O shall notify the Administrator of the proposed
replacements 60 days (or as soon as practicable)
prior to construction, including the information
requested in §60.15(d)(1)-(7).
* The Administrator has 30 days after receipt of
adequate information to respond with a
determination of reconstruction. The determination
shall be on a case-by-case basis, based on the
criteria in §60.15(f) (1)- (4). The 50 percent
replacement criterion is designed merely to key the
notification to the Administrator; it is not an
independent basis for the Administrator's
determination (40 FR 58416, December 16, 1975).
The final determination as to when it is
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GENERAL PROVISIONS - 40 CFR PART 63
technologically and economically feasible to comply
with the applicable standards of performance is
left with the Administrator because the spectrum of
possibilities is too broad to be specific.
Section 60.15(g) says that "Individual subparts of
this part may include specific provisions which
refine and delimit the concept of reconstruction
set forth in this section."
(3) STATUTORY REQUIREMENTS OF CAAA:
Summary
While modification under section 112 previously meant a
physical or operational change in a stationary source that
resulted in an increase in the rate of emission of a ,HAP 'to
which a standard applied, under new section 112,
modification will mean any physical or operational change in
a major source that increases the actual emissions of any
HAP by more than a de minimis amount or that results in the
emission of any HAP not previously emitted in more than a de
minimis amount.
A new exception to a determination of modification is
made in new section 112(g)(l)(A). An increase in the amount
of any HAP emitted will not be considered a modification if
such an increase is offset by an equal or greater decrease
in the amount of another HAP or HAPs that is/are considered
more hazardous, or the quantity of emissions is considered
more hazardous, depending on how this issue is resolved
after public comment. An increase that is appropriately
offset is not a modification that would subject the source
to a MACT standard applicable to existing sources. The
Administrator must publish guidance to facilitate the
implementation of HAP offsets.
After the effective date of a title V permit program in
a State, a major source of HAP in the jurisdiction of that
program may not be constructed, reconstructed, or modified
unless the source is in compliance with a "MACT
determination." This applies whether or not the source is
subject to a promulgated MACT standard or other requirements
under section 111 or new section 112. If the source 'is not
subject to an emission standard under part 63, the O/O must
apply for and obtain a "MACT determination" prior to |the
construction, reconstruction, or modification. The
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GENERAL PROVISIONS - 40 CFR PART 63
determination must include an emission limitation that the
Administrator, or the State with an approved title V permit
program, determines on a case-by-case basis is equivalent to
the MACT standard (had it been issued) for new sources of a
similar type in the case of construction or reconstruction,
or for existing sources of a similar type in the case of
modification. •
Furthermore, after the effective date of any applicable
section 112 standard promulgated in part 63, a major source
of HAP may not be constructed or reconstructed unless the
Administrator determines that the source will comply with
the applicable standard if it is properly constructed, or
reconstructed, and operated. This requirement is specified
in new section 112(i)(1), and it applies whether or not a
title V permit program is approved in the State in which the
major source is located.
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GENERAL PROVISIONS - 40 CFR PART 63
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GENERAL PROVISIONS - 40 CFR PART 63
CHAPTER 6 - COMPLIANCE WITH STANDARDS
AND MAINTENANCE REQUIREMENTS
(1) WHY NEEDED:
For NESHAP, §61.12 was added to the General Provisions
to clarify the basis for determining compliance with a
standard and the responsibilities of an O/O to maintain and
operate the source using good air pollution control
practices. Also, it allows the O/O to obtain permission to
use alternative equipment or procedures to comply with a
design, equipment, work practice, or operational standard.
Section 60.11 serves a similar function.
For NSPS, §60.18 of the General Provisions contains
requirements for control devices used to'comply with
applicable subparts of part 60. The requirements apply only
to facilities covered by subparts referring to this section.
This provision originally was placed at the end of the
General Provisions for part 60 for administrative
convenience.
Former section 112 (c) (1) (B) of the Act clearly stated
that an existing source shall comply with the standard
within 90 days of the effective date unless the source is
operating under a waiver of compliance. (A new or modified
source must comply upon beginning operation.) In part 61,
General Provisions are included (§61.10 and §61.11) to
address procedures for requesting and approving waivers of
compliance.
The General Provisions for part 63 have been updated to
meet the compliance requirements of the CAAA. Alternative
standards (design, equipment, or work practice) are still
allowed, but new and modified sources no longer have to
comply upon startup under certain conditions. A variety of
exemptions, extensions, and waivers from the compliance
schedules are allowed under the CAAA.
(2) RELEVANT REQUIREMENTS AND HISTORY OF PARTS 60 AND 61:
Various amendments have been made to the General
Provisions to give the Administrator needed flexibility for
making judgments for determining compliance with standards,
e.g., the authority was given to permit the use of minor
changes to reference test methods and to approve the use of
two runs instead of three in special cases.
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GENERAL PROVISIONS - 40 CFR PART 63
For both NSPS and NESHAP, good air pollution control
practices "for minimizing emissions" must be used at all
times. The EPA stated its belief that the words "for
minimizing emissions" serve to clarify the phrase "good air
pollution control practices" and therefore should be
included (50 FR 46290, November 7, 1985). .(See also 42 FR
57125, November 1, 1977).
For NSPS and NESHAP, individual subparts take
precedence over the General Provisions when they are in
conflict.
Compliance with Standards and Maintenance Reauirements
For Part 61 NESHAP;
For NESHAP, compliance with emission standards was
determined by emission tests (§61.13). (Emission standards
became effective upon promulgation [section 112(b)(1)(C)].)
However, former section 112(e)(3) allowed an alternative
means of compliance if it was equally effective. An
emission standard could be replaced by a design, equipment,
work practice, or operational standard, or a combination
thereof [section 112(e) (1)], until it became possible to
implement an emission standard [section 112(e) (4)], provided
the Administrator approved [section 112(e) (3)] . For
standards other than emission standards, the conditions for
compliance were specified in the applicable subpart.
The Act said that the Administrator will publish in the
Federal Register a notice permitting the use of an
alternative means of compliance. ("Will" is preferred by
the EPA to "shall" to describe actions the Administrator
will take through the General Provisions.) To seek
permission to use an alternative means of compliance, an O/O
had to submit a test plan or results of testing. A written
application requesting such permission was required,
including the information above and descriptions of
procedures followed and pertinent conditions during testing
or monitoring. If permission was granted it was published
in the Federal Register after notice and opportunity ifor
public hearing (49 FR 23520, June 6, 1984). An alternative
method could be approved either for a specific site or for
all facilities, in which case it would be added to Appendix
B for part 61 and referenced in the appropriate standard.
The Administrator had authority to withdraw approval of the
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GENERAL PROVISIONS - 40 CFR PART 63
alternative and require the use of a reference method (49 FR
23520, June 6, 1984).
The granting of approval to use an alternative means of
compliance could be conditioned on operation and maintenance
requirements. The basis for the operation and maintenance
requirements in §61.12(c) was section 302(k) and former
section 112(e)(1) of the Act (49 FR 23520, June 6, 1984).
The intent of the operation and maintenance provisions was
to ensure that the alternative means achieved at least as
much emission reduction as the emission standard, instead of
necessarily achieving more emission reduction than the
standard. The EPA stated its belief that, in most cases,
however, it is infeasible to quantify the effect of the
operation and maintenance requirements on the amount of
emission reduction. The selection of operation and
maintenance requirements would be the EPA's best judgment of
what is necessary to ensure that the alternative method
would achieve a reduction in emissions at least equivalent
to the standard.
For Part 60 NSPS:
For NSPS, compliance with standards (other than opacity
standards) is determined only by performance tests (§60.8)
conducted under representative operating conditions, unless
otherwise specified. For NSPS, compliance with performance
tests and opacity standards is exempted during periods of
startup, shutdown, or unavoidable malfunction. (This
provision is discussed at length in 38 FR 10820, May 2,
1973.) Also, opacity standards do not apply during periods
judged necessary to permit the observed excess emissions
caused by soot-blowing and unstable process conditions; time
exemptions are provided for source-specific circumstances
(39 FR 9314, May 8, 1974).
For NSPS, it is anticipated that initial and subsequent
performance tests will ensure that equipment is installed
that will permit the standards to be attained and that such
equipment is not allowed to deteriorate to the point where
the standards are no longer attained. In addition, the
requirement to use good control practices is intended to
ensure that plant operators properly maintain and operate
the affected facility and control equipment between
performance tests and during periods of startup, shutdown,
and unavoidable malfunction. Measurements obtained as the
results of continuous monitoring are used as evidence in
determining whether good maintenance and operating
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GENERAL PROVISIONS - 40 CFR PART 63
procedures are"being followed, but they are not used to
determine compliance with mass emission standards unless
they are approved as alternative methods for performance
testing. In the future, the EPA may require that compliance
with NSPS be determined by continuous monitoring, in which
case the applicable standard will specify this, providing
for startup and other situations as necessary.
A different approach was taken for opacity standards,
because this is a primary means of enforcement employed by
State and Federal officials. The EPA stated its belief that
the burden should remain on the plant operator to justify a
failure to comply with opacity standards; the burden will be
with the plant operator rather than with the EPA or the
States to show that the opacity standards were not met
because of the special situations of startup, shutdown, or
malfunction.
For NSPS, compliance with opacity standards is based on
Reference Method 9 or an approved alternate method. Opacity
standards apply except during startup, shutdown, and
malfunctions. The O/O of affected facilities must record
and report the opacity of emissions during the initial
performance test (50 FR 53113, December 27, 1985). This
requirement is "based on the Administrator's determination
that opacity recordkeeping and reporting are necessary to •
demonstrate compliance with the respective opacity
standards." The data collected are also to be used by the
EPA during reviews of opacity standards. The details of the
testing and reporting requirements are discussed in 50 FR
53108, December 27, 1985.
While Reference Method 9 remains the primary and
accepted means for determining compliance with opacity
standards in this part, the EPA will accept as probative
evidence in certain situations and under certain conditions
the results of continuous monitoring by transmissometer to
determine whether a violation has in fact occurred (39 FR
39872, November 12, 1974). Even in such situations, the
results of opacity readings by Method 9 remain presumptively
valid and correct. Where a facility meets all applicable
standards for which a performance test is conducted but
fails to meet an applicable opacity standard, an 0/0 can
petition the Administrator to establish an opacity standard
for that facility. (See paragraph below.)
The November 12, 1974 notice (39 FR 39873) was followed
by 52 FR 9778, March 26, 1987, which amends the opacity
provisions to allow an 0/0 of an affected facility subject
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GENERAL PROVISIONS - 40 CFR PART 63
to an opacity standard to submit, for compliance purposes,
continuous opacity monitoring system (COM3) data results
produced during any particulate matter performance test
required under §60.8 in lieu of Method 9 observation data.
The decision to elect the COM3 option will be made by the
source 0/0, and the Administrator must be notified of that
decision, in writing, at least 30 days before any
performance test required under §60.8 is conducted. After
such notification, COMS data results will be used to
determine opacity compliance until the 0/0 notifies the
Administrator in writing to the contrary. Various
requirements for electing this alternative are then spelled
out. Furthermore, an enforcement agency can still use
Method 9 during the initial test or at any other time. If
COMS data results and Method 9 results conflict, Method 9
data continue to represent the reference method data and
would be used to determine compliance. COMS data results in
such cases are probative, but not conclusive, evidence of
the actual opacity. For a detailed discussion of the
opacity amendments, significant comments, responses, and
changes, see the March 26, 1987 Federal Register notice
referenced above.
The EPA's policy on opacity standards has been: (1)
opacity limits are independent enforceable standards; (2)
where opacity and mass/concentration standards are
applicable to the same source, the mass/concentration
standards are established at a level that will result in the
design, installation, and operation of the best adequately
demonstrated system of emission reduction (taking costs into
account); (3) the opacity standards are established at a
level that will require proper operation and maintenance of
such control systems (39 FR 39873, November 12, 1974).
The EPA's understanding about the relationship between
the concentration standard and the opacity standard is
presented at length in 39 FR 9308, March 8, 1974.
Additional points are included here. Opacity standards are
a necessary supplement to mass/concentration standards.
They help ensure that sources and emission control systems
continue to be properly maintained and operated so as to
comply with mass/concentration standards. Without them,
sources could inadequately operate or maintain pollution
control equipment at all times except during periods of
performance testing. Opacity of emissions is established as
an independent standard rather than as an indicator because
of the time and expense involved in trying to prove that
proper procedures were not followed by a plant operator.
Without opacity standards, the provision to adequately
35
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GENERAL PROVISIONS - 40 CFR PART 63
operate and maintain pollution control equipment at all
times (§60.11(d)) would not provide an economically sensible
means of ensuring allowable emission limits.
Paragraphs 60.11(e) (1)- (8) present detailed
instructions on: initial opacity tests, reporting
requirements for test results and monitoring data, submittal
of alternative information to show compliance, EPA findings
concerning compliance based on submittals, the possibility
of adjusting an opacity standard for an affected facility,
the conditions for granting a petition for the adjustment of
opacity standard, and the basis for a new standard for an
affected facility.
Amendments to the opacity provisions affecting
emissions from new stationary sources were promulgated on
December 27, 1985 (50 PR 53108). The amendments implement
section 114 and are based on the Administrator's
determination that opacity recordkeeping and reporting are
necessary to demonstrate compliance with the respective
opacity standards. The data collected also will be used
during reviews of the opacity standards so that the EPA can
make a sound judgment as to whether the standards are
appropriate (50 FR 3108, December 27, 1985).
In addition, O/O are required to report emissions
measured or estimated to be greater than those allowable
under applicable standards in "excess emissions" reports.
The EPA stated its belief that this information would enable
the EPA and the States to effectively enforce NSPS; the
' primary purpose of excess emissions reporting is to provide
the EPA and the States with sufficient information to
determine if further inspection or performance tests '• are
warranted (38 FR 10820, May 2, 1973). Originally, the EPA
believed that reports on a quarterly basis would be adequate
for this purpose; however, in 55 FR 51378, December is,
1990, the EPA revised the reporting requirements for certain
facilities subject to part 60 in order to be consistent with
more current EPA reporting frequency policy. The effect of
the revision was to reduce the excess emissions reporting
burden from quarterly to semi-annual except when more
frequent reporting is specifically required by an applicable
subpart, continuous monitoring system data are to be used
directly for compliance determination (in which case
quarterly reports are required), or the Administrator
determines on a case-by-case basis that more frequent
reporting is necessary to accurately assess the compliance
status of the source.
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GENERAL PROVISIONS - 40 CFR PART 63
General Control Device Requirements
These provisions deal primarily with flares. They
require that an O/O (of an affected facility to which a
standard under part 60 applies) shall monitor flares to
ensure proper operation and maintenance; they require that
emissions be vented to flares; they specify the reference
method to be used; etc.
Waiver of Compliance
For part 61 NESHAP, §61.10 says that an 0/0 of an
existing source unable to comply with a NESHAP within 90
days could request a waiver of compliance for up to 2 years.
Requests had to include information on controls to be
installed, a compliance schedule including four dates
specified, and interim emission control steps. Any changes
in the information reported under §61.10(a) (a description
of the source and its operations) or 61.10(b) (the request
for a waiver of compliance) had to be reported. Also,
§61.07(c) and §61.08 could apply. Appendix A of the General
Provisions for part 61 shows a possible reporting format.
Section 61.11 says the Administrator could grant a
waiver for up to 2 years after a standard became effective.
The waiver had to be in writing and had to specify
conditions listed in §61.11(b)(1)-(4). The waiver had to be
terminated if the specifications were not met. Before a
denial of a request for a waiver of compliance, the O/O had
to be notified with the reason(s) and given an opportunity
to argue the case before the final decision was made. Time
frames for presenting grounds for denial and presenting the
final denial are specified in this provision. The granting
of a waiver did not abrogate the Administrator's authority
under section 114.
For part 61, the regulations did not require the O/O to
request a waiver of compliance before a specific date, but
the O/O should have submitted the request within 30 days
after the effective date of the regulation to be assured
that action would be taken on the waiver application prior
to the 90th day after the effective date (38 FR 8825, April
6, 1973). Existing sources that had applied for a waiver
for which final action had not been taken by the EPA by the
time the 90 day compliance period was over would be
considered in violation of the standard. The EPA stated its
belief that this is consistent with the Act and that an 0/0
had time between proposal and promulgation to prepare
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GENERAL PROVISIONS - 40 CFR PART 63
significant portions of a plan for achieving compliance.
Also, sources should have continued to take all possible
steps toward achieving compliance while the Agency was
evaluating their waiver application, and sources should have
submitted the waiver application as soon as practicable to
allow time for the Agency to make a determination within the
90 day period after the effective date (50 FR 46290,
November 7, 1985).
A waiver could be granted for up to 2 years for
compliance, provided that steps would be taken during the
waiver period to assure that the health of persons would be
protected from imminent endangerment and provided that such
a period was necessary for the installation of controls (38
FR 8826, April 6, 1973). Also, the President could exempt
any new, modified, or existing source from compliance for a
period of up to 2 years, provided the technology was not
available to implement the standards and the operation of
such source was required for reasons of national security.
The President could grant exemptions for additional periods
of 2 years or less (38 FR 8826, April 6, 1973) [section
112 (c) (2)].
For two reasons, the EPA stated its belief that neither
the General Provisions nor Appendix A (sample request for
waiver form) for part 61 should,be revised to describe the
compliance schedule information required in applications for
waivers of compliance with work practice or operational
standards. The reasons were: (1) in most cases, an 0/0
should have been able to implement the requirements within
90 days, and (2) the information needed in the waiver
application would be specific to the particular standard, so
it is more appropriate to provide guidance in the subpart of
the standard or through the enforcement agency rather than
through the General Provisions. General guidance given by
the EPA is that the application should contain sufficient
information to show why the source is unable to comply
within 90 days, the steps that the source is taking to
achieve compliance in the minimum amount of time, and the
dates for completing each step. Thus, the General
Provisions and Appendix A would remain oriented toward
equipment standards (see 50 FR 46290, November 7, 1985).
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GENERAL PROVISIONS - 40 CFR PART 63
(3) STATUTORY REQUIREMENTS OF CAAA:
Summary
Standards promulgated under section 112 before the CAAA
were enacted remain in force after the date of enactment
unless they are modified before the date of enactment or
under the Amendments. Categories of sources previously
regulated under former section 112 may be listed by the
Administrator for regulation under new section 112.
As was true for NESHAP promulgated under former section
112, MACT standards may take many forms including design,
equipment, work practice, and operational standards.
Specific forms specified in the CAAA are process changes,
material substitutions, system enclosures, the collection,
capture, and treatment of emitted pollutants, and any
combination of measures from the above two lists. For
standards that are not emission standards,_operation and
maintenance requirements must also be specified. The
Administrator may permit an 0/0 to use an alternative means
of emission limitation if the 0/0 can demonstrate that it
will result in an emissions reduction at least equivalent to
the regular standard.
Emission standards or other regulations are effective
upon promulgation, as in former section 112; however, in
some cases standards do not apply to affected sources until
after their effective dates. Also, the Administrator (or_a
State with an approved permit program) may grant an existing
source an extension of compliance for up to 1 year after the
standard's effective date if the additional period is
necessary for the installation of controls. Presidential
exemptions are also allowed.
After the effective date of an emission standard,
limitation, or regulation promulgated under new section 112,
no person may construct a new major source or reconstruct or
modify any existing major source subject to such
regulation(s) unless the Administrator or the State
determines that the source will comply with the
regulation(s) if it is properly built, changed, and/or
operated.
Compliance deadlines and exceptions are the following:
If a new source commences construction between the
dates a standard,is proposed and promulgated, the source is
39
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GENERAL PROVISIONS - 40 CFR PART 63
not required to comply until 3 years after the promulgation
date if the control level of the promulgated standard is
more stringent than that of the proposed standard and the
source complies with the standard as proposed during the 3-
year period immediately after promulgation.
Existing sources must comply with standards and
regulations by the date established by the Administrator for
that source category, but in no case may the date be later
than 3 years after the standard's effective date.
An additional 1 year extension of compliance may be
granted to an existing source under a permit issued by a
State with an approved permit program under title V if the
additional period is necessary for the installation of
controls.
The President may exempt any stationary source from
compliance with any standard under new section 112 for up to
2 years (for reasons given in section 112(i) (4)). The
exemption may be extended for l or more additional periods,
each not to exceed 2 years.
New sources that commence construction, reconstruction,
or modification between the dates the technology-based
emission standard (under new section 112(d)) and the health-
based emission standard, if applicable, (under new section
112(f}) are proposed are not required to comply with the
latter standard until 10 years after the date the
construction, reconstruction or modification is commenced.
Under new section 112(i)(5), sources can receive an
extension of compliance with an applicable promulgated
emission standard if they voluntarily reduce their emissions
prior to the date the standard is first proposed. The
extension^is good for a period not to exceed 6 years from
the compliance date for the otherwise applicable standard.
Alternative emissions limitations (in terms of percent
reductions) are specified in the CAAA, or they may be made
more stringent by the States. Existing sources that cannot
achieve the required reductions by the date the standard is
proposed, but can achieve them by January 1, 1994 also may
qualify for an alternative emissions limit if they make an
enforceable commitment to achieve such reductions prior to
proposal of the applicable standard. Each source that
qualifies for and is granted an alternative emissions
limitation under this subsection must be issued a permit
under title V that reflects the alternative as an
enforceable limitation.
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GENERAL PROVISIONS - 40 CFR PART 63
CHAPTER 7 - TESTING AND MONITORING REQUI1
(1) WHY NEEDED:
For all sources covered under 40 CFR part 60,
compliance with numerical emission limits must be determined
through performance tests. For all sources covered under 40
CFR part 61, compliance with numerical emission limits is
determined through emission.tests or an approved alternative
method.
Because HAP and processes causing their emissions vary
widely, monitoring systems may vary widely; thus, a
monitoring system is broadly defined as the system required
by an applicable regulation to sample, to analyze, and to
provide a record of emissions or process parameters. The
General Provisions specify that the O/O shall operate the
monitoring system as specified in the applicable standard,
and they outline the type of information that the
Administrator would use to determine whether acceptable
operation and maintenance procedures are in use. The
testing and monitoring will be used not only to determine
whether a particular source is in compliance.when it becomes
subject to a standard, but also to ensure that the source
remains in compliance with its relevant standard.
(2) RELEVANT REQUIREMENTS AND HISTORY OF PARTS 60 AND 61:
The EPA has authority to require testing and monitoring
under section 114 of the Act.
For both parts 60 and 61, an 0/0 must inform the EPA of
the date of a performance or emission test (at least 30 days
in advance) so an observer can be present. The O/O must
provide testing facilities including sampling ports,
sampling platforms, safe access, utilities to run equipment,
etc. .
Testing Requirements
For Part 61 NESHAP;
For NESHAP, conditions required for emission testing
(including dates) were specified for existing sources and
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GENERAL PROVISIONS - 40 CFR PART 63
new sources in paragraphs 61.13(a) (1)- (2). Section 114
authorizes the Administrator to require a test at any time.
The Administrator specified conditions for a test based
on the design and operating characteristics of the source.
Provisions for conducting tests were set forth in Appendix B
of part 61, including exceptions. The Administrator could
require the use of a reference method. An 0/0 could request
to use an alternative method. Where reference and
alternative methods disagreed, the reference method would
prevail.
Samples had to be analyzed 30 days after a test and the
O/O had to report the results on the 31st day after a test.
This requirement was added to ensure that the test data were
analyzed and results reported in a timely manner. Also, the
O/O was required to save records for 2 years and make them
available to the Administrator upon request. The deadlines
for analyzing samples and submitting a report of sample
results were found to be reasonable by the EPA (50 PR 46290,
November 7, 1985); however, the existing General Provisions
allow for a different time period to be specified in a
particular subpart, if necessary. Also,, the EPA would
address testing schedules when each subpart was reviewed.
For NESHAP, an issue has been the date for submission
of requests to use an alternative test method during the
initial emission test for new sources that have initial
startup before the effective date of the applicable
standard. The EPA has said the date should be the same as
'for existing sources, which is 30 days after the effective
date (50 FR 46290, November 7, 1985). The purpose of these
requirements was to ensure that the Administrator had ample
time to evaluate the alternative method and notify the 0/0
of his or her evaluation' before the deadline for conducting
the initial emission test (49 FR 23520, June 6, 1984).
For Part 60 NSPS:
An O/O must conduct performance tests and submit a
written report of the results within a given time frame
after startup. Methods and procedures by which tests are to
be conducted and data reduced are given, including
alternatives available for testing procedures. The EPA's
authority to require testing under section 114 is
maintained.
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GENERAL PROVISIONS.- 40 CFR PART 63
Performance tests are based on specified conditions
based on representative operating conditions of a facility.
Operations during startup, shutdown, or malfunction are not
representative. Excess emissions during these conditions do
not count as a violation of a standard unless otherwise
specified. They are specifically exempted in §60.8(c).
(This is clarified in 42 FR 57125, November 1, 1977: "By
implication...compliance with numerical emission limits
cannot be determined during periods of startup, shutdown,
and malfunction.") However, this does not exempt the 0/0
from compliance with the requirements of §60.11(d) which
say: "At all times, including periods of startup, shutdown,
and malfunction, the 0/0 shall, to the extent practicable,
maintain and operate any affected facility including
associated air pollution control equipment in a manner
consistent with good air pollution control practice for
minimizing emissions" (42 FR 57126, November 1, 1977).
Each performance test has 3 separate runs. Generally,
compliance with a standard is determined by the arithmetic
mean of the results of 3 runs (or 2 runs, if permission is
granted, if the third run is ruined).
Monitoring Requirements
For Part 61 NESHAP:
Section 61.14 was added to the General Provisions in 49
FR 23520, June 6, 1984. This section applies to each
monitoring system required under each subpart that requires
monitoring. It discusses monitoring requirements for
combined sources subject to the same standard, for sources
not subject to the same standard, and for cases where one
source releases emissions through more than one point.
Monitoring is conducted as set forth in §61.14 and in
an applicable subpart, unless: (1) minor changes are
approved, or (2) alternatives are approved. Alternatives
have to be approved by the Administrator on a case-by-case
basis. If the Administrator disputes the results of an
alternative, he or she can require monitoring requirements
as specified in §61.14.
As required by a subpart or at any other time, the
Administrator can require a performance evaluation of a
monitoring system and a written report of the results. The
evaluation is to be performed according to the
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GENERAL PROVISIONS - 40 CFR PART 63
specifications in the applicable subpart. The 0/0 has to
notify the Administrator of the date of the performance
evaluation at least 30 days in advance. Unless otherwise
specified in a particular subpart, compliance is determined
by a performance test, and monitoring data are used to
indicate excess emissions or improper operation and
maintenance (50 FR 46290, November 7, 1985).
Monitoring requirements include the following: ;
* Each O/O has to maintain and operate each
monitoring system as specified and in a manner
consistent with good air pollution control
practices.
* Repairs have to be made as soon as possible.
* Monitoring data have to be reduced as'specified
(data from breakdowns are not to be included).
* The O/O has to maintain records of all monitoring,
calibration checks, and breakdowns for at least 2
years and make them available to the Administrator
at any time.
* The Administrator bases his or her judgment about
good operating practices on procedures,
specifications, inspections, etc.
The difference between minor changes in methodology for
a reference test method and for alternative methods has had
to do with procedures for approving their use. The EPA has
said minor changes pertain to contingencies that arise in
the field and relate to improving the application of;
reference methods. The decisions to approve minor changes
can be made by the implementing (delegated) agency because
minor changes do not affect the precision or accuracy of the
method and are not of national significance. Conversely,
the EPA retained authority for the approval of an
alternative method in order to ensure uniformity and
technical quality in test methods used for enforcement of
national standards (50 FR 46290, November 7, 1985). 'The
Administrator has the authority to require the use of
procedures specified in part 61 if he or she has reasonable
grounds to dispute the results obtained by an alternative
method.
For part 61, the EPA's position has been that
monitoring data collected during periods of plant startup,
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GENERAL PROVISIONS - 40 CFR PART 63
shutdown, and malfunction should be included in the
monitoring data average that is reported. The EPA's reason
is that such data contain relevant information about the
event; it is important to know how much is being emitted
during such periods and how long the periods last,
especially during plant startup and malfunction.
Provisions to allow minor changes that do not affect
the precision and accuracy of specified monitoring
procedures were added to §61.14(g) in 50 PR 46290, November
7, 1985. These are similar in substance and purpose to
those for the use of minor changes to reference emission-
test methods.
For Part 60 NSPS:
All continuous monitoring systems (CMS) required under
applicable subparts are subject to the provisions of §60.13
upon promulgation of•performance specifications under
Appendix B of part 60 unless otherwise specified by the
applicable subpart or by the Administrator.
Monitoring requirements include the following:
* All CMS and monitoring devices shall be installed
and operational prior to conducting performance
tests under §60.8.
* If an O/O elects to submit continuous opacity
monitoring system (COM3) data for compliance with
an opacity emission standard (§60.11(e) (5)), he or
she shall conduct a performance evaluation of the
COM3 before the performance test is conducted,
during any performance test required under §60.8,
or within 30 days thereafter, or when the
Administrator so requires under section 114 of the
Act. Reporting requirements for the COM3
performance evaluation, calibration procedures for
continuous emission monitoring systems (GEMS), and
procedures for the use of COM3 are given.
* Except for breakdowns, repairs, calibration checks,
and required adjustments, all CMS must be in
continuous operation and must meet minimum
frequency of operation requirements as specified in
§60.13.
* All CMS or monitoring devices must be installed
such that representative measurements are obtained.
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GENERAL PROVISIONS - 40 CFR PART 63
Requirements for monitoring and reporting under
various effluent situations are given.
Requirements for reducing data from CMS for opacity
measurements are given.
After written application (from an 0/0,
manufacturer, or anyone else), the Administrator
may approve alternatives to any monitoring
procedures or requirements under part 60, including
various alternatives listed in §60.13(i) (1)- (9) .
In addition, an alternative to the relative
accuracy test specified in Appendix B may be
requested (procedures for doing so are given).
Waiver of Emission Tests
For NESHAP, emission tests could be waived if "in the
Administrator's judgment, the source [was] meeting the
standard, or the source [was] being operated under a waiver
of compliance, or the owner or operator [had] requested a
waiver of compliance and the Administrator [was] still
considering that request" (§61.13). A waiver application
had to accompany the information submitted under §61.10 or
§61.09, whichever was applicable. A possible format was
provided in Appendix A of part 61. The Administrator could
cancel a waiver later after notice was given to the 0/0.
(3) STATUTORY REQUIREMENTS OF CAAA:
Under new section 112(b)(5) and section 114 of the Act,
the Administrator may establish test measures and other
analytic procedures for monitoring and measuring emissions
and prescribe by rule procedures and methods for determining
compliance with emission standards established to control
pollutants regulated under the Act
In addition, title VII of the CAAA requires that
"compliance certifications" based on monitoring activities
be periodically submitted from an 0/0 at the Administrator's
discretion. These compliance certifications may be required
to verify that sources are meeting relevant emission
standards established under part 63.
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GENERAL PROVISIONS - 40 CFR PART 63
CHAPTER 8 - NOTIFICATION. RECORDKEEPINQ.
AND REPORTING REQUIREMENTS
(1) WHY NEEDED:
Section 114 of the Act gives the Administrator the
authority to require persons subject to emission standards
under section 112 to establish and maintain records, make
reports, install, use and maintain monitoring equipment or
methods, sample emissions, and provide other information as
required. Moreover, the Administrator may have access to
and copy these reports, records, and other information.
Currently, requirements exist for sources to report
monitoring data and the results of emissions/performance
tests, to maintain records of such data, to notify the EPA
of plans to construct, reconstruct, or modify, to notify the
EPA of the dates of initial startup and of commencement of
construction or reconstruction, and many other requirements.
(2) RELEVANT REQUIREMENTS AND HISTORY OF PARTS 60 AND 61:
The EPA, States, and localities have information
gathering authority under section 114 of the Act (39 PR
36946, October 15, 1974). (States and localities have
authority delegated by the EPA.) Section 114 provides that
the Administrator may require such reports "for the
purpose...of determining whether any person is in violation
of any such standard..." Also, section 301(a) provides the
Administrator with the authority to issue regulations
"necessary to carry out his functions" under the Act (40 FR
58416, December 16, 1975).
The EPA's experience is that knowledge of sources that
may become subject to standards is important to effective
implementation of the Act (40 FR 58416, December 16, 1975).
Notifications of intention were not to be used for approval
or disapproval of the planned construction or physical or
operational change; rather, the purpose was to allow the
Administrator to locate sources that would be subject to
regulations under these parts and to inform the sources
about applicable regulations in an effort to minimize future
problems. Notification prior to commencement of a potential
modification also allowed the Administrator to require
emission testing, if necessary, before and after the
physical or operational change to determine whether or not
there was an emission increase.
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GENERAL PROVISIONS - 40 CFR PART 63
Submittal of pertinent information has been required at
the time of notification prior to commencement of a
potential modification so that if a determination on whether
an emission increase will occur can be made without emission
tests or continuous monitoring data, the Administrator can
advise the source 0/0 concerning the application of
standards prior to the physical or operational change (39 FR
36948, October 15, 1974). Requests for determinations have
been separate from other notification requirements.
For part 61, new sources to which a NESHAP applies have
been required to notify the EPA of their startup date.
State and local agencies obtained this information from the
EPA, if they needed it. The O/O could satisfy this
requirement by submitting to the Administrator (an
identical) copy of a notification of startup sent to a State
or local agency if the notification contained all the
information required by §61.09.
For part 61, existing sources and new sources with
startup dates before the effective date of applicable
standards had to provide to the EPA the information required
in §61.10(a) (1)-(7), including information about whether the
source could comply with standards within 90 days. Existing
sources unable to comply within 90 days could request a
waiver of compliance of up to 2 years. This is discussed in
this document in the chapter on provisions for compliance
with standards and maintenance requirements.
Many of the requirements applicable to sources subject
to NSPS '(below) are also applicable to sources subject to
NESHAP under former section 112.
For Part 60 NSPS:
* New sources to which a NSPS applies must notify the
EPA of the date of commencement of construction or
reconstruction, plans to reconstruct or modify, the
anticipated date of initial startup, the actual
startup date, any physical or operational change,
the date by which the monitoring system is in
place, the anticipated date for conducting opacity
observations, and the use of opacity monitoring
system data results.
* The 0/0 must maintain records of startup, shutdown,
and malfunction.
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GENERAL PROVISIONS - 40 CFR PART 63
The 0/0 is required to submit a quarterly
monitoring report of "excess emissions," including
the magnitude and period identification of each
excess emission, date, and time; also, the 0/0 must
report when functioning is proper. Excess
emissions are defined in §60.45(g) and elsewhere
(38 FR 28565, October 15, 1973).
The O/O must maintain a file of all measurements,
maintenance reports, and records for a period of 2
years after they were taken or prepared.
State or local agencies can get information on
notifications from the EPA if required.
Included in §60.7(f) is a clause that says
"Individual subparts of this part may include
specific provisions which clarify or make
inapplicable the provisions, set forth in this
section."
(3) STATUTORY REQUIREMENTS OF CAAA:
Summary
New section 112 does not mandate specific notification,
recordkeeping, and reporting requirements. However, no
major source subject to emission standards, limitations, or
.regulations promulgated under new section 112 may be
constructed, reconstructed, or modified unless the
Administrator or a State determines that the source will
comply with the applicable regulations if it is properly
constructed, reconstructed, or modified and operated. By
implication, sources must notify the implementing agency of
their intentions prior to taking action.
Furthermore, under title V of the CAAA, if a source
wants to make changes without the need for a permit
revision, its emissions after the proposed changes must not
exceed the emissions limitations in its permit, and it must
notify the permitting authority at least 7 days in advance
of the proposed changes. Sources must certify at least
annually that they are in compliance with permit
requirements and they must report deviations "promptly."
Permits must include monitoring and reporting requirements,
with the provision that monitoring results be reported at
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GENERAL PROVISIONS - 40 CFR PART 63
least every 6 months, and other requirements and conditions
to be specified in the permitting regulations.
In addition, title VII of the CAAA requires that
"compliance certifications" based on monitoring activities
be periodically submitted from an 0/0 at the Administrator's
discretion. These compliance certifications may be required
to verify that sources are meeting relevant emission
standards established under part 63.
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GENERAL PROVISIONS - 40 CFR PART 63
CHAPTER 9 - COMPLIANCE WITH PERMIT PROGRAM REQUIREMENTS
(1) WHY NEEDED:
Title V of the CAAA of 1990 instructs the Administrator
to establish the minimum elements of a national air
pollution control operating permit program to be delegated
to State or local agencies, if they qualify. On July 21,
1992, the EPA promulgated a final rule for 40 CFR part 70
(see 57 FR 32250). This new part, which reflects the
requirements in title V, establishes regulations requiring
States to develop and submit to the EPA programs for issuing
operating permits to major stationary sources, sources
covered by NSPS, sources covered by NESHAP, and other
sources as may be designated by the Administrator. (Area
sources would also be included under new section 112.) It
also requires that the permits for all part 70 sources
address all obligations for applicable pollution control
programs.
Many of the requirements of the published permit
program regulations have implications for sources that will
be regulated under new section 112. Indeed, one of the
purposes of the operating permit program is to provide a
ready vehicle for the States to take over administration of
significant parts of the Federal air toxics program.
Emission limitations and other requirements prescribed by
MACT standards will be incorporated into comprehensive
permits that consolidate all applicable requirements for a
source. However, even where there is no applicable part 63
standard to implement, part 70 permits must still estimate
HAP emissions at major sources and impose any applicable
control requirements described in new sections 112(g) and
112 (j) of the CAAA. .
The EPA considers a State with an approved part 70
permit program to have automatic authority and
responsibility to implement and enforce all applicable
section 112 rules upon their promulgation. Section 112(1)
outlines a program intended for State implementation and
enforcement of section 112 rules that have been altered by a
State. Consolidation of programs under new section 112(1)
and title V is desirable to prevent duplication of State
efforts to develop and implement operating permits.
New section 112(i) (5) provides an extension for
existing sources to comply with otherwise applicable
standards for HAP provided certain criteria concerning early
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GENERAL PROVISIONS - 40 CFR PART 63
voluntary reductions are met. This subsection requires that
the Administrator or a State acting pursuant to a title V
permit program issue a permit allowing an existing source
(for which the 0/0 demonstrates that the source has achieved
a reduction of 90 percent or more in emissions of HAP,
95 percent in the case of particulate HAP, from the source)
to meet an alternative emissions limitation reflecting such
reduction in lieu of meeting a MACT standard. The part 70
permit process, where available, is the intended
implementation mechanism•for granting qualifying sources the
extension for meeting otherwise applicable MACT standards.
(2) RELEVANT REQUIREMENTS AND HISTORY OF PARTS 60 AND 61:
Prior to the CAAA of 1990, the'Act did not authorize a
comprehensive, national operating permit program. Thus,
provisions for permit program requirements currently do not
exist in parts 60 and 61.
(3) STATUTORY REQUIREMENTS OP CAAA:
Summary
After the effective date of a permit program approved
or promulgated under title V, it is unlawful for any person
to violate any requirement of a permit issued to him or her,
or to operate a source subject to standards or regulations
under new section 112 except in compliance with applicable
permit program regulations. The Administrator has the
discretion to exempt one or more source categories from
compliance with these requirements if such compliance is
"impracticable, infeasible, or unnecessarily burdensome,"
except that major sources cannot' be exempted. Sources are
required to have a permit either one year after an
applicable permit program becomes effective or one year
after the source becomes subject to regulation (because of
the nature and magnitude, of the pollutants it emits),
whichever is later. "General permits" covering numerous
similar sources are allowed.
Sources must submit an application for a permit to the
appropriate permitting authority no later than 12 months
after the date on which the source becomes subject to a
permit program (or by an earlier date established by the
permitting authority). Sources must submit with their
permit application a compliance plan that incudes a
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GENERAL PROVISIONS - 40 CFR PART 63
compliance schedule and schedule for submitting progress
reports. Permittees must certify at least annually that
they are in compliance with permit requirements, and they
must report deviations promptly.
Each permit must include enforceable emission
limitations and standards, a schedule of compliance,
inspection, entry, monitoring, compliance certification, and
reporting requirements, a requirement that the permittee
submit to the permitting authority no less often than every
6 months the results of any required monitoring, and such
other conditions as are necessary to ensure compliance with
applicable requirements of the Act.
Compliance with a permit is compliance with section 502
of the Act, "Permit Programs." Except as provided by the
Administrator by rule, the permit may also provide that
compliance with the permit shall be deemed compliance with
other applicable provisions of the Act. In this case, the
permit must include these provisions or a determination by
the permitting authority that the provisions are not
applicable.
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GENERAL PROVISIONS - 40 CFR PART 63
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GENERAL PROVISIONS - 40 CFR PART 63
CHAPTER 10 - LIST OF POLLUTANTS
(1) WHY NEEDED:
Under both former section 112 and new section 112, HAP
to be regulated must be listed in the regulations. The EPA
will propose that sxibpart C of part 63 contain the HAP for
standards to be promulgated under new section 112.
In addition, new section 112 requires that procedures
be established for the public to petition the EPA to add or
delete chemicals from the list. Under new section
112(b)(3), "Petitions to Modify the List," the Administrator
may add or delete substances from the list upon a showing by
the petitioner or on the Administrator's own determination
that an air pollutant may reasonably be anticipated to cause
adverse effects to human health or the environment, or that
there is adequate data on the health and environmental
effects of the substance to conclude that such effects may
not reasonably be anticipated. Subpart C would contain the
petitioning provisions as well as the list.
(2) RELEVANT REQUIREMENTS AND HISTORY OF PARTS 60 AND 61:
For part 61 NESHAP, substances were listed because of
serious1 health effects, including cancer, from ambient
exposure. Emission standards were established at a level
that in the judgement of the Administrator provided an
"ample margin of safety" to protect the public health from
HAP [former section 112(b)(1)(B)].
For part 61, substances were listed as HAP pursuant to
section 112(b)(1)(A); also, a list was included of other
substances considered serious in terms of their potential
health effects, including cancer, from ambient air exposure.
Publication of both lists served to inform the public as to
the status of the EPA's program for assessing potentially
toxic air pollutants, as well as provided a useful reference
for Federal Register publications dealing with potentially
toxic air pollutants. The first list removed public
uncertainty regarding the status of a particular pollutant
between listing and promulgation of its emission standard.
The second list conveyed to the public the scope of the
Agency's air toxics program by identifying all actions the
EPA had taken with respect to potentially toxic air
pollutants (50 FR 46290, November 7, 1985).
55
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GENERAL PROVISIONS - 40 CFR PART 63
(3) STATUTORY REQUIREMENTS OF CAAA:
Summary
Pollutants will be listed and delisted per new section
112(b) of the Act. In this section, Congress established an
initial list of. the 189 hazardous air pollutants to be
controlled by standards under new section 112. The
Administrator must periodically review the list and revise
it by rule, if appropriate. After the list is published,
any person may petition the Administrator to add or delete a
substance from the HAP list. The petition must be granted
or denied according to the criteria specified in section
112 (b) (3).
56
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GENERAL PROVISIONS - 40 CFR PART 63
CHAPTER 11 - LIST OF SOURCE CATEGORIES AND
SCHEDULE FOR REGULATION
(1) WHY NEEDED:
New section 112 requires that source categories that
emit .listed HAP be listed, along with a schedule for their
regulation. On July 16, 1992 (57 PR 31576), the "Initial
List of Categories of .Sources Under section 112(c)(l) of the
Clean Air Act Amendments of 1990" was published.
Also under new section 112, the public may petition the
EPA to delete source categories from the list. Under new
section 112(c)(9), "Deletions from the List," the
Administrator may delete a source category from the list on
petition by any person or on his or her own determination
according to the decision rules spelled out in that
subsection.
(2) RELEVANT REQUIREMENTS AND HISTORY OF PARTS 60 AND 61:
For part 60, section 111 requires that NSPS be
developed for stationary sources that the Administrator
determines may contribute significantly to air pollution
which may reasonably be anticipated to endanger public
health or welfare. Section lll(b)(1) requires that the
Administrator publish, and from time to time revise, a list
of categories of major stationary sources for which NSPS are
to be promulgated.
A category of sources that meets the statutory
criterion for NSPS regulation is referred to as a
"significant contributor" (47 FR 951, January 8, 1982). A
"major source" under title I of the Act has been one that
has the potential to emit 100 tons per year of any regulated
air pollutant. The priority list (§60.16) identifies source
categories in order of priority for development of
regulations.
For part 61, NESHAP are developed on a pollutant-by-
pollutant basis, rather than by source category. For more
explanation, see Chapter 10 of this document.
57
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GENERAL PROVISIONS - 40 CFR PART 63
(3) STATUTORY REQUIREMENTS OF CAAA:
Summary
On July 16, 1992, the Administrator published a list of
categories of "major sources" and "area sources" (as these
terms are defined in amended section 112) that emit the HAP
listed in section 112(b) of the Act (57 FR 31576).
Previously regulated categories are permitted to be included
on the list, and additional categories may be designated and
added to the list at any time. Categories may be deleted
from the list by the Administrator or upon petition by any
person if they meet the risk assessment criteria specified
in new section 112(c)(9)(B)(i)-(ii). The list of categories
must be revised "from time to time," if appropriate, but not
less often than every 8 years. Emission'standards must be
established for the categories on the list according to a
schedule to be published by the EPA.
58
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GENERAL PROVISIONS - 40 CFR PART 63
CHAPTER 12 - STATE AUTHORITY
(1) WHY NEEDED:
Currently, General Provisions concerning. State
authority (§60.11 and §61.17) serve not to preclude State
actions that ar*e allowed under the Act (such as adopting
more stringent emission limitations or requiring permits
prior to construction, modification, or operation).
Similar provisions in part 63 may serve an additional
function, that of enabling State actions that are authorized
by the CAAA under new section 112(1), "State Programs" for
implementing and enforcing air toxics regulations, and title
V, operating permit program requirements.
(2) RELEVANT REQUIREMENTS AND HISTORY OF PARTS 60 AND 61:
States or political subdivisions thereof can adopt
their own emission limit regulations under parts 60 and 61
as long as they are as stringent as the Federal ones.
Currently, States can require an 0/0 to obtain permits,
licenses, and approvals prior to construction, modification,
or operation.
Stationary sources owned or operated by the Federal
government must comply with the provisions requiring prior
approval for construction, modification, or operation (49 FR
23520, June 6, 1984). This stems from amended section
118(a) of the Clean Air Act Amendments of 1977.
(3) STATUTORY REQUIREMENTS OF CAAA:
Summary
Under new section 112(1), States may develop a program
to implement and enforce emission standards and other
requirements mandated by section 112. The Administrator may
partially or wholly delegate authority to a State; however,
a State may not establish less stringent standards, and the
Administrator maintains ultimate enforcement authority.
Regulations implementing the provisions of new section
112(1) have been proposed by the EPA in subpart E of part 63
(58 FR 29296, May 19, 1993).
59
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GENERAL PROVISIONS - 40 CFR PART 63
60
-------
GENERAL PROVISIONS - 40 CFR PART 63
CHAPTER 13 - ADDRESSES OF STATE AIR POLLUTION CONTROL
AGENCIES AND THE EPA REGIONAL OFFICES
(1) HEY NEEDED:
Section lll(c) authorizes, and former section 112(d)
authorized, the delegation of authority from the EPA to
States to implement and enforce the standards established
under those sections. Currently, where States have
delegated authority, all information required by the EPA
must be submitted to the appropriate State agency. In some
situations the Administrator may permit all or some of the
information to be submitted to the appropriate State agency
only, instead of to the EPA and the State agency. Also, all
communication to the EPA Administrator regarding §60.4 and
§61.04 must be submitted in duplicate to'the EPA Regional
Office. The General Provisions in these parts list the
mailing addresses of the ten EPA Regional Offices and the
States whose delegation requests have been approved, and
they contain tables indicating the delegation status of
NESHAP and NSPS in various Regions and States.
(2) RELEVANT REQUIREMENTS AND HISTORY OF PARTS 60 AND 61:
Currently, the Administrator may allow all or some of
the information to be submitted to the appropriate State
agency only, instead of to the EPA and the State agency,
under former section 112(d) (specific written permission is
required). However, the EPA will not relinquish its
authority to collect requested information because both the
EPA and the States have enforcement responsibilities. There
are aspects of all the standards that the EPA will not
delegate to any State, and the EPA reserves oversight
authority for delegated activities. The EPA prefers the
word "Administrator" to the term "authorized agency"
throughout the General Provisions (50 FR 46290, November 7,
1985) because not all provisions are delegated to the
States, and because the EPA always has the responsibility to
ensure enforcement action under section 112(d).
Not all States have complete authority to enforce and
implement for all sources or categories of pollutants.
Source and pollutant categories that have been delegated to
various states are listed in the General Provisions where
the State does not have authority over all sources and
categories. Most States do have full delegation of all
applicable NESHAP, however. The EPA plans to continue
. 61
-------
GENERAL PROVISIONS - 40 CFR PART 63
updating the listing to show exceptions to full delegation
on a case-by-case basis.
(3) STATUTORY REQUIREMENTS OF CAAA:
No specific requirement to list addresses is included
in the CAAA.
62
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GENERAL PROVISIONS - 40 CFR PART 63
CHAPTER 14 - INCORPORATIONS BY REFERENCE
(1) WHY NEEDED:
In the Freedom of Information Act, Congress authorized
incorporation of materials into regulations by reference in
an effort to reduce the volume of material published in the
Federal Register and the CFR. Incorporation by reference
allows Federal agencies to comply with the'requirement to
publish regulations in the Federal Register simply by
referring to material already published elsewhere, rather
than by reprinting such material in the published
regulations. The legal effect of incorporation by reference
is that the material is treated as if it were published in
the Federal Register. This material, like any other
properly issued regulation, has the force and effect of law.
(2) RELEVANT REQUIREMENTS AND HISTORY OF PARTS 60 AND 61:
Materials listed in §61.18 and §60.17 are incorporated
by reference in the corresponding sections noted.
A technical amendment was published on January 27, 1983
(48 FR 3734) that incorporated certain materials by
reference into existing NSPS and NESHAP promulgated under
section 111 and former section 112 of the Act. Previously
the materials were cited in those standards, but until this
notice they had not been incorporated by reference under the
•applicable regulations of the Office of the Federal
Register. This action intended to rectify the situation to
comply with the regulations.
Materials are incorporated as they exist on the date of
approval, and a notice of change is to be published in the
Federal Register, if necessary. Addresses of where the
materials can be purchased are included. The Director of
the Federal Register must approve incorporations of
materials by reference.
(3) STATUTORY REQUIREMENTS OF CAAA:
None.
63
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GENERAL PROVISIONS - 40 CFR PART 63
64
-------
GENERAL PROVISIONS - 40 CFR PART 63
CHAPTER 15 - AVAILABILITY OF INFORMATION
AND CONFIDENTIALITY
(1) WHY NEEDED:
Reports, records, and other information collected by
the Administrator under section 114 must be made available
to the public, with the exception of trade secrets, which
must be handled confidentially in accordance with the
procedures in section 1905 of title 18 of the U.S. Code.
(2) RELEVANT REQUIREMENTS AND HISTORY OF PARTS 60 AND 61:
All emission data provided to or obtained by the
Administrator in carrying out the regulations in parts 60
and 61 have been available to the public. Records, reports,
or information other than trade secrets have been available
to the public (38 FR 8826, April 6, 1973).
Availability to the public of information provided to,
or otherwise obtained by, the Administrator under parts 60
and 61 has been governed by part 2 of chapter I of title 40
of the CFR. Additional governing sections are specified for
part 60.
(3) STATUTORY REQUIREMENTS OF CAAA:
Summary
Pollution control measures that are acceptable as MACT
standards shall not compromise trade secrets, patents, or
other confidential business information.
A copy of each permit application, compliance plan
(including the schedule of compliance), emissions or
compliance monitoring report, certification, and each permit
issued under title V must be made available to the public.
Confidential business information may be submitted
separately by the applicant or the permittee in order to
gain protection under section 114(c). Otherwise, the
contents of a permit are not entitled to protection under
section 114(c).
65
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GENERAL PROVISIONS - 40 CFR PART 63
66
-------
GENERAL PROVISIONS - 40 CFR PART 63
III. STATUTORY REQUIREMENTS OF THE CLEAN AIR ACT
THAT ARE RELEVANT TO THE GENERAL PROVISIONS
FOR 40 CFR PART 63
Section
112
TABLE 4
SECTION 112 OF TITLE I OF CLEAN AIR ACT
AS AMENDED BY TITLE III OF
CLEAN AIR ACT AMENDMENTS OF 1990
DESCRIPTION
HAZARDOUS AIR POLLUTANTS
112 (a)
112(b)
112(b)
112(b)
112(c)
112(c)
112(c)
112(c)
112(c)
112(c)
112(c)
112(c)
112(d)
112(d)
112(d)
112 (d)
112(d)
112 (d)
112 (d)
112(d)
112(d)
112 (d)
112(d)
112(e)
112(e)
112(e)
112(e)
(1,2&3)
(3) (D)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(D
(2)
(3)
(4)
(5)
(6)
(7)
(8) (A)
(8) (B)
(8) (C)
(9)
(D
(2)
(3)
(4)
112(e) (5)
112(f) (1)
112(f) (2)
112(f) (4)
112(f) (5)
Definitions
List of Pollutants
Pollutant Additions/Deletions & Petitions
Compound Classes
List of Source Categories
Area Source Categories
Previously Regulated Source Categories
Additional Source Categories
Source Categories of Specific Pollutants
Research Facilities
Boat Manufacturing
Petitions to Delete Source Categories
MACT Emission Standards
MACT Definition
MACT Floors for New & Existing Sources
Consideration of Health Thresholds
GACT for Area Sources
Standards Review and Revision
More Stringent Standards Override
Coke Ovens - 2-Year MACT Standards
Coke Ovens - Work Practice Standards
Coke Ovens - Residual Risk Deferral
Sources Licensed by NRC
Schedule for MACT Standards
Determining Priorities
Schedule Publication
Judicial Review (Pollutants and Source
Categories List)
Publicly Owned Treatment Works
EPA Risk Assessment Study
Residual Risk Emission Standards
Residual Risk Compliance Time
Residual Risk Discretion - Area Sources
67
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GENERAL PROVISIONS - 40 CFR PART 63
112(f) (6)
112 (g) (1)
112(g) (3)
112(h)
112 (h) (3)
112 (i) (1)
112(i)(2)
112(i) (3)
112(i)(4)
112(i)
112 (i)
112(i)
112(i)
112 (j)
112(k)
112 (k)
112 (k)
112(k)
112 (k)
112(1)
112(1)
112 (m)
112 (m)
112 (m)
112 (m)
112 (n)
112(n)
112 (n)
112(n)
112 (n)
112 (n)
112 (n)
112 (o)
112 (p)
112 (g)
112(r)
112(r)
112(r)
112(s)
(5)
(6)
(7)
(8)
(2)
(3)
(4)
(5)
(3)
(1)
(2,3,&4)
(5)
(6)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(3)
(7)
Existing Sources
Presidential
Voluntary Reduction
BACT/LAER
New Source Extension
Coke Ovens
Residual Risk for Unique Chemical
Substances
Modifications - Offsets
Modifications - Uncontrolled Major Sources
Work Practices
Work Practices - Alternative Standards
Compliance Schedule - Preconstruction
Compliance Schedule - Special Rule
Compliance Schedule
Compliance Schedule
Exemption
Compliance Schedule
Compliance Schedule
Compliance Schedule
Compliance Schedule
Permit Hammer
Area Source Program
Area Sources - Research Program
Area Sources - National Strategy
Area Sources - State Programs & Grants
Area Sources - Reports to Congress
State Programs - Permits & Guidance
Tech. Assistance CTC, Air RISC, and NATICH
Great Lakes - Deposition Assessment
Great Lakes - Monitoring Network
Great Lakes - Report to Congress
Great Lakes - Additional Regulation
Electric Utility Steam Generating Units
Coke Oven Production Technology Study
Publicly Owned Treatment Works
Oil and Gas Wells
Hydrogen Sulfide
Hydrofluoric Acid
RCRA Facilities
National Academy of Sciences Study
Urban Air Toxics Research Center
Savings Provisions
Accidental Releases
Accidental Releases - List of Substances
Chemical Safety Board
Three-Year Reports to Congress
68
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GENERAL PROVISIONS - 40 CFR PART 63
SECTION 112 OF CLEAN AIR ACT -
HAZARDOUS AIR POLLUTANTS
AS AMENDED BY TITLE III OF CLEAN AIR ACT AMENDMENTS OF 1990
69
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TECHNICAL REPORT DATA
(Please read Instructions on the reverse before completing)
.REPORT NO.
EPA-450/3-91-019
2.
3. RECIPIENT'S ACCESSION NO.
4. TITLE AND SUBTITLE
General Provisions for 40 CFR Part 63
Background Information for Proposed Regulation
5. REPORT DATE
June 1993
6. PERFORMING ORGANIZATION CODE
7. AUTHOR(S)
Emission Standards Division
OAQPS, OAR, U.S.EPA
8. PERFORMING ORGANIZATION REPORT NO.
9. PERFORMING ORGANIZATION NAME AND ADDRESS
Office of Air Quality Planning and Standards
U.S. Environmental Protection Agency
Reserach Triangle Park, N.C. 27711
10. PROGRAM ELEMENT NO.
11. CONTRACT/GRANT NO.
12. SPONSORING AGENCY NAME AND ADDRESS
Office of Air Quality Planning and Standards
Office of Air and Radiation
U.S. Environmental Protection Agency
Research Triangle Park, N.C. 27711
13. TYPE OF REPORT AND PERIOD COVERED
14. SPONSORING AGENCY CODE
15. SUPPLEMENTARY NOTES
16-ABSTRACT General provisions are being proposed for 40 CFR Part 63 (a new
part) which will include national emission standards for hazardous air
pollutants (NESHAP) for source categories to be established pursuant to
Section 112 of the Clean Air Act Amendments of 1990 (CAAA). The proposec
general provisions eliminate the need to repeat general information and
requirements within these standards; they include "generic" information,
such as definitions of terms, and sections that spell out the admini-
strative responsibilities of EPA and the compliance responsibilities of
owners or operators who are subject to a relevant emission standard or
other requirement. This document contains a summary of the requirements
and history of general provisions codified in 40 CFR Parts 60 and 61
from which the proposed general provisions were adapted; it also contains
an explanation of why such requirements were needed and a summary of the
statutory requirements of the CAAA that affect the proposed general
provisions for Part 63.
KEY WORDS AND DOCUMENT ANALYSIS
DESCRIPTORS
b.lDENTIFIERS/OPEN ENDED TERMS
c. COSATl Field/Group
Air pollution
Pollution control
Administrative practice
Hazardous substances
Air pollution control
and procedure
18. DISTRIBUTION STATEMENT
Release unlimited.
19. SECURITY CLASS .(This Report)
Unclassified
20. SECURITY CLASS (This page)
Unclassified
22. PRICE
EPA Form 2220-1 (Rev. 4-77) PREVIOUS EDITION is OBSOLETE
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