& EPA
United States
Environmental Protection
Agency
Office of Air Quality
Planning and Standards
Research Triangle Park, NC 27711
EPA-450/3-91-019b
February 1994
Air
GENERAL
PROVISIONS for
40 CFR PART 63
Background
Information for
Promulgated
Regulation
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EPA-450/3-91-019b
o
General Provisions for
40 CFR Part 63 :
National Emission Standards for
Hazardous Air Pollutants for
Source Categories
Background Information for
Promulgated Regulation
Emission Standards Division
U.S. ENVIRONMENTAL PROTECTION AGENCY
Office of Air and Radiation
Office of Air Quality Planning and Standard!
Research Triangle Park, North Carolina 27711
,994 U'S' Envir^ - '. V Protection Agency
Region 5, \y .- />L-12J)
77 West X.^l,;,,, boulevard, 12th Floor
Chicago, IL 60604-3590
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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 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:
xtfr'uce C.Jordan Date
Director, Emission Standards Division
U.S. Environmental Protection Agency
Research Triangle Park, NC 27711
1. The General Provisions 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
General Provisions, located in subpart A of part 63 of
title 40 of the Code of Federal Regulations, 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. For additional information on the General Provisions
contact:
Ms. Shirley Tabler
Standards Development Branch (MD-13)
U.S. Environmental Protection Agency
Research Triangle Park, NC 27711
Telephone: (919) 541-5256
4. Copies of this document may be obtained from:
National Technical Information Services
5285 Port Royal Road
Springfield, VA 22161
Telephone: (703) 487-4650
ii
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TABLE OF CONTENTS
Page
LIST OF ABBREVIATIONS AND ACRONYMS iv
CHAPTER 1.0 Summary of Changes Since Proposal 1-1
CHAPTER 2.0 Summary of Public Comments 2-1
2.1 Applicability 2-1
2.2 Definitions 2-42
2.3 Construction and Reconstruction 2-54
2.4 Compliance and Maintenance Activities. . . 2-74
2.5 Performance Testing Requirements 2-109
2.6 Monitoring Requirements 2-122
2.7 Notification Requirements 2-137
2.8 Recordkeeping and Reporting Requirements . 2-141
2.9 Timeline Issues 2-149
2.10 Control Device Requirements 2-151
2.11 Title V Permit Issues. 2-155
2.12 Miscellaneous 2-164
TABLE 2-1
LIST OF TABLES
List of Conunenters,
APPENDICES
APPENDIX A Timeline Summary Tables
ill
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LIST OF ABBREVIATIONS AND ACRONYMS
Act Clean Air Act, as amended in 1990
BACT Best available control technology
BID Background Information Document
CFR Code of Federal Regulations
CEMS Continuous emission monitoring system (s)
CMS Continuous monitoring system (s)
COM3 Continuous opacity monitoring system (s)
EPA Environmental Protection Agency
FR Federal Register
GACT Generally available control technology
HAP Hazardous air pollutant (s)
HON Hazardous Organic NESHAP
LAER Lowest achievable emission rate
MACT Maximum achievable control technology
NESHAP National emission standard (s) for hazardous air
pollutant (s)
NSPS New source performance standard (s)
O/O Owner or operator (s)
PSD Prevention of significant deterioration
QA/QC Quality assurance/quality control
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1.0 SUMMARY OF CHANGES SINCE PROPOSAL
The General Provisions, located in subpart A of
40 CFR part 63, codify procedures and criteria to implement
standards for emissions of hazardous air pollutants from
stationary sources under section 112 of the Clean Air Act, as
amended in 1990 (the Act). The provisions include
administrative procedures related to applicability
determinations (including new versus existing and area versus
major sources), compliance extensions, and requests to use
alternative means of compliance. In addition, general
requirements related to compliance-related activities outline
the responsibilities of owners and operators to comply with
relevant emission standards and other requirements. The
compliance-related provisions include requirements for
compliance dates, operation and maintenance requirements,
methods for determining compliance with standards, procedures
for performance testing and monitoring, and reporting and
recordkeeping requirements. Finally, the EPA is promulgating
amendments to the General Provisions for parts 60 and 61 to
address new statutory requirements and, where appropriate, to
make portions of these existing regulations consistent with
the part 63 General Provisions.
The General Provisions for part 63 were proposed in the
Federal Register on August 11, 1993 (58 FR 42760) . The public
comment period was August 11, 1993 to October 12, 1993.
Seventy-one (71) comment letters were received on the
proposal. The final rule is scheduled to be published in the
Federal Register in March 1994.
In response to comments received on the proposed General
Provisions, numerous changes were made from proposal in the
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final rule. A significant number of these are clarifying
changes, designed to make the Agency's intent clearer as
requested by commenters. In addition, many changes have been
made in the final rule wherever reasonable to reduce the
paperwork burden on sources affected by part 63 NESHAP and on
State agencies that will implement part 63 standards once they
have been delegated the authority to do so.
Substantive changes made since proposal having a broad
impact on the regulated community that will be subject to the
General Provisions are summarized in this section. These, and
other substantive changes made since proposal, are described
in more detail in section 2.0 of this document. Comments not
addressed in this document are addressed in the preamble to
the final rule.
Definitions. Several definitions have been clarified as
a result of public comments. For example, the definition of
"affected source" has been revised to clarify that sources
regulated under part 60 or part 61 are not affected sources
under part 63. The EPA revised the definition of "existing
source" to be consistent with other definitions in the General
Provisions. The definition of "fugitive emissions" was
revised to clarify that fugitive emissions are to be
considered in determining a source's status as major or area.
The definition of "construction" was revised to clarify that
the "affected source" is as defined in part 63 is the subject
of the requirements in the General Provisions for newly
constructed sources. The EPA also revised the definition of
"reconstruction" and the ensuing requirements for a
reconstructed source to clarify their applicability. The
definition of "federally enforceable" was revised to clarify
the role of citizen suits in enforcing the provisions of the
Act and to clarify that requirements that are otherwise
enforceable under other statutes administered by the EPA may
be recognized for the purposes of the Act. The term "capital
expenditure" has been deleted from the final rule, because it
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is not necessary to define the term in the General Provisions.
Timing Provisions. Many comments were received on the
timing and content of notifications and other reports required
by the General Provisions, and on recordkeeping requirements.
Comments from owners or operators of facilities potentially
subject to part 63 standards (and the General Provisions)
generally argued for more time to prepare submittals than
allowed in the proposed rule and for a reduction in the amount
of information that must be submitted or recorded. State and
local agencies that will be implementing the rule expressed
concern about the timing and volume of information that would
be submitted to them and their ability to respond to these
submittals. These agencies also requested flexibility in
implementing requirements of the General Provisions.
Significant changes were made in the rule from proposal
to promulgation in response to these comments. These changes
significantly reduce the burden on owners and operators but
also recognize the need of enforcement agencies to have timely
and adequate information to assess compliance with emission
standards and other requirements established, under section 112
of the Act. These significant changes are discussed below.
Initial Notification. Under § 63.9(b) of the General
Provisions, when a relevant part 63 standard is promulgated
for a source category, owners or operators of sources that are
subject to the standard must submit a notification. In the
final rule, the time period allowed for submission of the
initial notification has been extended from 45 days to 120
days. Also, the information required to be submitted with the
initial notification has been greatly reduced.
Requests for Compliance Extensions. Changes were made
from proposal to § 63.6(i), that deals with compliance
extension requests, to increase the allowable time for Agency
review and for owners or operators to provide additional
information. The EPA has also added provisions to the final
rule establishing procedures for a source to request a
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compliance extension if that source has installed best
available control technology (BACT) or technology to meet a
lowest achievable emission rate (LAER).
Excess Emission Reports. A major change was made in the
recordkeeping and reporting requirements concerning the need
for, and frequency of, quarterly excess emissions reports. In
the proposed rule, if continuous monitoring system(s) (CMS)
data were used for direct compliance determinations, a
quarterly report on excess emissions or exceedances was
required in § 63.10(e)(3), even if there were no occurrences
of excess emissions or exceedances ("negative reporting"). In
the final rule, as long as there are no occurrences of excess
emissions or exceedances, semiannual reporting is sufficient.
The procedures for an affected source to reduce the frequency
of required reports are clarified.
Performance Tests and Performance Evaluations.
Performance test deadlines specified under § 63.7(a)(2) were
extended from 120 days to 180 days after compliance dates.
Similarly, the § 63.7(b) requirement to provide notice of the
date of the performance test was reduced from 75 days to 60
days before the test. Observation of the test by the EPA is
intended to be optional, and this section was revised to
clarify this point. A similar change was made to
§ 63.8(e)(2), notice of performance evaluation (for CMS), to
allow a 60-day notification period rather than a 75-day
period. Also, § 63.7(g) was revised to allow sources 60 days,
instead of 45 days, to submit the required performance test
results to the enforcing agency.
A major comment: related to performance tests concerned
the proposed requirement that sources submit site-specific
performance test plans to the Administrator for review and
approval before a required performance test is conducted.
This requirement has been changed in the final rule such that
the test plan must be developed and made available for review,
but it does not need to be submitted for approval prior to a
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required performance test unless it is requested by the EPA or
delegated State agency. A similar change has been made in the
final rule regarding the development and submittal of site-
specific performance evaluation test plans under § 63.8(d).
Some commenters expressed confusion regarding the
distinction between performance tests and performance
evaluations, and the EPA has added definitions of "performance
test" and "performance evaluation" to the final rule to
eliminate this confusion. In addition, the Agency has defined
the phrase "representative performance" in the final rule for
the purpose of clarifying the conditions for conducting
performance tests.
Finally, the EPA clarified the situation when a final
standard is more stringent than a proposed standard and when a
source would be allowed to (1) conduct an initial performance
test to demonstrate compliance with the proposed standard and
a second test to demonstrate compliance with the final
standard or (2) conduct an initial performance test to
demonstrate compliance with the final standard.
Startup, Shutdown, and Malfunction Plan., Commenters
generally objected to the level of detail they perceived as
required in the startup, shutdown, and malfunction plan
[§ 63.6(e)]. The intent and purpose of the plan is explained
further in section IV.F.I. of the preamble to the final rule
and clarifying changes have been made in the rule.
Specifically, the rule has been revised to delete the
requirement for "step-by-step" procedures. Numerous comments
were received relating to the timing and circumstances of
reports of deviations from a source's plans. In response to
the commenters' concerns, the EPA has revised the rule to
require reporting of actions that are "not consistent" (rather
than "not completely consistent") with the plan. The Agency
also has increased the time period for sources to provide
"immediate" reports of these actions to 2 working days from
24 hours. The followup report is required within 7 days.
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Other Changes to Reporting and Recordkeepinq
Requirements. The final rule includes provisions for EPA
Regional Offices to waive the duplicate submittal of
notifications and reports. Also, the requirements relating to
negotiated schedules, (i.e., "mutual agreement provisions")
were revised from proposal to more clearly reflect
implementing agencies' prerogatives to comply with the
schedules outlined in the General Provisions. Finally, a
recordkeeping requirement has been added [in § 63.10(b)(3)]
for owners and operators of area sources to maintain a record
of the determination of their area source status, when this
determination is necessary to demonstrate that a relevant
standard for major sources is not applicable.
There were also significant changes in other areas of the
rule from proposal. These are summarized below.
Monitoring. Several comments concerned the relevance and
applicability of the part 63 monitoring provisions to related
monitoring provisions contained in other parts (e.g., parts
60, 61, 64, and 70) as well as the relationship between
monitoring provisions in the General Provisions and those in
other subparts of part 63. The EPA has provided additional
clarification and made changes to specific provisions as a
result of these comments.
Repair Period for CMS. The Agency also received many
comments on the proposed 7-day repair period for CMS. After
consideration of these comments, the EPA revised § 63.8(c)(l)
of the rule to distinguish between routine and nonroutine CMS
malfunctions. The final rule requires the immediate repair of
"routine" CMS failures. In addition, the owner or operator
will be required to identify these routine malfunctions in the
source's startup, shutdown, and malfunction plan. Nonroutine
failures of the CMS must be reported and repaired within 2
weeks unless circumstances beyond the owner or operator's
control prevent the timely repair or replacement of the CMS.
Construction and Reconstruction. Many comments were
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received regarding the procedures for construction and
reconstruction, and several changes were made to the rule in
response to these comments. At the request of State and local
agencies, the EPA has deleted the requirement in § 63.5(c)
that they be compelled to prereview construction or
reconstruction plans. The Agency also revised the definition
of reconstruction to clarify its applicability and the ensuing
requirements for a reconstructed source. The Agency received
several comments regarding reconstruction determinations,
especially where a source has installed control devices to
meet emission standards for existing sources. In response,
the Agency has explained its policy on these issues and
clarified that it is generally not the Agency's intent to
penalize sources who make changes to comply with a relevant
standard for existing sources by subjecting them to new source
maximum achievable control technology (MACT) requirements.
Applicability. The rule has been revised in several
places to clarify the applicability of the General Provisions.
Revisions were made to § 63.1 of the rule that clarify that a
source that is subject to any part 63 standard or requirement
is also subject to the requirements of the General Provisions.
Provisions have been added to address two situations related
to major and area source determinations. As noted earlier,
the Agency added a recordkeeping requirement in the final
rule, to require that sources who determine they are not
subject to a relevant standard keep a record of their
applicability determination. The EPA also added provisions in
the final rule to address compliance dates for area sources
that increase their emissions (or potential to emit) such that
they become major sources.
Separate Rulemakinq on Potential to Emit. Under section
112 of the Act, the determination of whether a facility is a
major source or an area source is made on the basis of the
facility's potential to emit hazardous air pollutants (HAP),
considering controls. Substantive issues were raised by
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commenters on mechanisms available for establishing the
Federal enforceabllity of limitations and the timeframe
available for establishing Federal enforceability that went
beyond the scope of issues addressed in the August 11, 1993
proposed rulemaking for the General Provisions. The EPA is
proposing a separate rulemaking to address these comments.
This separate rulemaking is described in more detail in
section 2.1.4 of this document.
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2.0 SUMMARY OF PUBLIC COMMENTS
Seventy-one letters commenting on the proposed General
Provisions were received. A list of commenters, their
affiliations, and the EPA docket number assigned to their
correspondence is given in Table 2-1. No one requested to
speak at a public hearing; thus, none was held. Summaries of
those comments and the EPA's responses that were not discussed
in the promulgation preamble are presented in the following
sections.
2.1 APPLICABILITY
2.1.1 Enabling Materials
Comment: The EPA should provide a matrix or other
readily accessible compliance guide so that affected sources,
particularly smaller companies can understand their
obligations with regard to the General Provisions and
particular relevant emission standards.
Response: The Agency agrees that effective
implementation of the part 63 General Provisions requires the
development and distribution of materials that will enable
affected sources,'State agencies, and others to understand and
use the detailed requirements contained in the General
Provisions. The Agency intends to develop such materials for
distribution after promulgation of the final General
Provisions rule. In addition, this promulgation background
information document (BID) contains useful summary
information, such as in Appendix A on timelines for the
implementation of activities required by the. General
Provisions. Also, the Agency plans to include a summary of
the requirements in the -General Provisions that are applicable
to a particular source category in each emission standard that
is promulgated under part 63.
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TABLE 2-1. LIST OF COMMENTERS ON PROPOSED GENERAL PROVISIONS
FOR 40 CFR PART 63 AND PROPOSED AMENDMENTS TO GENERAL
PROVISIONS FOR 40 CFR PARTS 60 AND 61
Docket item number"
Commenter and affiliation
IV-D-1
Mr. Bryce Harthoorn
Deere and Company
John Deere Road
Moline, Illinois 61265-8098
IV-D-2
Mr. Leonard D. Verrelli
Air Quality Management
Section
Dept. of Envir. Conservation
410 Willoughby Ave., Suite
105
Juneau, Alaska 99801-1795
IV-D-3
Mr. Jonathon H. Bloomberg
Oppenheimer Wolff & Donnelly
First Bank Bldg., Suite 1700
St.Paul, Minnesota 55101
IV-D-4
Mr. Richard C. Phelps
Eastman Chemical Company
Post Office Box 1993, FANB-4
Kingsport, Tennessee 37662
IV-D-5
Ms. Diane E. Strayer
Borden Packaging and
Industrial Products
Post Office Box 3626
Bellevue, Washington 98009
IV-D-6
Mr. B.L. Taranto
Exxon Chemical Americas
Post Office Box 3272
Houston, Texas 77253-3272
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TABLE 2-1. (continued)
Docket item number" Commenter and affiliation
IV-D-7 Ms. Beverly Hartsock
Office of Air Quality
Texas Natural Resource
Conservation Commission
Post Office Box 13087
Austin, Texas 78711-3087
IV-D-8 Mr. Robert D. Fletcher
California Air Resources
Board
2020 L Street
Post Office Box 2815
Sacramento, California 95812
IV-D-9 Mr. Philip T. Cavanaugh
The Chevron Companies
1401 Eye St., NW, Suite 1200
Washington, D.C. 20005
IV-D-10 Mr. Sarosh J.H. Manekshaw
Pennzoil Company
Pennzoil Place, P.O. Box 2967
Houston, Texas 77252-2967
IV-D-ll Mr. R.T. Richards
Texaco, Incorporated
Post Office Box 509
Beacon, New tfork 12508
IV-D-12 Mr. Thomas A. Kovacic
Dow Corning Corporation
Midland, Michigan 48686-0995
IV-D-13 Ms. Nancy A, Wildeboer
Sun Company,, Incorporated
Ten Penn Center
1801 Market Street
Philadelphia,, PA 19103-1699
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TABLE 2-1. (continued)
Docket item number'
Commenter and affiliation
IV-D-14
Ms. Melanie S. Kelley
Total Petroleum, Incorporated
Total Tower, 9000 19th St.
Denver, Colorado 80202-2523
IV-D-15
Mr. Charles D. Mailoch
Monsanto Company
800 North Lindbergh Boulevard
St. Louis, Missouri 63167
IV-D-16
Mr. John A. Dege
E.I. du Pont de Nemours and
Company, Incorporated
Chestnut Run Plaza
Post Office Box 80721
Wilmington, DE 19880-0721
IV-D-17
Mr. Samuel A. Bleicher
Miles & Stockbridge
Metropolitan Square
1450 G St., NW, Suite 445
Washington, D.C. 20005
IV-D-18
Mr. William J. Holzhauer
Niagara Mohawk Power Corp.
300 Erie Boulevard West
Syracuse, New York 13202
IV-D-19
Ms. Desi M. Chari
Safety-Kleen Corporation
1000 North Randall Road
Elgin, Illinois 60123-7857
TV-D-20
Mr. Robert W. Schenker
General Electric Company
3135 Easton Turnpike
Fairfield, Connecticut 06431
IV-D-21
Mr. J.E. Cooper
Allied-Signal Incorporated
Post Office Box 1139
Morristown, NJ 07962-1139
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TABLE 2-1. (continued)
Docket item number* Commenter arid affiliation
IV-D-22 Mr. John E. Schmidt
FMC Corporation
1735 Market. Street
Philadelphia, PA 19103
IV-D-23 Mr. Ronald W. Skinner
Air Products & Chemicals,
Inc.
IV-D-24 Mr. Frank P. Collis
Occidental Chemical Corp.
Corp. Environmental Affairs
Occidental Chemical Center
360 Rainbow Blvd. South
P.O. Box 728
Niagara Falls, NY 14302-0728
IV-D-25 Mr. David Bradshaw
Rockwell International Corp.
2000 North Memorial Drive
Post Office Box 582808
Tulsa, Oklahoma 74158
IV-D-26 Mr. William H. Lewis
Morgan, Lewis and Bockius
1800 M Street, North West
Washington, D.C. 20036
IV-D-27 Mr. Richard Carroll
Phillips Petroleum Company
Bartlesville, Oklahoma 74004
IV-D-28 Mr. Joseph R. Williams
State of Washington
Dept. of Ecology
P.O. Box 47600
Olympia, Washington 98504-
7600
IV-D-29 Ms. Elsie L. Munsell
Department of the Navy
Washington, D.C. 20360-5000
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TABLE 2-1. (continued)
Docket item number*
Conunenter and affiliation
IV-D-30
Mr. Gary D. Myers
The Fertilizer Institute
501 Second Street, North East
Washington, D.C. 20002
IV-D-31
Dr. Norbert Dee
Nat. Petroleum Refiners
Assoc.
1899 L St., NW, Suite 1000
Washington, D.C. 20036
IV-D-32
Mr. David E. Davis
Vulcan Chemicals
Post Office Box 530390
Birmingham, AL 35253-0390
IV-D-33
Mr. George S. Dibble
CO Assoc. of Commerce &
Industry
1776 Lincoln St., Suite 1200
Denver, Colorado 80203-1029
IV-D-34
Mr. Duane W. Marshall
Union Camp Corporation
Post Office Box 1391
Savannah, Georgia 31402
IV-D-35
Mr. Robert P. Stricter
The Coalition for Clean Air
Implementation
607 14th St., NW, Suite 800
Washington, D.C. 2005-2011
IV-D-36
Mr. David W. Gustafson
The Dow Chemical Company
2030 Dow Center
Midland, Michigan 48674
IV-D-37
Ms. Leslie S. Ritts
Chadbourne and Parke
1101 Vermont Avenue, NW
Washington, D.C. 20005-3521
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TABLE 2-1. (continued)
Docket item number' Commenter and affiliation
IV-D-38 Mr. B. Kent Burton
Integrated Waste Serv. Assoc.
Two Lafayette Centre
1133 21st St., NW, Suite 205
Washington, D.C. 20036
IV-D-39 Ms. Shannon S. Broome
Swidler and Berlin
3000 K St., NW, Suite 300
Washington, D.C. 20007
IV-D-40 Ms. Sherry L. Edwards
Synthetic Organic Chemical
Manufacturers Assoc., Inc.
1330 Connecticut Ave., NW
Suite 300
Washington, D.C. 20036-1791
IV-D-41 Ms. Margaret L. Claiborne
Hunton and Williams
2000 Pennsylvania Ave., NW
Suite 9000
Washington, D.C. 20006
IV-D-42 Mr. David E. Menotti
Perkins Coie
607 14th St.. , NW
Washington, D.C. 20005-2011
IV-D-43 Mr. Donald Theiler
State and Territorial Air
Pollution Program Admin.
444 North Capitol St., NW
Washington, D.C. 20001
IV-D-43 Mr. Robert Colby
Association of Local Air
Pollution Control Officials
444 North Capitol St., NW
Washington, D.C. 20001
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TABLE 2-1. (continued)
Docket item number*
Commenter and affiliation
IV-D-44
Koch Refining Company
Post Office Box 2608
Corpus Christi, Texas 78403
IV-D-45
Mr. David Driesen
Natural Resources Defense
Council
1350 New York Ave., NW,
Suite 300
Washington, D.C. 20005
IV-D-45
Mr. Ronald White
American Lung Association
1726 M St., NW, Suite 902
Washington, D.C. 20036
IV-D-46
Mr. M.L. Mullins
Chemical Manufacturers
Association
2501 M Street, North West
Washington, D.C. 20037
IV-D-47
Ms. Dorothy P. Bowers
Merck and Company, Inc.
One Merck Drive
Post Office Box 100, FTA-105
Whitehouse Station, NJ 08889-
0100
IV-D-48
Mr. J.C. Hovious
Union Carbide Corporation
Health, Safety, & Environment
39 Old Ridgebury Road
Danbury, CT 06817-0001
IV-D-49
Mr. Matthew L. Middaugh
Can Manufacturers Institute
1625 Massachusetts Ave., NW
Washington, D.C. 20036
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TABLE 2-1. (continued)
Docket item number" Commenter and affiliation
IV-D-50 Ms. Theresa Parrone
Tektronix, Incorporated
Post Office Box 500
Beaverton, Oregon 97077-0001
IV-D-51 Mr. Ronald D. Truelove
Conoco Incorporated
Post Office Box 1267
Ponca City, OK 74602-1267
IV-D-52 Ms. Cathy Rhodes
Colorado Department of Health
4300 Cherry Creek Drive South
Denver, Colorado 80222-1530
IV-D-53 Mr. Kenneth L. Alkema
Fernald Environmental
Restoration Management Corp.
Post Office Box 398704
Cincinnati, Ohio 45239-8704
IV-D-54 ' Ms. Karen M. Cheek-Deajon
Dupont Agricultural Products
La Porte Plant
Post Office Box 347
La Porte, Texas 77572-0347
IV-D-55 Mr. Peter L.. de la Cruz
Keller and Heckman
1001 G Street, North West
Suite 500 West
Washington, D.C.
IV-D-56 Mr. Donald F. Theiler
State of Wisconsin
Dept. of Natural Resources
101 S. Webster St. Box 7921
Madison, Wisconsin 53707
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TABLE 2-1. (continued)
Docket item number4
Commenter and affiliation
IV-D-57
Mr. Jim Sell
National Paint and Coatings
Association
1500 Rhode Island Ave., NW
Washington, D.C. 20005-5503
IV-D-58
Mr. Brian Bateman
Bay Area Air Quality
Management District
939 Ellis Street
San Francisco, CA 94109
IV-D-59
Ms. Julia A. Hatcher
Latham & Watkins
Attorneys at Law
1001 Pennsylvania Ave., NW
Suite 1300
Washington, D.C. 20004-2505
IV-D-60
Ms. Dorothy P. Bowers
Merck and Company, Inc.
One Merck Drive
Post Office Box 100, FTA-105
Whitehouse Station, NJ
08889-0100
IV-D-61
Mr. Gregory M. Adams
County Sanitation Districts
of Los Angeles County
1955 Workman Mill Road
Whittier, CA 90607-4998
IV-D-62
Ms. Lisa J. Thorvig
Minnesota Pollution Control
Agency
520 Lafayette Road
St. Paul, MN 55155-4194
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TABLE 2-1. (continued)
Docket item number*
Commenter and affiliation
IV-D-63
Mr. Edan T. Dionne
International Business
Machines Corp.
Post Office Box 100
Somers, New York 10589
IV-D-64
Mr. J. William Vinzant
Kaiser Aluminum
5555 Hilton Avenue, Suite 205
Baton Rouge, LA 70808-2597
IV-D-65
Mr. Randy S. Allman
Agribusiness Assoc. of Iowa
900 Des Moines Street
Des Moines, Iowa 50309-5549
IV-D-66
Ms. Catherine R. M. Ehlhardt
Eli Lilly and Company
Lilly Corporate Center
Indianapolis, Indiana 46285
IV-D-67
Mr. Michael J. Bradley
Northeast States For
Coordinated Air Use
Management
129 Portland Street
Boston, Massachusetts 02114
IV-D-68
Mr. Matthew L. Middaugh
Can Manufacturers Institute
1625 Massachusetts Ave,, NW
Washington, D.C. 20036
IV-D-69
IV-D-70
Mr. B.L. Taranto
Exxon Chemical Americas
Post Office Box 3272
Houston, Texas 77253-3272
Mr. B.L. Taranto
Exxon Chemical Americas
Post Office Box 3272
Houston, Texas 77253-3272
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TABLE 2-1. (continued)
Docket item number" Commenter and affiliation
IV-D-71 Mr. Peter D. Venturini
California Air Resources
Board
2020 L Street
Post Office Box 2815
Sacramento, California 95812
"All public comments submitted are included in the docket for
this rulemaking. Docket No. A-91-09, containing information
considered by the EPA in development of the promulgated
General Provisions, is available for public inspection and
copying between 8:00 a.m. and 4:00 p.m., Monday through
Friday, at the EPA's Air and Radiation Docket and Information
Center, Room M1500, U. S. Environmental Protection Agency, 401
M Street, SW., Washington, DC 20460, telephone
(202) 260-7548. A reasonable fee may be charged for copying.
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2.1.2 Definitions of Source
Many commenters submitted comments regarding the
definitions of "major source," "area source," "affected
source," and the relationships among them. The EPA has
discussed these issues in detail in the preamble to this final
rule. More specific comments not discussed in the preamble
are addressed below.
Comment; The commenter believes that the definition of
"affected source" should specify that sources regulated under
part 61 are not affected sources for the purposes of part 63.
This commenter suggests specific revisions to the proposed
definition such that an affected source would be a source
regulated by a relevant standard established pursuant to part
63 and section 112 of the Act as amended on November 15, 1990.
Response: The "Act" referred to in the definition of
"affected source" is defined as being the Clean Air Act as
amended on November 15, 1990. The EPA has also revised the
definition of "affected source" to indicate that sources
regulated under part 60 or part 61 are not affected sources
for the purposes of part 63.
Comment: Several commenters commented on the definition
of "existing source," stating that as proposed it is
inconsistent with other definitions in the proposal and the
Clean Air Act, One commenter stated specifically that the
definition should be the same as that in part. 61, and two
commenters suggested that the phrase "or a reconstructed
source" be removed.
Response: The EPA has revised the definition of
"existing source," to be consistent with other definitions in
the General Provisions, by deleting the words "or a
reconstructed source." The definition of existing source in
part 61 refers to any "stationary source" that is not a new
source. Because part 63 is concerned with the regulation of
"affected" sources, the definition in the General Provisions
refers to any "affected source" that is not a new source.
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("Affected source" is defined in the General Provisions in
terms of the stationary source, the group of stationary
sources, or the portion of a stationary source that is
regulated pursuant to section 112.) The EPA believes that
this definition for "existing source" is appropriate.
Comment; The commenter states that emissions from any
oil and gas exploration and production well with its
associated equipment should not be aggregated with emissions
from similar units for major source determinations. The
commenter believes that this statement should be included in
the General Provisions definition of "major source,"
reflecting provisions under section 112(n)(4) of the Act. The
commenter is also concerned that case-by-case determinations
of "contiguous or adjacent property" be made consistently.
Response: The EPA believes that source category-specific
provisions such as those in section 112(n)(4) addressing the
treatment of oil and gas exploration and production wells are
more appropriately addressed in individual MACT standards,
which may override or supplement the General Provisions as
necessary to properly regulate the source category in
question. Further, the EPA intends to make case-by-case
determinations of "contiguous or adjacent property" in a
consistent manner.
Comment: One commenter expressed concern that the
definition of "stationary source" was restricted to listed
categories of sources. The commenter believes that this
provision should not be applied to section 112(g) of the Act,
as the intent of section 112(g) is to consider all major
sources of HAP, regardless of whether the EPA has listed the
category.
Response: The proposed definition of "stationary source"
does restrict stationary sources, for the purposes of part 63,
to those listed sources. Because regulations implementing
section 112(g) have not yet been finalized, and the issue of
whether they will apply to all HAP-emitting major sources or
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only to major sources in those categories of sources that are
listed pursuant to section 112(c) has not yet been decided,
the EPA agrees that it is inappropriate to restrict the
definition of "stationary source" to listed categories.
Therefore, the second sentence in the proposed definition of
"stationary source" has been deleted in the final rule.
Comment: One commenter requested that the distinction
between stationary source and major source be clarified in the
final General Provisions. The commenter believes that the
definition of stationary source should be narrow, and the
definition of major source should be "appropriately
comprehensive."
Response: The definitions of "stationary source" and
"major source" in the General Provisions reflect the language
of the statute. Section 112(a)(3) directs that stationary
source shall have the same meaning as under section 111(a).
Section 111(a) defines a stationary source as "any building,
structure, facility, or installation which emits or may emit
any air pollutant." This non-specific definition allows the
EPA flexibility in designating, for each standard set for a
source category, the appropriate units or combination of units
that are subject to emission limits. This designation is
made, for part 63 standards, through the selection of one or
more "affected sources." Whether, for a particular standard,
the definition of affected source is narrow (i.e.,
encompassing few emission points) or broad will be determined
at the time that the standard is developed (and will be
discussed in the Federal Register notice of proposed
rulemaking for the standard). The General Provisions merely
establish the framework within which source category-specific
standards will be developed and are not the place to address
the issue of how narrow or broad the definition of affected
source should be for a particular standard.
The definition of "major source" in the statute [sect'ion
112(a)(1)] is more specific, referring to "...any stationary
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source, or group of stationary sources located within a
contiguous area and under common control that emits or has the
potential to emit, considering controls" hazardous air
pollutants exceeding certain threshold amounts. The EPA views
this statutory definition (also adopted in the General
Provisions) as comprehensive, including all HAP emission
points that are located at a plant site. A major source will
encompass one or more stationary sources. Due to the
flexibility inherent in the statutory definition of stationary
source, it is more appropriate that the specific distinction
between stationary source and major source be addressed within
the context of each source category-specific rulemaking rather
than in the General Provisions.
Comment: A commenter wonders if, based on the
definitions of "new source" and "affected source," the
addition of a piece of HAP-emitting equipment at a subject
stationary source renders the addition subject to new source
MACT.
Response: The addition of a piece of HAP-emitting
equipment would render the addition subject to new source MACT
if a MACT standard is in effect, construction commenced on the
addition after the proposal date of the standard, and the
equipment that constitutes the addition is defined as the
affected source under that MACT standard.
Also, the addition of HAP-emitting equipment could render
a source subject to new source MACT if the addition served to
reconstruct the subject source. This situation could arise
either before or after the promulgation of an applicable MACT
standard. Before the MACT standard is promulgated, if the
addition constitutes reconstruction of a major source it will
be subject to new source MACT. After the MACT standard is
promulgated, if the addition constitutes reconstruction of the
affected source, as defined in the MACT standard, then new
source MACT will apply.
Comment: The commenter believes that the General
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Provisions should prohibit changes in the definition of source
that would have the effect of expanding the source category.
The commenter is specifically concerned about a source
becoming subject to a final MACT standard when it was not
subject to the proposed standard. The commenter also suggests
that the definition of source in individual MACT standards
should not be left until the proposal of the standard.
Instead, a separate advance notice should be made available to
the public, in order to ensure adequate public involvement
before the process has proceeded too far.
Response: Consistent with the approach of using the
nonspecific term "affected source," the EPA believes it is
inappropriate for the General Provisions rule to restrict the
definition of the affected source that may be; developed for
the purposes of regulation by a particular standard
established under part 63. The scope of any particular source
category that will be regulated under part 63 will be defined
when individual regulations are developed that cover that
source category. This ensures that individual definitions of
affected source will reflect variations among industries and
that they will be meaningful to the regulated source
categories. The EPA intends to include representatives from
affected industries in the standards development process
before proposal of a NESHAP in order to define the "source" to
be regulated by that standard.
Comment: A commenter disagrees with the General
Provisions approach to defining "major source" because it will
be too costly, and the emissions reductions achieved will be
proportionally minimal. Specifically, the commenter states
that it is unreasonable to require all sources at a major
facility to comply with major source MACT, when some of these
sources have emissions below the major source cutoff levels.
The commenter suggests that major source MACT only be applied
to sources that exceed the major source cutoff.
Two other commenters were also concerned with the manner
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in which multiple MACT categories at a single facility will be
addressed by the General Provisions. Specifically, the
commenters wondered if being a major source for one MACT
category will impose MACT on other processes with minor (area
source level) emissions. Thus, the commenters believe that
the General Provisions should specify whether a source will
need to exceed the HAP threshold for each MACT category, or
whether exceeding the threshold for one category automatically
makes every other listed category at that facility subject to
MACT standards.
Response: The EPA believes that Congress intended that
all portions of a major source be subject to MACT regardless
of how many sources the facility is divided into. Senator
Durenburger's statement at passage of the final Bill in the
Senate illustrates this:
When determining if a MACT standard applies to [affected
parts of an industrial plant within an entire site]
for example, a coke oven battery within a steel mill
is the agency to look to the emissions of the entire
site, or to the emissions of the individual affected
part? The managers' intent is reflected in the EPA
paper's alternative 2(a) which states that where the
entire plant is a major source, "any portion thereof to
which a MACT standard applies is subject to that standard
regardless of the total emissions from that portion."
... In this case, the coke oven is subject to the MACT
standard for coke ovens even though its emissions,
considered alone are less than 10 tons per year.
104 Cong. Rec. S16927 (October 27, 1990).
Thus, the EPA will set one or more MACT standards for a major
source, and sources within that major source will be covered
by the standard regardless of whether, when standing alone,
each one of those sources would be major.
Regarding the concern expressed that this approach will
result in a high cost per ton of HAP removed for some sources,
the EPA will consider economic impacts during the development
process for each source category-specific MACT standard.
Within the bounds of the minimum technology requirements set
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forth in the statute, the Agency will seek the most cost-
effective approach for each standard.
2-1.3 Relationship of the General Provisions to the Coke Oven
Regulation
Comment: One commenter submitted comments on the
relationship of the General Provisions to the NESHAP
promulgated for coke oven emissions in subpart L of
40 CFR part 63 (58 FR 57911, October 27, 1993). This NESHAP
was developed through the process of regulatory negotiation
and issued as a final rule prior to promulgation of the
General Provisions. Section 63.300(f) of the coke oven rule
states that, "After October 28, 1992, rules of general
applicability promulgated under section 112 of the Act,
including the General Provisions, may apply to coke ovens
provided that the topic covered by such a rule is not
addressed in this subpart." The commenter, through a broad
interpretation of this language, concludes that many
requirements of the General Provisions are not applicable to
the coke oven rule. The presumption of the comments received
is that if a topic, no matter how broad, is addressed in any
way by the coke oven rule, then the General Provisions do not
apply, even if the General Provisions contain specific
additional items that were not addressed in the coke oven
rule.
Response: The EPA disagrees with the commenter's broad
interpretation and application of § 63.300(f). All items in
the General Provisions were not discussed by the negotiating
committee for the coke oven rule because of higher priorities
and time limitations. Agreement was reached on several of the
more important items (for example, provisions for
malfunctions). However, the committee felt that those
portions of the General Provisions not in conflict with the
provisions they negotiated should apply to coke ovens.
Consequently, any requirements in the General Provisions that
are not specifically addressed in the coke oven rule may also
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apply to coke oven owners or operators subject to subpart L of
40 CFR part 63.
Comment: Section 63.1(a)(3) of the General Provisions,
addressing the relationship of the General Provisions to other
regulations, does not apply to coke ovens because the topic is
covered in § 63.312 of the coke oven regulation.
Response: Section 63.312 of the coke oven regulation
primarily implements the EPA's intent that certain existing
regulations not be relaxed (e.g., that there be no weakening
of existing SIP regulations) based on the coke oven rule.
This does not exempt batteries from meeting the requirements
of other regulations or more stringent regulations if they are
developed, which is what the cited part of the General
Provisions requires. Consequently, the General Provision
section that was cited should apply as written to coke oven
batteries.
Comment: The definitions in the General Provisions
should only apply and give content to those parts of the
General Provisions that are found to apply to coke ovens.
Response; The EPA agrees with this comment. The coke
oven regulatory negotiating committee defined terms that are
applicable within the context of the coke oven regulation.
Comment: The circumvention section of the General
Provisions [§ 63.4(b)] does not apply to coke oven batteries
because this topic was addressed by the negotiating committee
with specific provisions in the coke oven rule
[§ 63.309(c)(3)(iii) and § 63.309(c)(6)].
Response: The EPA disagrees with this comment and
intends that the General Provisions on circumvention apply to
coke oven batteries. The cited references in the coke oven
rule address two common ways of circumventing emission limits
by coke oven batteries (lowering collecting main pressure and
blockina doors from view.) The committee knew these things
had occurred in the past and wrote them specifically into the
rule as not allowed. However, the committee did not mean to
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imply that these are the only unallowable ways to circumvent
the rule or that any other ways of circumventing the rule
would be allowable. Consequently, if the EPA judges that this
provision does not apply to coke oven batteries, the
implication would be that creative ways to circumvent the rule
(other than the two cited) may be legal.
Comment: The commenter agrees that preconstruction
review procedures in the General Provisions would apply to
coke oven batteries. However, the coke oven rule provides
procedures for identifying new and reconstructed sources and
specifies when new source standards apply. Consequently, the
preconstruction review provisions apply only to new or
reconstructed batteries as identified in the coke oven rule.
The reference to coke oven compliance dates in proposed
§63.6(c)(l) should be removed to avoid confusion.
Response; The EPA agrees that the criteria for
determining when new source standards apply and must be
complied with is specifically addressed in the coke oven rule,
and that the General Provisions on this subject do not apply.
Although the^ language proposed in § 63.6(c)(l) of the General
Provisions noting that the compliance dates for coke ovens are
those codified in the coke oven rule did no harm, it has been
removed in the final rule as requested to avoid confusion.
Comment: The General Provisions for operation and
maintenance requirements, including startups, shutdowns, and
malfunctions, do not apply to coke ovens because these topics
were covered in the coke oven rule.
Response: The EPA agrees with this comment. The coke
oven regulatory negotiating committee discussed operation and
maintenance requirements at length and during this discussion
had available an early draft of the General Provisions.
Differences between the final coke oven rule and the final
General Provisions appear to be minor.
Comment: The General Provisions for procedures,
deadlines, and methods for determining compliance
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[sections 63.6(f) and (h)] do not apply because they are
addressed in the coke oven regulation.
Response: The EPA agrees with this comment. Compliance
determinations are specifically and comprehensively addressed
in the coke oven rule, and therefore, the General Provisions
do not apply on this topic.
Comment: The General Provisions for extensions of
compliance [§ 63.6(i)] do not apply because coke ovens cannot
qualify for the early reductions program, and dates for
compliance extensions for coke ovens are addressed in the Act
and in the coke oven rule.
Response: The EPA agrees with this comment.
Comment: The coke oven rule does not impose obligations
on the owner or operator to conduct performance tests.
Consequently, the performance test requirements in the General
Provisions (§ 63.7) do not apply to coke ovens. Even if
certain testing obligations of coke plant owners or operators
are determined to be "performance tests," the General
Provisions on the subject would not apply because this was a
topic addressed by the negotiating committee.
Response; Most of the performance testing required by
the coke oven rule is not performed by the owner or operator;
consequently, the EPA agrees that the General Provisions on
this subject would not apply in most cases. However, there
are at least two situations in which the coke plant operator
may conduct what may be considered a performance test. The
owner or operator is required to conduct performance tests of
sheds and control devices in order to qualify for an
alternative standard for doors under sheds. In addition, the
owner or operator must inspect the collecting main each day
for leaks, and if leaks are found, they must be repaired
within a specified time frame.
The EPA agrees that the performance testing requirements
of the General Provisions are not appropriate for the
collecting main inspection and repair, which is basically a
-------
work practice standard. However, the General Provisions for
performance testing may be appropriate for the testing
required for the alternative door standard. There are several
items in the General Provisions that were not covered in the
coke pven rule or discussed by the committee. These items
include the quality assurance program [§ 63.7(c)], performance
test facilities [§ 63.7(d)], conduct of performance tests
[§ 63.7(e) ] , use of an alternative test method [§ 63.7(f)],
and data analysis, recordkeeping, and reporting [§ 63.7(g)].
The fact that the coke oven rule does not directly require
these items does not mean that the negotiating committee
considered them and rejected them. These are details not
directly considered by the committee and could apply to the
coke oven rule whenever they are not in direct conflict with
the coke oven rule. Consequently, the quality assurance
requirements in the General Provisions appear to be
appropriate for performance testing of a shed and its control
device.
Comment: The coke oven rule allows an option of using a
COM3 and specifies the safeguards to ensure quality,
representativeness, and availability of data. Consequently,
the General Provisions for CMS do not apply to coke ovens
using COM3 under the alternative standard for doors under
sheds.
Response: The EPA agrees with this comment. The coke
oven rule cites Performance Specification 1 in Appendix B to
part 60 and requires that each system be operated, calibrated,
and maintained according to the requirements in part 52.
Comment: The General Provisions for CMS (in § 63.8) do
not apply to measurements of the exhaust flow parameters for
sheds on coke batteries with an approved alternative standard
for doors (§ 63.305 of the coke oven rule). The coke oven
rule specifies in § 63.305(f)(7) that these parameters be_
monitored in accordance with the approved monitoring plan, and
appropriate requirements would be developed in the course of
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approving the monitoring plan.
Response: The EPA does not see a conflict between the
requirements in the General Provisions for CMS and those in
the coke oven rule for measurements of the exhaust flow
parameters for sheds on coke batteries with an approved
alternative standard for doors. The final determination of
which specific requirements apply in these cases will be made
as part of the approval process for the monitoring plan.
Consequently, the requirements of the General Provisions may
be adopted in this process.
Comment: The General Provisions for CMS do not apply to
the monitoring of a flare's pilot flame (e.g., with a
thermocouple) for coke oven batteries equipped with flares on
their bypass/bleeder stack.
Response: It is the EPA's intent that flares be
monitored for the existence of a pilot flame, and that the
full requirements in the General Provisions for CMS not apply.
This has been clarified in the General Provisions and also
applies to the coke oven rule. This topic is discussed
further in Section 2.10 of this BID.
Comment: The General Provisions for CMS do not apply to
the monitoring of collecting main pressure by coke oven
batteries because these requirements, including quality
assurance procedures, are addressed in the coke oven rule.
Response: The EPA agrees with this comment. Collecting
main pressure is monitored as a critical parameter for
operating the coke battery. Quality assurance provisions for
monitoring collecting main pressure are given in the rule
under the test method (section 6.3 of Method 303).
Comment: The notification requirements in the General
Provisions [§ 63.9(b)] do not apply to coke oven batteries
because this topic is already covered in the coke oven rule
for initial notifications [§ 63.311(c)], notification of
performance tests, notification of visible emission
observations, and notification of compliance status
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[§ 63.311(b)]. The notification that the source is subject to
special performance requirements [§ 63.9(d) of the General
Provisions] and the additional notification requirements for
sources with CMS are not applicable to coke batteries.
Response: The EPA agrees that most of these notification
requirements in the General Provisions will not apply because
they are addressed in the coke oven rule. An exception is the
requirement for CMS. If coke ovens are found to subject to
CMS provisions (e.g., monitoring parameters associated with
the shed exhaust under the alternative door standard or using
a continuous opacity monitor under the same alternative), then
the General Provision notification requirements for CMS may
apply.
Comment: The recordkeeping and reporting requirements in
the General Provisions [§§ 63.10(b) and (d), 63.10(c) and (e)]
generally do not apply to coke oven batteries because these
items are addressed specifically in the coke oven rule. The
only additional requirement that might be imposed by the
General Provisions would be those associated with waivers of
recordkeeping or reporting requirements in § 63.10(b)(xii)
under § 63.10(f).
Response: The EPA agrees that most of the reporting and
recordkeeping requirements are addressed under the coke oven
rule. Those in the General Provisions that would apply
include any that are not in conflict with the coke oven rule
and are required to implement applicable parts of the General
Provisions.
Comment: The General Provisions for flares (§ 63.11) do
not apply to coke oven batteries because this topic is covered
in § 63.307 of the coke oven rule.
Response: The EPA agrees with this comment. The flare
requirements for coke oven batteries were discussed and agreed
upon by the negotiating committee. The requirements are
similar to those in section 63.11 of the General Provisions.
Comment: The General Provisions establish procedures for
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an alternative test method for performance tests performed by
owners or operators. Parallel procedures should be
established for performance tests of coke oven batteries that
are conducted by the enforcement agency rather than by the
owner or operator. Nothing in the coke oven negotiations
precludes the EPA from establishing procedures for approval of
alternative methods for coke oven batteries.
Response: The committee discussed and debated almost
every aspect of the test method at great length, and after
lengthy deliberation, settled upon the testing requirements in
Method 303. Consequently, it cannot be stated with certainty
that the committee would have approved of the EPA's
establishment of procedures for alternative methods for
testing coke batteries. However, the EPA recognizes that
procedures for alternative methods could be useful for those
cases when the established method is inappropriate or
impracticable. Nothing in the General Provisions precludes
the development of alternative methods for performance tests
conducted by the enforcement agency, and the EPA may consider
this in the future.
2.1.4 Potential to Emit
Under section 112, the determination of whether a
facility is a major source or an area source is made on the
basis of the facility's potential to emit HAP, considering
controls. This is an important determination, because
different requirements may be established in a part 63
standard for major and area sources (when the standard
regulates area sources). The EPA's intended policy for
implementing potential to emit considering controls was
reflected in the definition proposed in § 63.2 of the General
Provisions for the term "potential to emit." The proposed
definition included the requirement that for a physical or
operational limitation on HAP emissions (including air
pollution control devices) to be considered as limiting a
source's potential to emit for the purposes of part 63, the
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limitation or the effect it would have on emissions must be
federally enforceable. A definition of federally enforceable
was also proposed.
Many comments were received on the topic of potential to
emit. Some issues raised in these comments, particularly with
regard to mechanisms available for establishing the Federal
enforceability of limitations and the timeframe available for
establishing Federal enforceability, were beyond the scope of
issues addressed in the August 11, 1993 proposed rulemaking
for the General Provisions. Because of this,, and because of
the importance of potential to emit to determining the
applicability of part 63 standards, the Agency decided to
propose a separate rulemaking to address potential to emit
issues.
Therefore, the EPA is proposing, in a separate
rulemaking, amendments to the General Provisions to provide
mechanisms for creating limits on potential to emit until all
other permanent mechanisms are in place in States. In
addition, this separate rulemaking would establish deadlines
by which major sources of HAP would be required to establish
the Federal enforceability of limitations on their potential
to emit in order to avoid compliance with otherwise applicable
emission standards or other requirements established in or
under part 63.
Comments and responses on potential to emit are presented
below. As is noted, responses to comments on certain issues
are being deferred to the Agency's separate proposal on
potential to emit. Until the Agency takes final action on the
separate rulemaking, the basic policy on the definition of
potential to emit is retained from the proposed General
Provisions.
Comment: Comments were received concerning the
requirement that controls be federally enforceable in order to
be considered as limiting a source's potential to emit.
Commenters argued that all operational limitations should be
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considered as limiting a source's potential to emit, not just
those that are federally enforceable. Individual commenters
offered case-specific examples of controls that limited HAP
emissions and that commenters felt should qualify as limiting
potential to emit.
Response: The EPA has considered these comments
regarding potential to emit and Federal enforceability and
does not believe any change in policy is warranted in this
regard. The EPA considered similar comments in the context of
the June 28, 1989 Federal Register notice (54 FR 27274) and
there decided that Federal enforceability would continue to be
an essential element in determining potential to emit of
pollutants regulated through the SIP. The EPA does not
believe there is any basis for altering this policy with
regard to HAP. Therefore, for the same reasons stated in the
June 28, 1989 notice, the General Provisions require that any
limitation on potential to emit must be federally enforceable.
Comment: Many comments were received on the mechanisms
available for limiting a source's potential to emit HAP. Some
commenters felt that the mechanisms available currently were
insufficient and burdensome. Commenters were also concerned
about the availability of mechanisms to limit a source's
potential to emit in a State where a permit program has not
been approved. One commenter requested that the EPA provide a
streamlined and practical method for a source to apply
voluntary controls towards limiting potential to emit. Other
commenters suggested vehicles in addition to those cited in
the proposed General Provisions for controls to qualify as
federally enforceable.
Response: As discussed in the EPA's response to the
previous comment, the Agency is retaining the requirement that
controls be federally enforceable to qualify as limiting a
source's potential to emit. Although some mechanisms to limit
potential to emit are in place, primarily for criteria
pollutants, the Agency recognizes that until there are
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approved State permit programs in place under title V of the
Act, there are few mechanisms currently available for
establishing HAP limits for the purposes of section 112. As
discussed in the introduction to this section, the EPA is
proposing, in a separate rulemaking, to amend the General
Provisions to provide mechanisms for creating limitations on
potential to emit HAP until all other permanent mechanisms are
in place. In addition, this separate rulemaking would set the
timeframe allowable for establishing the Federal
enforceability of limits.
Comment: Some commenters suggested that the EPA should
reevaluate its policy regarding the calculation of potential
to emit in light of the "WEPCO" decision and EPA rules
promulgated in response to that decision. Wisconsin Electric
Power Company v. Reilly, 893 F.2d 901 (7th Cir. 1990);
57 FR 32314 (July 21, 1992). In particular, these commenters
felt that assumptions of continuous operation, in calculating
potential to emit is inappropriate and inconsistent with these
precedents.
Response: The EPA believes that neither the WEPCO
decision, nor the rules promulgated subsequent to that
decision, warrant any change in the definition of "potential
to emit" in the General Provisions. The WEPCO decision
addressed only "like-kind" replacement of equipment at an
electric power plant. As a legal matter, that decision did
not hold that the EPA could not assume continuous operation in
calculating potential to emit, but rather, that the EPA could
not make this assumption in light of the existing prevention
of significant deterioration (PSD) regulations. For the
reasons stated in the preamble to the final WEPCO rule, that
rule was intended to apply narrowly to situations similar to
that presented in the WEPCO case. (See 57 FR 32333.) The EPA
continues to believe that the approach traditionally used in
determining whether a source is major by virtue of its
potential to emit of criteria pollutants is appropriate. The
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EPA is not persuaded that this approach is any less
appropriate in the context of section 112 major source
determinations.
Comment: Several commenters disagreed with the Agency's
potential to emit policy, and argued that potential to emit
should be based upon a source's actual emissions when sources
have a historical record of emissions. Two commenters argued
that potential to emit should be based on a realistic
projection of anticipated emission levels, not on the
presumption of continuous emissions. One commenter
specifically claims that the potential to emit policy is not
indicative of actual operational emissions in agribusiness,
because of its seasonal nature. Because facilities in this
business must be capable of handling high volumes for a very
short time, their calculated potential to emit based on year-
round operation is far higher than these operations ever
actually emit. The commenter requests that new regulations
promulgated by the EPA include flexibility for States to
accept actual emissions, where reasonable and practical, as
the basis for the issuance of operating permits or other
regulatory action.
Response: The first step in calculating a source's
potential to emit is to estimate uncontrolled emissions of
each HAP under maximum physical and operational capacity.
Calculating uncontrolled emissions at maximum capacity is
consistent with the Agency's previous policy on potential to
emit, for example under the New Source Review program. If
federally enforceable limitations are applicable, these limits
may, under certain circumstances, be used to reduce the
estimate of uncontrolled emissions. For example, through the
permitting process under title V of the Act, a source and a
State may negotiate limits that are appropriate for that
source. Once a limit becomes part of a title V permit, it can
qualify as federally enforceable. The EPA believes that the
permitting process already provides the flexibility that the
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commenters are seeking. In addition, the proposed rulemaking
to address potential to emit issues for the air toxics program
includes a discussion of additional approaches that could be
used to limit the potential to emit of sources with special
circumstances, such as agricultural operations, in a
streamlined manner. Under these other approaches, sources
could establish federally enforceable potential to emit limits
that could allow them to avoid being subject to otherwise
applicable requirements under both part 63 and the title V
permit program.
Comment; The commenter states that the final General
Provisions should define federally enforceable to mean
limitations and conditions that are enforceable by the
Administrator and citizen suits pursuant to section 304 of the
Act. The commenter believes that citizen suits are an
important element of Federal enforceability. The commenter
also believes that the potential to emit definition should
state that both the controls and the effects of controls
should be federally enforceable.
Response: The EPA has revised the rule to accommodate
the commenter's first suggestion. The EPA agrees that.Federal
enforceability by citizen suits is part of the Act, and should
therefore, be reflected in the General Provisions. The
definition of potential to emit 'in the rule does state that
"any physical or operational limitation on the capacity of the
stationary source to emit a pollutant... shall be treated as
part of its design if the limitation or the effect it would
have on emissions is federally enforceable" [emphasis added].
The final rule clarifies that, to be federally
enforceable, a Clean Air Act requirement must be enforceable
by both the Administrator and citizens. The definition also
clarifies that requirements that are otherwise enforceable
under other statutes administered by the EPA may be recognized
for purposes of the Clean Air Act. Consistent with
established Clean Air Act policy on this issue, the EPA will
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consider limitations established under other statutes as
limiting air emissions in a federally enforceable manner only
if those limitations meet the EPA's criteria for Federal
enforceability, as discussed in section IV.B of the final
preamble. That is, the limitations must be established
through a process that includes notice to and an opportunity
to comment by the public and the EPA, and they must be
practicably enforceable.
Comment: The commenter states that the definition of
"relevant standard" should be revised to clarify that a
State's air toxics regulations do not become federally
enforceable through this section if these requirements exceed
Federal standards. The commenter believes that § 63.1(a)(3)
of the rule, which addresses the relationship of part 63
standards to more stringent standards that may be established
under other provisions of the Act or by the States, should
also be revised to clarify this point. The commenter believes
that only if a State rule has been determined to be equivalent
through the section 112(1) process should it become federally
enforceable.
Response: Pursuant to section 112(d)(7) of the Act, no
emission standard or other requirement promulgated in part 63
prevents a State from issuing a standard or requirement that
is more stringent than the Federal requirement. If such a
standard is approved pursuant to section 112(1), the
requirements of the standard become federally enforceable.
The definition of "relevant standard" has not been revised as
suggested by the commenter because "relevant standard" refers
only to standards, whether Federal or State, that have been
established (or approved) under the authority of section 112.
Comment; The commenter claims that the definition of
"federally enforceable" in the proposed'General Provisions
differs from that in the proposed section 112(j) rule. The
commenter suggests that only one such definition should
appear, and that the definition should appear in subpart A.
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Response; A discussion of this issue appears in the
preamble to the final General Provisions rule. The EPA
intends that the definition of federally enforceable in the
General Provisions should apply to all requirements developed
pursuant to section 112 including standards developed under
section 112(j) and section 112(g). The final regulations
implementing section 112(j) of the Act will defer to the
definition of federally enforceable in the General Provisions.
Comment; The commenter does not agree that it will
always be the case that a blanket emissions limitation cannot
be verified or enforced sufficient to satisfy the Federal
enforceability requirement. Instead, the commenter believes
that it may be possible for a source, through enhanced
monitoring and compliance certifications, to operate under a
facility-wide emissions cap without other limitations. The
commenter believes that this issue should be explored more
fully, and that the Agency's statement is premature.
Response; The EPA's policy is that it is difficult for
blanket emission limitations to be practicably enforceable.
Practicable enforceability is an essential component of
Federal enforceability. As the commenter states, it is
possible in some cases that measures could be taken that would
make a blanket emission limitation practicably enforceable.
However, this determination will be left to individual
standards for specific source categories. In the preamble to
the final General Provisions, the EPA states that blanket
emission limitations are not generally acceptable limits on a
facility's potential to emit HAP.
Comment: The commenter is concerned, that without some
proceeding to establish that a source's potential to emit
considering federally enforceable controls actually falls
below applicability thresholds, major sources that should be
controlled will escape regulation. The commenter requests
that the final General Provisions require sources seeking to
escape regulation because of federally enforceable controls to
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undergo permitting in which the state must make findings that
controls in the sources' title V permits do appropriately
limit the sources' potential to emit. Furthermore, the
commenter believes that owners or operators must agree not to
subject any controls relied upon for limiting potential to
emit to minor permit amendments or changes under the
operational flexibility provisions of the part 70 permit rule,
and that this agreement must become part of the permit.
Response: The Agency has not made changes in the rule
specifically in response to this comment. Limitations and
conditions that meet the criteria for Federal enforceability,
including those in title V operating permits, will also
include monitoring, reporting, recordkeeping and other
appropriate requirements necessary to demonstrate compliance.
These will provide demonstration that limits agreed to by the
source to limit potential to emit are actually being met.
Further, the EPA views it as a source's responsibility to
ensure its continuing status as an area source. If a source
that is initially an area source subsequently increases its
emissions (or its potential to emit) such that it becomes a
major source, it is incumbent upon the source to notify the
EPA or delegated authority and come into compliance with
applicable major source standards within the timeframe
specified in the standard (or in the General Provisions).
Failure to do so would be a violation of the standard, as well
as of the potential to emit limits, and would subject the
source to penalties for the period of noncompliance.
Comment: The commenter states that the EPA needs to
clarify which controls that reduce emissions and limit a
source's potential to emit are acceptable. The commenter is
concerned about sources implementing less effective controls
before a MACT is promulgated in order to reduce the potential
to emit and_fall below the applicability threshold for
appropriate NESHAP.
Response; Information about what the Agency considers as
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acceptable limits and how the limits must be formulated to
qualify as federally enforceable is available in guidance
materials prepared for the EPA's New Source Review program.
(Refer to: "New Source Review: Prevention of Significant
Deterioration and Nonattainment Area Guidance Notebook," Air
Quality Management Division, U.S. EPA, January 1988 and any
subsequent updates. Electronic versions of this document are
available for download from the EPA's Technology Transfer
Network New Source Review (NSR) bulletin board. To obtain
more information on how to access the NSR bulletin board,
contact Ms. Paula Federici, who is the technical support
contractor for the bulletin board, by calling (919) 941-0333.)
The question of when the Federal enforceability of controls
must be established in order to limit potential to emit is
being addressed in a separate rulemaking on potential to emit
that was described earlier.
2.1.5 Other Applicability Issues
Comment: A commenter expressed concern about language in
the preamble to the General Provisions proposal that states
"...all sources are responsible for maintaining a record of
their determination of whether they are major or area
sources..." [see 58 FR 42768]. The commenter believes that
this could be interpreted to mean that any source, whether
regulated by a part 63 standard or not, would be required to
make this determination. The commenter suggests that the EPA
clarify that only a source within a category of sources for
which a part 63 standard has been established should have to
make this determination.
Response: The EPA believes that the language of the
final rule is clear that only owners of sources subject to a
part 63 standard will have to submit an initial notification
of applicability, but all owners or operators must make an
initial determination of major/area source status under the
General Provisions and under the title V permit program.
Section 63.1(b) of the rule establishes the requirements for
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initial applicability determinations for part 63. This
section states that the provisions of part 63 and the General
Provisions apply to the owner or operator of any stationary
source that emits or has the potential to emit any HAP listed
in or pursuant to section 112(b) of the Act and that is
subject to any standard, limitation, prohibition, or other
federally enforceable requirement established pursuant to part
63. Section 63.9(b), which has been revised in the final
rule, establishes initial notification requirements for
affected sources who become subject to a relevant standard.
Under § 63.9(b)(2)(v), the owner or operator of such a source
must submit a statement of whether the affected source is a
major source or an area source. In order to comply with the
applicability requirements under § 63.1, all sources must make
a determination of whether they are major or area sources, not
only the sources that meet the criteria of § 63.1(b). The
notification requirements further clarify that only affected
sources subject to a relevant standard must submit a
declaration of whether the source is major or area.
Comment: The commenter states that the EPA needs an
approach to applicability that ensures that all sources within
each major source are subject to regulation. The commenter
also believes that all plants subject to MACT standards should
be required to designate all sources within the plant as
belonging to one or another category on the source category
list within one year of publication of the General Provisions.
The commenter suggests that if an owner or operator believes
that some emission points within the plant belong to no listed
source category, the owner or operator should be required to
prove that the point is not amenable to control strategies for
any other listed source categories, and the EPA should
regulate these points separately.
Response; The EPA has attempted, in accordance with the
requirements of section 112(c) of the Act, to list categories
accounting for all major sources of HAP. If gaps are
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discovered in that list, due to the acquisition of new
information, the EPA will revise the list. It is not feasible
to require all owners and operators of major sources to
designate which MACT standard will apply to each and every
emission-point within a plant because, until the MACT
standards are written, it will not be possible to be certain
which standard will cover which point. The process of
determining whether all sources within a major source are
covered by MACT standards will therefore be an evolving
process, and it cannot be determined with any certainty at the
beginning of the process.
Comment; The Agency received several comments on the
applicability provisions of § 63.1. Many commenters found
this section to be confusing or ambiguous, and these
commenters suggested clarifications. Several commenters were
concerned with proposed § 63.1(b) regarding the initial
determination of part 63 applicability, and felt that it did
not accurately state which sources are subject to the General
Provisions. One commenter also was confused by §§ 63.1(a)(14)
and (c)(1). Section 63.1(a)(14) addressed the relationship
between requirements established pursuant to procedural
regulations in part 63 to requirements that are promulgated in
part 63. Section 63.1(c)(l) addressed applicability after a
relevant part 63 standard has been set. Another commenter
suggested that language should be incorporated to indicate
that only major sources are affected by this rule.
Response: In response to these comments, the EPA
reexamined § 63.1 of the General Provisions carefully, and the
Agency has made several revisions designed to answer the
concerns of commenters who felt the intent was unclear.
Changes have been made in paragraphs (a), (b), and (c) of
§ 63.1. These revisions have clarified who is subject to the
General Provisions and when, by indicating that a source must,
be subject to a standard, limitation, prohibition or other
requirement under part 63 to be subject to the General
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Provisions (except that nonregulated sources must keep a
record of their applicability determination). The Agency also
made other clarifying revisions to make this section easier to
understand. Regulated area sources, in addition to major
sources, are affected by the General Provisions. Accordingly,
the EPA did not adopt suggested language that would indicate
that only major sources are affected by the rule.
Comment: The commenter believes that sources should be
given as much time as possible to determine their MACT
applicability status. The commenter believes that such an
approach provides incentives to industry to reduce their
emissions and will effect emissions reductions sooner than
would be otherwise possible. The commenter believes that the
MACT applicability determination date should be the later of
the operating permit issuance date or the MACT compliance
date.
Response: A source's MACT applicability status is
determined based on its potential to emit HAP, considering
controls. Based on comments received on the proposed General
Provisions, the EPA has decided to propose a supplemental rule
that would amend the General Provisions to address more fully
how and when sources must determine their status as major or
area (subject or nonsubject) sources. Until final action is
taken by the EPA on this supplemental rulemaking, owners and
operators that become subject to a relevant part 63 standard
should first consult the language of the relevant standard on
the timing of the major/area source determination. In the
absence of specific guidance in a relevant standard, and as an
interim measure until the supplemental rulemaking is
finalized, a determination would have to be made by the time
of the initial notification reguirement in § 63.9(b) of the
General Provisions. This section requires that the initial
notification submitted by sources subject to a relevant
standard include a statement indicating whether the source is
a major or an area source.
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Comment; One commenter is confused aboxit the
applicability relationship as defined by § 63.1, and the
applicability of the proposed Industrial Process Cooling
Towers (IPCT) regulation (58 FR 43028, August 12, 1993). The
preamble to the proposed General Provisions specifies that if
a source does not emit (or have the potential to emit) HAP, it
is not affected by part 63 rules. However, the IPCT proposal
applies to all cooling towers regardless of whether they use
chromium water-treatment chemicals. The commenter believes
that this is an inconsistency between the two proposed rules.
Response; The General Provisions establish a framework
of general applicability criteria. The individual standards
define specific applicability criteria for each source
category. In the case of the IPCT proposed rule (58 FR 43208,
August 12, 1993), the definition of affected source is based
on the fact that all IPCT are capable of emitting chromium if
they use chromium-containing water treatment chemicals.
Therefore, for the purposes of that rule, all IPCT are
considered affected sources. However, in the case of the
General Provisions, a generic approach has been taken with
respect to the definition of affected source. This does not
mean that the two rules are in conflict; just that the
individual standard has taken a more exacting approach to the
definition of affected source, which is appropriate.
Comment: The commenter states that the definition of
"alternative emission standard" does not recognize standards
under State or local programs where delegation has been
granted. The commenter wonders if, in such cases, the General
Provisions do not apply to sources subject to such programs.
Response: The definition of "alternative emission
standard" contained in the General Provisions relates only to
an alternative standard authorized under section 112(h)(3) of
the Act (if in the judgement of the Administrator it is not
feasible to prescribe or enforce an emission standard). Such
a standard could be a design, equipment, work practice, or
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operational standard, or combination of these. It does not
apply to State and local standards that have been approved by
the EPA unless they also are covered by section 112(h)(3).
However, § 63.1(b)(l) of the General Provisions provides that
the General Provisions apply to the owner or operator of a
stationary source that is subject to any standard, limitation,
prohibition, or other federally enforceable requirement
established pursuant to part 63. As the provisions of
programs that have been delegated to States will be considered
federally enforceable requirements pursuant to part 63, the
General Provisions will apply to sources subject to such
programs.
Comment: The commenter believes that when subparts C and
E are promulgated, the EPA should repeat the comment period
for the sections of subpart A that reference or overlap with
these subparts. The commenter finds it difficult to comment
accurately on subpart A without having the promulgated
versions of subparts C and E to determine their interactions
and potential overlaps.
Response: Cross-references to subparts C and E were
included in the proposed General Provisions merely as a
convenience to inform readers where they may locate other
general information in part 63. At present, no rules have
been proposed or promulgated in subpart C; however, subpart E
was promulgated at 58 FR 62262 on November 26, 1993. These
cross-references contained no substantive requirements above
and beyond the requirements contained in subpart E or that
would have been contained in subpart C. Furthermore, the
content of subpart E as promulgated generally does not overlap
with the content of subpart A. Where some overlap is present
(e.g., definitions), the EPA wrote subpart E to rely on or to
be consistent with the General Provisions in subpart A.
Hence, the EPA believes it is not necessary to reopen the
comment period for subpart A. Cross-references to subpart C
have been removed from the General Provisions because no rule
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has yet been promulgated in subpart C.
Comment; Several commenters believed that throughout
subpart A, wherever the word "categories" appears, the EPA
should add "or subcategories" in order to be consistent with
section 112(c)(l). Two commenters made this comment in
connection with the applicability provisions in § 63.1 of the
proposal. In addition, one commenter suggested that "or
subcategories" should also be added to the definition of
"stationary source." These commenters believed that the
General Provisions should be clear that it is referring to
both categories and subcategories of sources when it makes any
statements regarding the provisions which apply to sources.
Response: On July 16, 1992 the Agency published the
Notice of the Initial List of Categories of Sources pursuant
to section 112(c)(l) of the Act (57 FR 31576, July 16, 1992).
In this notice, the EPA responded to several comments
regarding the use of the terms "category" and "subcategory,"
and the rationale used in that notice also applies to this
rulemaking. "Category" and "subcategory" are not defined in
section 112 of the Act, but these terms are generally used
together, seemingly interchangeably. There are, however,
places where only the term "category" is used. For example,
sections 112(c)(9)(A) and 112(c)(9)(B)(i) provide for the
deletion of categories of sources only, and
section 112(f) (2) (A) obligates the Administrator to promulgate
residual risk standards only for categories of sources. In
the initial list of source categories, the Agency decided to
use the term "category" to designate all of the groupings of
HAP-emitting sources included on the list. The EPA decided
that the exclusive use of the term "category" would clarify
the applicable requirements of section 112. This decision
does not affect the degree of disaggregation of industry
groups in the list of source categories, or the authority of
the Agency to distinguish among classes, types, and sizes of
sources in establishing emission standards, nor does the
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decision affect the Agency's authority to define subcategories
of sources at a later date. Because of the decisions laid out
in the July 16, 1992 notice, the EPA believes that the
terminology used in the General Provisions appropriately
refers to "categories," and this terminology designates all
groupings of HAP-emitting sources on the list of source
categories. The addition of the phrase "or subcategories" to
the language in the General Provisions is unnecessary and
potentially confusing.
Comment; One commenter argued that the revisions made to
part 61 to bring it up-to-date with the amendments to the Act
should not apply to phosphogypsum stacks because
section 112(q)(2) of the Act exempts such stacks from the
amendments.
Response: The EPA disagrees with the commenter.
Section 112(q)(2) provides that no standards shall be
established under the 1990 amendments to section 112 for
phosphogypsum stacks. The amendments to part 61 are
consistent with that language. The amendments to part 61 that
relate to permit issuance are necessitated by the requirements
of title V of the Act which applies to all sources of
hazardous air pollutants including those regulated under the
old Act. The other amendments are intended to aid sources in
meeting the requirements of both part 61 and part 63 where
applicable. They do not impose new standards on part 61
sources.
2.2 DEFINITIONS
2.2.1 Administrator
Comment: One commenter said that the term
"Administrator" should refer only to the EPA Administrator,
and a different term should be used to refer to a delegated
State.
Response: The term "Administrator" in the General
Provisions is defined as "...the Administrator of the United
States Environmental Protection Agency or his or her
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authorized representative (e.g., a State that has been
delegated the authority to implement the provisions of this
part)." This use of the term is consistent with its past
usage, and the Agency sees no reason to alter this definition
in response to the comment.
2.2.2 Alternative Test Method
Comment; One commenter noted that the definition of
"alternative test method" refers to a demonstration of
equivalency. This definition should recognize any test method
accepted as equivalent in a section 112(1) delegation request.
Special procedures should be identified for such
demonstrations, in order to expedite approval of delegation
requests.
Another commenter, who opposed the use of Method 301 to
verify an alternative test method if the owner or operator and
the reviewing authority reach agreement on departures from a
standard test method, said that, in any case, the method is
incorrectly referenced. The commenter said that all
references to Method 301 should either refer to a location
where the method is already published or that, the EPA should
publish Method 301 as an appendix to part 63.
Response: The first commenter is incorrect that the
definition of "alternative test method" refers to a
demonstration of equivalency. Instead, the definition refers
to any method that has been demonstrated to "produce results
adequate for the Administrator's determination...." In order
for an alternative test method to be used for compliance
purposes, whether or not a section 112(1) delegation request
is involved, it must be reviewed during a formal EPA review
and approval process at the national level. The Administrator
has not delegated this authority under section 112(1).
Method 301 has been proposed, subjected to public
comment, and promulgated with the Early Reduction rule
(57 FR 61970, December 29, 1992) as appendix A to part 63.
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2.2.3 Continuous Emission Monitor
Comment; One commenter noted that the lack of
understanding regarding source category-specific MACT
requirements related to enhanced monitoring and compliance
certification makes it impossible to provide meaningful
comments on the definitions related to continuous monitoring.
For example, the use of the term "continuous" may require a
separate definition to avoid a situation where enhanced
monitoring requirements modify the underlying substantive
compliance requirements. Alternatively, a definition for
"parameter monitoring" should be added to distinguish it from
continuous emission monitors.
According to another commenter, the proposed definition
of "continuous emission monitoring" appears to include
intermittent monitoring, which contradicts the implication
that emissions should be monitored continuously. Another
commenter suggested that the EPA should add a definition of
"monitoring" to deal with methods of monitoring that do not
involve "continuous" measurement systems. The EPA should
start with the presumption that the least expensive method
that provides the needed data is acceptable.
Response: As discussed in section 2.6.2, the definition
of "continuous monitoring system" has been clarified and
states that a CMS "may include, but is not limited to,
continuous emission monitoring systems, continuous opacity
monitoring systems, continuous parameter monitoring systems,
or other manual or automatic monitoring that is used for
demonstrating compliance with an applicable regulation on a
continuous basis as defined by the regulation."
The EPA strives to ensure that the most cost-effective
monitoring methods that provide the needed data are allowed.
This analysis occurs as part of the development of individual
standards.
Comment: Some commenters noted a discrepancy between the
definitions of "continuous emission monitoring system" and
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"continuous parameter monitoring system," which require the
owner or operator to maintain "permanent" records, and
§ 63.10(b)(l), which specifies a 5-year record retention
period. The definitions should be revised to delete the word
"permanent." Alternatively, the EPA should add a definition
of "permanent record" to clarify requirements related to
definitions of continuous emission monitoring system (GEMS),
etc. that require the source to maintain "permanent" records.
The definition could read: "Permanent record" means a record
capable of enduring throughout the mandatory retention period
specified in a standard established under section 112 of the
Act.
Response: The proposed definitions of GEMS and
continuous parameter monitoring system included the word
"permanent" to mean provided in a permanent form to be
available to the source owner or operator and the enforcement
agency at any time. Section 63.lO(b)(l) establishes the
record retention period, which is 5 years. However, in order
to clarify the final rule, the word "permanent" has been
removed from the definition of GEMS and continuous parameter
monitoring system.
2.2.4 Emission Standard
Comment: Commenters said that the definition of
"emission standard" should not include a reference to proposed
standards because proposed standards are not enforceable.
Response: The EPA agrees with the commenters, and the
definition has been revised to delete the reference to
proposed standards.
2.2.5 Equivalent Emission Limitation
Comment: One commenter was very concerned that the
definition of "equivalent emission limitation" in § 63.2 was
expanded in § 63.2 to include case-by-case MACT under
section 112(g) of the Act. The commenter stated that the term
"equivalent emission limitation" was included only under
section 112(j) of the Act, and the commenter (a State agency)
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revised its statutes to allow a title V program to be
implemented. These revisions require detailed procedures for
the adoption of State standards more stringent than Federal
standards and for adoption of equivalent emission limitations.
These procedures include detailed technical and economic
analyses and a costly peer review process. Limiting the term
"equivalent emission limitation" to its original usage in the
Act will make it easier for the State to avoid cumbersome
procedures in applying section 112(g).
Response: The term "equivalent emission limitation" is
used in the General Provisions to define relevant standards
and the applicability of the General Provisions to case-by-
case MACT standards under sections 112(g) and 112(j) of the
Act. The Agency believes that it is necessary to refer to
section 112(g) in the definition to make it clear that the
.General Provisions apply to case-by-case MACT standards under
section 112(g), and it, therefore, has not made the change
suggested by the commenter. In any case, the draft proposed
section 112(g) modification provisions, which will be
published in the Federal Register soon, use the term "MACT
emission limitation" and state that this term means
"equivalent emission limitation." Therefore, the Agency does
not believe that removing the section 112(g) reference from
the definition of "equivalent emission limitation" will
address the commenter's fundamental concern.
2.2.6 Fugitive Emissions
Comment: One commenter said that the proposed definition
of "fugitive emissions" appears to serve no purpose nor does
it include those emissions normally considered fugitive such
as leaks from valves, flanges, pump seals, and other sources
usually regulated by equipment leak rules. Another commenter
said that the EPA provided no justification to exclude
emissions from equipment leaks and that the definition should
be consistent with past definitions, although another
commenter said that the resulting limited definition would be
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too general. This third commenter said that the definition
should be revised to exclude the words "that could reasonably
be . . .practices."
Response; The definition of "fugitive emissions" is
important because fugitive emissions are used in determining a
source's status as major or area. The definition was revised
to clarify this point. However, the EPA agrees that the
language regarding exceptions of equipment leaks is not
needed, and it was deleted from the definition. The revised
definition of "fugitive emissions" is as follows:
"Fugitive emissions" means those emissions from a
stationary source that could not reasonably pass through
a stack, chimney, vent, or other functionally equivalent
opening. Under section 112 of the Act, all fugitive
emissions are to be considered in determining whether a
stationary source is a major source."
2.2.7 Issuance
Comment: Commenters said that the definition of
"issuance" should be changed to reflect that issuance is upon
receipt of the final permit by registered mail to ensure that
the source has received the permit and knows that it has been
issued.
Response: The definition of "issuance" in the final rule
has been changed to clarify that issuance of a part 70 permit
will be defined in accordance with the requirements of the
applicable, approved part 70 permit program in the State in
which the permitted source is located.
2.2.8 Lesser Quantity
Comment: Commenters said that the proposed definition
appears to allow incorrectly for different lesser quantities
to be established for different standards. The commenters
said that the definition should be revised to refer to the
publication of a "lesser quantity" in subpart C of part 63 so
that all sources have common and known major source criteria.
One commenter added that the phrase "or may be" should be
deleted from the definition because section 112(a)(1) of the
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Act should be interpreted to mean that a source is subject to
the lesser quantity if it "emits," not if it "may emit."
Response: The EPA is considering establishing lesser
quantity emission rates (LQER) for specific HAP, For some
pollutants, the EPA is considering whether it would be
appropriate to establish an LQER for a specific source
category, because the LQER would better reflect actual
exposure that would occur. For certain pollutants, an LQER
would be established only for source categories that are
determined to have emissions of "high risk" pollutants to
which people are exposed. The EPA also believes that there
may be advantages to establishing LQER by pollutant, so that
the LQER would apply to all source categories emitting the
pollutant. Both of these options are being considered. The
comments received will be taken into consideration in making a
decision about the best approach.
By definition, a source is major if it "emits or has the
potential to emit considering controls..." greater amounts of
HAP than those listed in section 112(a)(1) of the Act. It is
the EPA's intent to be consistent with the definition of major
source given in section 112(a)(1). Therefore, the EPA
believes that it is appropriate for an LQER to define a source
that emits, or has the potential to emit considering controls,
as a "major source." Thus, the phrase "or may be" should
remain as part of the definition.
2.2.9 Malfunction
Comment: Several commenters objected to the proposed
definition of malfunction. One commenter said that the final
rule should define "malfunction" as a failure that occurs in
spite of regular maintenance and repair and proper operation
of equipment and control devices. Otherwise, the burden is on
the State agency or the EPA to prove a causal link between
shoddy maintenance and the exceedance experienced, which would
be extremely difficult. Other commenters said that the EPA
should provide guidance on how it will determine whether a
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malfunction has been caused by poor maintenance or careless
operation.
Other commenters said that the exclusion of any equipment
failure that is caused "in part" by "poor maintenance or
careless operation" is ambiguous and could easily be
misinterpreted, particularly in complex situations. These
commenters suggested limiting the responsibility of the owner
or operator to those failures that are caused "primarily" or
"dominantly" by poor maintenance or careless operation or
deleting the exclusion altogether.
Response: The EPA has reviewed carefully the
"malfunction" definition with the commenters' concerns in
mind, but the Agency does not believe a revision to the
definition is warranted. The General Provisions definition is
generic and cannot address all situations that might occur.
However, when the definition of malfunction has a specific
implication to an individual source category, the definition
may be addressed again in the individual standard that
regulates that source category. The EPA may provide further
guidance addressing the commenters' concerns regarding
ambiguity in the context of individual rulemakings for source
categories.
Comment: One commenter requested that the exclusion of
poor maintenance and poor operation from the definition of
"malfunction" be added to the part 60 General Provisions.
Response: The EPA agrees with the commenter, and the
change has been made to the definition of "malfunction" in
subpart A of part 60.
Comment: One commenter requested that the definition of
"malfunction" be broadened to include "any other equipment"
that causes excess air emissions. Alternatively, another
commenter objected to the inclusion of the terms "process
equipment or a process" because these units can experience
many types of malfunctions that do not affect air emissions.
Response: The Agency has determined that the definition,
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as proposed, has the appropriate scope. The Agency intends
that any equipment that could result in excess air emissions
be covered by the definition. As explained in section 2.4.8,
clarification has been provided regarding the timing and
nature of activities that are required in response to a
malfunction.
2.2.10 Materially Consistent
Comment: Commenters requested that § 63.10(b)(2)(v) be
revised to allow sources to keep only those records that
demonstrate compliance with the affected source's startup,
shutdown, and malfunction plan for all actions that are
"materially" consistent (discussed in section IV.F.3 of the
promulgation preamble), instead of for all actions that are
"completely" consistent.
Response; As discussed in section 2.4.8, the EPA has
decided to delete the word "completely" in § 63.10(b)(2)(v) of
the final rule. The Agency believes that this word is not
necessary and should not be a focus of concern by commenters.
The language in the final rule adequately conveys the Agency's
intent that actions taken during periods of startup, shutdown,
and malfunction be consistent with the source's plan.
2.2.10 One-Hour Period
Comment: One commenter said that the EPA should replace
the proposed definition of "one-hour period," which appears to
be a rolling average, with the part 60 definition that defines
"one-hour period" as any 60-minute period commencing on the
hour to avoid an onerous regulatory burden.
Response: The EPA agrees with the commenter, and the
definition of "one-hour period" has been revised in the final
rule to be consistent with the part 60 definition.
2.2.11 Owner or Operator
Comment; The definition of "owner or operator" should be
clarified to state that if the owner is not the same entity as
the operator, then the term should refer to the permit holder.
Response: The EPA disagrees and has not changed the
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definition. The EPA retains the discretion to take
enforcement action against whomever is found to be responsible
for a violation. That person may be the operator of a plant,
not the owner or permit holder.
2.2.12 Performance Test Definitions
Comment: Commenters said that the EPA should include a
definition of "performance test" in the General Provisions and
state that a performance test is limited to tests that are
referenced in a part 63 NESHAP. Another commenter requested
clarification of confusing terminology in § 63.7 related to
"performance evaluation," "performance test," and "performance
evaluation test."
Response: The EPA agrees with the commenters that the
terminology is incomplete and has added definitions to
indicate that a performance test is the demonstration of
compliance as specified in the applicable regulation and a
performance evaluation refers to the testing required to
certify, a continuous monitoring system. The definitions of
"performance evaluation" and "performance test" have been
added to § 63.2 and are worded as follows:
"Performance evaluation" means the conduct of relative
accuracy testing, calibration error testing, and other
measurements used in validating the continuous monitoring
system data.
"Performance test" means the collection of data resulting from
the execution of a test method (usually three emission test
runs) used to demonstrate compliance with a relevant emission
standard as specified in the performance test section of the
applicable regulation.
2.2.13 Permit Revision
Comment: Commenters said that the proposed definition of
"permit revision" includes both "permit modifications" and
"administrative permit amendments," which are very different
procedures and should not be included in the same definition.
This definition should he deleted until individual MACT
standards are promulgated and a clearer definition can be
developed.
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Response; The EPA disagrees with this commenter. The
definition of "permit revision" in the General Provisions is
consistent with that in the part 70 operating permit
regulation, and the EPA believes this definition is
appropriate.
2.2.14 Relevant Standard
Comment: Some commenters said that the proposed
definition of "relevant standard" could be misinterpreted to
mean that if there is a standard applicable to any portion of
a stationary source, it is relevant to other portions. The
definition should state that the standard is applicable to
"the" source rather than any portion of "a" source.
Response: The EPA agrees with the commenters and has
made the suggested changes to the final definition.
Comment; According to some commenters, the last sentence
of the proposed definition implies that the General Provisions
are "relevant standards," when, in fact, they are predrafted
provisions that can be incorporated into relevant standards.
The commenters suggested deleting this sentence. Another
commenter said that the General Provisions should be revised
to make it clear that State standards are not relevant
standards to avoid the possibility that State standards would
be considered federally enforceable.
Response: The EPA disagrees with the comment that the
General Provisions are only predrafted provisions that must be
incorporated into relevant standards. As discussed in
section IV.C.I of the promulgation preamble, all parts of the
General Provisions apply to an affected source regulated by an
applicable standard, unless otherwise specified by the
particular standard. Therefore, the last sentence of the
definition is retained. State standards that have been
approved by the EPA under subpart E of part 63 pursuant to
section 112(1) of the Act will be considered "relevant
standards" under part 63, and they will be federally
enforceable.
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2.2.15 Responsible Official
Comment; Commenters said that the definition for
"responsible official" should not distinguish the authority of
individuals managing facilities based on the number of
employees or annual sales. Many sites will not meet these
artificial designations and would thus be required to receive
specific approval from the Administrator. Instead, the
title IV definition of a "responsible person or official
authorized by the owner or operator of a unit to represent the
owner or operator in matters pertaining to . . .submissions of
and compliance with permits, permit applications, and
compliance plans" is more logical and easier to implement.
This change could also eliminate potential conflicts for
sources that are subject to both the title IV and title III
rules and might have more than one "designated representative"
under title IV.
Other commenters requested additional clarification of
the definition. For example the use of "designated
representative" in paragraph (4) is not defined and the
relationship between this paragraph and paragraphs (1) through
(3) is unclear. Does paragraph (4) override, the first three
paragraphs or vice versa? The commenter suggested deleting
paragraph (4).
Another problem is that the rules do not. say who may be
the "responsible official" for a partnership if each of the
partners is a separate corporation. The commenter suggested
that if the general partner is a corporation, the corporate
responsible official defined per paragraph (1) would serve as
the "responsible" official in this case.
One commenter said that the definition should be
reorganized so that the more general definition, i.e., that of
the part 70 permit rule, comes first.
Finally, one commenter said that the liability criteria
mentioned in paragraph (4) should be limited to monitoring,
recordkeeping, and reporting requirements.
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Response: The EPA deleted paragraph (4), as suggested by
one of the commenters, to eliminate confusion, as the other
paragraphs adequately describe a "responsible official."
Because paragraph (5) (as proposed) references parts 70 and
71, title V should resolve any perceived potential conflict,
as another conunenter mentioned, between title IV and
title ill.
The EPA retained the reference to larger corporations in
paragraph (1), because it is felt that smaller corporations
should have less of a need to delegate the duties of a
"responsible official" to someone other than the named
corporate officials. The EPA assumes that smaller
corporations will rarely seek the approval of the
Administrator for an alternative person to be the "responsible
official," so this should not be burdensome to the sources or
the Agency.
Another commenter questioned what to do if each of the
partners in a partnership is a corporation. The EPA intended,
as the commenter recommended, that the partnership can choose
which of the corporate partners is the "responsible official"
and allow that corporation to designate a "responsible
official" per paragraph (1) .
2-2.16 Visible Emissions
Comment: The definition of "visible emissions" should
reference Method 22 from part 60.
Response: Method 22 has very specific applications that
are not universal and do not coincide with the more commonly
applied Method 9. Therefore, the proposed definition of
"visible emissions" is appropriate, and no changes have been
made in the final rule.
2.3 CONSTRUCTION AND RECONSTRUCTION
2.3.1 Definitions
Comment: One commenter requested that the definition of
"construction" clarify the status of an existing source which
is moved to a new location.
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Response: Under the General Provisions, whether an
affected source is subject to MACT for new sources or MACT for
existing sources depends on when construction or
reconstruction of that source commenced in relation to the
proposal date of the relevant emission standard. In other
words, affected sources for which construction or
reconstruction is commenced before the proposal date would be
considered existing sources subject to MACT for existing
sources, and affected sources for which construction or
reconstruction is commenced after the proposal date would be
considered new sources subject to MACT for new sources. If a
new or existing source subsequently is relocated, and if no
other changes are made to the source (other than a change of
ownership) as a result of the relocation or in the process of
relocation, that source generally would continue to be subject
to the same emission standard requirements that it was subject
to under the relevant standard before the relocation took
place. That is, if it were subject to MACT for new sources
before the move it would be subject to MACT for new sources
after the move as well. In this context, "changes" to the
source mean any changes to the source's process or control
equipment, method of operation, or emissions. It is possible,
however, that an existing source that relocates could become
subject to MACT for new sources if, in the process of
relocating, the source is reconstructed. It is also possible
that a previously unaffected source could become subject to
the requirement to make a case-by-case MACT determination if
changes to the source during the relocation trigger the
applicability criteria for a construction, reconstruction, or
modification under section 112(g) of the Act.
These examples are not meant to be exhaustive of all
possible exceptions to the general statement that relocated
sources (or sources that change ownership) retain their
"baseline" applicability status under a relevant promulgated
emission standard or under the provisions of section 112(g).
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If an owner or operator has any doubt about the applicability
status of a relocated source, he or she should contact the
appropriate EPA Regional Office or delegated State or local
authority for an applicability determination. Because
applicability determinations must be made on a case-by-case
basis, the Agency believes it is not appropriate to change the
definition of "construction" in this regard.
Comment; Some commenters suggested that the term "or
portion of a stationary source" means that minor construction
activity could constitute construction. Another commenter
suggested that a de minimis provision be included to exempt
minor construction or reconstruction projects from
notification requirements.
Response: The definition of "construction" in the final
rule has been changed to limit the scope of the General
Provisions requirements for newly constructed sources to
"affected sources" as used within the framework of part 63.
The EPA believes this change clarifies the Agency's intent
regarding these provisions. The revised definition is
consistent with the definitions for "construction" in the
General Provisions for parts 60 and 61. In addition,
§ 63.5(b)(3) of the General Provisions final rule has been
changed to clarify that only constructed or reconstructed
affected sources (as defined in each emission standard) are
subject to notification requirements even if those sources are
affected area sources. As mentioned in the previous comment
response, applicability determinations for constructed and
reconstructed sources are made on a case-by-case basis by the
implementing authority. When in doubt, owners or operators
should contact the appropriate authority for a determination.
Comment: Several commenters believed the definition of
construction should refer only to physical changes that have
an impact on air emissions.
Response: Under the General Provisions, a
preconstruction application is required to be submitted for
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all activities that meet the definition of "construction" of a
new major affected source, the "reconstruction" of a major
affected source, or the "reconstruction" of a major source
such that the source becomes a major affected source subject
to the relevant emission standard. The purpose of the
preconstruction review under section 112(i)(l) is to ensure
that constructed and reconstructed sources will be able to
comply with the relevant emission standard if they are
properly built and operated. The significance of the air
emissions from that source has already been aiccounted for by
virtue of the fact that the subject source is included in the
regulated source category and that it is a major source of
HAP.
Comment: In the proposed definition of construction, the
adjective "on-site" only modifies fabrication. The language
should be changed so that "on-site" clearly refers to
fabrication, erection, and installation.
Response: The construction regulations are concerned
with on-site fabrication, erection, and installation of
permanent structures. Off-site work should not be limited to
only the word "fabrication" in the definition of
"construction." Other activities may occur off site. The EPA
cautions sources that choose to enter contracts that they may
incur substantial loss if the construction application is
denied or withdrawn. The EPA does not recognize actions taken
at the risk of the source as an allowance to proceed with
construction of an affected source. The definition wording
has been amended to expand the understanding of "on-site" so
that it clearly applies to "erection" and "installation" as
well as to "fabrication."
Comment: One commenter noted that the proposed
definition of construction applies to a stationary source that
"is or may be subject to the standard." The commenter
believes that "or may be" should be removed from this
definition since it creates unnecessary confusion. Another
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commenter indicated that the definition of "construction"
should be modified to indicate that it is applicable to
requirements established "under this part," rather than
"pursuant to section 112 of the Act."
Response: There may be situations where a source is not
entirely certain if a planned stationary source will be
subject to a part 63 standard. If there is any possibility
that a stationary source would be subject, then a
preconstruction application should be submitted. For the
purposes of implementing section 112 of the Act, reference to
requirements established "pursuant to section 112" is not
interchangeable with requirements established "under this
part." Specifically, the term "pursuant to section 112 of the
Act" is used to cover situations where States may establish
federally enforceable requirements pursuant to section 112,
for example, under sections 112(g) and 112(j) and under
subpart E of part 63. The definition of "reconstruction" has
been changed to reflect the promulgated subpart E rule with
regard to how and when a State may receive EPA approval to
establish certain requirements that will be considered
federally enforceable pursuant to section 112 (i.e., the
proposed reference to "State with an approved permit program"
has been replaced with "a State"). In addition, as discussed
in a previous comment response, the EPA has revised the
definition of "construction," and the phrases identified by
the commenters have been deleted.
Comment: Several comments were received objecting to the
consideration of economic feasibility in the definition of
reconstruction. These commenters felt the definition of
reconstruction should be based entirely upon the relative
capital expenditure required for the project. Another
commenter was concerned that the consideration of economic and
technical limitations might lead to relieving a source of
compliance obligations, and that the EPA needed to clarify how
it will consider "economic and technical limitations" in
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approval of reconstruction.
Response: Although the EPA acknowledges these concerns,
the Agency will continue to consider technological and
economic feasibility when making a determination of
reconstruction. However, the Agency does believe that the
final decision of technological or economic infeasibility
should rest with the Agency. Therefore, § 63.5(d)(3)(v) has
been changed to require sources that claim it is
technologically or economically infeasible for them to meet a
promulgated emission standard to submit information that is
adequate to support their claim to the Administrator's
satisfaction.
Comment: The General Provisions should not require
preconstruction review for sources that begin construction
after a MACT standard is proposed, but before it is
promulgated. The commenter believes reconstruction should be
defined only with respect to activity after the effective date
of a section 112(d), (f), or (h) standard.
Response: Sources that initiate activities that
constitute construction or reconstruction between the proposal
and promulgation dates of a standard are subject to the new
source requirements within that subpart, and preconstruction
plans are required to be submitted to the Administrator after
the effective date of the standard, provided that the source
had not started up before the effective date. Sources that
start up before the standard's effective date (i.e.,
promulgation) are not required to undergo preconstruction
review and approval under the General Provisions. The EPA
believes that the proposal of a standard provides ample
notification to an owner or operator as to the requirements
for new sources subject to that standard, and that
construction or reconstruction can reasonably proceed with the
proposed standard in mind. The requirement to submit
preconstruction plans allows the Administrator to ensure that
when the sources start up they will comply with relevant
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standards. However, § 63.6(b)(3) of the General Provisions
allows sources that commence construction or reconstruction
between proposal and promulgation of a standard 3 years to
comply with the relevant emission standard if:
(i) The promulgated Standard (that is, the relevant
standard) is more stringent than the proposed standard;
and
(ii)The owner or operator complies with the standard as
proposed during the J3-year period immediately after the
effective date. |
In addition, the requirement that these sources undergo
preconstruction review prevents the situation where a source
could install a small permanent structure to claim
commencement and circumvent the intent of the preconstruction
review requirement.
Comment: The definition of reconstruction should be
clarified to indicate that it applies only to existing
sources.
Response; The Agency does not believe that such a change
is appropriate. The Agency believes that sources that meet
the definition of "new source" also may be reconstructed.
Comment: Two commenters objected to the inclusion of the
estimated life of the replacement as a criterion to be
considered in the Agency's approval of reconstruction.
Response: The EPA believes that estimated life of
replacement equipment is a valid criterion to be considered in
the approval of reconstruction. The Agency would point out to
the commenters that this is only one of a list of criteria
contained in § 63.5(e)(1);that is to be considered.
Comment: Several cojnmenters objected to the reliance
upon Internal Revenue Service (IRS) documents and regulations
in the proposed definition of "capital expenditure." Many
commenters believed the 1981 IRS document reference is, or
will become, outdated. Others believed this definition should
be based on more accessible and understandable criteria.
While this was a concern among affected industries,
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environmental agencies felt that they did not have the means
to verify this type of information.
Response: The definition of "capital expenditure," which
referenced the IRS documents in question, has been deleted
from the final rule, because the term "capital expenditure" is
not necessary for the General Provisions.
Comment: Several comments were received on the
definition of "commenced." One commenter indicated that the
definition of commenced should specifically exclude activities
such as planning, design, ordering of equipment and materials,
etc. Another stated that the definition of commenced
undercuts the ability of a source to hire a contractor to
order materials and equipment, and that the prohibition should
be limited to the commencement of on-site construction
activities, if at all.
Response: "Commenced" is defined in terms of when the
owner or operator has started "a continuous program of
construction or reconstruction." Because construction and
reconstruction are defined to apply to on-site activities,
there is nothing in the definition .of commenced that would
prohibit activities such as planning, design, etc. by the
owner or operator or by a contractor.
Comment: "Source" must be defined for the purposes of
clarifying the scope of the rule for construction or
reconstruction provisions.
Response: The final rule has been revised to clarify
that the provisions of §§ 63.5(b)(3) and (4) apply to
"affected sources," and, thus, the scope of the construction
and reconstruction requirements in the General Provisions is
dependent upon the definition of "affected source." As stated
in the definition of "affected source," each relevant standard
will define the "affected source" for the purposes of that
standard. The scope of construction or reconstruction
provisions, therefore, will depend upon the standard-specific
definition of "affected source."
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2.3.2 General Requirements
Comment; One commenter argued that there is no legal
basis for developing preconstruction review requirements under
section 112(i) that are separate from the requirements of
section 112(g). The commenter argued that section 112(i)
alone only applies before the effective date of a title V
permit program, and it therefore does not warrant a
preconstruction review procedure.
Response: Section 112(i) provides the general compliance
requirements for sources covered by section 112.
Section H2(i)(l) requires that, after the effective date of
any emission standard, limitation, or regulation under
sections 112(d), (f), or (h), no one may construct a new major
source or reconstruct an existing major source, unless the
Administrator determines that the source will comply with the
standard. This language clearly provides ample legal
authority for the preconstruction review requirements provided
in § 63.5. As the commenter acknowledges, before the
effective date of a title V permit program in any State, the
section 112(i) requirements alone apply to sources, and
without the requirements laid out in § 63.5, there would be no
applicable preconstruction process for major sources subject
to MACT standards. As final MACT standards have already been
promulgated, but no title V programs have been approved, there
is clearly a need for the provisions of § 63.5.
Furthermore, the regulations implementing section 112(g)
have not yet been promulgated. When they are published, they
will be drafted to avoid duplicative requirements for sources.
In addition, section H2(i)(i) requires preconstruction
review of sources subject to residual risk standards
promulgated under section 112(f). Section 112(f) is
independent of section 112(g), and thus any preconstruction
review provisions associated with section 112(g) would not be
adequate to implement preconstruction review for sources
subject to section 112(f) standards. Therefore, the
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provisions of § 63.5 are necessary to ensure compliance with
section 112(f).
Comment; Several comments were received regarding the
interaction of portions of § 63.5 and the forthcoming rule to
implement section 112(g) of the Act. One commenter believed
that the definition of construction should defer to the
section 112(g) rule. Another felt that the EPA should delete
§ 63.5(b)(6) until the interaction with the section 112(g)
rule is better understood. Another commenter specifically
asked what § 63.5(b)(6) was intended to implement if not the
modification provisions of section 112(g).
Response: The provisions in § 63.5 of the General
Provisions that deal with construction and reconstruction are
intended to address the preconstruction review requirements of
section 112(i)(l) of the Act as well as additional
notification requirements deemed necessary by the
Administrator to keep track of new and reconstructed sources.
Section 112(i)(l) addresses the construction and
reconstruction of major sources after relevant emission
standards are promulgated. The provisions of section 112(g)
address construction, reconstruction, and modification
activities at major sources after title V permit programs
become effective and primarily before relevant emission
standards are promulgated. Because activities under
section 112(i)(l) may be required before title V permit
programs become effective, a separate definition of
construction is needed in the General Provisions to implement
section 112(i)(1).
Section 63.5(b)(6) is intended to clarify that changes
made to an affected source that is subject to a promulgated
emission standard are also subject to the emission standard,
provided that the changes affect the portions of the source
that are regulated by that standard. The changes referred to
need not be considered a modification under section 112(g).
For example, if equipment is added to an existing affected
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source, but no increase in actual emissions occurs as a result
and the expenditure on the equipment does not trigger a
reconstruction determination under section 112(g) or § 63.5 of
the General Provisions, the added equipment would be subject
to the same emission control (and other) requirements that the
existing source was subject to before the equipment was added
(e.g., MACT for existing sources). The last sentence in
§ 63.5(b)(6) as proposed was deleted to reduce confusion in
the final General Provisions.
Comment: Several commenters noted that only major
sources should be required to submit preconstruction
applications. They noted that section 112(i) of the Clean Air
Act, which § 63.5 is .intended to implement, only requires
preconstruction review for major sources. Consequently, these
commenters felt that § 63.5(d)(1)(ii)(I) should be deleted.
One commenter felt that applications should be received from
area sources only when the part 63 standard covers area
sources.
Response: The Agency agrees with the commenters, and the
final General Provisions reflect the requirement in
section 112(i)(1) of the Act that only major sources submit a
preconstruction application. Area sources are not required to
submit preconstruction applications, even when a part 63
standard covers area sources, so § 63.5(d)(1)(ii)(I) of the
final rule has been deleted.
Comment: One commenter requested that the EPA clarify
that a separate control device and control efficiency are not
necessarily required for each HAP where a source emits
multiple HAP. The commenter was concerned about language in
§§ 63.5(d)(2) and (3) which requires a description of "each
control device for each hazardous air pollutant..." and
believed that this language might be misinterpreted to require
a separate control device for each HAP.
Response: This consideration can only be addressed
within each subpart. Some regulations will have multiple
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standards affecting different types of pollutants and units
which would, by their nature, require separate control
systems. Other regulations may include standards for multiple
HAP within a family that may be controlled together through a
single control system to meet a combined limit. The control
standards within each subpart will make the requirements
clear.
Comment: One commenter believes that the discussion of
preconstruction review should not reference the defined term
"relevant standard." Instead, it should refer only to the
standards promulgated under sections 112(d) , (f), or (h) of
the Act.
Response; The preconstruction requirements apply to
standards developed pursuant to sections 112(d), (f), or (h)
of the Act. The rule language in § 63.5(d)(1)(i) makes this
clear by referring to relevant emission standards that have
been promulgated in part 63.
Comment: One commenter noted that § 63.5(b)(5) appears
to leave out sources that receive extensions or exemptions
from compliance.
Response; Section 63.5(b)(5) has been revised to address
those sources that have received a compliance extension or an
exemption from compliance.
Comment: One commenter felt that § 63.5(b)(4) should be
deleted because it establishes overly broad preconstruction
notice requirements, and it does not establish a size
threshold for the sources it refers to.
Response: The EPA believes that the broad
preconstruction notice requirements contained in § 63.5(b)(4)
are appropriate; however, that paragraph has been revised to
clarify that only new and reconstructed affected sources are
subject to the notification requirement. The term "affected
source" effectively establishes a size threshold for the
source it refers to. Affected source will be defined in
individual emission standards.
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Comment; Section 63.5(b) should be eliminated as it is
redundant with § 63.1(e).
Response: The Agency does not believe that the
provisions contained in §§ 63.l(e) and 63.5(b) are redundant.
Section 63.1(e) addresses the applicability of approved State
permit programs before a relevant standard has been set under
part 63, and § 63.5(b) contains compliance requirements for
existing, newly constructed, and reconstructed sources.
2.3.3 Application
Comment: Sections 63.5(d)(3) and (d)(4) should be
simplified, to be consistent with the requirements for
applications under part 61.
Response: Sections 63.5(d)(3) and (d)(4) require more
information to be submitted in a reconstruction application
than is required under similar provisions in part 61. The
Agency believes that all the information required to be
submitted under these sections is necessary to allow a
complete and prompt evaluation of a reconstruction application
under part 63.
Comment; one commenter suggested that requirements
contained in § 63.5(d)(3)(iii) through (v) be deleted from the
reconstruction application if the source designates itself as
reconstructed.
Response: The EPA agrees that the information required
under § 63.5(d)(3)(iii) through (v) would not be necessary for
sources that designate themselves as reconstructed and
therefore subject to new source standards. The final rule has
been revised to reflect this change by adding subparagraph
(vi) to § 63.5(d)(3). This paragraph allows the owner or
operator to designate the affected source as a reconstructed
source and to declare that there are no inhibitions to
complying with the standards. In this case, the owner or
operator would be exempt from submitting the information
listed in § 63.5(d)(3)(iii) through (v).
Comment: One commenter indicated that
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§ 63.5(d)(1)(ii)(H) should be revised to require only a
discussion of percent reduction where a promulgated standard
speaks only in terms of percent reduction, and not emission
rates.
Response; The EPA agrees with the commenter and has
modified this section to require a source to submit percent
reduction information if a promulgated emission standard is in
terms of percent reduction. However, operating parameters,
such as flow rate, must be included in the application to the
extent that they demonstrate performance and compliance.
Comment: Section 63.5(d)(2) should require submittal of
data only on HAP that are regulated by the standard.
Response: National emission standards for hazardous air
pollutants under section 112 of the amended Act will be
established on a source-specific, and not on a pollutant-
specific, basis. The Agency expects standards to cover the
emissions, or potential emissions, of all HAP listed in
section 112. Therefore, a construction or reconstruction
application must include information on all HAP.
Comment; Section 63.5 should state explicitly that
engineering drawings and detailed specifications are not to be
submitted.
Response: In many situations, engineering drawings and
other detailed specifications will be necessciry in order for
the Agency to make an informed review of a construction
application. In cases where such information is submitted and
the owner or operator believes that the information is
confidential, the Agency will evaluate this information in
accordance with the regulations governing confidential
business information and treat it in the appropriate manner.
Comment: Submittal of an application under
§ 63.5(d)(1)(i) and §§ 63.5(d)(2) and (3) should only be
required if actual field construction or reconstruction is
about to be initiated.
Response: The preconstruction or reconstruction
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application required under §§ 63.5(d)(l), (2), and (3) is
required to be submitted "as soon as practicable" before
actual field construction or reconstruction is to be
initiated. The construction application is required to be
submitted in advance so that the Administrator may have
sufficient time to make a determination without delaying the
source's plans. This section of the rule has been revised to
allow owners and operators greater discretion regarding when
to submit applications. However, the EPA advises owners and
operators that waiting until construction is about to commence
would not provide the Administrator with sufficient review
time, and it could delay commencement of a project.
Comment: Reporting control efficiencies for individual
compounds under the construction application requirements of
§ 63.5(d)(1)(J) may not be possible for all sources. In this
case, only the overall control efficiency should be reported.
Response: The provision for reporting control
efficiencies for individual compounds is found in
§ 63.5(d)(2), not § 63.5(d)(1)(J). The EPA recognizes that
instances may exist where precise estimates of the control
efficiencies of specific HAP compounds will not be possible.
In these instances, the owner or operator should provide an
approximation of control efficiency for each individual HAP
and then submit the actual control efficiencies in accordance
with § 63.5(d)(1)(iii). The final General Provisions has been
revised to reflect this change.
Comment: Section 63.5(d)(1)(iii) should be revised to
allow engineering estimates of emissions in applications for
approval of construction or reconstruction.
Response: Section 63.5(d)(1)(i)(H) allows the use of
estimates in the preconstruction application instead of actual
emissions data. Therefore, a preconstruction application can
be-approved using this information. However,
§ 63.5(d)(1)(iii) requires actual, measured emissions data to
be submitted no later than with the initial notification of
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compliance status.
Comment: One commenter stated that § 63.5(d)(1)(iii)
should be revised to allow the owner or oper
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that applications should be postmarked 360 days prior to
construction once the relevant standards are in place. Some
commenters felt that the EPA should cut its review periods in
half; others said that additional review time was needed.
One commenter said that the 45-day clock that starts with
the effective date of individual standards is unworkable; it
will probably take a minimum of 30 to 45 days for a source to
determine its applicability under a given standard.
In addition, the EPA should allow the owner or operator
to begin any form of construction activity before final
approval is received, at the risk of the owner or operator in
the event of disapproval, unless the State where the source is
located imposes restrictions on the scope of construction
activities. In this case, construction should be allowed to
begin as soon as other permit programs (e.g., existing State
preconstructlon programs) are satisfied.
Other commenters said that a blanket requirement for a
180-day notice is inappropriate for smaller HAP sources, area
sources, or for sources such as industrial cooling towers that
have technology-based requirements. In these cases, a simple
notice and certification that identifies the source and
provides sufficient information to indicate that the source
will meet the preconstructlon review requirements of the
standard should suffice. This notice and certification should
be submitted shortly before construction with expedited agency
review.
A related comment is that the EPA should delete the 30-
day deadlines to submit additional information for
§§ 63.5(e)(2)(ii) and (e)(3)(ii) because sources will already
be very motivated to respond promptly. In the event that more
time is available, possible sanctions are not identified, nor
do they seem appropriate.
Response: As discussed in an earlier comment response
and in section IV.E.4 of the promulgation preamble, the final
rule has been revised to require the submittal of an
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application for approval of construction or reconstruction "as
soon as practicable" before construction or reconstruction is
planned to commence.
In general, it is the EPA's policy that construction may
begin immediately upon approval of an application. However,
because of the need to make case-by-case decisions on the
approval of construction or reconstruction, the Agency does
not believe it is appropriate to state this in the final rule.
The 45-day clock referred to by the commenter is that
period allowed under proposed § 63.5(d)(1)(i) for the
submittal of an application for approval of construction, when
construction had commenced, but startup had not occurred
before the effective date of the standard. The EPA believes
that, in such a situation, it is important to receive the
application for approval as soon as possible after
promulgation of the standard in order to ensure that the
source's plans for construction are adequate to allow it to
meet the standard at startup. To avoid delays in startup, it
benefits the new source owner or operator to know as soon as
possible if changes to a project are necessary prior to
startup. Further, the proposed standard will have provided an
owner or operator with advance information that can be used to
begin preparation of an application prior to promulgation of
the final standard. In light of these considerations, the
Agency believes that while some extension of the 45-day period
proposed may be appropriate, it should not be substantial.
Therefore, the final rule requires that for a source whose
construction commences after proposal of a standard and whose
startup will occur after promulgation, the application for
approval of construction or reconstruction shall be submitted
as soon as possible, but no later than 60 days following
promulgation of the relevant standard.
The Agency disagrees with the commenter's suggestion that
any form of construction activity be allowed prior to approval
at the risk of the owner or operator. This is disallowed by
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policy because it is too difficult to disapprove a
construction application once an owner or operator has made a
significant investment in the project.
As discussed above, the requirements for the application
for approval of construction or reconstruction established in
the General Provisions are the generic requirements for all
sources. The complexity of applications may be tailored to a
particular source category in a MACT standard, allowing
application requirements to be streamlined.
The EPA disagrees with the commenter's suggestion that
the 30-day deadlines for submitting additional information be
deleted. The Agency needs a reasonable deadline for the
submittal of comments or additional information in order to
proceed with a determination as expeditiously as possible.
2-3.4 Approval of Construction or Reconstruction
Comment: Several commenters felt that a source should be
shielded from enforcement action by the EPA once approval has
been granted for construction or reconstruction, and thus
§ 63.5(e)(5)(ii) should be deleted or revised.
Response; The EPA rejected these suggestions because the
shield is inappropriate when there may be violations of
requirements other than the application. Where the source is-
acting in accordance with an approved application, enforcement
action would probably not be taken for the requirements in
that application, but there may be other requirements a source
faces, which should remain in effect and enforceable. Thus,
the EPA has not modified the referenced section.
Comment: Several commenters believed that a construction
or reconstruction review application should be deemed approved
if no action is taken by the EPA within 30 days.
Response: Under section 112(i)(l), the EPA has the
statutory obligation to ensure that new and reconstructed
major affected sources will meet the relevant promulgated
emission standard if they are properly built and operated.
Therefore, it is inappropriate for the Agency to waive the
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requirement that construction or reconstruction applications
be approved in advance of startup of the affected source. The
EPA intends to act on preconstruction applications in a timely
manner to prevent delays in sources' planned construction
activities; however, it would be unreasonable for the Agency
to guarantee that such a delay will never take place. It is
impossible for the Agency to know in advance the circumstances
surrounding a particular construction or reconstruction
project.
Comment: Several commenters indicated that owners or
operators should be allowed to undertake a wide range of on-
site activities, at their own risk, before receiving approval
for a reconstruction or construction application from the EPA.
One commenter pointed out that while the preamble to the
proposed regulation indicated that activities of a "permanent
nature" were prohibited, there was no such prohibition in the
regulation. However, another commenter felt that no on-site
activity should be allowed before approval by the Agency.
Response; As noted by the commenter, the proposed
preamble (58 FR 42785) listed some activities that may and may
not be commenced while a source is awaiting approval to
construct. A source is to refrain from undertaking any
activities of a permanent nature in the event that an
application is withdrawn or not approved. The EPA sees no
reason to prohibit a source from beginning planning and design
activities at its own risk. The EPA believes sufficient
guidance on the meaning of the prohibition was provided in the
preamble of the proposed General Provisions, as noted above.
Because of the need to make construction determinations on a
case-by-case basis, the EPA believes it is not appropriate to
include this prohibition directly in the rule.
Comment: The requirement in § 63.5(b) for the EPA to
issue written approval in the form of a construction permit
exceeds the Clean Air Act mandates. The EPA is only required
to make a determination before construction begins that the
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source will meet new source standards, and a preconstruction
permit is not required.
Response: Section 63.5(b) does not require a source to
obtain a construction permit. This section requires a source
to submit information regarding the planned construction or
reconstruction in accordance with § 63.5(d) and that the
Administrator approve the construction or reconstruction in
accordance with § 63.5(e). Section 63.5(e) states that the
Administrator will notify the owner or operator in writing of
approval or intention to deny approval, with no mention of a
permit.
Comment: One commenter felt that § 63.5(e)(2) must state
that the only basis for denial of approval is when the source
will not meet MACT or when the source did not submit
information in a timely manner.
Response: The Agency disagrees with the commenter.
Denial of an application may be based upon various factors.
The Administrator is not limited to denial based solely upon
untimely submittal of information, or upon whether the
finished project will meet an applicable MACT standard.'
Construction of a new source within a nonattainment area is
just one example of relevant information beyond timing and
compliance with the MACT standard that the Administrator will
consider.
2.4 COMPLIANCE AND MAINTENANCE ACTIVITIES
2.4.1 Applicability
Comment: The commenter stated that the General
Provisions are confusing, and that it is difficult for an
owner or operator to determine the various requirements and
timing thereof to which a source is subject. In order to make
the General Provisions more understandable, the commenter
suggests drawing sample timelines that graphically represent
the various due dates for the different kinds of sources.
Response: The EPA appreciates the commenter's concern,
and has made every effort to make the final General Provisions
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clear and easy to understand. In addition, the EPA has
developed timeline tables that depict the various timing
requirements for different kinds of sources and activities.
These tables are included as Appendix A of this document.
Additional graphical timelines may be developed as part of
enabling materials for the final General Provisions.
2.4.2 Compliance Dates
Comment; The commenter believes that § 63.6 is
incorrectly worded to imply that all new sources, the
construction of which commences after the date of the proposed
standard, must comply with the standard upon promulgation.
The commenter contends that this is true only for new major
sources.
Response: Sections 63.6(b)(l) and (b)(2) clearly state
that new and reconstructed sources that are subject to a
relevant standard must comply with the standcird by the
standard's promulgation date or by the startup date of the
source, whichever is later. This requirement applies to all
subject new sources whether they are affected .major sources or
affected area sources. Section 112 of the Act makes no
distinction between major and area sources with regard to
compliance dates.
Comment: One commenter said that the EPA should address
the issue of a compliance date for area sources that increase
their emissions such that they become major sources and
therefore subject to a relevant standard. The commenter said
that this was a particular concern in situations where the
area source has not obtained a construction permit.
Response: The commenter is correct that, the proposed
General Provisions did not address area sources that
subsequently become major sources. Sections 63.6(b)(7) and
(c)(5) have been added to the final rule to address this
situation. Consistent with the definitions of "new source"
and "existing source" in § 63.2, the new provisions in
§§ 63.6(b)(7) and (c)(5) distinguish between previously
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unaffected "new area sources" and "existing area sources"
based on when construction or reconstruction of the area
source was commenced. The EPA believes that this is an
appropriate way to distinguish between new and existing area
sources for the purposes of establishing compliance dates for
sources that subsequently become affected major sources,
despite the fact that these sources were unaffected at the
time construction or reconstruction was commenced.
Comment: One commenter believes that § 63.6(b)(l) should
be amended to say: "except as provided in paragraphs (b)(3)
and (b)(4) of this section..." because paragraphs (b)(3) and
(b)(4) constitute exceptions to the provisions of (b)(l), and
without this clarifying phrase, the relationship between the
paragraphs may not be clear. Another commenter said that the
reference to § 63.5(b)(3) in paragraph 63.6(b)(3) is
incorrect, and should be changed to § 63.6(b)(l).
One commenter believes that § 63.6(b)(3) should be
amended to refer to section 112(f) standards as well as
section 112(d) and section 112(h) standards. The commenter
argues that this is demanded by the Act, and that the 3-year
extensions of compliance discussed in this paragraph should
apply to all standards under sections 112(d), 112(f) or
112(h).
Response: The EPA agrees that § 63.6(b) should be
clarified regarding the relationship between paragraphs and
has revised the section accordingly. The reference to
§ 63.5(b)(3) was not in error [see section 112(i)(2) of the
Act]; however, the EPA has determined that this reference is
not needed and, therefore, it has been deleted from the final
rule.
Comment: The commenter suggests that the EPA should
revise § 63.6(b)(3)(i) to allow extensions of compliance for
sources constructed between proposal and promulgation of a
standard that are required to install controls "different"
from the proposal, as well as for controls more stringent than
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the proposal.
Response: The EPA disagrees with the commenter's
suggestion; however, this provision in the final rule has been
changed in response to this comment to clarify that the
promulgated standard may be more stringent than the proposed
standard in a variety of ways and not just in terms of the
level of control required. The language in the final rule
more clearly reflects the statutory language in
section 112(i)(2) than did the proposed language.
Section 63.6(b)(3)(i) allows extensions of compliance for
sources constructed between proposal and promulgation of a
standard that are required to install "more stringent"
controls pursuant to section 112(i)(2) of the Act. There is
no statutory requirement for the Agency to allow this
extension of compliance when the required controls are
"different" from proposal.
Comment: The EPA received several comments on the
provisions of § 63.6(b)(4), which implement the compliance
date provisions for standards developed under section 112(f)
of the Act. One commenter stated that the 10-year period
allowed for a source constructed between proposal and
promulgation of a section 112(f) standard, if the promulgated
standard is more stringent than the proposed standard, is
excessive. Another commenter expressed concern that this
10-year period for compliance with risk-based standards may be
unacceptable from the perspective of public health impacts.
Response: The first commenter has misunderstood the
provisions of § 63.6(b)(4), which give sources constructed
between proposal of a section 112(d) standard and proposal of
a section 112(f) standard up to 10 years after the date
construction has commenced to comply with the section 112(f)
standard. These provisions are mandated by section 112(i)(7)
of the Act and, therefore, the EPA must provide for the 10-
year period in the General Provisions. In addition, the EPA
has provided in § 63.6(b)(4) that sources subject to a
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section 112(f) standard need not comply with that standard
before the standard's effective date.
Comment: Two commenters stated that § 63.6(b)(4) should
be revised to accurately reflect the statute. These
commenters suggested revising the wording to mimic the wording
of the statute exactly, so that it reads "shall not be
required to comply with the emission standard...until the date
10 years after..."
Response: The EPA maintains that the wording of
§ 63.6(b)(4) correctly implements the intention of the
statute, and there is no need for revisions. The regulatory
language merely states what is implicit in the statute; while
sources constructing between section 112(d) rule proposal and
section 112(f) proposal have 10 years from construction to
comply with the section 112(f) rule, when more than 10 years
from construction has passed, the normal compliance rules
apply. This does not shorten the 10-year compliance period
for those sources.
Comment; One commenter stated that § 63.6(b)(4) should
be revised to indicate that if a section 112(f) standard is
promulgated more than 10 years after a new source begins
construction, the source shall be given the same amount of
time to come into compliance as other existing sources.
Response: As discussed in response to the previous
comment, the General Provisions do provide for the case when a
section 112(f) standard is promulgated more than 10 years
after a new source begins construction. Section 63.6(b)(4) of
the final rule provides that:
. . . if the section 112(f) standard is promulgated more
than 10 years after construction or reconstruction is
commenced, the owner or operator shall comply with the
standard as provided in paragraphs (b)(1) and (b)(2) of
this section.
Clearly, all sources to which § 63.6(b)(4) will apply will be
new sources because they commenced construction "after the
Administrator first proposed regulations under [section 112]
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establishing an emission standard applicable to such source"
[see section 112(a)(4)] and, by definition, construction was
commenced after the proposal of a standard under
section 112(d) that was applicable to them.
Section 63.6(b)(4) does not apply to existing sources, and it
has been revised in the final rule to remove the inadvertent
reference to the compliance date for existing sources in
§ 63.6(c)(2).
Comment; The commenter states that the General
Provisions fail to address the issue of stringency when a
final rule has more stringent monitoring requirements than a
proposal, or when the applicability thresholds have been
lowered. The commenter recommends that in the first case, the
source should receive the statutory extension, and in the
second case, that sources previously uncovered should be
regulated as existing sources.
Response; As individual standards are promulgated, the
EPA will determine whether the final standard is more
stringent than the proposed standard and discuss the basis of
the stringency determination. Because the effects of possible
changes in monitoring requirements and applicability
thresholds vary among source categories, it is not appropriate
to make a blanket assumption in the General Provisions that
such changes are necessarily more stringent and that
compliance extensions are an appropriate remedy. Both the
statute and the General Provisions are clear in the
definitions and related applicability requirements concerning
the differences between new and existing sources, and no
changes beyond those discussed elsewhere in this document have
been made.
Comment: The commenter suggests that the provision for a
3-year extension when a final rule is more stringent than the
proposed rule should clarify that the proposed standard that
is referenced is the standard of concern when there is more
than one standard covering a source.
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Response: The EPA believes that § 63.6(b)(3) as proposed
is sufficiently clear with regard to the commenter's concern.
Comment: The commenter suggests that the EPA refer to
timing requirements established pursuant to sections 112(g),
(j), and (q) of the Act in both §§ 63.6(b) and (c). The
commenter has suggested adding a new subparagraph to each of
these sections to accomplish this.
Response: The timing requirements related to
sections 112(g) and (j) of the Act will be dealt with in
separate rulemakings and are not appropriately established as
part of the General Provisions. Compliance deadlines and
other requirements resulting from revisions to section 112
standards promulgated prior to the Clean Air Act of Amendments
of 1990 will be addressed in individual rulemakings conducted
under the authority of section 112(q).
Comment: The commenter argues that compliance timelines
for MACT source category promulgations should be specified
within each MACT standard, rather than in the General
Provisions.
Response: The EPA discussed the relationship between the
General Provisions and individual NESHAP, or MACT standards,
in the promulgation preamble in detail. The EPA's policy is
that the General Provisions should provide the general
compliance framework for individual standards, including the
baseline requirements for compliance dates that are included
in section 112. In many situations individual standards may
override specific provisions of the General Provisions, when
appropriate, as provided for in the General Provisions. The
compliance date for existing sources is one of the provisions
that will be determined in each standard, not to exceed 3
years, as specified in the Act. Compliance dates for new
sources are specified directly in the Act, and they will not
be determined in individual standards.
Comment: Commenters said that timing constraints related
to the need to conduct performance testing, design pollution
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control systems, and conduct possible multi-source dispersion
modeling to determine compliance status mean that the EPA
should never establish a compliance date for a section 112(d)
or (h) standard that is less than 3 years after the effective
date. With a 3-year period to gear up for compliance,
requests for extensions under § 63.6(i)(4) should be allowed
up to two years after the effective date for these standards.
It is in the source's interest to submit the request as soon
as possible and no further deadlines are needed.
Response: The Act is clear that the Administrator shall
establish compliance dates for existing sources that provide
for compliance as expeditiously as possible and that 3 years
is the maximum amount of time allowed for compliance. There
are instances when a compliance period of less than 3 years is
appropriate. For example, in the proposed chromium
electroplating NESHAP, a 3-month compliance period is allowed
for affected sources to install some controls owing to the
widespread availability of these particular controls, the
extensive industry experience with the controls, and the
environmental benefits of the emission reductions. The
proposed General Provisions appropriately referred to the
applicable subpart for the compliance date for that subpart,
and also reflected the maximum period of 3 years allowed by
the Act. For this reason, the regulatory language regarding
compliance deadlines in the General Provisions has been
maintained as proposed.
The EPA proposed that a request for an extension of
compliance be submitted not later than 12 months before an
affected source's compliance date for a source not utilizing
emissions averaging to demonstrate compliance, and not later
than 18 months before the compliance date for a source that is
utilizing emissions averaging. The EPA believes these time
periods are appropriate to allow for Agency review of the
request and action by the source, if necessary, to respond to
the Agency's determination on the request. Given that a
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compliance deadline of less than 3 years may be established in
some standards, it is appropriate to relate the deadline for
requests for extensions of compliance to the compliance date
that is established in the applicable standard, rather than
providing a blanket period of 2 years after the effective date
as requested by the commenter. Therefore, no change was made
in the proposed requirements regarding the deadline for
requests for extensions of compliance.
Comment: The commenter stated that the EPA should assume
compliance will be achieved within 90 days of the effective
date of a standard. This commenter said that longer periods
would be appropriately determined in individual rulemakings.
This commenter stated that a 3-year compliance period should
not be the norm, and the burden to demonstrate the need for an
extended compliance period should be on the source.
Response: The EPA intends to establish the shortest
practicable compliance periods for existing sources during the
rulemaking process for each standard. This position is
reflected in § 63.6(c)(l) of the General Provisions, which
states that:
the owner or operator of an existing source shall comply
with such standard by the compliance date established by
the Administrator in the applicable subpart(s) of this
part. Except as otherwise provided for in section 112 of
the Act, in no case will the compliance date established
for an existing source in an applicable subpart of this
part exceed 3 years after the effective date of such
standard.
The EPA believes that a default assumption that compliance
dates should be set at 90 days after the effective date of the
standard is not reasonable and is not consistent with the
intent of section 112(i)(3), which provides that the
Administrator shall establish compliance dates for each
category of sources providing for compliance "as expeditiously
as practicable, but in no event later than 3 years after the
effective date of such standard. . ." The burden of
demonstrating the need for an extended compliance period will
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be on the affected category of sources during the rulemaking
process to develop a standard for that category.
Comment; The conunenter claims that the compliance dates
in § 63.6(c) are inconsistent with the provisions of the Act,
which allow existing source up to 3 years after promulgation
to comply with a standard, as well as a further 1-year
extension, if necessary.
Response: Section 112(i)(3) provides that the
Administrator determine the compliance date for existing
sources on a standard-specific basis. The statute provides
that the resulting compliance dates may be as long as, but may
not exceed, 3 years after the standard's effective date.
Thus, compliance periods for existing sources may be less than
3 years. The compliance date referred to by the commenter is
provided for in § 63.6(c)(l), and the one year extension of
compliance is provided for in § 63.6(i) (4)(i) (A) .
Comment: The commenter states that § 63.6(c)(l) as
proposed incorrectly states that "In no case will the
compliance date established for an existing source...exceed 3
years after the effective date...." The commenter suggests
that this paragraph be revised to reflect the fact that an
owner or operator may receive an extension of compliance
pursuant to section 112 of the Act.
Response: The EPA recognizes the commenter's concern.
The exceptions to the compliance date requirements in
§ 63.6(c)(l) are addressed in § 63.6(a)(l).
Comment: The commenter suggests that § 63.6(c)(l) should
be deleted to avoid confusion, as this paragraph implements
section 112(i)(8) of the Act, which is also implemented by the
coke ovens regulation, subpart L of part 63.
Response: The EPA agrees with the commenter that the
reference to coke oven batteries in § 63.6(c)(l) is
unnecessary, and the Agency has revised the rule to remove the
reference to coke oven batteries in this paragraph, rather
than deleting the paragraph entirely.
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Comment: One commenter stated that the General
Provisions should provide a simple mechanism for States to
alter time frames for notification, reporting and records
retention, to ensure that all sources comply, as the existing
timeframes in the proposed General Provisions may not be
practical.
Response: The General Provisions allow owners and
operators to change the dates and frequencies of certain
requirements by mutual agreement with the delegated authority.
Other timelines, such as the records retention period, are to
remain uniform for all affected sources subject to a
regulation. (The EPA believes that the required records
retention period is the minimum necessary to provide evidence
of a violation that may have occurred and to allow the EPA to
take enforcement action against the source within the statute
of limitations.) The EPA has set the deadlines at what the
Agency believes are reasonable times, including the changes
made since proposal in response to comments. However, States
have the flexibility to submit programs to the EPA for
approval under section 112(1) of the Act (see subpart E of
part 63) that alter many of the time frames in the General
Provisions. The EPA believes, therefore, that the mechanism
requested by the commenter has already been provided.
2.4.3 Compliance Extensions
Comment: Many commenters disagreed with the EPA's
proposed policy on compliance extensions. Specifically, many
commenters argued that sources should not be required to
submit requests for compliance extensions no later than 12
months before the compliance date. Commenters felt that this
time period would make it difficult for owners or operators to
respond flexibly to rapidly changing conditions, and that it
would reduce the owners' or operators' ability to accurately
assess their ability to comply by the compliance date.
Commenters suggested that the deadline for filing compliance
extension requests should be closer to the compliance date,
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and several commenters suggested that sources should be
allowed to file a request for a compliance extension up until
the compliance date. Other commenters suggested that 30 days
before the compliance date is appropriate if emissions
averaging is not used, and 60 days is appropriate if it is
used.
Response: Because of the requirements set out in
section 112(i) of the Act, many emission standards will have a
compliance date for existing sources that is three years after
promulgation. The Agency believes that this should provide
ample time for sources to determine whether they can meet
their compliance date. New sources have the period of time
prior to startup to prepare for the requirements of an
applicable standard, and the EPA believes that the deadline
for compliance extension requests is therefore reasonable and
no changes have been made in the final rule., The advance
request allows sufficient time for the implementing authority
to make a determination before the compliance date while still
allowing the source adequate time to come into compliance if
an extension request is denied.
The Agency believes that situations where unavoidable or
unforeseen circumstances arise after the deadline for
requesting a compliance extension, thereby interfering with
the source's ability to comply with the standard by the
compliance date, will be rare. Consequently, the EPA has
determined that it is inappropriate to include a special
consideration provision in the General Provisions to review
late requests for extensions of compliance on a case-by-case
basis. Instead, when these situations arise, the EPA will
avail itself of enforcement options under section 113(a) of
the Act, and an administrative order will be employed to
handle late requests for compliance extensions. In this
process, an. enforceable schedule for compliance will be
negotiated between the EPA (or the delegated State) and the
owner or operator. Failure to meet this schedule could result
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in a violation of the administrative order. The EPA maintains
that this approach to addressing late requests for compliance
extensions will expedite compliance with standards, even for
those sources that encounter delays after the deadline for
submitting compliance extensions. Further, because the
compliance schedule will be negotiated with the source, it
should be amenable to the particular circumstances or concerns
faced by any individual source.
Comment; Two commenters requested clarification
regarding which systems may receive compliance extensions, and
one of these commenters specifically stated that pollution
prevention practices may also be relevant measures warranting
extensions. This commenter suggested language changes to
§§ 63.6(i)(4) and (i)(5) to specify examples of installations
of controls that the commenter believes should qualify for
extensions of compliance.
Response; Compliance extensions may be requested for any
systems required for control of HAP under a relevant standard.
However, pollution prevention projects may be considered in an
extension request only insofar as the project directly affects
"installation" of controls used to comply with a given
standard. The language changes suggested by the commenter
have not been incorporated into the General Provisions because
the EPA reserves the discretion to determine which
installations may qualify for extensions of compliance on a
case-by-case basis or during the development of individual
NESHAP.
Comment; The commenter states that the General
Provisions fail to address how the EPA will implement the
2-year extension period authorized by section 112(f)(4)(B) of
the Act.
Response: The provisions for implementing the 2-year
extension of compliance under section 112(f)(4) of the Act are
specified in § 63.6(i)(4)(ii) of the final General Provisions.
Comment: One commenter noted that § 63.6(i)(15), which
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addressed requests for section 112(d) compliance extensions,
does not address requests submitted before approval of a
State's part 70 operating permit program or of the part 71
Federal program. The commenter suggested that the following
sentence be added to the end of that paragraph to correct this
oversight: "Before the date that a part 70 or part 71 permit
program is approved in the source's State, the notification of
approval of a request for an extension of compliance in
paragraph (i) (12) (i) of this section shall serve as the
approval of the extension until a permit is issued under part
70 or part 71."
Response: The contents of this paragraph have been moved
from § 63.6(i)(l5) to § 63.6(i)(4)(i)(A) in the final rule,
but the changes suggested by the commenter have not been made.
The commenter is correct in pointing out that, in some cases,
a source may need to seek an extension before approval of a
State's part 70 operating permit program or a part 71 Federal
program. However, the regulatory language accounts for this.
There will be situations where approval or denial of the
request will precede approval of a permit program. In such
cases, the approval notice will determine the source's
compliance responsibilities until a permit is issued.
Comment: The commenter believes that a transition plan
is necessary to establish a mechanism for implementing
federally promulgated regulations before approval of a title V
program and delegation of NESHAP, particularly with regard to
submission and approval of compliance extensions under
§ 63,6(i). The commenter believes that at a minimum, Regional
Offices should be in consultation with State and local
agencies on these issues.
Response: The EPA agrees that before the title V permit
program is approved and operational, all provisions of
regulations, including compliance extensions, should be
implementable and enforceable. Indeed, the EPA believes that
any part 63 standard is directly enforceable even in the
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absence of a title V permit. Section 113(b) of the Act
provides that permits, implementation plans, orders, and other
requirements under the Act, including the compliance extension
approvals under § 63.6(i), are fully enforceable. Therefore,
no change to the language of this rule has been made. Before
States are delegated the authority to implement part 63 NESHAP
through approval of their title V permit programs, States may
accept delegation of NESHAP through the administrative
procedures established under section 112(1) of the Act in
subpart E of part 63. The EPA's Regional Offices will be in
consultation with State and local agencies on these issues.
Comment: Several commenters requested that subpart A be
changed such that monitoring performance tests (performance
evaluations) and performance tests are waived automatically if
a source is granted a compliance extension.
Response: The EPA disagrees with the commenter that
performance evaluations and performance tests should be waived
automatically. As discussed in section 2.5.8, performance
test waiver, the Administrator views the application for a
waiver of performance tests (and performance evaluation tests)
to be necessary to justify the request. The submission of
these applications is not burdensome, and they should be
submitted with the request for an extension of compliance or
at the same time that a site-specific test plan or
notification of performance test would be submitted. Insofar
as a source is able to comply with testing and monitoring
requirements despite the need for a compliance extension, the
tests should be conducted, and the extension should not
provide any undue delays to these requirements. However, the
EPA recognizes that there may be situations where it would be
appropriate to grant a compliance extension that covered
performance tests, and § 63.6(i)(10)(iv) has been added to the
rule to allow for these situations.
Comment: Many commenters suggested that the allotted
time frames for various activities related to submission and
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approval of compliance extensions were too short. One
commenter specifically mentioned the periods given for
responding to a request for additional information and for
responding to a notice of intention to deny approval. Another
commenter stated that the periods allotted to notify sources
of the status of their application, and of approval or intent
to deny approval, were too short. A third commenter suggested
many changes to the schedule for requests for compliance
extensions. In general, this commenter requested that most
time periods be at least doubled, and some increased even
further, as the commenter believes that the proposed time
periods are too short. One commenter is particularly
concerned with the period allotted for a source to present
information or arguments to appeal a denial of a request for a
compliance extension. This commenter believes a period agreed
to by the owner or operator and the permitting authority is
appropriate, and that it should be at least 60 days long. The
commenter believes that the source should be shielded from
enforcement action during this period.
Response: Many of the commenters' suggestions have, in
fact, been incorporated into the final General Provisions;
however, not all of the commenters' suggested changes have
been made. See the discussion in section 2.9 of this document
for a detailed discussion of related timeline issues and
changes made to the General Provisions. In addition, the
General Provisions provide considerable flexibility to owners
and operators who may pursue mutually agreed upon schedule
revisions [§ 63.9(i) and §§ 63.10(a) (5) through (a) (7) ] .
No enforcement shield will be provided during this time,
as the EPA reserves the right at its discretion to bring
enforcement actions against sources when appropriate, e.g.,
when sources have not yet been granted a compliance extension
and are required to comply with the relevant emission standard
by the date specified in the standard. In general, it is
against Agency policy to grant enforcement shields.
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Comment: Several commenters commented on the "other
information" referred to in § 63.6(i)(9). Some commenters
state that such information should be shared with the source
and that the phrase should be revised to read "other
information provided by the source."
Response; The Administrator may use all information
available in a determination, including "other information"
provided by sources other than the affected source. Before
denying a request for a compliance extension, the
Administrator will provide the applicant with a finding of
insufficient information or a basis for intended denial with
an opportunity for the source to provide additional arguments.
All submissions not identified as sensitive or confidential
are available for public review.
Comment; The commenter suggests that §§ 63.6(i)(12) and
(i)(13) should refer to "request for extension" rather than to
an "application for extension."
Response; The EPA disagrees with the commenter and
believes that the language in §§ 63.6(i)(12) and (i)(13) is
sufficiently clear and precise. Therefore, the final rule has
not been revised.
Comment: Several commenters requested that the
definitions of compliance plan and compliance schedule be
deleted or modified. One commenter suggested that the
definition of compliance schedule has no legal basis, and that
until a State permit program has been approved, no compliance
schedule can be required under section 112. The commenter who
requested that the definitions be modified suggested adding
the phrase "but no later than the date specified in the
subpart" after the words "on a timely basis" in the
definitions of both compliance plan and compliance schedule.
Other commenters expressed a general agreement with the
definition of compliance schedule. Some commenters voiced
objections to the requirement in § 63.6(i)(6)(iii) for a
schedule of intermediate steps leading to compliance. These
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commenters disagreed with the provisions allowing a compliance
extension to be terminated if intermediate steps are not met.
One commenter suggests that the requirement for interim steps
outlined in § 63.6(i) (6) (iii) should apply only to
section 112(f) extensions under § 63.6(i)(5) as proposed.
Response: A compliance schedule is required by the
General Provisions as a part of an approved compliance
extension. The definition of compliance plan is included for
use by individual subparts, if necessary, but it is not
directly required by the General Provisions. The EPA has
authority under the Act to establish such requirements to
implement section 112. Section 113(b) of the Act clearly
states that not only permits but, among others, implementation
plans, rules, orders, waivers, or other requirements are fully
enforceable. This is a broad grant of authority and
constitutes an adequate legal basis for the requirement for
compliance schedules. Emission limits are only one form of
standard; milestones are equally significant and enforceable.
These definitions are consistent with the definitions in the
part 70 permit regulation and include enforceable milestones.
The schedule and milestones may be adjusted at the
Administrator's discretion as appropriate to accommodate
changes in the ordering and installation of equipment.
The Agency believes that the compliance extension must
include milestones that provide the enforcement authority with
assurance that progress is being made during the term of the
extension. Interim milestones are necessary to ensure that
all aspects of the compliance schedule are met. The EPA's
experience has shown, from the part 61 NESHAP program, with
the granting of waivers with interim requirements, and from
the inclusion of enforceable interim milestones in consent
decrees lodged with the court, that such an enforceable
sequence of events aids enforcement and ensures that
environmental goals will be achieved in a timely fashion. If
only the final compliance date were enforceable, then the EPA
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would have no enforcement tool to use to prevent noncompliance
at the end of the compliance schedule. Because timely
emissions reductions is an important goal of the EPA,
enforceable interim milestones have been retained in the final
rule.
The duration of the extension is based upon the
installation of control equipment, and if a milestone is not
met, the schedule may need to be adjusted. Not meeting a
milestone may not automatically lead to an enforcement action.
However, such a violation may lead to revocation of the
extension. The primary concern of the Agency is to have
noncomplying sources on an accurate schedule to achieve
compliance. This concern, and the need for enforceable
milestones, is equally valid and appropriate for technology-
based, as well as health-based, standards.
The definitions of compliance plan and compliance
schedule have not been changed to add the phrase "but no later
than the date specified in the subpart," as suggested, because
the compliance date specified in the subpart would no longer
be the appropriate date if the existing source were granted a
compliance extension. The EPA believes the words "on a timely
basis" in the definitions are adequate to ensure compliance by
the relevant date for the requirement(s) of concern.
Regarding the comments related to intermediate steps, the
EPA has not made any changes in the final rule. The
Administrator always has the authority not to terminate, or to
modify a compliance extension, where intermediate steps are
not being met; however, where the Administrator believes that
the intermediate violations are such that the compliance
extension should be terminated and enforcement actions should
ensue, he or she should have that flexibility.
Comment: Two commenters stated that the General
Provisions should include provisions for a 5-year extension of
compliance for installation of BACT or technology to attain
LAER pursuant to section 112(i)(6) of the Act.
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Response; The EPA agrees with the commenter, and the
rule has been revised accordingly. Provisions implementing
extensions of compliance for installation of BACT or
technology to meet LAER are included in § 63.6(i)(5).
Comment: Two commenters requested that an application
for an extension of compliance be deemed approved if no action
is taken within 30 days of submission of the. application.
Response: Regarding requests for compliance extensions,
the Agency will notify the owner or operator in writing of
approval or denial of approval within 30 calendar days of
receiving sufficient information to evaluate a request. The
30-day period will begin after the owner or operator has been
notified that his or her application is complete. While the
EPA does intend to meet the notification times discussed here,
sources cannot assume an application is approved if they have
not heard from the EPA after 30 days, and they should confirm
the status of their application with the EPA or the delegated
authority.
Comment: The commenter believes that the General
Provisions should state that existing sources must comply with
emission limits as expeditiously as possible. They should
also state that owners or operators bear the burden of
demonstrating that a compliance extension is necessary. The
commenter also states that NESHAP should never authorize
general extensions, because they require a case-by-case
showing.
Response: The EPA expects all affected sources to meet
all requirements of a rule by the compliance date, and the
Agency will grant extensions only pursuant to case-specific
showings. Industry-wide extensions have been used in the past
only in unique circumstances where it was determined through a
survey during regulation development that affected sources
could not meet a compliance date resulting from a court-
ordered promulgation deadline. With NESHAP compliance dates
as long as three years after promulgation, such industry-wide
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extensions should not be necessary. The Agency agrees that
sources must have a legitimate reason for needing an
extension, and the burden of proving that need rests upon the
source making a request.
2.4.4 Compliance Certification
Comment: One commenter suggested that owners or
operators should be required to regularly state whether their
source is in compliance with applicable requirements,
including those used to avoid NESHAP. This commenter also
suggested that the General Provisions should also require
certification that sources are in compliance with the
accidental release provisions of section 112(r).
Response: Excess emission reports will be used in
combination with the certification that is already required in
title V permits as the primary means through which the EPA
will monitor ongoing compliance with NESHAP. This combination
of requirements removes the need to repeat a general
certification requirement in the General Provisions. The
General Provisions require sources that have determined that
they are not affected by NESHAP to keep a record of their
determination, to be made available for inspection by the
Administrator. In addition, reporting requirements will be
established on a source-specific or source category-specific
basis when requirements are developed to allow a source to
avoid compliance with an otherwise applicable NESHAP. Because
the General Provisions do not implement the accidental release
provisions of section 112(r) of the Act, they do not require
certification of compliance with such provisions.
2.4.5 Non-Opacity Emission Standard
Comment: Several commenters argued that § 63.6(g), as
proposed, does not conform to the statute. They stated that
the statute permits an alternative standard even where the
relevant standard is a numerical emission limitation. The
proposed rule, however, specifically prohibits the use of
alternative emission limitations in the case of numerical
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emission limitations.
Response: Section 63.6(g) implements section 112(h) of
the statute. That paragraph provides that:
112(h)(3) ALTERNATIVE STANDARD If after notice and
opportunity for comment, the owner or operator of any
source establishes to the satisfaction of the
Administrator that an alternative means of emission
limitations will achieve a reduction in emissions of any
air pollutant at least equivalent to the reduction in
emissions of such pollutant achieved under the
requirements of subparagraph (1), the Administrator shall
permit the use of such alternative by the source for the
purposes of compliance with this section with respect to
such pollutant.
The paragraph (1) referred to in section 112(h)(3) allows
the Administrator to promulgate "a design, equipment, work
practice, or operational standard, or combination thereof"
when it is not feasible to prescribe or enforce an emission
standard for a category of sources. The authority of
section 112(h)(3) is limited therefore to authorizing
alternatives demonstrated to achieve "a reduction in
emissions...equivalent to the reduction in
emissions...achieved under the requirements of paragraph (1),"
which are work practice requirements. Section 112(h)(3) does
not provide authority for the Administrator to authorize
alternatives to anything but standards promulgated under
authority of section 112(h)(l).
Nevertheless, the EPA is deleting the second sentence of
§ 63.6(g)(l) because the Agency believes that the general
rulemaking authority of the Act would provide the authority to
allow the Administrator to consider a petition from an
individual source for permission to use an alternative means
of control under some circumstances.
Comment: One commenter believes that the last sentence
of § 63.6(g)(l) should be deleted, because section 112(h)(3)
of the Act does not authorize the EPA to require operation and
maintenance and quality assurance/quality control procedures
as a condition for using an alternative emission standard.
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Response; The commenter is in error. Section 112(h)(i)
authorizes the Administrator to "include as part of such
standard such requirements as will assure the proper operation
and maintenance of any such element of design or equipment."
Section 112(h)(3) says that an alternative standard must meet
the requirements of section 112(h)(l). No changes were made
to the final rule.
Comment: One commenter wants the EPA to specify in the
General Provisions the procedures for requesting alternative
means of emission limitation.
Response: Procedures for requesting alternative means of
emission limitation will be defined in individual standards.
2.4.6 Opacity and Visible Emissions
Comment: The commenter believes that it is not
appropriate for the Administrator to make a finding of
compliance relevant to an opacity standard under
§ 63.6(h)(2)(ii) based on operation and maintenance activities
without actual evidence of compliance or noncompliance. The
commenter also believes that the provisions of
§ 63.6(h)(5)(iv) are inappropriate as the Administrator is
unlikely to accept the results of observations conducted by an
uncertified observer, yet the source is not allowed to delay
performing the observations because of the lack of
availability 'of an observer.
Response: In general, the EPA agrees with the commenter,
and § 63.6(h)(2)(ii) has been deleted from the final rule.
However, in some cases a correlation may be established
between work practices and opacity or visible emissions. if
such a correlation is established for a particular source
category or source, the relevant standard will include
provisions for the Administrator to make a finding of
compliance with an opacity or visible emissions standard based
upon an evaluation of an owner or operator's operation and
maintenance practices.
The Agency does not recognize the owner or operator's
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inability to secure a certified visible emissions observer,
nor does the Agency accept data from uncertified observers.
Therefore, § 63.6(h)(5)(iv) has been deleted from the final
rule.
Comment: One commenter made several comments on §
63.6(h), compliance with opacity and visible emission
standards. The commenter states that an affected source
should be shielded from enforcement for the time while the EPA
is considering adjusting an opacity standard,, and that,
consequently, the last sentence of § 63.6(h)(9)(i) should be
deleted. The commenter believes that the request to use an
alternative should be deemed approved if it is not denied by
the EPA within 60 days. The commenter also believes that the
requirement for the Administrator to make a finding under
paragraph (h)(8) before an owner or operator can file a
petition to adjust an opacity standard should be removed. The
commenter suggests allowing the Administrator "or the owner or
operator" to make a finding under paragraph (h)(8).
Response: The Agency has a policy against "no action
assurances" and cannot provide a shield to sources that are
out of compliance. All applicable requirements remain
effective until an alternative is approved. Also, the
Agency's mandate to protect the environment would not allow
automatic approval of an alternative proposal and, therefore,
the EPA has retained the provisions at §§ 63.6(h)(8) and
(h) (9) .
Comment: One commenter asked if § 63.6(h)(7)(v), which
describes the actions a source must take when using a COM3 to
demonstrate compliance with an opacity emission standard,
assumes that visual observations and COM3 data are in
conflict.
Response: The commenter is correct that § 63.6(h)(7)(v)
concerns a situation where visual observations indicate an
exceedance, but the source has notified the Administrator that
COM3 data will be used to demonstrate compliance.
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Comment: One commenter stated that the intent of
§ 63.6(h)(9), which allows a source to petition the
Administrator to adjust an opacity standard for a source that
is in compliance with all relevant standards except for the
relevant opacity emission standard, needs to be clarified
regarding whether it assumes that the basis for setting the
original opacity standard was invalid.
Response: Section 63.6(h)(9) does not assume that the
basis for setting the original opacity emission standard was
invalid. Rather, it allows the source to petition the
Administrator for an adjustment in the opacity emission
standard in the event that the affected source and its
associated air pollution control equipment were incapable of
being adjusted or operated to meet the relevant opacity
emission standard. However, the source must demonstrate that
it and its associated air pollution control equipment were
operated and maintained in a manner to minimize the opacity
emissions during the performance tests and that the
performance tests were conducted under the conditions
established by the Administrator.
Comment: One commenter requested that both the part 63
and part 60 opacity reading requirements be revised to avoid a
requirement that 3 hours of observation be required. This
requirement means that two staff members must be present for
each test. The commenter also said that it does not seem
possible for anyone to make 3 hours of observations without
suffering eye fatigue. The commenter suggested the following
language:
When less than the full 3 hours of 30 - 6 minute averages
are recorded, a statement of the visible emissions shall
be included with those recorded observations. Following
initial compliance, the minimum period of time allowed
for determining compliance with the opacity standard
using method 9 shall be one 6-minute average.
The EPA should also consider that MACT standards themselves
may eliminate or minimize the need for visual emission
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readings.
Response; The EPA appreciates the cominenter's concern;
however, neither the regulations nor Method 9 require that the
three hours of observation be continuous. Rather, guidance
for Method 9 observers recommends frequent short breaks for
exactly the reasons discussed by the commenter.
2.4.7 General Operation and Maintenance
Comment; Several commenters requested clarification on
the meaning and intent of the phrase in § 63.6(e)(1)(i), which
requires sources to operate "...in a manner consistent with
good air pollution control practices for minimizing
emissions." One commenter said that the provisions of
§§ 63.6(e)(l)(i) and (e)(1)(iii) are unenforceable, do not
give sources sufficient notice of what is required, and have
no place in a properly written regulation. According to the
commenter, the most appropriate place for these requirements
is in an individual standard or permit.
One commenter said that the requirement in
§ 63.6(e)(1)(i) that sources minimize emissions at all times
has no statutory justification nor can any quantitative
measure be reasonably applied to the practice of "minimizing
emissions."
Finally, commenters said that §§ 63.6(e)(1)(iii) and
(e)(2), which contain criteria for determining whether
acceptable operation and maintenance practices are being used,
should be deleted because nothing in the Act authorizes the
EPA to adopt and enforce operation and maintenance
requirements independent of relevant MACT standards. Under
the EPA's proposal, a company could be in full compliance with
the MACT standards and yet be subject to violations of
operation and maintenance requirements.
Response; The EPA intends the provision in
§ 63.6(e)(1)(i)- to require sources to take all steps necessary
at all times, including during upset conditions (that may
occur during startups, shutdowns, and malfunctions) to
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minimize environmental impact. The term "good air pollution
control practices" is intentionally broad and nonprescriptive
to require sources to implement reasonable actions to minimize
emissions for their particular situations. Thus, it is
appropriate for these requirements to be located in the
General Provisions. The EPA agrees that the conditions by
which a source will maintain "good air pollution control
practices" will become more specific in the operating permit.
Section 63.6(e)(1)(i) has been revised to qualify that the
requirement to minimize emissions applies "at least to the
levels required by all relevant standards."
No change is being made to §§ 63.6(e)(1)(iii) and (e)(2).
Section 302(k) of the Act authorizes operation and maintenance
requirements for a source to ensure continuous emission
reduction when the EPA establishes an emission limitation or
emission standard. In addition, for standards established
under section 112(h) of the Act, section 112(h) provides that
11. . .In the event the Administrator promulgates a design or
equipment standard under this subsection, the Administrator
shall include as part of such standard such requirements as
will assure the proper operation and maintenance of any such
element of design or equipment." Because operation and
maintenance requirements are part of, and not separate from,
MACT standards (or other NESHAP), the EPA may enforce against
violations of operation and maintenance requirements
independent from violations of other requirements in the
standard such as emission limits. Having these requirements
be independently enforceable, even in the absence of proof of
actual air emissions, will ensure that operation and
maintenance provisions are followed.
Comment: One commenter objected to the provisions of
§§ 63.6(e)(1)(i) and (e)(iii), which imply that enforcement
action would take place when operation and maintenance
requirements were deviated from, regardless of whether the
deviation resulted in excess emissions. The commenter
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suggested that § 63.6(e)(1)(iii) be deleted.
Another conunenter said that the final rule should
recognize that actions that are inconsistent with the startup,
shutdown, and malfunction plan [required under § 63.6(e)(3)]
do not constitute a violation unless the failure to act
consistently with the plan was a material factor in delaying a
correction of the malfunction or minimizing exceedances during
startup and shutdown. In addition, the final rule should
recognize that emissions that occur during such an event are
federally permitted releases as long as the permittee has
acted in accordance with the plan.
One commenter said that sources should riot be in jeopardy
of two violations for the same event, i.e., excess emissions
and improper maintenance.
Response: No changes have been made in §§ 63.6(e)(1)(i)
and (e)(l)(iii). As stated in § 63.6(e)(1)(iii), operation
and maintenance requirements are enforceable independent of
emissions limitations or other requirements in standards.
However, the commenter is correct that actions that are
inconsistent with the startup, shutdown, and malfunction plan
are not necessarily violations. The actions required by
§ 63.6(e)(1)(iii) are the minimum planned for by the owner or
operator. If the owner or operator does not perform all of
the actions for minimizing emissions (at least to the levels
required by all relevant standards), and the failure to do so
was not required for a safety or health reason, the owner or
operator would not be in compliance with the plan. Also, with
respect to federally permitted releases, as long as the plan
and resulting actions fulfill its conditions, excess emissions
are not considered violations for the purposes of the relevant
subparts in part 63 only. However, depending on the
circumstances, it is possible for an owner or operator to
violate both the underlying standard and the startup,
shutdown, and malfunction plan.
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2.4.8 Startup. Shutdown and Malfunction Plan
Comment: One commenter suggested that § 63.6(e) be
revised to add requirements that allow an owner or operator to
conduct preventive maintenance on control equipment and
monitors using a plan that employs good air pollution control
practices to minimize emissions during the outage or cutback.
Response: Nothing in the General Provisions would
prevent an owner or operator from conducting preventive
maintenance and, in fact, these activities are a necessary
component of good air pollution control practices. These
activities could be made a part of the startup, shutdown, and
malfunction plan. Therefore, no changes have been made to
§ 63.6(e).
Comment: Some commenters objected to the requirement in
§ 63.6(e)(3)(v) that startup, shutdown, and malfunction plans
be retained for the life of the source. Commenters cited the
potential for confusion and the inadvertent use of an outdated
plan as reasons to limit the retention requirement to the
current version of the plan only.
Response: Section 63.6(e)(3)(v) has been revised to
clarify that, like other records that must be retained by the
owner or operator, previous versions of startup, shutdown, and
malfunction plans must be retained for at least 5 years.
However, previous or superseded plans may be retained.away
from the work area as long as they can be made available for
inspection upon request. In order to provide a sufficient
record of compliance with the provisions of the plans, the
current version of the plan must always be retained on-site
and be available for review upon request.
Comment: One commenter said that although emissions from
startup, shutdown, and malfunctions should be controlled, a
new requirement for a separate plan is unnecessary. A similar
set'Of plans was initially required in the Benzene Waste
NESHAP proposed rule, but was removed as requested by OMB from
the final rule because OMB felt that it was not necessary.
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Response: The actions taken regarding the Benzene Waste
NESHAP were specific to that standard and are not relevant to
the more general requirements included in the final General
Provisions.
Comment: A few commenters suggested thcit
§ 63.10(b)(2)(iii), which requires records of all maintenance
on control equipment, be revised to require records of only
relevant and material maintenance activities. The use of such
absolute terms as "all" [required maintenance] will likely
result in useless retention of information and costly storage
of such information when it is not necessary, relevant, or
material to issues of compliance.
Response: Upon consideration of this comment, the Agency
has revised § 63.10(b)(2) to clarify that only "relevant"
records must be retained. The owner or operator should be
careful to retain all relevant records because, if upon
inspection and review of the source's records it appears that
some relevant records have not be maintained, the source could
be subject to enforcement action.
Comment: Some commenters requested that recordkeeping
requirements be separated into those for routine events and
emergency events with different recordkeeping criteria applied
to each. During malfunctions or emergency shutdowns, for
example, the operator must focus full attention on safe
operation and process control. A post-event review should be
sufficient to document the source's efforts during these
situations. Also, to impose this requirement would only
increase a source's liability by allowing citations for
violations that have nothing to do with exceedance of a permit
limit or requirements. The use of such absolute terms as
"all" and "any" will likely result in useless retention of
information and costly storage of such information when it is
not necessary, relevant, or material to issues of compliance.
The commenter said that § 63.10(b)(2)(iv) should be revised to
focus on keeping relevant and material information and that
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operators should not be required to keep detailed
contemporaneous records during a malfunction.
Response; Section 63.10(b)(2)(iv) does not require
detailed, contemporaneous records during a malfunction. As
discussed above, § 63.10(b)(2) has been revised to clarify
that only relevant records need to be retained. However, the
EPA needs some records of a startup, shutdown, or malfunction
and the owner/operator's response if actions are outside of
the planned response. The more complete the initial plan, the
fewer activities outside the plan that have to be recorded.
The recordkeeping required by § 63.10(b)(2)(iv) may be minimal
during the event so long as the event and the response are
adequately documented as part of the follow-on report.
Comment: Some commenters said that sources should not be
required to keep records demonstrating that the startup,
shutdown, and malfunction plan is being followed as required
by § 63.6(e)(3)(ill) [and § 63.10(b)(2)(v)]. Operators at
chemical plants are required to constantly watch monitors and
make adjustments and will not have the time to fill out
checklists. This requirement is unwise and unsafe as well as
complex and burdensome. In addition, what is the point of
having the plan if the source must keep records of every event
to demonstrate that the plan was followed? The EPA also
should make it clear that the selection of the type of
recordkeeping system should be at the discretion of the owner
or operator. Other forms of recordkeeping that could meet
these standards are accident/incident reports, computer logs,
and operating notes.
Response: The EPA does not agree that sources should not
be required to keep records to demonstrate that their plan is
being followed. A plan without some monitoring may not be
effective and cannot be improved. The EPA has attempted to
focus the plan and its implementation on the important aspects
of minimizing emissions and demonstrating that the owner or
operator is in compliance. It should be noted that one
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purpose of the startup, shutdown, and malfunction plan is to
allow the owner or operator to develop a compliance record. A
minor amount of documentation is appropriate for actions
consistent with the plan. On the other hand, actions that
occur outside of the plan are of critical importance, and
these actions require a report. It is essential that the
owner or operator maintain sufficient records to demonstrate
to the enforcing agency that the plan is adequate to address
possible emission-causing events during startups, shutdowns,
and malfunctions. The EPA encourages owners or operators to
develop recordkeeping procedures that reduce the burden of
developing these records and to describe how these procedures
will be used as part of the plan. Furthermore, the change to
§ 63.10(b)(2) to require only the retention of "relevant"
records may relieve some of the commenters' concerns regarding
the amount and level of detail of information that should be
recorded.
Comment; Several commenters expressed concern that
facilities that are batch operations face extremely burdensome
recordkeeping requirements if they are forced to record every
startup and shutdown for a 5-year period. The definitions of
startup and shutdown should be revised to exclude batch
operations. Alternatively, recordkeeping and reporting should
only be required for "unusual" startups and shutdowns.
Response: The definitions of "startup" and "shutdown"
have not been revised to exclude batch operations as requested
by the commenters. The EPA believes that the inherent
flexibility that the owner or operator has in developing the
startup, shutdown, and malfunction plan should allow batch
operations to be included without causing an excess
recordkeeping or reporting burden. In the promulgated rule,
the owner or operator of batch operations is still required to
maintain records of the occurrence and duration of each
startup and shutdown of the operation, because that type of
information is normally recorded. However, if actions taken
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during a startup or shutdown are consistent with the
procedures specified in the source's startup, shutdown, and
malfunction plan, the owner or operator is only required to
make a statement to that effect in the semiannual report
submitted to the Administrator (or as specified otherwise in
the relevant standard or in the source's title V permit). Any
unusual circumstances related to startup and shutdown for
batch operations for a particular source category will be
addressed in the relevant standard. Also, to the extent that
a source can, and is willing to, demonstrate that it can
always achieve the emission limitation of the relevant
standards, a source can essentially eliminate the need for
actions under a startup, shutdown, and malfunction plan.
Comment: Section 63.6(e)(3)(viii) requires a revision of
the startup, shutdown, and malfunction plan whenever a
malfunction event occurs that is not covered by the plan.
This requirement should only apply if the malfunction occurs
twice or more.
Response: The EPA does not believe a required revision
should be tied to a specific number of events. If an operator
permanently eliminates a potential event that could cause a
malfunction, then a plan change is not needed. On the other
hand, if a malfunction occurs that is repeatable, then the
plan should be revised within 45 days after the event, and
§63.6(e)(3)(viii) has been revised to reflect this timeframe.
As owners and operators gain experience with the process of
developing and maintaining startup, shutdown, and malfunction
plans that cover the appropriate events in the appropriate
level of detail, the number of needed revisions should decline
over time. No change has been made to the rule to specify a
certain frequency of deviations from the plan before a
revision is required.
Comment: A few commenters suggested that
§ 63.6(e)(3)(vii)(B) should be revised to include safety
considerations. In some cases, certain air pollution control
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equipment cannot be operated during startups or shutdowns due
to the explosive potential of the materials being handled. In
these cases, the owner or operator should be able to develop a
startup, shutdown, and malfunction plan that contains
provisions that allow the bypass or shutdown of the control
device.
Response: It is allowable for owners or operators to
develop provisions within a startup, shutdown, and malfunction
plan that allow the bypass or shutdown of the control device
for safety reasons. However, the Agency does not believe that
§ 63.6(e)(3)(vii)(B) should be revised to specifically include
safety considerations. Instead, the owner or operator faced
with this situation should explain to the enforcing agency why
no other manner of startup or shutdown can occur that
minimizes emissions and is safe.
Comment: One commenter questioned whether a regulatory
agency will have the technical capability and expertise to
properly evaluate a plan and determine where it is deficient
and where changes may be needed. Plant engineers and
operators should always be more familiar with the requirements
of bringing a specific process on- or off-line.
Response: The purpose of the General Provisions
requirements regarding the development and use of a startup,
shutdown, and malfunction plan are to provide a goal and
mechanisms to obtain that goal for owners and operators. The
EPA recognizes that the owner or operator is the "expert" with
respect to specific details of a process operation; this is
why the owner or operator is the responsible party for
developing the plan. However, there are certain generic
procedures that constitute good operating practice within any
source category, and the EPA will expect to see those
demonstrated in the plan. In addition, in many cases, the EPA
or regulatory agency will have sufficient expertise (or can
obtain the expertise) to evaluate plans and to request changes
in plans.
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Comment: Section 63.10(c)(9), which requires sources
with CMS to keep records of the "magnitude of excess emissions
computed in accordance with the provisions of § 63.8(g) and
any conversion factor(s) used" should be deleted because
§ 63.8(g) does not require determination of the magnitude of
excess emissions, and because calculation of excess emissions
during shutdown, startup, and malfunction are by definition
incalculable.
Response: The EPA did not intend to require the
calculation of excess emissions during periods of startup,
shutdown, and malfunction. In fact, § 63.8(g)(5) states that
"Monitoring data recorded during periods of unavoidable CMS
breakdowns, out-of-control periods, ...shall not be included
in any data average computed under this part." Therefore,
§ 63.10(c)(9) has been deleted.
Comment: Commenters requested that § 63.10(e)(3)(ii),
which allows the owner or operator to request to reduce
reporting frequency of excess emissions and CMS performance
reports, state clearly that startup, shutdown, and maintenance
periods are not to be considered in determining whether the
source complies with the relevant standard.
Response: No change has been made to § 63.10(e)(3)(ii).
As discussed in section IV.F.3 of the promulgation preamble,
one purpose of the startup, shutdown, and malfunction plan is
to provide a vehicle to support documentation that the plan
either was or was not followed during startup, shutdown, or
malfunction events when excess emissions occurred. If the
plan was followed correctly, the owner or operator will be
able to certify that the source remained in compliance with
the plan to minimize emissions during the period of excess
emissions.
Comment: Section 63.6(e)(3)(i) should specify when the
startup, shutdown, and malfunction plan must be developed and
implemented. Specifically, the source should not have to
develop the plan before the compliance date for the relevant
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standard or startup.
Response: The EPA agrees with the commenter, and.
§ 63.6(e)(3)(i) of the final rule has been revised to state
that the plan shall be developed and implemented by the owner
or operator by the source's compliance date for that relevant
standard.
2.5 PERFORMANCE TESTING REQUIREMENTS
2.5.1 Applicability
Comment: One commenter said that the statement in
§ 63.7(a)(l) that applicability applies to sources that are
required to do ". . . another form of compliance
determination" is confusing. For example, section 112
standards may set equipment standards with compliance
demonstrated by means of periodic inspections or work practice
standards, and the applicability provisions could mean that
notifications, site plans, etc., under § 63.7 would be
required. According to the commenter, this result would be
unjustified and serve no useful purpose. There should be no
implication that a compliance demonstration is required by
affected sources.
Response: The provisions of § 63.7 are primarily
intended to apply in situations where performance tests are
required to determine compliance with subparts of part 63. It
was not the EPA's intent that the performance testing
provisions of § 63.7 apply to periodic monitoring or other
periodic compliance determinations required under subparts of
part 63.
2.5.2 Performance Test Dates
Comment: The EPA should revise § 63.7(a)(2)(iii) so that
if construction has begun on a source prior to proposal of a
relevant MACT standard (which would make the source an
existing source, by definition), but the source does not
startup by the effective date of the MACT standard, the time
allowed for performance tests will begin running at startup.
Response: The commenter is correct that
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the performance test dates do not account for the situation
where a source commences construction before the proposal of
the MACT standard, but does not startup until after the
effective date of the standard. This situation is probably
rare, but not inconceivable. The following language has been
added to § 63.7(a)(2)(iii) to clarify the situation: "or
within 180 days after startup of an existing source if the
source begins operation after the effective date of the
relevant emission standard."
In this situation, a source would retain existing source
status as long as it had, before the proposal date of the
relevant emission standard, obtained all necessary
preconstruction approval or permits and it had contracted to
begin construction or reconstruction such that there would be
a substantial loss in the event of cancellation. In addition,
the construction or reconstruction process must be continuous
and completed within a reasonable amount of time. [See
section 169(2)(A) of the Act for the basis of the Agency's
decision in response to this comment.]
Comment: One commenter said that the provisions allowing
the extension of a test date in the event that the
Administrator fails to approve or disapprove a test plan
should be changed to a requirement that the date be extended
[§ 63.7(c)(3)(ii)(B)].
Response: As discussed in section IV.D.2.d of the
promulgation preamble, the requirement to submit a site-
specific test plan has been revised to be at the
Administrator's request. The EPA anticipates that far fewer
test plans will be subject to the review process as a result
of this change. However, the rule [§ 63.7(c)(3)(ii)(B)] has
been revised to clarify that if the Administrator does not
approve the site-specific test plan (or request to use an
alternative method) within 30 days before the performance test
is scheduled to take place, then the performance dates
specified in § 63.7(a) shall be extended such that the owner
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or operator shall conduct the performance test within 60
calendar days after the Administrator approves the site-
specific test plan (or request to use an alternative method).
Comment: Some commenters believe that the EPA should
revise § 63.7(a)(2) to allow extensions of the deadline for
performance testing, when the deadline cannot be met due to
circumstances beyond the reasonable control of the owner or
operator. Two commenters said that the EPA should provide a
mechanism to change the date of a performance test when
problems at the source make a change necessary, and that if a
test must be rescheduled, the EPA should provide that a source
may notify the EPA by telephone to reschedule the date.
Alternatively, according to one commenter, § 63.7(i) should be
added to allow case-by-case extensions for performance testing
under special situations such as an inability to complete
modifications to an air pollution control system in time to
conduct the performance test, seasonal operations that
restrict the facility's ability to conduct performance tests,
unplanned outage of the facility due to equipment problems,
etc.
Response; The Agency agrees that there could be
unforeseen occurrences at a source that would warrant an
extension of the performance test date. Therefore, as a
result of these comments, § 63.7(b) has been revised to add
the following language:
...In the event the owner or operator is unable to
conduct the performance test on the date specified in the
notification requirement specified in paragraph (b)(l) of
this section, due to unforeseeable circumstances beyond
his or her control, the owner or operator shall notify
the Administrator within 5 calendar days prior to the
scheduled performance test date and specify the date when
the performance test is rescheduled. This notification
of delay in conducting the performance test shall not
relieve the owner or operator of legal responsibility for
compliance with any other applicable provisions of this
part or with any other applicable Federal, State, or
local requirement, nor will it prevent the Administrator
from implementing or enforcing this part or taking any
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other action under the Act.
Comment: Several commenters stated that they need at
least 60 days after the EPA's approval of an alternative test
method to conduct a performance test to accommodate possible
EPA comments on the alternative method and to coordinate the
several facets of a typical test program. In addition, the
longer time period is more consistent with the requirements in
the proposed rule for performing a test when an alternative
method is not requested. The commenters requested that
§ 63.7(c)(3)(ii)(B) be revised to allow 60 days to conduct the
test.
One commenter stated that the EPA should allow an
extension of time for conducting performance tests in all
instances when an alternative test method is proposed in good
faith. One commenter suggested that the final rule provide
for performance tests to be conducted 90 days after EPA
approval of an alternative test method.
Response: The EPA agrees with the commenters that more
time may be required to conduct the performance test upon
approval of the use of an alternative test method and
therefore has revised the final rule to allow 60 days after
EPA approval of an alternative test method to conduct a
performance test. if more than 60 days is needed for
conducting the performance test, the owner or operator can
negotiate with the EPA on a case-by-case basis.
Section 63.7(c)(3)(ii)(B) of the final rule has been revised
to read:
If the owner or operator intends to demonstrate
compliance by using an alternative to any test method...
the performance dates specified in paragraph (a) of this
section may be extended such that the owner or operator
shall conduct the performance test within 60 calendar
days after the Administrator approves the site-specific
test plan or after the alternative method is approved.
A similar change was made to related provisions in
§ 63.8(e)(3)(v)(B) regarding the timing requirements related
to the approval of alternative monitoring methods.
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2.5.3 Site-Specific Test Plan
Comment; One commenter stated that §§ 63.7(c) (3) (iii) (A)
and (c)(3)(iii)(B), which preclude the Agency's actions
regarding site-specific test plans from relieving the owner or
operator from meeting their responsibilities under the Act or
the Administrator from implementing the Act, will effectively
prohibit the use of alternative test methods unless the EPA
delegates approval authority or is committed to expedited
review. Otherwise, the EPA review may take more time than is
allowed for compliance.
Response; It is the owner or operator's responsibility
to submit a request to use an alternative method sufficiently
in advance to ensure that there is time for the enforcing
agency to conduct a sufficient review of the proposed method.
The request may be submitted in advance of the site-specific
test plan. In any case, as discussed in section IV.D.2.d of
the promulgation preamble, the final rule has been revised to
make review of site-specific test plans at the discretion of
the Administrator. This change should expedite the review of
those plans that are requested by allowing the Agency to focus
its resources on more critical efforts and thereby allow the
majority of tests to occur without specific prior review and
approval of test plans. In addition, this authority may be
delegated to State agencies that successfully obtain the
authority to administer the section 112 program in their
States. Finally, as discussed in section 2.5.2,
§ 63.7(c)(3)(ii)(B) has been revised to clarify that the
performance test date will be extended if the Administrator
fails to grant approval within 30 days before: the performance
test is to take place and to extend the performance test
period from 30 days to 60 days. Taken in cumulative, these
changes will allow the use of alternative test methods.
Comment:. Some commenters felt that the approval of test
plans by the Agency should be binding on the. EPA; that is, the
owner or operator should not be subject to enforcement action
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if the approved plan is followed and the test results indicate
noncompliance.
Response: Section 63.7(c)(3)(iii) explicitly states that
the owner or operator has the legal responsibility for
compliance. The EPA's approval of a site-specific test plan
does not relieve the owner/operator from responsibility of
compliance with the standard. If a test plan is approved, and
the source proceeds with the testing according to the plan,
and then, after the fact, the EPA determines that the test
results indicate noncompliance, then it is the responsibility
of the source to rectify the situation.
2.5.4 Performance Test Audit
Comment; Several commenters had concerns regarding the
external quality assurance plan and its requirement to include
a performance test method audit. Commenters said that the
requirement for an external audit plan should be deleted, or
that external audits should be optional at the request of the
EPA.
In addition, two commenters had concerns regarding the
timeframe within which test audit material from the EPA must
arrive at the source. One commenter stated that the test
audit should be waived if audit materials do not reach the
source at least 30 days before the test. One commenter stated
that test audit materials should be sent to the facility 7
days before the test is scheduled to begin.
One commenter supported the proposal to require
performance test audits.
Response: No change has been made in the final rule
regarding the requirement for a performance test method audit.
The EPA historically has developed source-specific test
methods to define the procedures to be used in obtaining
compliance-related data to ensure the uniformity and quality
of this data. In the late 1980's, the EPA began including
performance audit requirements in test methods for the
measurement of gaseous pollutants. One type of performance
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test audit is a procedure to analyze blind samples, the content
of which is known by the EPA, simultaneously with the analysis
of performance test samples. The purpose of the performance
test audit is to check bias in the measurement of compounds in
the performance test sample, that is, to check whether the
tester is measuring the right compound with an acceptable degree
of accuracy. The Administrator has determined that the
performance test audit program is necessary to ensure the
quality of data from performance tests conducted for part 63
standards.
Section 63.7(c)(4)(i) has been revised to require a source
to request performance audit materials 45 days prior to the test
to allow timely delivery to the source. If the requested
materials do not arrive at the source in time for the test, the
audit will be waived, and the test may proceed as scheduled.
Comment: The EPA should revise the definition of
"performance audit" so that gas standards from any source may be
used, so long as the analyst does not know the composition of
the sample. As proposed, it is inappropriate, expensive, and
inconvenient for sources to be required to obtain gas standards
from EPA alone.
Response: The definition of "performance audit" has not
been changed in the final rule. The EPA disagrees that the
program is inappropriate, inconvenient, or expensive. In fact,
the EPA provides the audit materials free of charge. As
discussed in the previous response, the integrity of the audit
program is of utmost concern to the Agency. However, if
circumstances in the future warrant a change in current
procedures, the General Provisions will be amended accordingly.
Comment: One commenter said that the EPA should limit
subsequent remedial actions under § 63.7(c)(4)(ii) to test
results of the performance audit.
Response; Section 63.7(c)(4)(ii) states that the
Administrator shall have sole discretion to require any
subsequent remedial actions of the owner or operator based on
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the performance audit results. The Administrator believes
that this language clearly states that remedial actions
required of the owner or operator will be based on the test
results.
2.5.5 Performance Testing Facilities
Comment: Some commenters stated that § 63.7(d)(5) should
be revised to clarify the meaning of what constitutes "safe
and adequate" either in the General Provisions or in the
individual standards or that the determination of safe and
adequate facilities should lie with the source, not with the
Administrator. One commenter said that the requirement should
be deleted.
One commenter said that §§ 63.7(d)(1)(i) and (d)(1)(ii)
could force sources to undergo considerable expense to
reconstruct ductwork and stacks without providing sufficient,
written justification from the Administrator that states why
the current configuration will not allow adequate testing of
the source and without giving the source an opportunity to
respond. One commenter said that § 63.7(d) should provide
that man-lifts and cranes with working baskets can be
acceptable as safe sampling platforms and safe access.
Response: There has been no change to the provisions of
§ 63.7(d)(5). The Administrator retains the right to request
the owner or operator to provide performance testing
facilities that he or she deems necessary for the safe and
adequate testing of a source. At a minimum, the source owner
or operator must provide good access, a power supply, and safe
working conditions, such as stable scaffolding or other
structures necessary for testing the source. The
Administrator does not anticipate that any of these items
would require a significant expenditure by the source owner.
Also, the Administrator did not intend that § 63.7(d) preclude
the use of man-lifts and cranes as acceptable safe sampling
platforms and, therefore, does not see the validity of
specifically stating that they can be used.
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2.5.6 Conduct of Performance Tests
Comment: Several commenters had concerns regarding the
lack of a definition of "representative performance" required
for performance test conditions. One commenter said that
§ 63.7(e) should be revised to reflect maximum design
operating conditions that the source or control device will
normally experience. Several commenters stated that the
source should be allowed to determine representative operating
conditions for a performance test. One commenter thought that
the source should determine representative operating
conditions, subject to EPA approval. Another commenter stated
that § 63.7(e)(l) is acceptable as proposed.
Response: The term "representative performance" used in
§ 63.7(e) means performance of the source that represents
"normal operating conditions." At some facilities, normal
operating conditions may represent maximum design operating
conditions. In any event, representative performance or
conditions under which the source will normally operate are
established during the initial performance test and will serve
as the basis for comparison of representative performance
during future performance tests. To clarify this intent, a
phrase has been added in § 63.7(e) to indicate that
representative performance is that based on normal operating
conditions for the source.
Comment: Two commenters requested that § 63.7(e)(3) be
revised to require only a single run of a performance test.
Multiple performance tests are time consuming, resource
intensive, and a single run should be sufficient in most
instances. The commenters said that it would be more
appropriate for the EPA to set requirements in individual
standards if multiple runs are warranted.
Response: No change has been made in the final rule as a
result of this comment. Based on past experience, the Agency
has determined that it is in the best interest of the source
and the public well being for the source to complete three
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separate runs of the performance test. This will allow the
source to use the arithmetic mean of the results of the three
runs for the purpose of demonstrating compliance with the
relevant standard, rather than relying on one run, thus
presenting more representative results of the actual
performance.
Comment: With respect to § 63.7(e)(3)(i), conduct of
performance tests, commenters wanted to know how the Agency
would determine compliance with a relevant standard if one of
the samples were "accidentally lost."
Response; In the event a sample is lost after the
testing team leaves the site, and is thus unavailable for
analysis, the owner or operator must notify the Administrator.
The Administrator will review the circumstances associated
with misplacement of the sample and approve the replacement of
the test run with the results of an additional test run by the
owner or operator.
2-5.7 Alternative Test Method
Comment: Several commenters stated that § 63.7(f)(5),
which requires continual use of an alternative test method for
subsequent performance tests, should be clarified to allow
sources to use either an approved reference test method or an
approved alternative test method for performance tests.
Commenters suggested adding a sentence at the end of
§ 63.7(f)(2)(i) that states "The owner or operator may submit
an amendment to the site-specific test plan to include
alternative test methodologies at any time", and adding a
phrase at the end of § 63.7(f)(5) that states "until granted
permission to change by the procedures in (2) of this
paragraph", to incorporate flexibility into the testing
requirements.
Response: The Administrator has determined that if an
owner or operator uses an alternative test method for an
affected source during a required performance test, then for
subsequent performance tests, the owner or operator should
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continue to use the alternative test method for that affected
source. Continued use of the alternative test method for
subsequent performance tests will allow subsequent results to
be comparable to the initial performance test. However,
§ 63.7(f)(5) was not intended to disallow the owner or
operator the ability to change performance test procedures
with the prior approval of the Administrator. Therefore,
§ 63.7(f)(5) will be revised as follows:
If the owner or operator uses an alternative test method
for an affected source during a required performance
test, the owner or operator of such source shall continue
to use the alternative test method for subsequent
performance tests at that affected source until he or she
receives approval from the Administrator to use another
test method as allowed under § 63.7(f).
Comment: Commenters suggested that § 63.7(f)(2)(i) be
amended to allow the inclusion of alternative test methods in
a test plan at any point prior to Administrator approval.
Response: As a result of comments, the requirement that
all site-specific test plans be submitted to, and approved by,
the Administrator has been deleted. However, owners or
operators still must prepare site-specific test plans. If an
owner or operator intends to use an alternative test method he
or she still must notify the Administrator.
In light of this change, § 63.7(f) (2) (i) is revised as
follows:
Notifies the Administrator or his or her intention to use
an alternative test method not later than with the
submittal of the site-specific test plan (if requested by
the Administrator) or at least 60 days before the
performance test is scheduled to begin if a site-specific
test plan is not submitted.
2.5.8 Performance Test Waiver
Comment: Two commenters requested that § 63.7(h) be
changed to provide that a source with a compliance extension
should not have to apply separately for a performance test
waiver. Other commenters said that the EPA should amend
§ 63.7(h)(3)(i) so that a site-specific test plan is not
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required if a source has requested a waiver of a performance
test, unless the reviewing authority has determined that the
request is frivolous.
Several commenters stated that § 63.7(h)(5) should be
revised to provide a source with adequate notice of
disapproval of a waiver of performance tests so that the
source can comply within the required time. The source should
be allowed to submit additional information as well. One
commenter stated that an automatic extension should be granted
to the owner or operator if the EPA does not act in a timely
manner.
Response: The Administrator views the application for
waiver of performance tests to be necessary to justify the
request. The Administrator disagrees that the submission of
an application for a waiver of performance tests places undue
burden on the owner or operator. The application must be
submitted with the request for extension of compliance or at
the same time that a site-specific test plan or notification
of a performance test would be required.
However, the Administrator agrees that a site-specific
test plan is not necessary if a source has requested a waiver
of a performance test. Therefore, § 63.7(h)(3)(i) has been
revised as follows:
...the application for a waiver of an initial performance
test shall be submitted in place of the site-specific
test plan under paragraph (c) of this section.
Section 63.7(h)(4) specifies the process by which the
Administrator will approve or deny a request for a waiver of a
performance test. This process will occur within the
framework of the review and approval process specified under
§ 63.6(i)(8) for compliance extension requests and
§ 63.7(c)(3) for site-specific test plans. Both of these
processes provide the owner or operator with adequate notice
of intent to deny a request for a waiver of a performance test
and allow the owner or operator to submit additional
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information. To clarify the relationship between these
processes, § 63.7(h)(4) has been revised as follows:
(i) Approves or denies an extension of compliance under
§ 63.6(i)(8); or
(ii) Approves or disapproves a site-specific test plan
under § 63.7(c)(3);...
Comment; One commenter requested clarification of the
requirement that a source submit a performance evaluation test
plan [under § 63.8(e)(3)(iii)] when a source has received a
waiver to conduct a performance test under § 63.7(h).
Response: Section 63.8(e)(3)(iii) includes provisions
for sources that are required to conduct performance
evaluation tests for purposes of demonstrating that the
monitoring system is in compliance with the standard, but may
not be required to conduct a performance test under § 63.7 to
demonstrate compliance with the emission standard.
2.5.9 Test Methods
Comment: Some commenters requested that the EPA publish
Method 301 for public comment in relation to part 63. In
particular, commenters are concerned with the method's
applicability to HAP and believe that the method may be more
appropriate to criteria pollutants.
Response: The Administrator has determined that Method
301 is applicable to HAP. Method 301 has been proposed,
subjected to public comment, and promulgated with the Early
Reduction rule (57 FR 61970, December 29, 1992).
Comment: One commenter stated that the EPA should not
require alternative methods to be validated by Method 301 if
the owner or operator and the reviewing authority mutually
agree to changes from a standard test method.
Response: If a source wants to use an alternative method
to determine compliance in place of the method referenced in
the standard, it is important to establish how the alternative
method compares to the referenced method. The purpose of
Method 301 validation is to establish the precision and bias
of the alternative method in relation to the referenced
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method. Unless there are extenuating circumstances, it is
unreasonable to suggest that agencies approve an alternative
without this information. It should be noted that some
changes to test methods have been previously approved by the
EPA, and future uses of identical methods could possibly be
approved without an additional Method 301 analysis.
2.6 MONITORING REQUIREMENTS
2.6.1 Overall Monitoring Approach
Comment: One commenter said that GEMS should be required
for all HAP emitted unless the owner or operator can
demonstrate that this is infeasible. When the use of GEMS is
not feasible, the General Provisions should require the most
stringent feasible monitoring. In addition, 24-hour per day
operation of monitors should be required to avoid toxic
dumping at night, which has been a problem according to the
commenter.
Response: The intent of NESHAP is to require
installation and proper operation of MACT. Continuous
emission monitoring of some organic HAP emissions is not
feasible with current technologies. Furthermore, in some
cases, emissions monitoring is not necessary to ensure that
control devices are installed and operated properly. The
General Provisions include provisions for conducting an
initial performance test to demonstrate that controls achieve
the required level of emission reduction and continuous
monitoring of key control device operating parameters to
ensure the device continues to be well-operated. Excursions
outside the established parameter ranges must be reported.
There are currently no technologies available to
continuously monitor some of the 189 HAP regulated under
section 112 of the Act. While total organic carbon
concentration monitors are available, these would be an
imprecise measure of HAP emissions. Furthermore,
concentration monitors alone would not measure emissions
effectively because emissions are a function of both flow and
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concentration. Therefore, in order to continuously measure
emissions, both continuous concentration monitors and
continuous flow monitors would need to be installed at each
and every control device. To measure percent reduction,
concentration and flow monitors would have to be installed at
both the inlet and outlet of every control device. After
installation, periodic calibration, maintenance, and QA/QC
programs would be necessary to ensure accurate data. Even if
it were technically feasible, such monitoring requirements
would be extremely costly relative to the proposed parameter
monitoring approach. The increased costs would result from
the number of monitors (inlet and outlet) thcit would need to
be installed and the fact that costs to purchase, calibrate,
and maintain GEMS (for compounds that can be measured with
GEMS) are higher than costs for temperature monitors or most
other operating parameter monitors. For very limited
additional assurance that emission reductions are achieved,
the cost would be very high.
The EPA must comply with the Paperwork Reduction Act
(PRA) in developing monitoring, recordkeeping, and reporting
requirements for NESHAP. The objectives of the PRA are to
improve the quality of data that are collected and minimize
the burden on the public. The requirements of the General
Provisions are consistent with the PRA. The collection of
additional information that is not necessary to determine
compliance cannot be justified. Therefore, the approach
outlined in the General Provisions is reasonable and
sufficient to ensure sources subject to the General Provisions
conduct appropriate monitoring to demonstrate compliance with
the individual emission standards.
Comment: The monitoring requirements in the General
Provisions are expensive and burdensome. The EPA should
provide flexibility and minimize operating costs where
possible.
Response: The EPA always attempts to reduce the burden
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of regulatory requirements on the regulated community to the
maximum extent. The EPA believes that the monitoring
requirements in the General Provisions are the "bare minimum"
necessary to be able to determine that sources subject to part
63 are in compliance.
Comment: Two commenters believe that States should
remain free to require more frequent monitoring under Federal
law whenever they think it necessary or appropriate.
Response: There is nothing in the General Provisions
that precludes States from requiring more frequent monitoring.
In addition, the General Provisions only establish a general
framework for monitoring. It is possible that individual MACT
standards will require more frequent monitoring of certain
emission sources within specific source categories to address
source category-specific concerns.
2-6.2 Applicability of Monitoring Requirements
Comment: One commenter said that § 63.8 should not apply
to emission limitations developed under sections 112(g) or
112(j) of the Act, except to the extent specifically
referenced in the operating permit for a source. The
predetermined contours of the General Provisions are likely to
be a poor "fit" to case-by-case MACT determinations, and the
§ 63.8 provisions should only be adopted after careful
consideration.
Response; As discussed in section IV.D.I.a of the
promulgation preamble, the General Provisions establish
general monitoring and other requirements for all standards.
Case-by-case MACT standards will, however, have the discretion
co determine the specific monitoring requirements for that
source.
Comment: One commenter said that the EPA should amend
§ 63.8(a)(1)(i) to clarify that § 63.8 applies only to sources
required to do continuous monitoring, not any type of
monitoring.
Response; The general monitoring requirements of the
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General Provisions affect all sources subject to a part 63
rule. Section 63.8 mostly contains requirements for
continuous monitoring systems. However, as stated previously
in the revised definition of CMS, § 63.8 applies to all
sources subject to continuous, or other manual or automatic
monitoring, not only continuous monitoring, as defined by the
regulation.
2.6.3 Conduct of Monitoring
Comment: Several commenters said that the EPA should not
require monitors on individual streams that are combined
before release to a control system. This requirement would be
very expensive in terms of capital and operation costs,
including major increases in recordkeeping and reporting
requirements. Section 63.8(b)(2)(i) should be revised to
clarify that a monitor is necessary only at the point
immediately before input to a control device.
Response: This issue must be addressed within the
context of each subpart. Depending upon how the source(s) and
pollutant(s) are regulated, locating the monitor immediately
before a control device where exhaust streams are combined may
not yield representative measurements. However, calculations
to accurately represent emissions downstream may be possible.
Combining an affected stream with one that is subject to a
different standard or with a stream that is subject to no
standard may be considered dilution. Combining separate
streams affected by the same regulation might be monitored
together if adjusted for flow rate, volume, concentration, or
other relevant parameter. If the standard directly affects
the emission point at an individual unit, downstream
monitoring may be less viable. For these reasons, the Agency
does not agree with the commenters' suggested revisions to
§ 63.8(b)(2)(i).
2.6.4 CMS Operation and Maintenance
Comment: Section 63.8(c)(l) should be revised to specify
that the CMS should be operated as specified "in the operation
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and maintenance procedures as written by the GEMS
manufacturer."
Response: As a result of this comment, § 63.8(c)(1)(iii)
has been revised to clarify that operation and maintenance
procedures as written by the CMS manufacturer and other
guidance can also be used to maintain and operate each CMS.
The operation and maintenance procedures required for CMS are
not limited to only those references specifically listed in
§ 63.8(c). The owner's manual is one among many guides that a
source should reference to operate consistent with good air
pollution control practices.
Comment: One commenter said that the § 63.8(c)(4)(ii)
requirement that only allows a 15-minute cycle should be
revised to allow at least 1 hour. In addition, a waiver
mechanism for extending the cycle beyond one hour should be
provided for situations where it is technically or
economically infeasible to achieve a 1-hour cycle. The
commenter said that because individual HAP must be analyzed,
gas .chromatograph systems are usually needed and that even
simple one-HAP systems may not be able to achieve 15-minute
cycles.
Similarly, § 63.8(g)(2) should be revised to specify that
data from CMS shall be reduced to hourly averages when more
than one measurement is made per hour, except when otherwise
stated in the relevant standard. Another commenter noted that
the language in § 63.8(g)(2) regarding GEMS data reduction
appears to be taken directly from § 60.13(h). However,
neither section includes requirements for acceptable data
reduction procedures for hours that contain QA/QC activities,
maintenance, or limited downtime. Without guidance similar to
part 75 on how to handle data from an incomplete averaging
period, sources would not be able to retain representative
data for hours with less than 4 (15-minute) values to average.
Response: The EPA will continue to use the 15-minute
cycle provision in the General Provisions, but, as with other
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requirements in the General Provisions, this may be overridden
by individual standards, as appropriate. The specific
requirements for CMS downtime allowed depend upon the
reporting and averaging periods specific to each regulation
and should be accounted for in setting up the applicable
minimum data availability requirements.
Section 63.8(g)(2) has been revised to account for
periods when calibration, quality assurance, or maintenance
activities are being performed. During theses periods, a valid
hourly average shall consist of at least two data points with
each representing a 15-minute period.
Comment: One commenter stated that §§ 63.8(c) (6) and
(7), which deal with zero and calibration drift requirements
for CMS, appear to have been written with criteria pollutant
emission monitors in mind, and they are not appropriate for
HAP emission monitors and continuous parameter monitors.
Requirements specific to HAP and MACT should be established in
each applicable subpart or in new appendices to part 63, or
the acceptable calibration drift should be part of the quality
control plan required under § 63.8(d)(l).
Similarly, another commenter noted that, references to
part 60, Appendices B and F, under § 63.8(a)(2) are not
totally consistent with part 63 requirements.
Response: As discussed in section IV.D.l.c of the
promulgation preamble, relevance of part 60 performance
specifications, the EPA agrees that references to part 60 CEMS
performance specifications are inappropriate, and they have
been deleted from § 63.8 of the final rule. Specific methods
to evaluate CEMS performance will be included within the
individual subparts of part 63. In all instances, the
required performance specifications will be subject to public
comment upon proposal.
Comment: One commenter believes that daily zero and high
level checks required by § 63.8(c)(6) are inappropriate for
parameter monitors. Instead, parameter monitors should be
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calibrated and system-checked upon installation, checked when
the system is shutdown or at least once per year, and audited
daily to verify system responses.
Another commenter suggested that § 63.8(d)(2)(ii) should
be revised to include the zero and calibration frequency for
parameter monitoring systems, along with other QA functions,
with the site-specific test plan.
Response: The Agency believes that a daily audit of
parameter monitors is necessary, and therefore, no changes
were made to the rule. The Agency maintains that the zero and
high level calibration drift should be checked as part of the
daily audit procedures. Without this daily check, it is not
possible to know when the 24-hour zero drift exceeds two times
the limits of the applicable performance specifications, and
thus to know when to adjust the instrument.
Comment; According to commenters, § 63.8(c)(3), which
requires the CMS or GEMS be certified prior to the performance
test, appears to conflict with §§ 63.8(e)(2) and (e)(4), which
allow certification during the performance test.
Response; The commenter is correct, and § 63.8(c)(3) has
been revised as follows:
All CMS shall be installed, operational, and the data
verified as specified in the relevant standard either
prior to or in conjunction with conducting the
performance tests under § 63.7. Verification of
operational status shall, at a minimum, include
completion of the manufacturer's written specifications
or recommendations for installation, operation, and
calibration of the system.
Comment: One commenter said that it is unclear whether
EPA intended to be as strict as part 75 or to follow part 60
in identifying an out-of-control limit under § 63.8(c)(7)(i).
The commenter added that quality control programs that combine
adjustment control and out-of-control limits (at levels
identified in part 60) have been shown to provide for
acceptable operations within established relative accuracy
requirements.
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Response: The intent of the language in § 63.8(c)(7)(i)
is that CMS data are to be available "at all times", but the
exact definition of this requirement is left to the individual
regulations or applicable performance specification.
Comment: One commenter said that the established
calibration drift specifications in part 60 are based on
"percent of span" and there is no mention of how to establish
the appropriate span levels based on expected emission levels.
The commenter said that the EPA should specify guidance on
establishing appropriate span levels in each subpart.
Response; As discussed above, the EPA has revised the
regulation to remove references to part 60 performance
specifications. By referencing the applicable performance
specification, instead of those in part 60, the part 63
General Provisions clarify that individual standards will
develop these performance specifications. The Agency will be
aware of these requirements when developing each regulation,
so that source category-specific requirements are included.
Comment: One commenter suggested that § 63.8(c)(7)(ii)
should be revised to state that a partial failure of a
multiplexed CMS does not render the entire system out of
control and all data invalid.
Response: As a result of other comments, the Agency has
changed the language in 63.8(c)(7) .as follows:
(i) A CMS is out of control if
(A) The zero (low-level), mid-level (if applicable), or
high-level calibration drift (CD) exceeds two times the
applicable CD specification in the applicable performance
specification or in the relevant standard; or
(B) The CMS fails a performance test audit (e.g.,
cylinder gas audit), relative accuracy audit, relative
accuracy test audit, or linearity test audit; or
(C) The COM3 CD exceeds two times the limit in the
applicable performance specification in the relevant
standard.
(ii) ...During the period the CMS is out of control,
recorded data shall not be used in data averages and
calculations, or to"meet any data availability
requirement established under this part.
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The Agency believes this language clearly states when a
system is out of control and does not think it is necessary to
address partial failure of a system. If the system meets the
definition of out of control as described above, then it is
out of control and, during such period until the system is
repaired, the recorded data shall not be used as described in
§ 63.8(c)(7)(ii).
Comment; Some commenters requested that
paragraph 63.8(c)(7)(ii) be revised to state that the start of
the out-of-control period is the time that the owner or
operator determines the problem may exist and requests a
maintenance check. The EPA should make the end of the out-of-
control period the same hour that corrective action is
complete, and require a minimum out-of-control period of
I hour.
Response: The EPA believes that the suggested definition
of the start of the out-of-control period would be ambiguous.
In order to adopt such an approach, the Agency would need to
develop standard procedures to ensure that records are kept to
verify when the owner or operator first "determines the
problem may exist." The EPA does not wish to require
additional recordkeeping requirements in this regard, and the
Agency believes that the existing definitions for the start
and finish of out-of-control periods is correctly specific and
verifiable.
Comment: One commenter said that the words "or portion
thereof" should be removed from § 63.8(c)(7)(ii) or clarified
because it is well established that the entire audit or QC
check must be performed to verify the unit is meeting
appropriate standards.
Response: The commenter is correct, and § 63.8(c)(7)(ii)
has been revised to delete the words "or portion thereof."
2.6.5 Quality Control Program
Comment: The EPA should not require owners or operators
to retain superseded procedures for the monitoring quality
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control program. If old, outdated procedures are in
existence, they create a possibility that they could be
accidently followed.
Response: As discussed in section 2.4.8, the EPA has
determined that the availability of these types of records is
essential from an enforcement perspective for providing a
history of compliance. However, in order to be consistent
with the recordkeeping retention requirements in § 63.6(e)(3),
§ 63.8(d)(3) has been revised to clarify that only the current
version of the quality control plan must always be retained
on-site and be available for review upon request. Previous
versions of the plan must be retained for 5 years. However,
superseded procedures may be retained away from the work area
as long as they can be made available for inspection, upon
request.
2.6.6 Performance Evaluation of CMS
Comment: One commenter had several comments regarding
§ 63.8(e), performance evaluation of continuous monitoring
systems. First, the commenter said that the simultaneous
submittal of source performance test and CMS performance
evaluation test plans is unnecessary and may place a burden on
the source. The commenter suggested that as long as clear
requirements for GEMS certification and submission of test
protocols are established, then the test plans should be
allowed to be submitted independently.
Second, the language in §§ 63.8(e)(3)(iii) and (e)(2)
appears to be redundant.
Finally, the commenter questioned whether it is the EPA's
intent to establish separate relative accuracy requirements
for specific part 63 standards or to refer to part 60,
appendices B and F.
Response: The requirements of this section have been
revised in the final rule. Neither the site-specific
performance test plan nor the CMS performance evaluation test
plan is required to be submitted for review, except upon
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request by the Administrator. Therefore, the burden upon
sources and reviewing agencies will be minimal. With regard
to the commenter's second concern, redundancies between
§§ 63.8(e)(3)(iii) and (e)(2) have been eliminated as a result
of revisions made to the rule. Finally, the EPA will define
applicable CMS performance specifications within each
regulation as outlined in the regulatory revisions discussed
earlier. These may or may not be taken from other parts of
the CFR.
2.6.7 Alternative Monitoring Method
Comment: One commenter suggested that § 63.8(f), use of
an alternative monitoring method, be revised to recognize that
sources that are affected sources only because of a lesser
quantity threshold generally should qualify for use of an
alternative monitoring method.
Response; The Administrator may establish lesser
quantity cutoffs for certain HAP based on health
considerations. In these cases, a source will be regulated as
a major source even though it emits less than 10 (or 25) tons
per year if it emits (or has the potential to emit) at least
the lesser quantity of a pollutant for which a lesser quantity
cutoff has been established. Monitoring to ensure compliance
with these sources is just as essential as for any other major
source. Furthermore, this comment should be made during the
public comment period when a particular NESHAP is proposed so
that alternative monitoring may be considered. Therefore,
this change has not been made in the final General Provisions.
Comment: According to one commenter, the EPA should not
specify in § 63.8(f)(3) that the results of a standard method
always prevail over the results of monitoring by an approved
alternative monitoring method when the EPA disputes the
results produced by an alternative method. There may be times
when the standard method is clearly incapable of detecting the
HAP of concern or the standard method is known to overestimate
the concentration of HAP due to the method's inability to
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exclude interferences. In these cases, the method that
provides the most reliable results should prevail rather than
the automatic acceptance of possibly unreliable results due to
a blanket rule.
Response; The delegated authority must know all of the
specific requirements that affect the sources within its areas
of responsibility in order to meet its charge; of ensuring
compliance with the regulations. Therefore, in the event the
delegated authority finds reasonable grounds to dispute the
results obtained by an alternative method, the delegated
authority may require the use of a method, requirement, or
procedure specified in this section or in the relevant
standard.
This provision was intentionally included in the rule to
allow the delegated authority the ability to review monitoring
results and make case-specific determinations of the adequacy
of the data. Any source using an alternative should be in
close contact with the delegated authority to discuss the
details and results, particularly if a source believes that
the authority's dispute of the results is incorrect.
Results of control, testing, and monitoring requirements
are of particular importance, and any results that are suspect
must be closely scrutinized so that national consistency may
be maintained. Also, alternatives yielding suspect data must
be evaluated, with respect to their availability for use by
other sources within the same regulated source category.
Comment: One commenter said that § 63.8(f)(4) should be
revised to allow conversion to an alternative monitoring
method at any time with Administrator approval.
Response: Section 63.8(f)(4) allows the source to submit
an application requesting the use of an alternative monitoring
method at any time provided that the monitoring method is not
used to demonstrate compliance with a relevant standard or
other requirement. In the event the alternative monitoring
method is to be used to demonstrate compliance with a relevant
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standard, either in conjunction with a performance test or
not, the application must be submitted within the timeframe
specified in § 63.8(f)(4)(i).
The Administrator believes that if an owner or operator
intends to use an alternative monitoring method for an
affected source to demonstrate compliance then it should be
used during a required performance test or from the initial
startup or compliance date. Then, subsequent monitoring of
the affected source, with continued use of the alternative
monitoring method, will allow subsequent results to be
comparable to the initial monitoring. However, in order to
clarify the requirement regarding the ability of the owner or
operator to request a change in method, § 63.8(f)(5)(iii) has
been revised as follows:
If the Administrator approves the use of an alternative
monitoring method for an affected source under
paragraph (f)(5)(i) of this section, the owner or
operator of such source shall continue to use the
alternative monitoring method until he or she receives
approval from the Administrator to use another monitoring
method as allowed by § 63.8(f).
Comment; One commenter requested that the EPA specify a
time period (at least 30 days) for a source to submit
additional information for a request to use an alternative
monitoring method in § 63.8(f)(5)(i)(B).
Response: The time given to a source for submitting
additional information to support an alternative proposal is
determined by the nature of the information. This time period
was intentionally left to the delegated authority for case-
specific determinations. Any source proposing an alternative
should be in close contact with the enforcement authorities to
discuss details and agreeable time periods, particularly if a
source believes that the time periods allotted were
insufficient.
Comment: One commenter suggested that § 63.8(f)(5)(iii)
should not limit sources from switching from an approved
alternative monitoring method, back to the standard method,
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without seeking prior approval.
Response: The delegated enforcement authority must know
all of the specific requirements that affect the sources
within its areas of responsibility in order to meet its charge
of ensuring compliance with the regulations. Therefore,
changes to the applicable requirements must be made with the
approval of, or notification to, the delegated authority.
Control, testing, and monitoring requirements are of
particular importance, and any alternative or changes in these
requirements and standards must have prior approval. Changes
to such fundamental requirements must have prior approval,
including a determination of equivalence with the promulgated
standard, so that national consistency may be maintained and
so that the alternatives can be made available to other
sources within the same regulated source category.
2.6.8 Alternative Relative Accuracy Test
Comment: One commenter said that the EPA should allow
the alternative relative accuracy test, regardless of whether
a monitoring system is used directly to determine compliance,
and the last sentence of paragraph 63.8(f)(6)(i) should be
deleted.
Response: The Agency does not agree with the commenter.
The Agency provided for the source to request the use of the
alternative to the relative accuracy test in the event
emission rates less than 50 percent of the relevant standard
were demonstrated. While it is true that the alternative to
the relative accuracy test is simpler and less rigorous, it
may not be as accurate. Therefore, the Agency believes it is
in the best interest of the owner or operator and the public
well being for the requirements for use of the alternative
relative accuracy test to remain as originally written.
Comment: One commenter stated that Performance
Specification 2 in appendix B of 40 CFR part 60 is cited in-
§ 63.8(f)(6) as the basis by which alternative relative
accuracy test methods are to be judged. There is a problem in
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that the test is limited to situations where a source is
subject to emission limits. However, many sources, such as
those affected by the Hazardous Organic NESHAP (HON), are
subject to HAP removal limits or engineering controls. These
sources are apparently left without an alternative method.
The commenter suggested that the EPA should propose and
receive comments on a relative accuracy test for part 63
monitoring requirements and use the HON monitoring
requirements as an example.
Response; As discussed in other responses to comments,
the revisions to the General Provisions regulation clarifying
how performance specifications will be defined on a
regulation-specific basis resolves this issue.
2.6.9 Averaging Period
Comment; One commenter said that, in the General
Provisions, the EPA should allow monitoring systems that take
continuous measurements and calculate 3-hour and 24-hour
averages. Also, according to another commenter, the opacity
averaging periods in parts 60 and 63 are not consistent. The
EPA should use one averaging scheme in all opacity
methodologiesa 6-minute, 15-second average for all
regulations.
Response: The EPA believes that the commenter is
referring to a provision contained in the HON, which w.as
proposed on December 31, 1992 (57 FR 62690), that a CMS may
report a constant output (called "compressed data") until a
significant change in the emissions occurs. In this case, the
CMS may go as long as 3 hours or 24 hours with one data value
depending on the specific regulation. This is not the same as
a 3-hour or 24-hour average, nor is it something that the EPA
believes is appropriate to include in the General Provisions.
It should be noted that more specific monitoring provisions
will be established for each individual regulation, and the
type of monitoring discussed by the commenter could be adopted
within an individual regulation.
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The requirements for COM3 in part 60 and those in part 63
are consistent for COM3. The EPA believes that the commenter
is referring to the requirement in Method 9 in subpart A of
part 60 (visible emissions observer) for 15-second readings
and Performance Specification 1 for at least six readings per
minute or 10-second readings. These two measuring procedures
represent different technologies and are applied differently.
Such differences are common in test methods (e.g, the
extractive, cumulative, 20-minute SO2 sample collected for
Method 6 versus the 10 to 15-second readings for a 20-minute
SO2 average as collected by Method 6C). In some cases, the
methods are applied to the same standard, but in most,
different methods are applied with different purposes,
averaging times, and calculations. The applicable regulation
will specify which method is to be used. The EPA also has
recently proposed Methods 203A, B, and C, which provide
visible emission observer procedures for a range of averaging
times and calculations.
Comment; One commenter said that § 63.10(b)(2)(vii),
which requires monitoring data to be kept in 15-minute
averages, should be consistent with other sections of the rule
and refer to 1-hour averages.
Response: Section 63.10(b)(2)(vii) is correct as
proposed, and the Agency intends for the General Provisions to
establish a requirement for 15-minute averages. This
requirement may be overridden in the individual standards if
source-specific characteristics indicate that a different
averaging period is more appropriate.
2.7 NOTIFICATION REQUIREMENTS
2.7.1 Organization of Notification Requirements
Comment: Commenters suggested that an early cross-
reference in § 63.5, Construction and reconstruction, to the
notification procedures in § 63.9 would help clarify what area
sources must do.
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Response: The Agency is trying to keep duplication in
the General Provisions to a minimum, and thus, the suggested
revisions to § 63.5 have not been incorporated into the final
rule.
Comment: Some commenters said that all notification
requirements should be contained within a single notification
section. In addition, the EPA should add language to § 63.9
that all notification requirements are contained in this
section and that compliance with § 63.9 results in compliance
with all notification requirements. The same comment was made
regarding § 63.10, recordkeeping and reporting requirements.
Response: While the majority of notifications and
recordkeeping and reporting requirements are found in §§ 63.9
and 63.10, respectively, other sections of the General
Provisions include notification and reporting requirements
relevant to these sections. The General Provisions are often
referenced for specific sections that apply to an individual
subpart and situation when the other provisions may not be
applicable or relevant. The Agency believes that including
the associated notifications and reports together with the
relevant sections would minimize cross-referencing and make
the provisions more user-friendly. Therefore, the proposed
"Notifications" and "Recordkeeping and reporting" sections of
the General Provisions are not totally inclusive of all
records, reports, or notifications that may be required of an
affected source. In addition, individual subparts may contain
additional notification, recordkeeping, and reporting
requirements.
2.7.2 Initial Notification
Comment: Some commenters requested that requirements
currently found in paragraphs 63 .9 (b) (2) (iv) and (b) (2) (v) be
revised to clarify that the required information is only for
the "affected" source.
Response: The EPA has determined that it is not
necessary to revise the rule in response to this comment, as
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paragraph (b) clearly states that the requirements of (b) only
apply to affected sources. In the final rule, the
requirements of paragraphs (b) (2)(v) through (b)(2) (ix) have
been relocated to § 63.9(h) of the rule, Notification of
compliance status.
Comment: Some commenters stated that once a source has
satisfied the permitting authority that it is an area source
under part 70, it should not be required to continually submit
notifications that it is an area source whene>ver a new MACT
standard becomes effective that would affect the source if it
were major.
Response: Only area sources affected by a part 63
standard would be required to submit an initial notification.
Unaffected area sources are not subject to the notification
requirements in § 63.9(b). Unaffected area sources that
subsequently become affected major sources are covered by the
provisions of § 63.9(b)(1)(i).
Comment; Sources subject to a relevant, standard should
be required to initially notify States, even if an approved
operating permit program is not in place. The construction or
operating permit application procedure should serve as notice.
Response: States will receive all notifications required
under the General Provisions as soon as they have been
delegated the authority to implement the General Provisions.
This delegation may take place under subpart E of part 63
before the State's part 70 permit program is approved.
However, the provisions of § 63.5(d)(l) and § 63.9(b)(1)(i)
have been changed to waive the requirement for an additional
initial notification from part 63 affected sources that have
submitted a preconstruction review application.
Comment: One commenter was concerned that agencies will
not have a systematic mechanism for checking and confirming
negative determinations that are close-to the major source
threshold. The commenter recommended that the EPA establish
an initial notification cutoff that is less than the part 63
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cutoff for sources that are unaffected because they are not
major (e.g., 50 percent of the major source cutoff). This
approach is particularly needed for those sources that might
be considered major sources if not for the existence of
federally enforceable limits on their potential to emit HAP
and others that could become part 63 major sources at some
point in the future.
Alternatively, when a source can determine that it will
be able to comply with a particular standard at the time of
its initial notification, the need to also perform the major
source determination is unnecessary.
Response; In § 63.9(b)(2) of the final rule, a source is
no longer required to submit a major source determination with
the initial notification; rather, the source is simply
required to submit a statement saying whether the source is a
major source. In addition, sources that determine they are
not affected by a given standard are required to maintain
documentation on file regarding their determination of status
per § 63.10(b)(3).
In response to the comment regarding making delegated
agencies responsible for identifying affected and unaffected
sources, the EPA believes that State and local authorities do
not have the resources to definitively identify all affected
sources without input from affected industries. Participation
by the regulated community is encouraged by the Agency as part
of its revised rulemaJcing philosophy. Industry has asked to
be more responsible and accountable for their own actions
rather than be accountable to authorities who may have less
understanding of the specifics of their operations. Comments
regarding the requirements for sources that are close to the
major source threshold, particularly if they have federally
enforceable limits on their potential to emit, are being
addressed in a separate rulemaking being developed by the EPA.
Comment: Some commenters requested that § 63.9(b)(4) be
revised to communicate how it differs from § 63.5(d),
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application for approval of construction or reconstruction.
As written, both sections appear to apply to the same types of
sources.
Response: Section 63.9(b)(4) summarizes the notification
requirements associated with constructed or reconstructed
sources. Section 63.5(d) provides the detail to the affected
sources on how to complete the various application procedures.
No changes are needed in the final rule.
Comment: Some commenters believed that some
notifications [e.g., those required by
paragraphs 63.9(b)(4)(ii), (iii), and (iv)] could be combined
to reduce the burden on sources.
Response: These events are separated in time by discrete
actions and cannot be combined, at least in a generic sense.
However, each of these notices is anticipated to involve
minimal effort.
2.8 RECORDKEEPING AND REPORTING REQUIREMENTS
2.8.1 Reporting Schedules
Comment: A few commenters stated that requiring dual
reporting schedules for a single source because of different
requirements under parts 60 and 63, for example, does not seem
reasonable. The General Provisions should provide a mechanism
to reduce all reporting if a source qualifies on a compliance
history basis, and efforts should be made to coordinate
reporting and recordkeeping requirements between programs.
Commenters made similar comments related to dual notifications
required in § 63.9.
Response: The General Provisions already provide an
opportunity for sources to work with their permitting agency
to coordinate the submission of required notifications
[§ 63.9(i)] and reports [§ 63.10(a) (7)], to reduce the
frequency of excess emissions and continuous monitoring system
performance reports [§ 63.10(e) (3) (ii)], and to request a
waiver of recordkeeping or reporting requirements
[§ 63.10(f)]. In addition, the Administrator will accept
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copies of reports, notices, etc., developed to satisfy other
reporting requirements so long as they contain all of the
material required by the part 63 General Provisions.
Comment: The EPA should clarify in provisions related to
the negotiation of deadlines and time periods that States with
an approved permit program may be delegated the authority to
negotiate.
Response: States may seek delegation of authority to
implement and enforce either all or part of the standards and
requirements promulgated under section 112. If the
Administrator has approved a request under subpart E for
delegation of authority to negotiate deadlines and time
periods, then such authority would pass to the States.
Comment; One commenter questioned whether the public
should be notified when a source and permitting authority have
negotiated a schedule revision per § 63.10(a)(7).
Response; As the commenter noted, these schedule
revisions are allowed to provide flexibility to coordinate
reports required under part 63 with other Federal and State
provisions. The schedule revisions should not result in any
changes in a source's compliance status or emissions control
programs. In addition, Federal rules do not require public
notice after promulgation. As part of an individual State's
implementation program, a State could develop a public notice
system (computerized bulletin board for example), but the EPA
does not believe it is necessary to prescribe any system of
public notice as part of the General Provisions.
2.8.2 General Recordkeepinq Requirements
Comment: Several comments were received on § 63.10(b)(1)
related to the conditions for the retrieval of records, and
one commenter requested the terms "readily available" and
"expeditious retrieval" be defined in the final rule. Several
other commenters suggested that sources be allowed to store
records in all formats, including microfiche and magnetic
tape.
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Response: In response to these comments, the EPA has
revised § 63.10(b)(l) to clarify that only the most recent 2
years' worth of data must be retained "on site." The previous
3 years' worth of data may be retained off site, so long as
the records are "readily available" for "expeditious
retrieval." As discussed in the proposal preamble, by
"readily available" for "expeditious retrieval," the EPA means
that records must be available immediately for records
retained on site and within 2 days for records archived off
site. The EPA does not believe it is necessary to define
these terms in the final rule.
With regard to storage of these records, EPA agrees that
there is no need to limit sources to the specified methods of
storage. In the proposal, § 63.10(b)(l) allows sources to
maintain records on microfilm, on a computer, or on computer
floppy disks. However, there is no reason not to allow
magnetic tape records or microfiche records. Therefore, the
final rule, § 63.10(b)(l), has been revised to allow these
other methods of recordation or storage so long as the
information meets the retrieval requirements. If special
requirements are appropriate for a particular category of
sources, these requirements can be addressed in individual
standards that override the General Provisions with regard to
data storage and retrieval.
Comment: The EPA should revise § 63.10(b) to require
"exception" recordkeeping to avoid onerous burdens.
Commenters suggested that in the majority of cases that these
data will only serve to show that procedures, measurements,
etc. were being properly done. For example, the rule could be
revised to limit recordkeeping to all required measurements
"except that if the owner or operator establishes a system
that will reliably identify and record any measurement which
is outside limits or ranges established pursuant to that
standard, the owner or operator may retain records of only
those measurements." Alternatively, the requirements could be
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revised to focus attention on "all specified" or "all data
necessary."
One commenter said that the EPA must recognize that most
HAP testing is performed by noncontinuous or manual sampling
when evaluating electronic data retrieval systems. In most
cases, the use of manual sampling will result in extensive
paperwork, which makes reporting and recordkeeping a difficult
task. Consequently, the EPA should acquire or develop
expertise in the area of process control computer systems.
Response: The part 63 General Provisions do not preclude
the use of data compression monitoring systems, which
typically record a value only when a data value varies from
previously recorded values by more than a set variance.
Sources desiring to use these systems may submit a request to
the Administrator or their permitting authority to monitor
using data compression as an alternative monitoring method.
Individual subparts under part 63 may include minimum criteria
that data compression systems must satisfy. For example, the
HON (see 57 FR 62608, December 31, 1992) includes specific
criteria that a data compression system must meet in order to
be used to establish compliance with the HON. However, it is
not possible to provide general criteria for the use of data
compression systems in the General Provisions.
The EPA disagrees with the commenters that the
requirements in § 63.10(b)(2) are particularly onerous or
unnecessary. Many of the records are critical to permitting
agencies in building compliance records for affected sources.
For example, records of proper maintenance of monitoring and
control systems contain measurements necessary to determine
the conditions of performance tests and performance
evaluations, and they provide positive indication to
inspectors that equipment is being properly operated and
maintained for peak performance, in addition, many of these
records are routinely maintained in the absence of these
requirements. Therefore, § 63.lO(b)(2) has not been revised
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to limit recordJceeping to "exceptional" events.
2.8.3 Excess Emissions and CMS Performance Reports
Comment; Commenters questioned the need to include
"excess emissions and continuous monitoring system performance
reports" required by § 63.10(e)(3) in the General Provisions.
The details of monitoring systems may vary significantly from
source category to source category and are most appropriately
addressed in the specific MACT standards. In addition, other
means already exist to address concerns regarding excess
emissions of HAP (such as the CERCLA and SARA reporting
requirements).
Response; The EPA agrees that detailed monitoring
provisions are more appropriately left to the individual MACT
standards because of the potential variability between source
categories and their respective MACT standards. However, the
purpose of the § 63.10(e)(3) reports is to establish a minimal
framework for the reporting of generic information that is
essential to the enforcement of any of the RACT standards. As
for the existence of alternative systems for the Agency to
access to achieve section 112 compliance and enforcement
objectives, the emergency response systems described by the
commenter are generally concerned with releases in quantities
and under conditions that may not be consistent with the
reporting and compliance needs of the authorities delegated
with enforcing the MACT standards. To the extent that other
reporting mechanisms provide duplicate information, they can
be used to satisfy the part 63 requirements.
Comment: One commenter believed that the more frequent
reporting requirements of § 63.10(e)(3)(iv) should only apply
to the emission points that failed to comply.
Response; The commenter is correct that the intent of
the provision is that these reporting requirements only apply
to emission points that failed to comply with the applicable
provisions. Section 63.10(e)(3)(iv) has been revised to
clarify this point.
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Comment; Some commenters considered the provisions
allowing the submission of summary reports for excess
emissions and monitoring performance as discussed in
§§ 63.10(e)(3)(vii) and (e)(3)(viii) as duplicative and
unnecessary, while other commenters said that the reports have
the potential of reducing regulatory burdens by recognizing
that equipment cannot function perfectly 100 percent of the
time.
Commenters requested that the EPA clarify that the
1 percent and 5 percent thresholds refer to the aggregate of
exceedances or downtime, rather than each event separately.
In addition, the 1 percent or 5 percent threshold should be
applied to each emission point or monitoring device, per
monitored emission or parameter. In addition, the requirement
for omitting excess emission reports should be revised to
allow omission if such exceedances are less than 5 percent of
the total, which is roughly equivalent to an exceedance on the
order of 1 hour per day. In addition, the CMS downtime
reporting period should not include the time for QA/QC
activities, and the threshold should be increased to
10 percent of the total operating time.
Response: The EPA believes that the summary reports,
which contain requirements for less detailed data reporting
are appropriate in circumstances where sources can demonstrate
that "excess emissions" or "control system parameter
exceedances" are insignificant, as defined by the threshold
requirements. However, if in individual standards or at
specific facilities, the Agency or permitting authority
believes that more comprehensive data is needed in a
particular instance or if more stringent thresholds are
appropriate, these cases may override the General Provisions.
The EPA considered the comments related to the monitoring
thresholds both as part of this rule and as a result of
comments received on the HON. The Agency has received no
detailed data demonstrating that the default thresholds are
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not appropriate for purposes of the General Provisions.
However, flexibility is provided because the source and
regulatory authority may establish acceptable site-specific
ranges through the operating permit or notification of
compliance status. For example, a site-specific range could
be ±5 percent of the target value, if the source sufficiently
justifies that such a range ensures proper operation of the
control device, and the regulatory authority approves the
range. In this case, if the measured value of the parameter
is outside the agreed upon range more than 1 percent of the
operating time, the regulatory authority could require
quarterly reporting for that emission point.
The requirements are expressed as a percent of actual
operating time instead of a specific number of hours in order
to accommodate variability in operating time. The hour option
would result in different stringencies for different
processes.
The specific requirements for CMS downtime, including
QA/QC activities, depend on the reporting and averaging
periods specific to each regulation and will be addressed by
establishing the applicable minimum data availability
requirements in the individual subparts.
Comment: Some commenters made the following suggestions
to revise the contents of the summary report:
1. Section 63.10(e)(3)(vi)(F) should be deleted because
it is impossible to identify a manufacturer and model number
of most monitoring systems.
2. The summary report on gaseous and opacity excess
emission and continuous monitoring system performance does not
discuss parametric monitoring in any relevant fashion.
Several sections of the report contents should be described
more broadly in order to cover parametric monitoring system
reports.
3. The summary report contains several elements that are
excessive or should not have to be repeated in each successive
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report [e.g., (D), description of process unit; (E),
limitations; (F), information on manufacturers and model
numbers]. Sections (I) and (J) should be deleted, and the
enhanced monitoring and compliance certification submittals
should be referenced as sufficient submittals for purposes of
the summary report.
Response:
1. The EPA disagrees that it is impossible (or even
difficult) to identify the manufacturer and model number of
most monitoring systems. In cases where a source does
experience difficulty in providing this information, the
source should discuss alternatives (such as a detailed
description of the system) with the implementing agency.
2. Sections 63.10(e)(3)(vi)(I) and (J) have been revised
to include data relevant to control system parameters.
3. Given the common use of word processing systems and
electronic versions of reports, the repetition of certain
summary report elements should not be a burden. These
provisions are retained to ensure that each report stands
alone as a compliance record. Sections 63.10(e)(3)(vi)(I) and
(J) provide critical information in the summary reports and
have been retained, with the modifications discussed above.
2-8.4 Miscellaneous Comments
Comment:
1. Commenters said that it is unclear whether the
Administrator has the authority to allow owners or operators
to exceed a 6-month interval for reporting when granting
petitions to change the time period and frequency of reports
under §§ 60.19(c) through (f). it is also unclear whether the
Administrator's authority can be delegated in this case.
2. Commenters said that the language regarding the
definition of "day" and the discussion of postmark deadlines
in §§ 63.10(a)(8) through (10) duplicates the language in
§§ 63.1(a)(10) through (12) and should be deleted.
Response:
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1. The provisions of § 60.19(c) through (f) allow
changes in reporting deadlines for purposes of coordinating
compliance requirements with parts 61 and 63. As stated in
§ 60.19(d), such changes do not change the frequency of such
reporting. If a State has requested delegation of authority
to implement §§ 60.19(c) through (f), and such request has
been approved by the Administrator, the State has authority to
enter into such schedule amendment agreements with sources.
2. The EPA agrees with the commenters, and the final
rule has been revised by deleting § 63.9(a)(5) through (7) and
§ 63.10(a)(8) through (10), which repeat the discussion of
"day" and postmark deadlines presented in § 63.1(a) (10)
through (12).
2.9 TIMELINE ISSUES
2.9.1 General Timing Issues
Comment: Some commenters suggested that all provisions
related to timing should be placed in a single section in the
preamble.
Response; While the EPA did compile reporting and
recordkeeping and notification requirements into consolidated
sections, a similar organizational redundancy for timing
requirements would make the General Provisions considerably
longer. Therefore, this suggestion was not adopted.
2.9.2 Compliance Provisions Deadlines
Comment: The commenter argues that several of the time
periods specified in the proposed General Provisions for
activities associated with responding to requests for
additional information or notifications of intent to deny
requests are unreasonably short. Specifically, the 15-day
deadline in § 63.6(i)(12)(ii) and the 7-day deadline in
§§ 63.6(i)(12)(iii)(B) and (i)(13)(iii)(B) are cited as
unrealistic.
Response: The EPA agrees with the commenters, and has
revised the rule accordingly. The 15-day period in
§ 63.6(i)(12)(ii) has been increased to 30 days, and the 7-day
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deadline in §§ 63.6(i)(12)(iii)(B) and 63.6(i)(13)(iii)(B) has
been increased to 15 days.
2.9.3 COMS Performance Specifications
Comment: One commenter said that the § 63.8(e)(4)
requirement for COMS performance specifications test results
to be available prior to a source's performance test requires
more than 120 days after the compliance date.
Response; As discussed in the promulgation preamble, the
source is now allowed up to 180 days to conduct the
performance test and CMS performance evaluation, and
§ 63.8(e)(4) has been revised to be consistent with this
milestone. Also, § 63.8(c)(3) has been revised to allow the
data verified either prior to or in conjunction with
conducting the performance test. Other changes made to
timelines related to this provision should relieve the
concerns of the commenter. For example, because site-specific
performance evaluation test plans must only be submitted at
the Administrator's request, in most cases the time allotted
for review and approval of the plan will not be needed.
2.9.4 Schedule Revisions
Comment: The EPA should allow mutually agreed upon
changes to schedules such as those allowed under §§ 60.19(d),
61.10(h) and (i) , and 63.9(i)(2) to stand for a reasonable
period rather than requiring a new request for each event.
For sources with an operating permit, it would be appropriate
for the permit to contain standing schedule adjustments such
as report due dates; mutually acceptable changes should be
allowed as administrative amendments.
Response: The Administrator does not believe that any
changes are needed to the language in the General Provisions.
The language in § 63.9(i)(2), for example, which requires an
owner or operator to request an adjustment each time he or she
wishes to change an applicable time period or postmark, is
consistent with the intent of the commenter. Once an
adjustment is agreed to, it will be valid until the schedule
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is revised again upon mutual agreement. As provided in
§ 63.9 (j), any change in the information already provided
related to the scheduling agreement must be updated within 15
calendar days after the change.
The commenter is correct that the operating permit is an
appropriate means of recording schedule dates;.
2.10 CONTROL DEVICE REQUIREMENTS
2.10.2 Flares
Comment: The minimum heating value and maximum exit
velocity requirements in § 63.11 are based on streams that
derive their heat value totally from hydrocarbons. Due to
inherent molecular properties of hydrogen, combustion of a
hydrogen-rich stream in a flare can result in a stable flame
(and greater than 98 percent destruction efficiency) at
heating values less than, and exit velocities greater than,
the limitations in § 63.11. Therefore, several commenters
indicated that § 63.11 should be modified to increase
flexibility for flares that derive a substantial portion of
their heat release from hydrogen. One commenter suggested
that provisions be added to § 63.11(b) that would allow a
demonstration by engineering calculations or test data that
the flare is operating to achieve 98 percent destruction
efficiency.
Response: The EPA is aware of the differences between
flares that burn hydrogen-rich streams and those that burn
hydrocarbons. However, sufficient information has not been
provided to allow the EPA to set general performance criteria
for hydrogen flares in § 63.11 that will assure that the flare
destroy 98 percent or more of organic HAP contained in the gas
stream.
The EPA believes the addition of paragraph(s) to § 63.11
that allow demonstrations of flame stability and/or
destruction .efficiency by engineering calculations or test
data is inappropriate. Such provisions would be applicable to
many situations other than those associated with hydrogen
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flares. The performance standards contained in § 63.ll(b) are
based on an extensive testing program conducted under
controlled conditions. Allowing the use of general
"engineering calculations or test data" could result in the
approval of flares that are not equal to those complying with
§ 63.11(b).
However, information of this type can be used to obtain
an "equivalency determination" in accordance with part 63,
paragraph 63.6(g)^ This paragraph provides the opportunity
for an alternative emission standard to be approved by the
EPA. Upon receipt of a request for an alternative standard,
the EPA will work closely with the State and/or local agency
to review the technical information provided by the requestor
and determine whether the proposed standard is "equivalent."
The results of this equivalency determination are published in
the Federal Register and are subject to public review and
comment. In the case of flare performance, the EPA believes
that this is the appropriate means of allowing flares that do
not meet the performance requirements of § 63.11(b).
It should be noted that the EPA believes that 98 percent
destruction can be obtained if the flare gas contains a
sufficient amount of hydrogen, even when the gas stream does
not meet the minimum heating value and maximum exit velocity
requirements of § 63.11(b). As correctly pointed out by one
commenter, the EPA has approved an equivalency determination
for a hydrogen flare under § 60.484(a).
Comment: Engineering calculation or equivalent
determination should be acceptable alternatives to determine
the concentration of stream components (for the heating'value
determination) and velocity of the air stream being combusted.
The determination of organic sample component concentrations
should be allowed by applicable non-gas chromatograph methods
other than Method 18, and hydrogen and carbon monoxide by
other applicable methods.
Response: Alternative test methods may be used in lieu
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of those cited in § 63.11. Requests for the use of
alternative procedures should be made in accordance with the
procedures contained in § 63.7(f).
Comment: Section 63.11(b)(5) requires that flares be
operated with a pilot flame present at all times. Auto-
ignition flare systems should also be allowed.
Response: The EPA believes that the presence of a pilot
flame at all times is essential to ensure proper performance
of the flare. Technical information has not been provided to
the EPA that supports a conclusion that auto-ignition flare
systems operate as effectively as those with a continuous
pilot flame. However, an equivalency determination may be
requested in accordance with § 63.6(g), use of an alternative
non-opacity emission standard, to allow the use of an auto-
ignition flare.
Comment; The "no visible emissions" requirement needs to
be more specific on how Method 22 is applied. The commenter
noted that, in one instance, one of their plants was required
to monitor the opacity daily to demonstrate continuous
compliance with this provision.
Response: Section 63.11(b)(4) states that "Flares shall
be designed for and operated with no visible emissions, except
for periods not to exceed a total of 5 minutes during any 2
consecutive hours." This requirement was intended to provide
a practical method for occasional observation. While this
paragraph does not state the frequency that Method 22 must be
applied, the EPA certainly did not intend for facilities to
continuously, or even daily, monitor the flare to comply with
the no visible emissions requirement.
2.10.1 Applicability
Comment; The EPA should expand § 63.11 to include
general requirements for control devices other than flares.
Response: There is one particularly unique aspect of
flares in relation to other control device, which is that
flares cannot be tested. Performance requirements for other
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control devices will be included in individual standards, and
will typically include performance testing requirements.
However, as there are limited ways to demonstrate flare
performance, requirements for flares are included in the
General Provisions, and these will be referenced in the
individual standards.
Comment: The application of the extensive monitoring
requirements in § 63.8 could make compliance with § 63.11
difficult. The EPA should clarify the interaction of §§ 63.8
and 63.11.
Response; As noted above, the EPA believes that it is
most important that the pilot flame be lit at all times.
Section 63.11(b)(5) requires that the presence of a flare
pilot flame be monitored "using a thermocouple or any other
equivalent device to detect the presence of a flame." This is
the only specific monitoring requirement in § 63.11(b). in
addition, § 63.11(b)(l) states that owners or operators using
a flare must monitor the flare to assure that it is operated
and maintained according to its design, and that specific
subparts will provide more specific monitoring provisions.
Section 63.11 addresses continuous emission monitoring and
would not apply to flares. This language has been added to
§ 63.8(b)(l) to clarify this point.
Comment: The first sentence of § 63.ll(b)(8) should be
eliminated to make it consistent with § 60.l8(f)(6).
Response: While the requirements of § 63.li(b) are
identical to those contained in § 60.l8(b), there have been
slight modifications to clarify the requirements. Paragraph
63.1l(b)(8) is a combination of paragraphs 60.l8(c)(5) and
60.18(f)(6).
However, there was an error in § 63.11(b)(8) as proposed.
The clause "as determined by the method specified in paragraph
(b)(7)(iii) of this section," should not have been included,
because the method for determining Vnuix for air-assisted flares
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is contained in paragraph 63.11(b)(8). Therefore, this clause
has been removed from the regulation.
Comment: In § 63.11(b)(6), "ppm" should be "ppmv."
Response: The EPA agrees with the commenter, and the
regulation has been changed as noted.
Comment: Section 63.11(b)(7)(i) should be modified as
follows: "by dividing by the volumetric flow of gas being
combusted."
Response: The EPA agrees with the commenter, and the
regulation has been changed as noted.
Comment: Because the flare requirements are identical to
§ 60.18, § 63.11 should be deleted and reference simply made
to § 60.18.
Response: The EPA believes that it is appropriate to
have the flare requirements contained within part 63.
2.11 TITLE V PERMIT ISSUES
Comment: Several commenters argued that compliance with
a title V permit should constitute compliance with all of a
source's requirements under the Act. These commenters
contended that the purpose of the title V operating permit is
to collect in a single document all of a source's Clean Air
Act obligations, and that the provisions of proposed
§ 63.4(a)(5), which require a source to comply with an
applicable standard regardless of the existence of a permit,
or any conditions specified therein, impose an excessive
burden on industry. Instead, all requirements of the Act
should be consolidated in the operating permit, and any change
to applicable regulations that affects a source's ability to
comply should be incorporated and become effective in the next
amendment or revision of the permit.
Another commenter requested that the relationship between
the permit shield provisions and the severability clause of
§ 63.4(c) be clarified. This commenter stated that the title
V operating permit regulations mandate the incorporation of
all applicable requirements into a source's operating permit;
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however, the severability language of § 63.4(c) raises the
question of whether the operating permit is sufficient for
compliance enforcement.
Response: Requirements established under section 112 of
the Act are "underlying applicable requirements," and the EPA
has the authority to enforce these independently of the
permit. Furthermore, some sources regulated under section 112
may not be required to obtain a title V permit, or this
obligation may be deferred. Nevertheless, these sources are
still subject to the section 112 requirements.
The only time that section 112 requirements may not be
enforced independently is when an explicit permit shield
addresses them. Under 40 CFR 70.6(f), the permitting
authority may include a provision in a permit stating that
compliance with the permit shall constitute compliance with
any applicable requirements as of the date of permit issuance.
This shield is dependent upon certain conditions.
Specifically, the permitting authority may include a shield
provided that:
(i) Such applicable requirements are included and are
specifically identified in the permit; or
(ii) The permitting authority...determines in writing
that_other requirements specifically identified are not
applicable to the source, and the permit includes the
determination or a concise summary thereof.
A part 70 permit that does not explicitly state that a permit
shield exists does not provide such a shield. The permit
shield does not alter the liability of an owner or operator
for any violation of applicable requirements prior to or at
the time of permit issuance. Furthermore, the permit
regulation requires that a permit be reopened and revised if
additional requirements under the Act become applicable to a
major source (under part 70) with more than 3 years remaining
in its permit term. If a standard is promulgated during the
last 3 years of a permit term for a major source, the permit
does not have to reopen before renewal to incorporate the new
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requirements. However, the source is still required to comply
with the standard, and a new source is subject to the standard
upon its promulgation or upon startup of the source. Thus, a
permit shield may be provided under certain circumstances, but
a source will not be shielded automatically from compliance
with all requirements promulgated during a permit term.
The severability clause of § 63.4(c) states that the
provisions of part 63 are federally enforceable,
notwithstanding any requirements incorporated into a source's
operating permit. Clearly, the intent is that a source's
operating permit will contain all applicable requirements for
a source. When an operating permit is complete in this
respect, a permitting authority may provide a permit shield to
the source, precluding enforcement under any other applicable
requirement. However, without this shield, part 63
requirements are independently enforceable by the
Administrator.
Comment: Two commenters stated that the EPA should not
write rules in the General Provisions that cover situations
where no operating permit program is operable. If no program
is operable, owners and operators will be unable to get timely
and accurate information, and they should not be subject to
these rules and the possibility of citizen suits. One
commenter requested that part 63 requirements not become
effective until a State has a fully approved permitting
program. This commenter said that a State's resources are
best used to obtain approval of their permitting program and
issue the majority of permits.
Response: The EPA does not have the discretion to delay
the effective date for part 63 requirements until the approval
of State title V permit programs. Congress established the
effective date for part 63 requirements in section 112 of the
Act, including the schedule for promulgation of emission
standards for source categories and compliance dates for new
and existing sources. Some of these dates have already
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occurred (e.g., the coke ovens MACT standard, promulgated at
58 FR 57911, October 27, 1993), and others will occur in the
near future (e.g., the hazardous organic NESHAP (HON), which
is under a court order to be promulgated no later than
February 28, 1994).
Comment; Some commenters were concerned about when the
General Provisions require sources to comply with permitting
requirements. One commenter said that the proposed General
Provisions may prematurely require an owner or operator to
obtain a permit. Specifically, as § 70.3(a)(3) of the
operating permit rule requires permitting for "any
source...subject to a standard or other requirement under
section 112...," and the proposed General Provisions are
applicable (unless superseded) under § 63.1(b) to all
regulated sources in a listed category of sources, this
commenter is concerned that a title V permitting obligation
could be triggered prematurely.
Another commenter said that the proposed rule conflicts
with the title V permit program. This commenter claimed that
the proposed General Provisions are inconsistent and incorrect
with respect to who must obtain a permit, and the final rule
should be revised to indicate that a source is not required to
obtain a permit until a MACT standard applies to the source.
Response: The final General Provisions have been revised
to remove rule language that may be read to require sources to
obtain a permit when it is inappropriate to do so. This
language was intended to trigger the application for a permit
or a permit revision by an owner or operator, if required
under section 112 or part 70. Requirements specifying who
must obtain a permit will be implemented consistent with
part 70. Section 63.1(b) in the final rule has been revised
to clarify that applicability of part 63 is triggered when a
source emits (or has the potential to emit) any HAP and is
subject to a requirement under part 63. This revision of the
rule removes specific concerns about early triggering of
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permitting requirements by not tying the requirement to obtain
a permit solely to being part of a listed category of sources.
Under § 70.3(b)(2), the EPA must decide in individual
rulemakings what the permitting requirements will be for area
sources that are regulated by emission standards under
section 112. Section 63.1(c)(2) of the proposed General
Provisions stated that part 63 NESHAP will determine whether
area sources affected by those NESHAP would riot be required to
obtain a title V permit. If individual NESHAP do not make
such a finding, affected area sources would be required to
obtain a permit, because they are an area source subject to a
section 112 requirement [see § 70.3(a)(3)].
Section 63.1(c)(2) of the final General Provisions has been
revised to further clarify that part 63 NESHAP also will
decide whether State permitting authorities will be required
to permit area sources affected by those standards
immediately, despite the deferral option offered to States for
area sources in § 70.3(b)(l) (i.e., in such a case, part 63
would not allow a deferral for that category of area sources).
With respect to the suggestion that the rule be revised
to indicate that a source is not required to obtain a permit
until it is subject to a MACT standard, § 70.3(a)(l) of the
permit rule requires major sources to apply for a permit
within 12 months of becoming subject to the permit program
[see § 70.5(a)(1)], even if the source is not yet subject to a
standard developed under section 112. Thus, the suggested
revision is not consistent with part 70, and the final rule
has not been changed in this respect.
Comment: One commenter suggested that paragraph (a)(2)
of § 63.5 be deleted, as permitting requirements are in the
part 70 rule, and it is not clear whether this paragraph
alters those requirements. The commenter was particularly
confused about what requirement this paragraph would impose on
sources affected by the Industrial Process Cooling Towers
regulation.
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Response: The EPA agrees that § 63.5(a)(2) as proposed
is unnecessary and potentially confusing, and it has been
deleted from the final rule.
Comment; Several commenters expressed concern about the
consistency of part 63 reporting requirements with part 70
requirements. One commenter stated that the EPA needs to
review the consistency of part 63 with part 70. This
commenter said that all requirements established under the Act
must be consistent with part 70 requirements to ensure Federal
enforceability. Another commenter said that facilities
subject to permitting requirements and the General Provisions
should have only one set of reporting, recordkeeping,
monitoring, and compliance certification requirements.
Response; Although the EPA attempted to make the
requirements of part 63 consistent with those promulgated in
part 70, the Agency is not under a statutory obligation to do
so. Section 112 of the Act imposes statutory mandates that
have a different purpose from those in title V, and the EPA
may develop compliance and enforcement mechanisms to implement
section 112 that are different from those in the permit
program. Requirements established pursuant to section 112 are
independently federally enforceable, and they do not require
title V to be enforced. The General Provisions are one source
of the "underlying applicable requirements" that will
constitute some of the requirements in the operating permit.
Comment: One commenter stated that the provision to
request a reduction from quarterly reporting to semiannual
reporting conflicts with title V requirements, which would
designate a reduction in reporting frequency as a Significant
Permit Revision. Such a modification has extensive
requirements, including a potential 18-month review period and
public review and hearings. Thus, the commenter suggested
that reporting frequency be semiannual initially, and
increased to quarterly if noncompliance results.
Another commenter was specifically concerned that making
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changes to § 60.7(e)(2) could conflict with a source's
operating permit. This commenter argued that, as individual
standards allow public comment, an overly burdensome
recordkeeping requirement should be changed in the rule at
that time, instead of doing case-by-case relaxations as
allowed under the proposed amendments to the part 60 General
Provisions.
Response: The provision for allowing a source to reduce
the frequency of reporting from quarterly to semiannual under
the General Provisions [see § 63.10(e)(3)] extends flexibility
only to the applicable section 112 requirement, and it would
not extend to all reporting requirements in the part 70
permit. The source's operating permit, however, must include
terms and conditions in advance in order to allow such
flexibility without triggering the requirement for a
Significant Permit Revision. In this way, the source would be
in compliance with both the underlying applicable requirement
and the terms and conditions of the permit.
The changes to § 60.7(e)(2) referred to by the commenter
establish provisions for reducing the frequency of reporting
from quarterly to semiannual. As previously discussed, such a
change in reporting schedule should not be in conflict with
the source's operating permit if the permit includes terms and
conditions to allow such flexibility. Existing State permits
regulating sources under part 60 may have to be revised to
accommodate this flexibility. Alternatively, a State could
choose to deny the source's request to reduce its reporting
frequency. Nonetheless, new operating permits issued pursuant
to the part 70 regulation should be written to incorporate
such flexibility.
During the development of individual standards, the
Agency will consider reducing the frequency of reporting
requirements in the rules themselves, rather than reducing the
frequency on a case-by-case basis, as the commenter suggested.
However, the EPA is constrained by the need to obtain
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information from sources on a timely basis to assess continual
compliance with emission standards and other requirements.
Furthermore, the provisions allowing owners or operators to
reduce the frequency of reporting was designed as an incentive
to reward good performance by individual owners or operators,
and a general reduction in reporting frequency may not be
appropriate in individual standards.
Comment: The commenter states that the General
Provisions should only require sources to "apply for" a
permit, as the issuance of permits is not governed by the
General Provisions. Consequently, §§ 63.1(c)(2) and (e)
should be revised to delete the requirement for a source to
"obtain" a permit.
Response: Section 63.1(c)(2) of the General Provisions
states that the owner or operator of an affected source "may
be required to obtain" a part 70 permit. This language
appropriately describes provisions that may apply to a source,
and it does not address the issuance of such permits. This
paragraph also states that emission standards under part 63
will specify whether the owner or operator of an affected area
source is required to obtain a permit. This language follows
the directive in § 70.3(b)(2) that says:
In the case of nonmajor sources subject to a standard or
other requirement under...section 112 of the Act after
July 21, 1992,. the Administrator will determine whether
to exempt any or all such applicable sources from the
requirement to obtain a part 70 permit at the time that
the new standard is promulgated.
Finally, § 63.1(e) has been revised where appropriate to
indicate that if an owner or operator is required to obtain or
revise a title V permit, he or she shall apply to obtain or
revise such a permit in accordance with the permit program
regulations.
Comment: The commenter believes that the requirement for
area sources subject to a- generally available control
technology (GACT) standard to obtain a title V permit would be
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overly burdensome to both the Administrator and the affected
source. Applicable monitoring and recordkeeping requirements
for such a source would be required in the relevant GACT
standard, and further requirements in a permit would be
unlikely. Thus, the requirement to obtain such a permit would
convey no air quality benefits.
Response: The EPA disagrees with this comment. The
Agency believes that the requirement for an area source to
obtain a permit may indeed incur an air quality benefit by
providing added incentive for the source to comply. Further,
it will provide increased enforcement effectiveness for the
Agency and citizens because of readily available access to
consolidated information on a source's compliance
requirements. Finally, it is possible that an area source
affected by a GACT standard could be subject to other
requirements under the Act as well. These requirements also
would be incorporated into the source's title V permit. As
stated in § 70.3(b)(2) of the permit regulation, and in
§ 63.1(c)(2) of the General Provisions, the Administrator will
address the question of the permitting burden each time a
NESHAP that affects area sources is promulgated.
Comment; The commenter states that the proposed
reporting provisions for reporting deviations from the
startup, shutdown and malfunction plan are not consistent with
title V reporting requirements. The proposed General
Provisions required that sources report deviations from
procedures verbally within 24 hours, and by letter within 7
days. Part 70 emergency provisions, in contrast, require
reporting within 2 working days, and there is no 24-hour
reporting period.
Response: As discussed in the promulgation preamble,
§§ 63.6(e)(3)(iv) and 63.10(d)(5) (ii) have been revised to
require reporting of actions inconsistent with the startup,
shutdown, and malfunction plan within 2 working days, which
allows this aspect of the General Provisions to be consistent
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with the emergency provisions in part 70. Furthermore, the
General Provisions allow owners or operators to make
alternative reporting arrangements, in advance of an emergency
event, with the EPA or the delegated State authority [see
§ 63.6(e)(3)(iv)].
Comment: One commenter stated that the final General
Provisions should require that sources seeking to escape
applicability because of federally enforceable controls
undergo permitting in which the State must make findings that
controls included in title V permits appropriately limit the
sources' potential to emit. The commenter also said that the
final rule should state that the owner or operator must agree
not to subject any controls limiting the potential to emit to
minor permit amendment or change.
Response: Individual requirements will be developed for
sources by the appropriate enforcement authority consistent
with the Agency's rules and guidance on limiting potential to
emit. Existing Agency regulations require that, to limit a
source's potential to emit, the limitations must be federally
enforceable, and existing Agency guidance specifies that, to
be federally enforceable, limitations must be practicably
enforceable. The Agency intends to seek further comment on
this topic through a forthcoming rulemaking that addresses
potential to emit issues for the air toxics program. The
requirements for how part 70 permits must be changed to
incorporate changes to a source's potential to emit will be
determined in accordance with part 70 and applicable State
regulations.
2.12 MISCELLANEOUS
2.12.1 Source Category List (Deletions and Additions)
Comment: One commenter noted that as proposed, source
category delisting may only occur during the MACT standard
setting process, and then only when initiated by the EPA. The
commenter believes that this approach fails to recognize that
under section 112(j) of the Act, a source may undertake the
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required MACT determination when a MACT deadline established
under section 112(e) is missed by more than 18 months.
Consequently, a source may undertake MACT determination and
implementation, only to discover subsequently that the EPA
intends to delist the source category. The commenter believes
that the delisting process must be made more flexible and the
potentially affected sources should be able to initiate a
delisting petition at any time, not just during the standard
development period.
Response: The EPA intends for delisting to be an option
for the Agency, or any outside party (by petition), at any
time. The EPA itself may choose to pursue deletion, data
permitting, before or during the standard setting process to
avoid setting an unnecessary standard. Similarly, industry
may choose to submit a petition before or during the standard
setting process, data permitting.
Comment: This commenter believes that, with regard to
delisting source categories, the EPA must consider and
reconcile differences between current Federal procedures and
State risk assessment methodologies. This is critical because
the ability of a source category to be removed from the list
will depend upon the level of risk it presents.
Response: Decisions about whether to delist a source
category from the list of source categories will be based upon
reasonable, well-documented risk assessments, using
appropriate methodologies, which include data to support the
assumptions used. As such, it is not necessary to reconcile
Federal methodologies with State and/or local methodologies.
Comment: This commenter believes that the EPA's approach
to delisting source categories based upon risk in order to
direct resources toward those source categories exceeding the
risk criteria identified by Congress is contrary to Congress'
intended approach of control technology regulations, followed
by residual risk assessment and further regulation.
Response: The EPA considers its implementation of
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section 112(c)(9)(B) to be consistent with Congress' intended
regulatory approach. While it is true that section 112
requires the EPA to regulate source categories based upon
existing methodologies to reduce emissions first, then assess
residual risk, the Act also allows the EPA to remove a source
category if the risk criteria in section 112(c)(9)(B) are met.
The commenter also noted that the EPA should seek input from
State and local agencies on deletion guidelines. The Agency
concurs and will do so.
Comment: This commenter states that the EPA has an
obligation to address emissions from area sources that may
individually pose little risk but cumulatively account for
90 percent of the 30 most potent pollutants in urban areas
[see section 112(c)(3)of the Act]. The commenter believes
that delisting these sources may require subsequent reversal
and may result in a great waste of resources.
Response: If the EPA makes a finding of adverse effect
prior to listing categories of area sources under
section 112(c)(3), it is unlikely that listed area sources
would meet the deletion criteria of section 112(c)(9)(B). '
However, if the EPA receives a petition to delete a listed
area source category, or if the Agency receives a petition to
delete a major source category that also contains area
sources, it plans to consider the implications to the urban
area program and other aspects of section 112 [e.g.,
section 112(m), section ll2(c)(6)] before delisting the
category.
Comment: The commenter believes that focusing on
delisting is a poor use of the EPA's resources, and that the
EPA should not issue guidance or a notice of proposed
rulemaking on delisting.
Response: While the EPA's resources are limited, the
Agency believes it is important to issue guidance explaining
the delisting process to assist parties who may wish to submit
a petition.
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Comment; The commenter believes that it is not
appropriate to focus upon a single source within a nonuniform
source category when initiating delisting petitions.
Response: The Agency intends to assess the human health
and environmental impact of the entire source category in any
delisting process the Agency may undertake. Where the source
category is not technically uniform, the Agency may
disaggregate the listed category into a seri»s of more uniform
categories.
Comment; The EPA should address adding categories to the
Source Category List in the forthcoming guidance, as this is
more likely to occur than delisting, because, of the stringency
of section 112(c)(9)(B).
Response: The EPA will not address listing source
categories in the forthcoming guidance on source category
deletion. The processes for listing major and area source
categories are outlined in section 112, and, in future
revisions of the list, the Agency will follow the procedures
established during the development of the initial list of
source categories. With regard to outside parties requesting
additions to the list, any person may present, the EPA with a
rationale and documentation for listing major or area sources.
The Agency will then determine whether to add a source
category to the list.
Comment; With respect to delisting carcinogens, one-in-
a-million lifetime risk should be used and the linearized
multistage model should be used as a regulatory default.
Response: Section 112(c)(9)(B) of the Act requires the
Agency to use a one-in-a-million lifetime risk when assessing
carcinogens. Risk assessment methodologies used in the
decision to delist a source category will be based upon the
most appropriate models and assumptions for the pollutants in
question. This may or may not result in the use of the
linearized multistage model as a regulatory default.
Comment: This commenter believes that terms such as
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"adequate to protect public health," "ample margin of safety,"
and "no adverse environmental effect" in
section 112(c)(9)(B)(ii) of the Act need to be defined.
Response: The Agency concurs and intends to address
these issues in the forthcoming guidance.
Comment; The commenter believes that the EPA should
notify State and local agencies when a petition to delist a
source category is initiated.
Response: The EPA intends to inform State and local
agencies, the public, environmental groups, and industry of a
petition to delist source categories by means of a Federal
Register notice and by announcement on EPA bulletin boards.
2.12.2 HAP List
Comment: One commenter believes that a list of hazardous
chemicals referred to in the proposed definition of
"stationary source" should be included as an appendix to part
63. A second commenter believes that the list of HAP should
be codified in subpart C to provide a single reference source
for the HAP list and to facilitate modifications to the list.
Response: Eventually, the HAP list will be codified in
full in part 63. The EPA is currently developing this list
and working on needed technical corrections to the list. The
Agency appreciates the commenter's concern about having a
current and technically accurate list easily available to the
public and sources. When the EPA has developed a technically
correct list of HAP, the list will be proposed in the Federal
Register, and the public will be given the opportunity to
comment on the proposed list. After the Agency has responded
to public comments on the proposal, a final list of HAP will
be promulgated by the EPA.
Comment: A commenter also suggested that a mechanism
should be provided to notify States of any requests made to
modify the list, and that this mechanism could be achieved
through notification to State and Territorial Air Pollution
Program Administrators/Association of Local Air Pollution
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Control Officials (STAPPA/ALAPCO).
Response; The EPA appreciates the commenter's concern
that States be given the opportunity to be closely involved in
activity relating to the HAP list. Currently, there is
extensive involvement by States on the work group responsible
for the development of the list of HAP. States also have
immediate access to information developed by the EPA that is
available on the Agency's Bulletin Board System, which ensures
their ability to remain aware of the most current developments
regarding the list of HAP. The EPA believes that in the
process of developing a list with State involvement on the
work group, issues such as whether a notification mechanism
should be established through STAPPA/ALAPCO will be resolved
effectively.
Comment; A third commenter requested that the EPA issue
guidance subject to notice and comment on substance-specific
delisting, and that the guidance reflect a realistic
opportunity to remove certain chemicals from the HAP list
where their lack of significant adverse human or environmental
effects, as emitted by pertinent source categories, is clear.
Response: Guidance on issues such as procedures for
removing certain substances from the HAP list is forthcoming
from the Agency. The EPA appreciates the public and sources'
desire for greater information on how to facilitate this
process. However, as the Act does not mandate the issuance of
such guidance, the EPA will focus its attention on procedures
for adding and deleting substances to and from the list as
resources become available for the task.
2.12.3 Confidential Business Information
Comment: Several commenters voiced concern about the
confidentiality of business information. These commenters
stated that inadequate protection from disclosure of business
information could have deleterious effects on a source's,
competitiveness. One commenter recommended that § 63.15(a)(1)
be amended to reference 40 CFR 2 subpart B, which allows for
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the confidentiality of business information. Another
commenter felt that "trade secrets" are only a subset of
confidential information, and limiting protection to trade
secrets is insufficient. The commenter argued that existing
EPA regulations already protect information beyond "trade
secrets" from public disclosure. The commenter also states
that the notification of compliance status is not listed in
section 503(e) of the Act, and therefore should not be cited
in § 63.15(a)(1). Finally, this commenter states that any
records that are not required under title V, but are required
under other portions of the Act, are entitled to protection
for confidential information other than trade secrets.
Response: In response to the concern of the commenter
asking that language be added to reference 40 CFR 2, the
proposed General Provisions do reference part 2 of this
chapter in § 63.15(a)(1). The EPA agrees with the commenters
that the proposed provisions may inappropriately limit the
confidentiality of business information submitted to the
Agency- The Agency has accordingly revised the language in
§ 63.15 to clarify that all business information, whether it
qualifies as trade secrets or not, will be protected
consistent with 40 CFR part 2, subpart B. In the final rule,
the first sentence of § 63.15(a)(l) has been revised to read
as follows: "With the exception of information protected
through part 2 of this chapter, all reports, records, and
other information collected by the Administrator under this
part are available to the public."
2.12.4 Prohibited Activities and Circumvention
Comment: Several commenters object to the language used
in § 63.4(a)(l), which states that a source may not operate in
violation of the requirements of part 63 except under certain
circumstances, including when it has been granted a compliance
extension. The commenters argue that if a source has received
a compliance extension, it is by definition not operating in
violation of the relevant standard, and the General Provisions
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should reflect this fact.
Response: The language of § 63.4 (a) steites that while a
source should never operate in violation of a standard,
compliance is excused when a source is granted a compliance
extension or exemption. It should be noted that compliance
extensions frequently excuse only compliance with equipment
requirements while still requiring compliance with reporting,
good air pollution control practices, and other provisions.
Comment: The EPA received several comments on the
provisions in § 63.4 regarding the use of diluents. Two
commenters argued that the use of diluents should not be
strictly prohibited, as it may be warranted for safety reasons
under certain circumstances. One commenter believes that
although the proposed language conveys the concept of
"intent," practical applications may result in confusion.
Specifically, the commenter believes that unless the issue of
adding inert gases for safety reasons is not discussed,
inspectors may not recognize that this is not a prohibited
activity. Another commenter said further that such a
prohibition should not be required in the General Provisions,
as properly written standards would make this provision
unnecessary.
Response: The EPA recognizes the commenters' concern
regarding the use of diluents for safety reasons rather than
circumvention of regulations. Nonetheless, the Agency
believes it is appropriate to include this prohibition, in
order to prevent the intentional dilution of emissions in
order "to conceal an emission that would otherwise constitute
noncompliance with a relevant standard." Individual standards
may override this provision where appropriate, for example,
where a particular source category regularly uses diluents as
a safety precaution.
Comment: Several commenters argued that the EPA should
revise § 63.4(b)(3) of the proposed General Provisions to
specify that only the fragmentation of operations done for the
-------
sole purpose of evading regulation should constitute a
prohibited activity. Commenters state that the fragmentation
of operations may be done for legitimate business or safety
reasons.
Response: The language in § 63.1(b) is clear in stating
that what is prohibited is action taken to conceal emissions
in order to circumvent regulation by a relevant standard.
Section 63.1(b) says: "No owner or operator subject to the
provisions of this part shall build, erect, install, or use
any article, machine, equipment, or process to conceal an
emission that would otherwise constitute noncompliance with a
relevant standard." [Emphasis added] The regulation goes on
to cite examples of such concealment, which"include the
provision regarding fragmentation of operations, which is of
concern to these commenters. The Agency believes that this
paragraph is clear in its intention to prohibit intentional
concealment of emissions. Nonetheless, to clarify that any
fragmentation of an operation to avoid regulation by a
relevant standard is prohibited, the rule has been modified to
delete the phrase "that applies only to operations larger than
a specified size" from § 63.4(b)(3).
Comment: The commenter argues that the provisions of
§ 63.4(b) are inappropriate for inclusion in the General
Provisions, because noncompliance with a relevant standard is
actionable pursuant to that standard. The commenter claims
that there is no authority for the EPA to pursue noncompliance
with a standard independently under the General Provisions.
The commenter also believes that the language in § 63.4(b)
qualifies as enforcement guidance and is not suitable
regulatory language.
Response; The EPA rejects the contention of the
commenter that the EPA cannot pursue noncompliance with a
standard independently under the General Provisions. Indeed,
the circumvention provisions of § 63.4(b) have, in different
form, been a part of the General Provisions to the air toxics
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program (e.g., § 61.19) and have been enforced effectively
without challenge for years. It is vitally important that
this language be included in the regulation.
Comment: The commenter wonders how the provisions of
§§ 63.4(a)(2) and (a)(5), prohibiting an owner or operator
from failing to keep records, notify, report, or revise
reports, as required under the General Provisions, apply to
sources subject to programs for which a State or local agency
has received delegation through section 112(1).
Response: If a State or local agency has received
delegation under section 112(1), then records, notices, and
reports should be maintained or sent to the delegated agency,
rather than to the EPA, or to both, as specified in the
delegation agreement. Furthermore, when States are delegated
the authority to implement and enforce the General Provisions,
they will have the authority to enforce the prohibitions in
the cited paragraphs.
Comment: Several commenters were concerned that the
provisions of § 63.4(a) could be used to assess duplicate
violations against a source, by allowing a violation of a MACT
standard's provisions to be considered a violation both of
that standard and of § 63.4(a). One commenter suggested that
the entire paragraph be deleted. Alternately, the commenter
suggests language to be incorporated that indicates the
provisions are not intended to create duplicative violations.
Response: Section 61.05(b), Prohibited activities, from
the General Provisions of part 61, was the template from which
the language at issue here was drawn. The EPA believes that
it is useful to state in the General Provisions for part 63
that sources are prohibited from operating in violation of any
of the subsequently promulgated standards, unless there is
some exemption. If by some inadvertence, a subsequent rule
omitted language such as "shall" or "must," but merely used
"required" or some other similar language, then a violating
defendant could potentially argue that they are excused from
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liability. The referenced language eliminates that
possibility. The provisions of § 61.05(b) have never been
used to double penalties and have never otherwise been abused
by enforcement personnel, nor is it the intention that this
part 63 section be so utilized.
2.12.7 Emissions Averaging
Comment: Some commenters said that the proposed rule
does not provide for generic emissions averaging, which will
prevent sources from averaging among emission units at the
same site that are subject to different MACT standards. One
commenter said that because the individual standards have been
developed independently, compounded by the isolated
development of the section 112(g) and section 112(j) programs,
it is probable that a given source will be subject to more
than one emissions averaging scheme, and there will be no
precedent for selecting the appropriate system for averaging
emissions. The commenter said that the General Provisions
should provide an overall framework for issues like emissions
averaging, which extend beyond a single source category.
One commenter recommended that the General Provisions
allow sources to utilize an emission trading allowance (across
any source in a facility) so that as MACT standards are
promulgated they contain a provision allowing sources to find
trades outside or inside the "affected source," with the only
restriction that trades occur within the same major source
facility.
One commenter submitted comments on the General
Provisions as they relate to the proposed HON (57 FR 62608,
December 31, 1992). The commenter provided extensive comments
on the changes to the emission averaging provisions of the HON
that were the subject of a supplemental Federal Register
notice (57 FR 62608). In general, the commenter opposed the
proposed changes to the HON rule on the grounds that the
changes would restrict the use of emissions averaging and the
environmental as well as economic benefits that emissions
2-174
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averaging offers. The commenter also asserted that the
changes are contrary to the objectives of the Act.
Response: The EPA will determine whether a scheme for
emissions averaging or other flexible compliance options is
appropriate as the Agency develops each individual standard.
Although the Agency will strive for consistency among these
standards and their emissions averaging options, this may not
necessarily lead to the same options being found appropriate
in all cases. In the case where process and pollution control
eguipment, designation of the "affected source," or other
industry-specific details differ widely, it will be more
appropriate for the Agency to establish emissions averaging
policies that are based upon specific characteristics of the
source category being regulated by the individual standard.
The Agency will respond to the comments on the General
Provisions as they relate to the HON in the final notice that
promulgates that regulation.
Comment: Some commenters expressed their support for the
inclusion of the concept of emissions averaging in the General
Provisions and felt that the proposed definition was adeguate.
However, one commenter said that either the phrase "emission
debits" should be defined or the word "debits" should be
deleted to clarify the definition.
Response: The Agency agrees that the definition should
be clarified, and the word "debits" has been deleted.
2.12.8 Other Miscellaneous Comments
2.12.8.1 Editorial Revisions.
Comment; Various commenters suggested editorial
revisions to the proposed General Provisions that they
believed would clarify the rule or make it easier to
understand.
Response: The EPA has considered the commenters'
suggestions, and, where appropriate, these revisions have been
incorporated into the final rule.
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2.12.8.2 Working Versus Calendar "Days".
Comment: Some commenters said that "days" should be
defined in terms of "working days" and not in terms of
"calendar days." The commenters said that this distinction is
particularly crucial when required activities must occur
within a short time frame.
Response: The Agency's use of calendar days in the part
63 General Provisions is consistent with other General
Provisions. The term "calendar days" provides an unambiguous
time frame, which is appropriate in the General Provisions.
In certain places in the final General Provisions [e.g., see
§ 63.6(e)(3)(iv)], working days are specified as the reporting
time period. Except in such cases where the term "working
days" is explicitly used, the reader should assume that
calendar days are intended.
2.12.8.3 Regulation Promulgation Schedule.
Comment: One commenter said that the regulation
promulgation schedule defined in § 63.2 should be included as
an appendix to part 63.
Response; The regulation promulgation schedule was
published in the Federal Register on December 3, 1993 (see
58 FR 63941). It cannot be added to the rule as an appendix
because, by the terms of the statute, it is not a rule and
therefore cannot be published in the Code of Federal
regulations. However, the regulation promulgation schedule
may be obtained by contacting the Office of the Director,
Emission Standards Division, Office of Air Quality Planning
and Standards, U.S. EPA (MD-13), Research Triangle Park, North
Carolina 27711.
2.12.8.4 Volatile Organic Compound (VOC) Credits.
Comment: One commenter said that the EPA should codify
general principles and presumptions in the General Provisions
that outline the EPA's policy regarding how reductions of HAP
that are also VOC's will be credited under programs related to
VOC reduction, e.g., new source review. At a minimum, the
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commenter said that the EPA should cross-reference in the
General Provisions its other published guidance affecting the
creditability of section 112 reductions under other sections.
Response: The General Provisions are a rule providing
requirements that must be met by HAP sources in order to be in
compliance with the requirements of section 112 of the Act.
It is not appropriate to include policy statements concerning
other programs in such a rule. In addition, if guidance
concerning VOC credit in other programs were included in this
rule, the rule would need to be amended if the guidance were
updated. Policy statements concerning VOC credit are more
appropriately contained in guidance issued by the VOC control
program.
2.12.8.4 Case-bv-Case Changes.
Comment: One commenter requested that the proposed
regulations be revised to allow sources to request
alternative, source-specific administrative procedures and
compliance-related activities. The commenter said that the
courts have recognized that allowing a "safety valve" in EPA
regulations is essential and, without such a provision, the
EPA regulations are likely to be found to be invalid or
"incomplete."
Response: Section 112 of the Act specifically permits
sources to obtain approval for alternatives to section 112(h)
work practice standards. The General Provisions address this
in § 63.6(g). In addition, the Agency believes that the
general rulemaking authority of the Act would provide the
authority to allow the Administrator to consider a petition
from an individual source for permission to use an alternative
approach to compliance under some circumstances. Individual
standards may also provide specifically for alternative
approaches appropriate to the circumstances of that standard.
2.12.8.5_ Section 112fr) Applicability.
Comment: One commenter said that the General Provisions
should, at a minimum, state that all sources of HAP have a
2-177
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general duty to prevent accidents as provided in
section 112(r) of the Act. The final rule should state also
that facilities possessing one or more of the substances
listed in section 112(r) must comply with the requirements of
that subsection respecting accidental releases.
Response; The EPA agrees with the commenter that the
accidental release program is an important program and that it
represents a major initiative under the Act to prevent the
health and safety impacts of accidental releases of HAP.
However, the Administrator believes that the program is best
discussed in the context of the section 112(r) rulemaking, and
no changes have been made in the General Provisions in this
respect.
2.12.8.6 Request for Opportunity for Additional Notice
and Comment.
Comment: One commenter said that the Agency's
"piecemeal" approach to section 112 implementation has
resulted in contradictory statements and inconsistent
structures between the various section 112 rulemakings. This
situation prejudices the ability of the regulated community to
assess and comment on these rules, which contravenes
section 553(c) of the Administrative Procedures Act and
section 307(d)(3) of the Clean Air Act. The commenter said
that in order for the EPA to rectify this situation, it should
provide the opportunity for additional comment on the proposed
part 63 General Provisions in the context of related
rulemakings, including, but not necessarily limited to, the
section 112(g) regulations and the section 114(a)(3) enhanced
monitoring and compliance certification requirements.
Another commenter said that the EPA should acknowledge in
the final rulemaking that the subsequent section 112(b), (d),
and (f) rulemakings are "new information," for purposes of
affording judicial review of the General Provisions under
section 307 of the Act, and their applicability and
appropriateness will be weighed fully during each specific
2-178
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section 112 rulemaking.
The commenter also asked how the Agency will conduct
regulatory impact assessments for future rules, if the
monitoring, recordkeeping, and other implementation features
are incorporated by reference from the General Provisions.
Response: The statutory scheme requires that the EPA
promulgate the section 112 regulations over a multi-year
period. As new rules are added to the toxics program, the EPA
will endeavor to promote consistency between those rules. The
development of the General Provisions is part of the effort to
achieve such consistency. By putting general requirements
applicable to all sources in one place, the regulatory process
is simplified.
The EPA does not agree that the General Provisions should
be subject to renewed judicial review every time a new
standard is promulgated. This would subject sources to
tremendous added uncertainty because even after a MACT
standard is final the General Provisions would continue to be
subject to revision every time a subsequent standard underwent
judicial review. Instead, the EPA believes that it is
appropriate for commenters on proposed rules to question and
comment on which provisions of the General Provisions should
or should not be applicable to each standard. This does not
subject the General Provisions themselves to review multiple
times, but it does allow an evaluation of their applicability
at appropriate times without calling the finality of other
standards into question.
In response to the question about regulatory impact
assessments, the EPA will evaluate the impact, of individual
rules as required by the Paperwork Reduction Act. Each
analysis will include an estimate of the impact of all
provisions of the rule, including the estimated burden
associated with complying with the General Provisions.
2.12.8.7 State Authority to Override.
Comment: One commenter said that the EPA should allow
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States to act only in a manner consistent with the Act,
because the Act imposes substantive obligations upon
permitting authorities that cannot be suspended by State
action. The commenter objected to the presumption that States
could impose requirements more stringent than those in a MACT
standard.
Response; The EPA does not have the authority under the
Clean Air Act to limit State actions to those that are no more
stringent than the Federal requirements. Section 112(d)(7) of
the Act states that:
No emission standard or other requirement promulgated
under this section shall be interpreted, construed or
applied to diminish or replace the requirements of a more
stringent emission limitation or other applicable
requirement established pursuant to section 111, part C
or D, or other authority of this Act or a standard issued
under State authority.
Therefore, this change was not made to the General Provisions.
2.12.8.8 Alternative Emission Standard.
Comment: One commenter said that the EPA should explain
how the section 112 alternative emission standard allowance is
related to the SIP equivalency allowance provided for in
title V. If possible, both SIP equivalency and the
alternative emission standard allowances should be implemented
through the operating permit program and through State
construction permit programs.
Response: Section 112 does not require that alternative
emission standards be approved through the title V permit
process. Section 112(h) merely requires notice and comment
and Administrator approval. Thus, a source can receive
approval of an alternative emission standard before the State
in which it is located has an approved title V permit program
in effect. However, as with all section 112 standards,
alternative emission standards will ultimately become part of
each source's title V permit.
2.12.8.9 Overlapping Requirements.
Comment: One commenter concurred with § 63.1(a)(3),
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which states that when standards overlap, a source need only
comply with the more stringent requirements. The commenter
said that the Agency should specify the procedures by which a
stringency determination would be made and clarify the
appropriate criteria for making such a determination.
Response: After a part 70 permit program is approved in
the State in which the source is located, the results of the
stringency determination will be included in the source's
operating permit. Stringency determinations will be made on a
case-by-case basis by the enforcement Agency in conjunction
with the source.
Comment: One commenter said that even if the EPA
attempts to list clearly in each MACT standard the portions of
the General Provisions that apply, there still will be a
number of unanticipated questions that will arise. The
commenter suggested that the EPA add a section to the General
Provisions requiring a 30-day period in which the Agency must
resolve any questions resulting from overlapping requirements.
Response: The EPA believes that many of these issues
should be resolved prior to promulgation of the individual
standards. The remaining issues are more appropriately
resolved in the course of the part 70 permitting process, and
will be addressed as expeditiously as possible. Therefore,
the EPA does not believe that this change is needed.
2.12.8.10 Area Source Treatment.
Comment: One commenter said that the final rule should
be amended to specify that sources that are affected sources
only because of GACT requirements should generally qualify for
less burdensome methods of compliance.
Response: The rulemaking process for individual part 63
emission standards will address any special needs of area
sources including whether those sources qualify for GACT
rather than MACT methods of compliance.
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APPENDIX A
TIMELINE SUMMARY TABLES
-------
construction or reconstruction
TIMING OF GENERAL PROVISIONS ACTIVITIES
63.5(e)(2)(ii)
63.5(e)(3)(ii)
63.5(e)(4)
63.6(b)(l)
complete
notice of incomplete application
notice of intent to deny application
Final action by Administrator on application
(RS) - o/o comply with RS effective date
traction and Reconstrux
a for approval of
5 application or
the submittal is
to Administrator's
to Administrator's
ion
Timeline
Existing
New or
Reconst.
Sources
[lion: . T -':--- '; " ; .! : - . :;>- :>: . .. ..'..' v '-."
As soon as practicable
before construction or
reconstruction that
commences after the
effective date; as soon as
practicable but at least
60 days after the effective
date for sources that
commence construction or
reconstruction before the
effective date
Within 60 days; status
report to o/o within 30
days of receipt of original
application or
supplementary info.
Within 30 days
Within 30 days
Within 60 days from
presentation of final
arguments or within 60
days after date specified
for presentation if
none is made
X
X
X
X
X
with Standards and Maintenance
jlevant standard
RS effective date
X
A-l
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TABLE A-l. TIMING OF GENERAL PROVISIONS ACTIVITIES
Section
63.6(b)(2)
63.6(b)(3) -
63.6(b)(4)
63.6(b)(7)
63.6(c)(l)
63.6(c)(2)
63.6(c)(5)
63.6(e)(3)(iv)
Activity
If initial startup after effective date of RS - o/o comply with
standard under 112(d), 112(f), or 112(h)
Construction or reconstruction is after proposal under 1 12(d),
1 12(f), or 1 12(h) but before effective date (if promulgated
standard more stringent than proposed and o/o complies with
proposed standard during 3-year period immediately after
effective date) - o/o shall comply with final standard
Construction or reconstruction is after proposal of RS under
1 12(d) but before proposal date of RS under 1 12(f) - o/o shall
comply with emission standard under 112(f)
Any new area source that becomes an affected major source -
o/o shall comply
O/o shall comply with standard under 112(d) or 112(h)
O/o shaii comply with standard under 1 12(f)
Any existing area source that becomes a major source
If actions taken during startup, shutdown, or malfunction
(SSM) are not consistent with SSM plan
Timeline
At startup of source
No later than 3 years after
promulgation date
No later than 10 years
after construction or
reconstruction
commenced unless 1 12(f)
is promulgated more than
10 years after construction
or reconstruction
commenced [then refer to
(b)d), (b)(2)]
Upon becoming a major
source
Compliance date in RS not
to exceed 3 years
No later than 90 days after
standard's effective date
By the date specified in
the RS for existing (area)
sources
Report actions within
2 working days with letter
following within
7 working days after the
end of the event
Existing
X
X
X
X
New or
Reconst.
Sources
X
X
X
X
X
A-2
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TABLE A-l. TIMING OF GENERAL PROVISIONS ACTIVITIES
Section
» ~ ^ =
63.6(e)(3)(viii)
63.6(h)(4)
63.6
-------
TABLE A-l. TIMING OF GENERAL PROVISIONS ACTIVITIES
Section
63.6(i)(5)
63.6(i)(12)(i)
63.6(i)(12)(i)
63.6(i)(12)(ii)
63.6(i)(12)(iii)
(B)
63.6(i)(12)(iv)
63.6(i)(13)(i)
63.6(0(13X0
63.6(0(13)(ii)
63.6(0(13)(iii)
(B)
Activity
Request for extension of compliance with RS when BACT or
LAER controls installed [until 5 years after installation-see
63.6(i)(2)(ii)]
Administrator/State will notify o/o of approval or intention to
deny request for extension of compliance under 112(d)
Administrator/State will notify o/o of status of application
[112(d)]
O/o shall submit supplementary information if required
[112(d)1
If o/o is notified of intent to deny extension, o/o may present
additional information or arguments [112(d)]
Final determination of denial due [1 12(d)]
Administrator will notify o/o of approval or intent to deny for
RS uncler 1 12(f) after receipt of sufficient information
Administrator will notify o/o of status of application [1 12(f)]
O/o is allowed to present additional information/arguments
[112(f)]
Administrator will notify o/o of intent to deny with o/o
allowed to present additional information/arguments [112(f)J
Timeline
No later than 120 days
after promulgation date of
RS
Within 30 days of receipt
of sufficient information
Within 30 days after
receipt of original
information/
supplementary information
Within 30 days of notice
from Administrator
Within 15 days from
receipt of notice of intent
to deny
30 days after presentation
of information or
arguments; or 30 days
after the final date
specified for presentation
Within 30 days
Within 15 days after
receipt
Within 15 days after
notification
Within 15 days
Existing
X
X
X
X
X
X
X
X
X
X
New or
Reconst.
Sources
A-4
-------
Section
63.7(a)(2)(i)
63.7(a)(2)(ii)
63.7(a)(2)(iv)
63.7(a)(2)(v)
63.7(a)(2)(vi)
63.7(a)(2)(ix)
TABLE A-l. TIMING OF GENERAL PROVISIONS ACTIVITIES
Activity
=^=
Administiator will make final determination [112(f)]
Timeline
Within 30 days after final
date of presentation
Performance Testing Requirements; !
Performance test required for new source with initial startup
date before effective date
Performance test required for new source that has an initial
startup date after effective date
Performance test required for existing source under 112(d)
standard
Performance test required for existing source under 112(f)
standard
Performance test required after termination of compliance
extension
Performance test required for new source subject to RS under
112(f) and construction/ reconstruction is commenced after
proposal date of standard under 112(d) but before proposal
date of RS under 112(f)
Conduct performance testing - if promulgated standard
stricter than proposed
Within 180 days after
effective date of RS
Within 180 days after
initial startup
Within 180 days after
compliance date in RS; or
within 180 days after
initial startup
Within 180 days after
compliance date
Within 180 days after
termination date
Within 180 days after
compliance date
Within 180 days after
startup (as proposed) and
within 3 years and
180 days after startup (as
promulgated); or comply
with promulgated standard
within 180 days
Existing
^^S
X
X
X
New or
Reconst.
Sources
X
X
63.7(b)(l)
O/o shall notify Administrator of intention to conduct
performance test
At least 60 days before
performance test is
conducted
X
A-5
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TABLE A-l. TIMING OF GENERAL PROVISIONS ACTIVITIES
Section
63.7(b)(2)
63.7(c)(2)(iv)
63.7(c)(3)(i)
63.7(c)(3)(i)(B)
63.7(c)(3)(ii)(A)
63.7(c)(3)(ii)(B)
63.7(c)(4)(i)
63.7(f)(2)(i)
63.7(g)(l)
Activity
O/o shall notify Administrator of delay in test due to
unforeseeable circumstances and specify revised test dates
O/o shall submit site-specific test plan (SSTP) to
Administrator upon request
Administrator will notify o/o of approval or intent to deny
SSTP (if review of SSTP requested)
O/o may provide additional information after notice of intent
to deny (if review of SSTP requested)
If the Administrator does not approve SSTP within time
period specified in 63.7(c)(3)(i), and the o/o intends to use
the methods specified in the standard, the o/o shall conduct
test
If the Administrator does not approve use of alternative
method within 30 days of the test, the test date may be
extended
O/o shall request performance audit materials
If o/o uses alternative test method other than in RS, the o/o
shall notify the Administrator of intent and submit results of
Method 301 validation
Report results of performance test including analysis of
samples, raw data, and emissions determination
Timeline
Within 5 days prior to
originally scheduled test
date
At least 60 days before
performance test is
conducted or at a mutually
agreed upon schedule
Within 30 days after
receipt of plan and within
30 days after receipt of
additional information
Within 30 days after
receipt of notice of intent
to deny
Within the time specified
in this section
Within 60 days after
approval
45 days prior to test date
No later than with
submission of SSTP; or at
least 60 days before the
performance test if a SSTP
is not submitted
Within 60 days after each
test is completed
Existing
X
X
X
X
X
X
X
X
X
New or
Reconst.
Sources
X
X
X
X
X
X
X
X
X
A-6
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TABLE A-l. TIMING OF GENERAL PROVISIONS ACTIVITIES
Section
63.7(h)(3)(i)
63.7(h)(3)(ii)
Activity
Request waiver of initial performance test
Request waiver of subsequent performance test
Timeline
Accompany request for
extension of compliance;
or at least 60 days before
performance test if SSTP
not submitted
At least 60 days before the
performance test
Existing
X
X
Monitoring Requirements
63.8(c)(l)(i)
63.8(c)(l)(ii)
63.8(c)(3)
63.8(c)(6)
63.8(d)(2)
63.8(d)(3) '
O/o shall repair any routine CMS malfunctions as defined by
SSM plan
O/o shall provide initial notification followed by a follow-up
report that certifies nonroutine CMS repairs are complete or
provides a corrective action plan and schedule
CMS shall be installed, operational, and data verified
O/o shall check the zero and high level calibration drifts of
CMS
O/o shall submit a site-specific performance evaluation test
plan for CMS performance upon request
Quality Control Program: O/o using CMS system and
subject to monitoring shall develop CMS quality control
program
Immediately
Initial report within
24 hours after
commencing actions
inconsistent with the plan;
follow-up report within
2 weeks
Either prior to or in
conjunction with
performance test
Once daily
See (e)(3)
Current version on file;
keep previous versions for
5 years
X
X
X
X
X
X
New or
Reconst.
Sources
X
X
X
X
X
X
X
X
A-7
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TABLE A-l. TIMING OF GENERAL PROVISIONS ACTIVITIES
Section
Activity
Timeline
Existing
New or
Reconst.
Sources
63.8(e)(2)
O/o shall notify Administrator of date of CMS performance
evaluation
Simultaneous with
notification of
performance test under
§63.7(b) or at least
60 days prior to evaluation
X
O/o shall submit site-specific performance evaluation test plan
upon request
At least 60 days before the
performance test or
performance evaluation is
conducted or at a mutually
agreed upon schedule
X
X
63.8(e)(3)(v)(A)
If the Administrator does not approve the site-specific
performance evaluation plan within the time period specified
and the o/o intends to use monitoring methods specified in
the standard, die o/o shall conduct the performance evaluation
Within time specified in
63.7(c)(3)
X
63.8(e)(3)(v)(B)
If the Administrator does not approve use of the alternative
method within 30 days of the performance evaluation, o/o
may receive extension to conduct evaluation
60 days after approval
X
X
63.8(e)(4)
If a performance test is not required, or has been waived, the
o/o shall conduct performance evaluation
No later than 180 days
after compliance date
X
X
63.8(e)(5)(i)
O/o shall submit results of performance evaluation
Simultaneous with results
of performance test under
§63.7 or within 60 days of
completion of evaluation if
no test required
63.8(e)(5)(ii)
For COMS, submit to Administrator copies of written report
of results of COMS performance evaluation if being used for
opacity compliance
At least 15 days before
performance test under
§63.7
A-8
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TABLE A-l. TIMING OF GENERAL PROVISIONS ACTIVITIES
Section
I^^^MBMB^H
63.8(f)(4)(i)
63.8(f)(4)(i)
63.8(0(5)(i)
63.8(f)(5)(i)(B)
|63.9(b)(2)
63.9(b)(3)
======:
Request for use of an alternative monitoring method may be
Sllhmiftwl fn AHminicfi-'it/~>r
submitted to Administrator
If alternative monitoring method is to be used to demonstrate
compliance with RS, submit application
Administrator will notify o/o of approval or intent to deny
use of alternative monitoring method
O/o may respond with additional information to the
Administrator's notice of intent to deny
O/o shall notify Administrator if the source exceeds the
relative accuracy test criterion
Anytime, provided it is
not used to demonstrate
compliance with RS
No later than with SSTP
under §63.7(c) (if
requested) or with site-
specific performance
evaluation plan (if
requested) or at least 60
days before the
performance evaluation
Within 30 days of receipt
of original request or
additional information
As specified by the
Administrator
Within 10 days of
occurrence
63.9(b)(4)
Notification Requirements
If source has initial startup before effective date of RS, o/o
shall notify Administrator that the source is subject to
standard
If source has initial startup after effective date and application
for approval of construction or reconstruction is not required,
o/o shall notify Administrator that source is subject to
standard
If initial startup is after effective date and application for
approval of construction or construction is required, o/o shall
notify Administrator of:
No later than 120 days
after effective date
No later than 120 days
after initial startup
Existing
X
X
New or
Reconst.
Sources
X
X
X
A-9
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TABLE A-l. TIMING OF GENERAL PROVISIONS ACTIVITIES
Section
63.9(b)(5)
63.9(b)(5)
63.9(c)
63.9(d)
63.9(e)
Activity
Intent to construct/reconstruct
When construction/reconstruction commenced
Anticipated date of startup
Actual date of startup
After the effective date of RS, if o/o intends to
construct/reconstruct, o/o shall notify Administrator
O/o shall notify the Administrator if
construction/reconstruction has commenced and initial startup
has not occurred before effective date
If o/o cannot comply with RS by compliance date or if the
o/o has installed BACT/LAER, may submit a compliance
extension request
If o/o is subject to special compliance requirements
[§63.6(b)(3) and (4)], o/o shall notify Administrator of
compliance obligations
Notify Administrator of intent to conduct performance test
Timeline
As soon as practicable
before construction or
reconstruction but no
sooner than the effective
date of standard
No later than 30 days after
commencement
No more than 60 days,
nor less than 30 days
before startup
Within 15 days after
startup
As soon as practicable
before construction or
reconstruction but no
sooner than the effective
date of standard
As soon as practicable
before construction or
reconstruction but no later
than 60 days after
effective date of standard
In accordance with
§63.6(i)(4) through (i)(6)
No later than notifications
listed in 63.9(b) for new
sources
60 days before test
Existing
X
X
New or
Reconst.
Sources
X
X
X
X
X
X
X
X
X
A-10
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63.9(f)
63.9(f)
63.9(g)(l)
63.9(g)(l)
63.9(g)(2)
63.9(g)(3)
63.9(h)(2)(ii)
63.9(h)(3)
63.9(h)(5)
TABLE A-l. TIMING OF GENERAL PROVISIONS ACTIVITIES
Notify Administrator of anticipated date for conducting
opacity or visible emission observations if required by RS
Opacity or visible emissions observations: If no performance
test required under § 63.7, or visibility or other conditions
prevent observations, notify Administrator
If required to use CMS, notify the Administrator of the date
CMS performance evaluation is scheduled to begin
If performance test not required or waived, notify
Administrator of the date of performance evaluation
Notify Administrator if COMS data will be used to determine
compliance with opacity emission standard
Notify Administrator if criterion necessary to continue use of
alternative accuracy testing has been exceeded
[f not permitted, notify Administrator of compliance status
following completion of the relevant compliance
demonstration activity specified in the RS
f permitted, notify Administrator of compliance status
following completion of the relevant compliance
demonstration activity specified in the RS
f o/o submits estimates or preliminary information in
application for approval of construction/reconstruction,
ubmit actual information
Submit with notice of
intent to conduct
performance test (60 days
prior)
No less than 30 days
before observations
Simultaneous with
notification of test date
under §63.7(b)
60 days before evaluation
60 days before
performance test
No later than 10 days after
occurrence
Within 60 days, unless
notifying compliance with
opacity or visible emission
tandard, which shall be
submitted within 30 days
Within schedules
established by operating
permit, including those of
RS
With initial notification of
compliance status
Existing
X
X
X
X
New or
Reconst.
Sources
X
X
X
X
A-ll
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TABLE A-l. TIMING OF GENERAL PROVISIONS ACTIVITIES
Section
63.9(i)(2)
63.9(i)(3)
63.9Q)
Activity
If an o/o wishes to change a time period or postmark
deadline, request the adjustment
The Administrator will respond to the request to change a
specified time period
Any change in information already provided to Administrator
under §63.9 shall be provided to Administrator
Timeline
As soon as practicable
before subject activity
Within 15 calendar days
of receipt of information
Within 15 days after the
change
Existing
X
X
X
New or
Reconst.
Sources
X
X
X
Recordkeeping and Reporting Requirements ' . '-.
63.10(d)(2)
63.10(d)(3)
63.10(d)(3)
63.10(d)(4)
63.iO(d)(5)(0
63.10(d)(5)(ii)
63.10(e)(2)(i)
63.10(e)(2)(ii)
O/o shall report results of performance tests
O/o shall report opacity or visible emission observations
If no performance test required or visibility or other
conditions exist which prevent observations, o/o shall report
If o/o submits progress reports for extension of compliance
O/o shall submit SSM report (if all actions taken are
consistent with SSM plan)
O/o shall submit SSM report (if any action taken is not
consistent with SSM plan)
O/o using CMS shall submit to Administrator written report
of the results of CMS performance evaluation
O/o using COMS to determine opacity compliance shall
submit to Administrator results of COMS performance
evaluation
Within 60 days following
test
With results of
performance test
Within 30 days following
observations
Submit by dates specified
in extension
Semiannually or
simultaneous with excess
emissions and CMS
performance reports
Report actions within
2 working days followed
by written report within
7 working days
Simultaneous with
performance test results
Within 15 days before the
performance test required
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
A-12
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Section
I63.10(e)(3)(v)
63.10(e)(3)(vii)
63.10(e)(3)(viii)
63.10(e)(4)
TABLE A-l. TIMING OF GENERAL PROVISIONS ACTIVITIES
Activity
:
O/o required to install a CMS shall submit an excess
emissions and CMS performance report and/or summary
report to Administrator--
Excegt: If more frequent reporting is specified in RS
Except: If CMS data are used for direct compliance
determination and excess emissions occur
Except: If Administrator determines that more frequent
reporting required
If RS calls for quarterly report, o/o may reduce submittal of
excess emissions and CMS performance report to semiannual
if o/o meets certain requirements
If Administrator denies request to reduce frequency of
reporting, Administrator will notify o/o
Submit excess emissions and monitoring system performance
reports and summary reports (if required)
Submit summary report only if excess emissions or control
system parameter exceedances for reporting period are less
than 1 percent of total operating time for reporting period and
CMS downtime for reporting period is less than 5 percent of
total operating time for reporting period
Submit summary report, excess emissions, and COMS
performance report if excess emission or process or control
system parameter exceedances are 1 percent or greater or
"MS downtime is 5 percent or greater
O/o using COMS shall record and submit to Administrator
monitoring data produced during performance test under
§63.7
Quarterly
Same as
Same as
§63.1
Timeline
nually
lirement
{y
'-case
tiual
45 days after
g notice from o/o
ked by the 30th
owing end of each
r half or quarter
(e)(3)(v)
(e)(3)(v)
with performance
Its under
d)(2)
Existing
==^=^=
X
X
X
X
X
X
X
X
X
X
... .-..., _ _,
New or
Reconst.
Sources
========
X
X
X
X
X
X
X
X
X
X
A-13
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TABLE A-l. TIMING OF GENERAL PROVISIONS ACTIVITIES
Section
63.10(f)(3)
63.10(f)(4)
Activity
If o/o requests waiver of R&R requirements
Administrator will approve or deny request for waiver when
he/she
Timeline
Submit with request for
extension of compliance,
compliance progress
report, compliance status
report, in source's permit,
or in excess emission and
CMS performance report
Approves or denies
extension of compliance;
makes determination of
compliance; or makes
determination of progress
towards compliance
Existing
X
X
New or
Reconst.
Sources
X
X
A-14
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TECHNICAL REPORT DATA
(Please read Instructions on the reverse before completing)
1. REPORT NO. 2.
EPA-450/3-91-019b
4. TITLE AND SUBTITLE
General Provisions for 40 CFR Part 63
Background Information for Promulgated Regulation
7. AUTHOR(S)
9. PERFORMING ORGANIZATION NAME AND ADDRESS
Office of Air Quality Planning and Standards
U.S. Environmental Protection Agency
Research Triangle Park, N.C. 27711
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
3. RECIPIENT'S ACCESSION NO.
5. REPORT DATE
February 1994
6. PERFORMING ORGANIZATION CODE
8. PERFORMING ORGANIZATION REPORT NO.
10. PROGRAM ELEMENT NO.
11. CONTRACT/GRANT NO.
68-D1-0119
13. TYPE OF REPORT AND PERIOD COVERED
Final
14. SPONSORING AGENCY CODE
15. SUPPLEMENTARY NOTES
General Provisions are being promulgated 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 promulgated 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
administrative 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 changes to the rule since proposal and a summary
of the public comments on thr proposed rule and EPA's responses.
17. KEY WORDS AND DOCUMENT ANALYSIS
a. DESCRIPTORS
Air pollution
Pollution control
Administrative practice and procedure
Hazardous substances
Recordkeeping and Reporting
18. DISTRIBUTION STATEMENT
Unlimited
b.lDENTIFlERS/OPEN ENDED TERMS
Air pollution control
19. SECURITY CLASS f Tins Report 1
Unclassified
20. SECURITY CLASS (Thispagei
Unclassified
c. COSATI Field/Group
21. NO. OF PAGES
22. PRICE
EPA Form 2220-1 (Rev. 4-77)
PREVIOUS EDITION IS OBSOLETE
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