Requirements for Control Technology Determinations for Major Sources in Accordance With Clean Air Act Sections, Sections 112(g) and 112(j), 15655-15664 [2010-7041]
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List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Intergovernmental
relations, Nitrogen oxides, Ozone,
Reporting and recordkeeping
requirements, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 18, 2010.
Lawrence E. Starfield,
Acting Regional Administrator, Region 6.
[FR Doc. 2010–6801 Filed 3–29–10; 8:45 am]
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 63
[EPA–HQ–OAR–2009–0746; FRL–9131–8]
RIN 2060–AP91
Requirements for Control Technology
Determinations for Major Sources in
Accordance With Clean Air Act
Sections, Sections 112(g) and 112(j)
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
SUMMARY: We are proposing to amend
the rule governing case-by-case
emission limits for major sources of
hazardous air pollutants under section
112(j) of the Clean Air Act. Specifically,
we are proposing revisions to the
section 112(j) rule to clarify and
streamline the process for establishing
case-by-case emission limits in the case
of the complete vacatur of a section
112(d) rule applicable to a major source
category initially listed pursuant to
section 112(c)(1). In addition, we are
also proposing revisions that would
eliminate provisions of the section
112(j) rule that have become obsolete or
are redundant.
DATES: Comments must be received on
or before April 29, 2010, unless a public
hearing is requested by April 14, 2010.
If a hearing is requested on the proposed
amendments, written comments must be
received by May 14, 2010. Under the
Paperwork Reduction Act, comments on
the information collection provisions
are best assured of having full effect if
the Office of Management and Budget
(OMB) receives a copy of your
comments on or before April 29, 2010.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–HQ–
OAR–2009–0746, by one of the
following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov: Follow the on-line
instructions for submitting comments.
• Agency Web Site: https://
www.epa.gov/oar/docket.html. Follow
the instructions for submitting
comments on the EPA Air and Radiation
Docket Web Site.
• E-mail: a-and-r-docket@epa.gov.
Include Docket ID No. EPA–HQ–OAR–
2009–0746 in the subject line of the
message.
• Fax: Fax your comments to: (202)
566–9744, Docket ID No. EPA–HQ–
OAR–2009–0746.
• Mail: Air and Radiation Docket and
Information Center, Environmental
Protection Agency, Mailcode: 2822T,
1200 Pennsylvania Ave., NW.,
PO 00000
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15655
Washington, DC 20460, Docket ID No.
EPA–HQ–OAR–2009–0746. Please
include a total of two copies. In
addition, please mail a copy of your
comments on the information collection
provisions to the Office of Information
and Regulatory Affairs, OMB, Attn: Desk
Officer for EPA, 725 17th St., NW.,
Washington, DC 20503.
• Hand Delivery: EPA Docket Center,
Public Reading Room, EPA West, Room
3334, 1301 Constitution Ave., NW,
Washington, DC 20460. Such deliveries
are only accepted during the Docket’s
normal hours of operation, and special
arrangements should be made for
deliveries of boxed information.
Instructions: Direct your comments to
Docket ID No. EPA–HQ–OAR–2009–
0746. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at https://
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through https://
www.regulations.gov or e-mail. The
https://www.regulations.gov Web site is
an ‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an e-mail comment directly
to EPA without going through https://
www.regulations.gov, your e-mail
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses. For additional information
about EPA’s public docket, visit the EPA
Docket Center homepage at https://
www.epa.gov/epahome/dockets.htm.
For additional instructions on
submitting comments, see the ‘‘Public
Participation’’ heading of the
SUPPLEMENTARY INFORMATION section of
this document.
Docket: All documents in the docket
are listed in the https://
www.regulations.gov index. Although
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Washington, DC 20460. The Public
Reading Room is open from 8:30 a.m. to
4:30 p.m., Monday through Friday,
excluding legal holidays. The telephone
number for the Public Reading Room is
(202) 566–1744, and the telephone
number for the Air Docket is (202) 566–
1742.
Category
Environmental Protection Agency,
Research Triangle Park, NC 27711;
telephone number: (919) 541–5262; fax
number: (919) 541–5600; e-mail address:
colyer.rick@epa.gov.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT: Mr.
Rick Colyer, Sector Policies and
Programs Division, Office of Air Quality
Planning and Standards (D205–02),
listed in the index, some information is
not publicly available, e.g., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
will be publicly available only in hard
copy. Publicly available docket
materials are available either
electronically in https://
www.regulations.gov or in hard copy at
EPA Center EPA Docket Center, 1301
Constitution Ave., NW., Room 3334,
A. Does This Action Apply to Me?
NAICS * code
Polyvinyl Chloride and Copolymers Production.
Brick and Structural Clay Products ..........
Brick and Structural Clay Products; Clay
Ceramics.
Brick and Structural Clay Products ..........
Clay Ceramics ..........................................
Any industry or institution using a boiler
or process heater.
325211
327121
327122
327123
327111
321
322
325
324
316, 326, 339
331
332
336
221
622
611
..............................
Industry .....................................................
I. General Information
The regulated categories and entities
potentially affected by the proposed
amendments include:
Examples of regulated entities
Facilities that polymerize vinyl chloride monomer to produce polyvinyl chloride
and/or copolymer products.
Brick and structural clay tile manufacturing facilities.
Ceramic wall and floor tile manufacturing facilities and extruded tile manufacturing facilities.
Other structural clay products manufacturing facilities.
Vitreous plumbing fixtures (sanitaryware) manufacturing facilities.
Manufacturers of lumber and wood products.
Pulp and paper mills.
Chemical manufacturers.
Petroleum refiners and manufacturers of coal products.
Manufacturers of rubber and miscellaneous plastic products.
Steel works, blast furnaces.
Electroplating, plating, polishing, anodizing, and coloring.
Manufacturers of motor vehicle parts and accessories.
Electric, gas, and sanitary services.
Health services.
Educational services.
Sources in a source category ‘‘initially listed’’ and regulated under any other
section 112(d) emission standard for hazardous air pollutants that is completely vacated by the Court of Appeals for the District of Columbia.
* North American Industry Classification System.
This table is not intended to be
exhaustive, but rather provides a guide
for readers regarding entities likely to be
affected by this action. If you have any
questions regarding the applicability of
this action to a particular entity or
operation at your facility, consult either
the air permit authority for the entity or
your EPA regional representative as
listed in 40 CFR 63.13 of subpart A of
this part (General Provisions).
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B. What should I consider as I prepare
my comments for EPA?
1. Submitting CBI. Do not submit this
information to EPA through https://
www.regulations.gov or e-mail. Clearly
mark the part or all of the information
that you claim to be CBI. For CBI
information in a disk or CD ROM that
you mail to EPA, mark the outside of the
disk or CD ROM as CBI and then
identify electronically within the disk or
CD ROM the specific information that is
claimed as CBI. In addition to one
complete version of the comment that
includes information claimed as CBI, a
copy of the comment that does not
contain the information claimed as CBI
must be submitted for inclusion in the
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public docket. Information so marked
will not be disclosed except in
accordance with procedures set forth in
40 CFR part 2.
2. Tips for Preparing Your Comments.
When submitting comments, remember
to:
• Identify the rulemaking by docket
number and other identifying
information (subject heading, Federal
Register date and page number).
• Follow directions—The agency may
ask you to respond to specific questions
or organize comments by referencing a
Code of Federal Regulations (CFR) part
or section number.
• Explain why you agree or disagree,
suggest alternatives, and substitute
language for your requested changes.
• Describe any assumptions and
provide any technical information and/
or data that you used.
• If you estimate potential costs or
burdens, explain how you arrived at
your estimate in sufficient detail to
allow for it to be reproduced.
• Provide specific examples to
illustrate your concerns, and suggest
alternatives.
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• Explain your views as clearly as
possible, avoiding the use of profanity
or personal threats.
• Make sure to submit your
comments by the comment period
deadline identified.
C. Where can I get a copy of this
document?
In addition to being available in the
docket, an electronic copy of this
proposed action will also be available
on the Worldwide Web (WWW) through
the Technology Transfer Network
(TTN). Following signature, a copy of
this proposed action will be posted on
the TTN’s policy and guidance page for
newly proposed or promulgated rules at
the following address: https://
www.epa.gov/ttn/oarpg/. The TTN
provides information and technology
exchange in various areas of air
pollution control.
D. When would a public hearing occur?
If anyone contacts EPA requesting to
speak at a public hearing concerning the
proposed rule by April 14, 2010, we will
hold a public hearing on April 19, 2010.
If you are interested in attending the
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public hearing, contact Ms. Joan Rogers
at (919) 541–4487 to verify that a
hearing will be held. If a public hearing
is held, it will be held at 10 a.m. at the
EPA’s Environmental Research Center
Auditorium, Research Triangle Park,
NC, or an alternate site nearby.
II. Background Information for
Proposed Amendments
A. What is section 112(j)?
Section 112(j) of the Clean Air Act as
amended in 1990 (CAA) provides
generally that major sources in a listed
category or subcategory for which EPA
fails to promulgate section 112(d)
MACT (Maximum Achievable Control
Technology) standards by deadlines
established pursuant to sections
112(e)(1) and (3) of the CAA must
submit permit applications beginning 18
months after such deadlines, and that
Federal or State permit writers must
then determine on a case-by-case basis
an emission limitation equivalent to the
limitation that would apply if an
emission standard had been issued in a
timely manner under CAA section
112(d) of the Act. See CAA 112(j)(2)–(5).
States (with approved title V
operating permit programs) or EPA will
issue permits containing MACT
emission limitations determined on a
case-by-case basis to be equivalent to
what would have been promulgated by
EPA. Regulations implementing section
112(j) were originally promulgated by
EPA in 1994 and amended several times
since then; they are contained in
subpart B, 40 CFR 63.50 through 63.56.
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B. Applicability of Section 112(j) When
a Section 112(d) Rule for Major Sources
Is Vacated in Its Entirety
The United States Court of Appeals
for the District of Columbia Circuit (D.C.
Circuit) vacated the national emission
standards for hazardous air pollutants
(NESHAP) for the Polyvinyl Chloride
and Copolymers Production (‘‘PVC’’),
Brick and Structural Clay Products
Manufacturing (‘‘Brick’’), Clay Ceramics
Manufacturing (‘‘Clay Ceramics’’), and
the Industrial, Commercial and
Institutional Boilers and Process Heaters
(‘‘Boilers’’) source categories. (See
Mossville Environmental Action Now v.
EPA, 370 F.3d. 1232 (D.C.Cir. 2004),
Sierra Club v. EPA, 479 F.3d. 875 (D.C.
Cir. 2007) and NRDC v. EPA, 489 F.3d.
1250 (D.C. Cir. 2007), respectively.) The
Court vacated each of these regulations
in their entirety and issued the mandate
effectuating the vacatur of the PVC
standards on May 11, 2005, the mandate
effectuating the vacatur of the Brick and
Clay Ceramics standards on June 18,
2007, and the mandate effectuating the
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vacatur of the Boilers standards on July
30, 2007.
EPA’s long-standing position is that
the ‘‘hammer’’ requirements of CAA
section 112(j) apply in the case of a
complete vacatur of a section 112(d)
rule for a major source initially listed
pursuant to section 112(c)(1).1 This
position is supported by Congressional
intent reflected in the overall structure
of the CAA as amended in 1990.
Congress amended the CAA in 1990
by naming 190 hazardous air pollutants
and requiring EPA to promulgate
emission standards to reduce emissions
of these and any additional hazardous
air pollutants subsequently identified by
EPA. 42 U.S.C. 7412(b)(1), (d). Congress
first directed EPA to list categories and
subcategories of major sources that emit
one or more hazardous air pollutants. 42
U.S.C. 7412(c). EPA was next required
to establish technology-based MACT
standards for the listed categories and
subcategories of major sources. Id.
§ 7412(d), (e).
Congress further required that these
standards be promulgated ‘‘as
expeditiously as practicable’’ on a
phased schedule, with standards for all
source categories promulgated by
November 15, 2000. 42 U.S.C.
7412(e)(1)(E). Section 112(j) was enacted
to ensure that these major sources
would be subject to case-by-case MACT
standards even if no national MACT
standards were in place after the
deadlines established pursuant to
section 112(e).
In light of Congressional intent that
sources in listed source categories be
subject to either national or case-by-case
MACT standards, EPA’s view is that
when a section 112(d) rule establishing
MACT standards is vacated in its
entirety after such deadlines, there has
been, in effect, a ‘‘[f]ailure to promulgate
a standard’’ within the meaning of
section 112(j)(2).2 This view is also
1 See, e.g., Federal Title V permit for Veolia ES,
Technical Services L.L.C. with a Section 112(j) limit
for a gas-fired boiler to (STATEMENT OF BASIS,
Air Pollution Control Title V Permit to Operate
Permit No. V–IL–1716300103–08–01, EPA Docket
ID No. EPA–R05–OAR–2008–0235–0285.3) and
materials developed in support of EPA’s request to
OMB for renewal of the Section 112(j) Information
Collection Request (ICR).(‘‘Information Collection
Request for Requirements for Control Technology
Determinations from Major Sources in Accordance
with Clean Air Act Sections, Sections 112(g) and
112(j)—Supporting Statement’’ EPA Docket ID No.
EPA–HQ–OAR–2002–0038–0092), ‘‘Reply in
Support of Motion for Voluntary Vacatur and
Remand’’ and ‘‘Opposition to Petitioners’ CrossMotion to Establish Deadline to Govern Remand’’ in
Natural Resources Defense Council, et. al. v. EPA
(No. 04–1385 and consolidated cases) and ‘‘EPA’s
Petition for Panel Rehearing’’ in Mossville
Environmental Action Now and Sierra Club v. EPA,
(No. 02–1282).
2 If only some of the MACT standards within a
section 112(d) rule applicable to a source category
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supported by case law that establishes
that to vacate means to annul or make
void and is a reasonable interpretation
of section 112(j). See, e.g., Action on
Smoking Health v. CAB, 713 F.2d 795,
797–800 (D.C. Cir. 1983).
C. What source categories would be
affected?
These amendments would
immediately affect sources in any
source category ‘‘initially listed’’ in 1992
(57 FR 31576, 15991; July 16, 1992) for
which all applicable MACT standards
have been vacated, namely, MACT
standards for PVC, Brick, Clay Ceramics,
and Boilers. In addition, the
amendments would apply to sources in
any source category ‘‘initially listed’’ in
1992 (57 FR 31576, 15991; July 16,
1992) for which a section 112(d) rule
establishing MACT standards is
completely vacated in the future. It is
important to note that section 112(j) and
EPA’s section 112(j) regulations will
apply only where there has been or is
in the future a vacatur of a section
112(d) rule establishing MACT
standards. EPA has issued section
112(d) MACT standards for all source
categories ‘‘initially listed’’ and thus a
failure to promulgate within the
meaning of section 112(j) can only arise
in the future if the entire MACT
regulation for such a source category is
completely vacated. Thus, the
provisions in the current section 112(j)
regulations that are premised upon
schedules established for issuance of
MACT standards for ‘‘initially listed’’
source categories are obsolete or
unnecessary and are revised or
eliminated in today’s proposal.
III. Summary of Proposed Amendments
We are proposing these amendments
to clarify and streamline the process for
sources and permitting authorities to
follow in establishing case-by-case
emissions limitations under section
112(j) in the case of complete vacatur of
a section 112(d) MACT standard. There
has been confusion and uncertainty
among some permitting authorities and
sources as to how section 112(j) and
EPA’s regulations implementing section
112(j) apply in the case of a complete
vacatur of a section 112(d) rule
establishing MACT standards,
especially with respect to the timing of
the application process. The
amendments we are proposing today
will clarify how the section 112(j)
regulations apply in the case of such
vacatur. We note that EPA’s proposed
are vacated, EPA’s view is that section 112(j) is not
applicable to such source category because there is
‘‘a standard’’ in place.
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revisions are limited primarily to
revisions that will clarify and streamline
the application process when section
112(j) is triggered by a complete vacatur.
The proposed revisions will also remove
obsolete or redundant regulatory
language. EPA is not revising or seeking
comment on any other provision of the
section 112(j) regulations.
A. Clarification of Applicability of
Section 112(j)
As discussed above in Section II.B.,
EPA’s long-standing position is that
section 112(j) applies in the case of the
complete vacatur of a section 112(d)
rule establishing MACT standards for an
initially listed major source. We are
proposing language changes within the
rule to clarify the applicability of
section 112(j) in the case of such a
complete vacatur. Specifically, we are
proposing to revise the definition of the
affected source to identify the triggering
mechanism for section 112(j) from when
‘‘the Administrator has failed to
promulgate emission standards by the
section 112(j) deadline’’ to when ‘‘there
is no section 112(d) standard in place on
or after the section 112(j) deadline.’’
This is consistent with EPA’s view that
when there has been a complete vacatur
of a section 112(d) rule establishing
MACT standards, there has been in
effect a ‘‘[f]ailure to promulgate a
standard’’ within the meaning of section
112(j).
We are also proposing minor revisions
to the regulations to further clarify the
applicability of section 112(j) and to
reduce redundancies. For example,
where the rule language refers to section
112(d) or (h) standards, as in the
definition of ‘‘Equivalent Emission
Limitation,’’ we are proposing to delete
the reference to 112(h) to eliminate
redundancy because a 112(h) standard
falls within the definition of a 112(d)
standard (see section 112(d)(2)(D)).
Further, we are proposing to add a
definition of ‘‘Listed Source Category or
Subcategory’’ to clarify which source
categories would be potentially subject
to section 112(j) in the event that a
section 112(d) rule for a major source is
vacated in its entirety. This definition
would specify that only those categories
and subcategories on the initial 1992
source category list would be potentially
affected. Section 112(j) applies to
categories or subcategories of sources
that are subject to a schedule for
promulgation of MACT standards
pursuant to section 112(e)(1) and (3)
(See section 112(j)(2)). The scheduling
requirements of section 112(e)(1) and
(e)(3) apply to categories and
subcategories of sources ‘‘initially listed’’
for regulation pursuant to section
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112(c)(1). Thus, source categories listed
after the initial listing (such as coal-and
oil-fired electric generating units) that
were not initially listed pursuant to
section 112(c)(1) and thus are not
covered by the schedules in section 112
(e)(1) and (e)(3), are not subject to
section 112(j). See 57 FR 31576, 15991
(July 16, 1992) (initial source category
list) and 58 FR 63941 (Dec. 3, 1993)
(schedule establishing deadlines for the
promulgation of emission standards for
the categories of sources initially listed
pursuant to section 112(c)(1) and (3)).
C. Section 112(j) Permit Application
Deadline
We are proposing to establish the
deadline for submittal of a permit
application to obtain a section 112(j)
limit in the case of a complete vacatur
by redefining ‘‘Section 112(j) Deadline.’’
For those source categories for which
the mandate effectuating the complete
vacatur of the MACT rule was issued
over 18 months ago, namely the Boilers,
Brick, Clay Ceramics, and PVC source
categories, we are proposing to revise 40
CFR 63.52(a) 3 to require that sources in
those categories submit permit
applications the earlier of 90 days after
promulgation of these amendments or
the date by which the source’s
permitting authority has requested in
writing a section 112(j) Part 2
application.
We have selected 90 days consistent
with the timing set forth in 40 CFR
63.52(a)(2) of the current rule.4 The
above proposed approach recognizes
that there may have been some
uncertainty as to the application of
section 112(j) after the complete vacatur
of the PVC, Brick, Clay Ceramics, and
Boiler MACT standards. Under the
existing section 112(j) regulations,
where a source subject to section 112(j)
as of the section 112(j) deadline is not
able to ‘‘reasonably determine’’ that one
or more sources at the major source
belong in the category or subcategory
subject to section 112(j), pursuant to
section 40 CFR 63.52(a)(2) of the current
regulations, notification by the
permitting authority initiates the 30-day
period for submittal of a Part 1
application. Under such circumstances,
the current rule provides that the Part 2
application is due 60 days after the date
that the Part 1 application is due (40
CFR 63.52(e)(1)). EPA is proposing to
revise the regulation to provide that for
sources in the PVC, Brick, Clay
Ceramics and Boiler source categories
subject to section 112(j) as of the section
112(j) deadline, a section 112(j)
application is due the earlier of 90 days
after the date of promulgation of the
revisions or by the date specified by the
source’s permitting authority for
submittal of a Part 2 permit application.
In either case, sources will have had at
least 90 days notice of the obligation to
submit a section 112(j) application. If a
section 112(d) rule establishing
emission standards for a category of
major sources is vacated in the future,
we are proposing that permit
applications be submitted within 18
months after the date of the court
mandate effectuating the complete
vacatur of the standards applicable to
such sources covered by 40 CFR
63.52(a) (sources subject to section
112(j) as of the 112(j) deadline).
We believe that these deadlines
would provide sufficient time for the
source owner or operator to prepare a
permit application for submittal.
Sources in the PVC, Brick, Clay
Ceramics and Boilers source categories
that were unsure of the applicability of
section 112(j) have at least 90 days
notice of their obligation to complete
the permit application process as
3 40 CFR 63.52(a) applies to sources subject to
section 112(j) as of the section 112(j) deadline.
4 As explained in section III. D. of this preamble,
we are deleting 63.52(a)(2) of the current rule.
B. Permit Application Content
We are proposing to streamline the
permit application by combining the
Part 1 and Part 2 permit application.
The original section 112(j) rule had a
single permit application. We created
the bifurcated process in 2003 (68 FR
32586; May 30, 2003) to allow a source
additional time to compile the
information necessary for the permitting
authority to make a MACT floor
determination. We find this bifurcation
to be unnecessary now that section
112(j) is only applicable to sources in
source categories for which a section
112(d) rule has been or will be vacated
in its entirety. As discussed below,
under the circumstances surrounding
complete vacatur of a section 112(d)
rule, many sources will have already
compiled and submitted to the
permitting authority the information
required by a section 112(j) application.
We are proposing no other changes to
the permit application content.
However, we are proposing to retain the
requirement that sources seeking
equivalency determinations pursuant to
63.52(e)(2)(ii) submit information that
would be submitted as part of a Part 1
application under the current rule, i.e.,
the information set out at 63.53(a)(1)–
(4). Today’s proposal changes that
heading for section 63.53(a) from ‘‘Part
1 MACT application’’ to ‘‘Section 112(g)
equivalency determination request.’’
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contemplated by the current regulations.
This proposed rule also serves to
provide notice of when applications
will be due if these rule amendments
are promulgated as proposed. Further,
many sources will have had much more
notice by virtue of communications
with permitting authorities. If a section
112(d) rule establishing emission
standards for a major source category is
vacated in the future, a source would
have up to 18 months after the date of
the mandate effectuating the vacatur to
prepare its permit application. Eighteen
months is consistent with the timing for
submittal of section 112(j) permit
applications provided for in section
112(j)(2) of the CAA.
In both cases sources and permitting
authorities should already have most, if
not all, of the information required to be
included in the application for a section
112(j) case-by-case limit. Sources that
were subject to the vacated PVC, Brick,
Clay Ceramics and Boilers standards
should have previously compiled and
provided information to the permitting
authority in the process of obtaining
their title V permit conditions for
meeting the standards before such
standards were vacated. Pulling the
existing information together in a permit
application for case-by-case MACT and
reviewing it prior to submittal to the
permitting authority should add little
additional burden. This is also likely to
be the case in the event of any future
vacaturs, especially given the 18 month
period for submittal of applications.
EPA seeks comments on the 90 day
period and whether a longer or shorter
time period for submission of
applications is appropriate for the PVC,
Brick, Clay Ceramics and Boiler source
categories. We also are seeking
comments on our proposal to establish
an earlier deadline when a permitting
authority has notified a source in the
PVC, Brick, Clay Ceramics and Boiler
source categories that it is obligated to
submit a Part 2 application on a date
that falls before 90 days after
promulgation of the final rule. We
further solicit comment on whether the
deadline for applications should be 90
days after promulgation of the final rule
in every case for the PVC, Brick, Clay
Ceramics and Boiler source categories.
D. Elimination of Current Provisions
Relating to Questions of Applicability in
§ 63.52(a)(2), (d)(1), and (e)(2)
The current rule provides for the
owner or operator of a source to request
an applicability determination from a
permitting authority in the event that
they are unsure whether or not the
source is in a covered category or
subcategory.
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We are proposing to eliminate
applicability determination requests.
The provisions governing applicability
determinations have become obsolete
because they are premised upon and
tied to dates and time periods in the
section 112(j) regulations that have
expired (See § 63.52(e)(2)(i)). Further,
we believe requests for applicability
determinations are no longer necessary.
With the exception of some sources that
were subject to the vacated Boilers
MACT, sources should know whether or
not they are within a source category for
a vacated rule because the definition of
source in the vacated rule should
provide sufficient guidance as to
applicability. Some portion of boilers
that were subject to the vacated boiler
MACT rule, however, may be
designated solid waste incineration
units if they combust solid waste, as
that term is defined in section 129(g).
The Agency is in the process of defining
the term ‘‘solid waste’’ under Subtitle D
of the Resource Conservation and
Recovery Act (RCRA). We anticipate
that there will be further clarification of
that issue by the time sources have to
submit section 112(j) permit
applications in light of EPA’s intent to
propose a rule defining the term ‘‘solid
waste’’ under Subtitle D of RCRA by
April 2010.
Sources are free to consult with
permitting authorities to resolve
applicability issues before submitting a
section 112(j) permit application or can
submit a section 112(j) application as a
protective measure and work with the
permitting authority during the
completeness determination phase to
resolve applicability issues.
For the same reason, we are
eliminating section 63.52(a)(2) of the
current rule. As explained above,
section 63.52(a)(2) of the current rule
provides that, when a source is not able
to ‘‘reasonably determine’’ that one or
more sources at the major source belong
in the category or subcategory subject to
section 112(j), notification by the
permitting authority initiates the 30-day
period for submittal of a Part 1
application. For the reasons explained
above, we believe that there should not
be uncertainty as to the obligation to
submit a section 112(j) permit
application. As noted above, if there is
uncertainty, the source can consult with
the permitting authority to resolve such
issues before submittal of a section
112(j) application or submit a section
112(j) application as a protective
measure and work with the permitting
authority during the completeness
determination phase to resolve
applicability issues.
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E. Other Minor Edits
We have made minor edits and
corrections to the definition of
‘‘Available Information.’’ One correction
identifies ‘‘8’’ information sources
instead of the erroneous ‘‘5’’ in the last
sentence prior to the list. The second
correction is to replace the term ‘‘Part 2
MACT’’ application to ‘‘Permit’’
application to conform with the
streamlining discussed in section III.B.
Finally, in information source(5), we
have revised language from ‘‘Aerometric
Information Retrieval System (AIRS)’’
which no longer exists, by providing an
example EPA database, the ‘‘Air Facility
Subsystem.’’
IV. Statutory and Executive Order
Reviews
A. Executive Order 12866: Regulatory
Planning and Review
Under Executive Order 12866 (58 FR
51735, October 4, 1993), this action is a
‘‘significant regulatory action’’ because it
may raise novel legal or policy issues.
Accordingly, EPA submitted this action
to OMB for review under Executive
Order 12866, and any changes made in
response to OMB recommendations
have been documented in the docket for
this action.
B. Paperwork Reduction Act
The information collection
requirements in this proposed rule have
been submitted for approval to OMB
under the Paperwork Reduction Act, 44
U.S.C. 3501, et seq. The Information
Collection Request (ICR) document
prepared by EPA has been assigned EPA
ICR number 1648.07.
The permit application requirements
in the proposed rule are required in
subpart B of part 63. All information
submitted to EPA pursuant to the
information collection requirements for
which a claim of confidentiality is made
is safeguarded according to CAA section
114(c) and the Agency’s implementing
regulations at 40 CFR part 2, subpart B.
The proposed information collection
requirements consist of a title V permit
application or revision, or a request for
a section 112(g) equivalency
determination.
We estimate that these amendments
would affect about 19 PVC sources, 122
Brick and Structural Clay sources, 8
Clay Ceramics sources, and 15,500
individual Boilers.
The annual burden for this
information collection averaged over the
first 3 years of this ICR is estimated to
total 83,670 labor hours per year at a
cost of $6.59 million for the estimated
total number of sources. Burden is
defined at 5 CFR 1320.3(b).
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An agency may not conduct or
sponsor, and a person is not required to
respond to, a collection of information
unless it displays a currently valid OMB
control number. The OMB control
numbers for EPA’s regulations in 40
CFR part 63 are listed in 40 CFR part 9.
To comment on the Agency’s need for
this information, the accuracy of the
provided burden estimates, and any
suggested methods for minimizing
respondent burden, EPA has established
a public docket for this rule, which
includes this ICR, under Docket ID
number EPA–HQ–OAR–2009–0746.
Submit any comments related to the ICR
to EPA and OMB. See ADDRESSES
section at the beginning of this notice
for where to submit comments to EPA.
Send comments to OMB at the Office of
Information and Regulatory Affairs,
Office of Management and Budget, 725
17th Street, NW., Washington, DC
20503, Attention: Desk Office for EPA.
Since OMB is required to make a
decision concerning the ICR between 30
and 60 days after March 30, 2010, a
comment to OMB is best assured of
having its full effect if OMB receives it
by April 29, 2010. The final rule will
respond to any OMB or public
comments on the information collection
requirements contained in this proposal.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
generally requires an agency to prepare
a regulatory flexibility analysis of any
rule subject to notice and comment
rulemaking requirements under the
Administrative Procedure Act or any
other statute unless the agency certifies
that the rule would not have a
significant economic impact on a
substantial number of small entities.
Small entities include small businesses,
small not-for-profit enterprises, and
small governmental jurisdictions.
For the purposes of assessing the
impacts of the proposed amendments on
small entities, small entity is defined as:
(1) A small business that meets the
Small Business Administration size
standards for small businesses found at
13 CFR 121.201 (less than 500, 750, or
1,000 employees depending on the
category); (2) a small governmental
jurisdiction that is a government of a
city, county, town, school district, or
special district with a population of less
than 50,000; and (3) a small
organization that is any not-for-profit
enterprise which is independently
owned and operated and is not
dominant in its field.
After considering the economic
impacts of the proposed amendments on
small entities, I certify that this action
will not have a significant economic
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impact on a substantial number of small
entities. These proposed amendments
merely clarify the application process
for obtaining case-by-case MACT limits
in the case of complete vacatur of a
112(d) MACT rule. The requirements of
the current rule and the amendments
proposed today implement existing
CAA requirements and do not impose
additional requirements not already
required by the CAA. Therefore, this
rule does not impose any new costs.
Section 112(j) of the Clean Air Act
requires sources to submit applications
for case-by-case limits and requires
permitting authorities to develop caseby-case limits (See 112(j)(3)–(5)). These
proposed amendments do not establish
any new section 112 standards. Case-bycase standards are developed by the
permitting authority, which in most
cases is a State. In addition, as is
explained above, these proposed
amendments narrow the applicability of
the current section 112(j) regulations to
major sources in source categories for
which a MACT standard was
promulgated and subsequently vacated
in its entirety. Further, because this rule
only applies to source categories for
which a MACT standard was
promulgated and subsequently vacated,
permitting authorities and sources
should already have a significant
amount of the information required in
the permit application for a case-by-case
MACT limit. Sources that were subject
to the vacated PVC, Brick, Clay
Ceramics and Boilers standards should
have previously compiled and provided
information to the permitting authority
in the process of obtaining their title V
permit conditions for meeting the
standards before such standards were
vacated. Pulling the existing
information together in a permit
application for case-by-case MACT and
reviewing it prior to submittal to the
permitting authority should add little
additional burden. This is also likely to
be the case in the event of any future
vacaturs. Sources are allowed to
reference previously submitted
information. Additional effort could
include pulling the information
together, reviewing the information, and
submitting the application. EPA does
not expect this additional effort to be
significant. In addition, sources can
recommend emission limitations and
other requirements, but the proposed
amendments do not require this.
Finally, this certification is consistent
with EPA’s certification that the current
112(j) would not have a significant
economic impact on a substantial
number of small entities.
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We continue to be interested in the
potential impacts of the proposed
amendments on small entities and
welcome comments on issues related to
such impacts.
D. Unfunded Mandates Reform Act
This action contains no Federal
mandates under the provisions of Title
II of the Unfunded Mandates Reform
Act of 1995 (UMRA), 2 U.S.C. 1531–
1538 for State, local, and tribal
governments or the private sector. This
action imposes no enforceable duty on
any State, local, tribal governments or
the private sector.
This action is also not subject to the
requirements of section 203 of UMRA
because it contains no regulatory
requirements that might significantly or
uniquely affect small governments not
otherwise required by the CAA. The
proposed amendments contain no
requirements that apply to such
governments, and impose no obligations
upon them.
E. Executive Order 13132: Federalism
These proposed amendments do not
have federalism implications. It will not
have substantial direct effects on the
States, on the relationship between the
national government and the States, or
on the distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132. This action
implements existing CAA requirements
on owners and operators of specified
major sources and does not impose
additional requirements on State and
local governments not specified in the
CAA. Thus, Executive Order 13132 does
not apply to these proposed
amendments.
In the spirit of Executive Order 13132,
and consistent with EPA policy to
promote communications between EPA
and State and local government, EPA
specifically solicits comments on the
proposed amendments from State and
local officials.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This action does not have tribal
implications, as specified in Executive
Order 13175 (65 FR 67249, November 9,
2000). This action would not have
substantial direct effects on tribal
governments, on the relationship
between the Federal government and
Indian tribes, or on the distribution of
power and responsibilities between the
Federal government and Indian tribes.
The action implements existing CAA
requirements on owners and operators
of specified major sources and does not
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impose additional requirements on
tribal governments not already required
by the CAA. Thus, Executive Order
13175 does not apply to this action.
EPA specifically solicits additional
comment on this proposed action from
tribal officials.
G. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
EPA interprets Executive Order 13045
(62 FR 19885, April 23, 1997) as
applying to those regulatory actions that
concern health or safety risks, such that
the analysis required under section 5–
501 of the Order has the potential to
influence the regulation. This action is
not subject to Executive Order 13045
because it is based solely on technology
performance.
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
This action is not a ‘‘significant energy
action’’ as defined in Executive Order
13211 (66 FR 28355 (May 22, 2001)),
because it is not likely to have a
significant adverse effect on the supply,
distribution, or use of energy. Further,
we have concluded that these proposed
amendments are not likely to have any
adverse energy impacts.
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I. National Technology Transfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104–
113 (15 U.S.C. 272 note) directs EPA to
use voluntary consensus standards
(VCS) in its regulatory activities unless
to do so would be inconsistent with
applicable law or otherwise impractical.
VCS are technical standards (e.g.,
materials specifications, test methods,
sampling procedures, and business
practices) that are developed or adopted
by VCS bodies. NTTAA directs EPA to
provide Congress, through OMB,
explanations when the Agency decides
not to use available and applicable VCS.
This proposed rulemaking does not
involve technical standards. Therefore,
EPA is not considering the use of any
voluntary consensus standards.
J. Executive Order 12898: Federal
Actions to Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order 12898 (59 FR 7629,
February 16, 1994) establishes Federal
executive policy on environmental
justice. Its main provision directs
Federal agencies, to the greatest extent
practicable and permitted by law, to
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make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States.
EPA has determined that this action
will not have disproportionately high
and adverse human health or
environmental effects on minority or
low-income populations because it
increases the level of environmental
protection for all affected populations
without having any disproportionately
high and adverse human health or
environmental effects on any
population, including any minority or
low-income population. The proposed
amendments require permitting
authorities to develop case-by-case
emission limits for all sources in each
source category for which standards
have been vacated.
List of Subjects in 40 CFR Part 63
Environmental protection, Air
pollution control, Hazardous
substances, Reporting and
recordkeeping requirements.
Dated: March 24, 2010.
Lisa P. Jackson,
Administrator.
For the reasons stated in the
preamble, title 40, chapter I, part 63 of
the Code of Federal Regulations is
proposed to be amended as follows:
PART 63—[AMENDED]
1. The authority citation for part 63
continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart B—[Amended]
2. Section 63.50 is amended by:
a. Revising the first sentence of
paragraph (a)(2)(i);
b. Revising paragraph (c); and
c. Revising the first sentence of
paragraph (d) to read as follows:
§ 63.50
Applicability.
(a) * * *
(2) * * *
(i) The owner or operator of affected
sources within a listed source category
or subcategory under this part that are
located at a major source that is subject
to an approved title V permit program
and for which there is no section 112(d)
emission standard in place on or after
the section 112(j) deadline. * * *
*
*
*
*
*
(c) The procedures in §§ 63.50
through 63.56 apply for each affected
source only after its section 112(j)
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15661
deadline has passed and there is no
generally applicable Federal standard
governing that source under section
112(d) of the Act. If a generally
applicable Federal standard governing
that source is in place, the owner or
operator of the affected source and the
permitting authority are not required to
take further action to develop an
equivalent emission limitation under
section 112(j) of the Act.
(d) Any final equivalent emission
limitation for an affected source which
is issued by the permitting authority
pursuant to §§ 63.50 through 63.56 prior
to promulgation of a generally
applicable Federal standard governing
that source under section 112(d) of the
Act shall be deemed an applicable
Federal requirement adopted pursuant
to section 112(j) of the Act. * * *
3. Section 63.51 is amended by:
a. Revising the definition of Affected
source;
b. Revising the definition of Available
information;
c. Revising the definition of
Equivalent emission limitation;
d. Revising the definition of Section
112(j) deadline; and
e. Adding in alphabetical order a
definition for Listed source category or
subcategory to read as follows:
§ 63.51
Definitions.
*
*
*
*
*
Affected source means the collection
of equipment, activities, or both within
a single contiguous area and under
common control that is in a listed
source category or subcategory for
which there is no section 112(d)
emission standard on or after the section
112(j) deadline, and that is addressed by
an applicable MACT emission
limitation established pursuant to this
subpart.
Available information means, for
purposes of conducting a MACT floor
finding and identifying control
technology options under this subpart,
any information that is available as of
the date on which the first permit
application under this subpart is filed
for a source in the relevant source
category or subcategory in the State or
jurisdiction; and, pursuant to the
requirements of this subpart, is
additional relevant information that can
be expeditiously provided by the
Administrator, is submitted by the
applicant or others prior to or during the
public comment period on the section
112(j) equivalent emission limitation for
that source, or information contained in
any of the information sources in
paragraphs (1) through (8) of this
definition.
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(1) A relevant proposed regulation,
including all supporting information;
(2) Relevant background information
documents for a draft or proposed
regulation;
(3) Any relevant regulation,
information or guidance collected by the
Administrator establishing a MACT
floor finding and/or MACT
determination;
(4) Relevant data and information
available from the Clean Air Technology
Center developed pursuant to section
112(l)(3) of the Act;
(5) Relevant data and information
contained in EPA databases such as the
Air Facility Subsystem;
(6) Any additional information that
can be expeditiously provided by the
Administrator;
(7) Any information provided by
applicants in an application for a
permit, permit modification,
administrative amendment, or Notice of
MACT Approval pursuant to the
requirements of this subpart; and
(8) Any additional relevant
information provided by the applicant.
*
*
*
*
*
Equivalent emission limitation means
an emission limitation, established
under section 112(j) of the Act, which
is equivalent to the MACT standard that
EPA would have promulgated under
section 112(d) of the Act.
Listed source category or subcategory
means a source category or subcategory
initially listed pursuant to section
112(c)(1) at 57 FR 31576, 15991 (July 16,
1992).
*
*
*
*
*
Section 112(j) deadline means:
(1) for a source in the Polyvinyl
Chloride and Copolymers Production,
Brick and Structural Clay Products
Manufacturing, Clay Ceramics
Manufacturing, or the Industrial,
Commercial and Institutional Boilers
and Process Heaters source category, the
earlier of [THE DATE 90 DAYS AFTER
THE PROMULGATION DATE IN THE
FEDERAL REGISTER] or the date by
which the source’s permitting authority
has requested in writing a section 112(j)
permit application containing the
information set out in section 63.53(b);
or
(2) for any other major source in a
listed source category or subcategory, 18
months after the date of a court mandate
effectuating the complete vacatur of a
section 112(d) rule applicable to such
source.
*
*
*
*
*
4. Section 63.52 is amended by:
a. Revising the first sentence of
paragraph (a) introductory text;
b. Revising paragraph (a)(1);
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c. Removing paragraph (a)(2) and
redesignating paragraph (a)(3) as (a)(2);
d. Revising newly designated
paragraph (a)(2) introductory text;
e. Revising the first sentence of newly
designated paragraph (a)(2)(i);
f. Revising the second sentence of
newly designated paragraph (a)(2)(ii);
g. Revising the first sentence of
paragraph (b)(1);
h. Revising the third sentence of
paragraph (b)(2);
i. Revising the first sentence of
paragraph (b)(3);
j. Revising the first sentence of
paragraph (b)(4);
k. Revising paragraph (c) introductory
text;
l. Revising the first sentence of
paragraph (c)(2);
m. Revising paragraph (d);
n. Revising paragraphs (e)(1), (e)(2),
(e)(3), and (e)(4); and
o. Revising paragraph (g) to read as
follows:
§ 63.52 Approval process for new and
existing affected sources.
(a) Sources subject to section 112(j) as
of the section 112(j) deadline. The
requirements of paragraph (a)(1) of this
section apply to major sources that
include, as of the section 112(j)
deadline, one or more sources in a
category or subcategory for which there
is no section 112(d) emission standard
in place on or after the section 112(j)
deadline. * * *
(1) The owner or operator must
submit an application for a title V
permit or for a revision to an existing
title V permit or a pending title V permit
meeting the requirements of § 63.53(b)
by the section 112(j) deadline unless the
owner or operator has submitted a
request for 112(g) equivalency
determination under paragraph (a)(2) of
this section.
(2) The requirements in paragraphs
(a)(2)(i) through (ii) of this section apply
when the owner or operator has
obtained a title V permit that
incorporates a case-by-case MACT
determination by the permitting
authority under section 112(g) or has
submitted a title V permit application
for a revision that incorporates a caseby-case MACT determination under
section 112(g), but has not submitted an
application for a title V permit revision
that addresses the emission limitation
requirements of section 112(j).
(i) When the owner or operator has a
title V permit that incorporates a caseby-case MACT determination by the
permitting authority under section
112(g), the owner or operator must
submit a request meeting the
requirements of § 63.53(a) for a title V
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permit revision within 30 days of the
section 112(j) deadline. * * *
(ii) * * * Within 30 days of issuance
of that title V permit, the owner or
operator must submit a request meeting
the requirements of § 63.53(a) for an
equivalency determination. * * *
(b) * * *
(1) When one or more sources in a
category or subcategory subject to the
requirements of this subpart are
installed at a major source, or result in
the source becoming a major source due
to the installation, and the installation
does not invoke section 112(g)
requirements, the owner or operator
must submit an application meeting the
requirements of § 63.53(b) within 30
days of startup of the source. * * *
(2) * * * Within 30 days of issuance
of that title V permit, the owner or
operator must submit a request meeting
the requirements of § 63.53(a) for an
equivalency determination. * * *
(3) The owner or operator of an area
source that, due to a relaxation in any
federally enforceable emission
limitation (such as a restriction on hours
of operation), increases its potential to
emit hazardous air pollutants such that
the source becomes a major source that
is subject to this subpart, must submit
an application meeting the requirements
of § 63.53(b) for a title V permit or for
an application for a title V permit
revision within 30 days after the date
that such source becomes a major
source. * * *
(4) On or after April 5, 2002, if the
Administrator establishes a lesser
quantity emission rate under section
112(a)(1) of the Act that results in an
area source becoming a major source
that is subject to this subpart, then the
owner or operator of such a major
source must submit an application
meeting the requirements of § 63.53(b)
for a title V permit or for a change to an
existing title V permit or pending title
V permit on or before the date 6 months
after the date that such source becomes
a major source. * * *
(c) Sources that have a title V permit
addressing section 112(j) requirements.
The requirements of paragraphs (c)(1)
and (2) of this section apply to major
sources within a listed source category
or subcategory for which there is no
section 112(d) emission standard in
place on or after the section 112(j)
deadline, and the owner or operator has
a permit meeting the section 112(j)
requirements, and where changes occur
at the major source to equipment,
activities, or both, subsequent to the
section 112(j) deadline.
*
*
*
*
*
(2) If the title V permit does not
contain the appropriate requirements
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that address the events that occur under
paragraph (c) of this section subsequent
to the section 112(j) deadline, then the
owner or operator must submit an
application for a revision to the existing
title V permit that meets the
requirements of § 63.53(b). * * *
(d) Requests for notice of MACT
approval. In addition to meeting the
requirements of paragraphs (a), (b), and
(c) of this section, the owner or operator
of a new affected source may submit an
application for a Notice of MACT
Approval before construction, pursuant
to § 63.54.
(e) * * *
(1) Permit applications must be
reviewed by the permitting authority
according to procedures established in
§ 63.55. The resulting MACT
determination must be incorporated into
the source’s title V permit according to
procedures established under title V,
and any other regulations approved
under title V in the jurisdiction in
which the affected source is located.
(2) As specified in paragraphs (a) and
(b) of this section, an owner or operator
who has submitted a request meeting
the requirements of § 63.53(a) may
request a determination by the
permitting authority of whether
emission limitations adopted pursuant
to a prior case-by-case MACT
determination under section 112(g) that
apply to one or more sources at a major
source in a relevant category or
subcategory are substantially as effective
as the emission limitations which the
permitting authority would otherwise
adopt pursuant to section 112(j) for the
source in question. Each request for an
equivalency determination under this
paragraph (e)(2) will be construed in the
alternative as a complete application for
an equivalent emission limitation under
section 112(j). The process for
determination by the permitting
authority of whether the emission
limitations in the prior case-by-case
MACT determination are substantially
as effective as the emission limitations
which the permitting authority would
otherwise adopt under section 112(j)
must include the opportunity for full
public, EPA, and affected State review
prior to a final determination. If the
permitting authority determines that the
emission limitations in the prior caseby-case MACT determination are
substantially as effective as the emission
limitations which the permitting
authority would otherwise adopt under
section 112(j), then the permitting
authority must adopt the existing
emission limitations in the permit as the
emission limitations to effectuate
section 112(j) for the source in question.
If more than 3 years remain on the
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15:13 Mar 29, 2010
Jkt 220001
current title V permit, the owner or
operator must submit an application for
a title V permit revision to make any
conforming changes in the permit
required to adopt the existing emission
limitations as the section 112(j) MACT
emission limitations. If less than 3 years
remain on the current title V permit, any
required conforming changes must be
made when the permit is renewed. If the
permitting authority determines that the
emission limitations in the prior caseby-case MACT determination under
section 112(g) are not substantially as
effective as the emission limitations
which the permitting authority would
otherwise adopt for the source in
question under section 112(j), the
permitting authority must make a new
MACT determination and adopt a title
V permit incorporating an appropriate
equivalent emission limitation under
section 112(j). Such a determination
constitutes final action for purposes of
judicial review under 40 CFR
70.4(b)(3)(x) and corresponding State
title V program provisions.
(3) Within 60 days of submittal of the
permit application, the permitting
authority must notify the owner or
operator in writing whether the
application is complete or incomplete.
The permit application shall be deemed
complete on the date it was submitted
unless the permitting authority notifies
the owner or operator in writing within
60 days of the submittal that the permit
application is incomplete. A permit
application is complete if it is sufficient
to begin processing the application for
a title V permit addressing section 112(j)
requirements. In the event that the
permitting authority disapproves a
permit application or determines that
the application is incomplete, the owner
or operator must revise and resubmit the
application to meet the objections of the
permitting authority. The permitting
authority must specify a reasonable
period in which the owner or operator
is required to remedy the deficiencies in
the disapproved or incomplete
application. This period may not exceed
6 months from the date the owner or
operator is first notified that the
application has been disapproved or is
incomplete.
(4) Following submittal of a permit
application, the permitting authority
may request additional information
from the owner or operator. The owner
or operator must respond to such
requests in a timely manner.
*
*
*
*
*
(g) Permit issuance dates. The
permitting authority must issue a title V
permit meeting section 112(j)
requirements within 18 months after
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Sfmt 4702
15663
submittal of the complete permit
application.
*
*
*
*
*
5. Section 63.53 is amended by:
a. Revising the section heading;
b. Revising paragraph (a) introductory
text; and
c. Revising paragraphs (b)
introductory text, (b)(1), (b)(2), and
(b)(3) introductory text.
§ 63.53 Section 112(g) equivalency
determination requests and application
content for case-by-case MACT
determinations.
(a) Section 112(g) equivalency
determination request. A section 112(g)
equivalency determination request must
contain the information in paragraphs
(a)(1) through (4) of this section.
*
*
*
*
*
(b) Permit application. (1) In
compiling a permit application, the
owner or operator may cross-reference
specific information in any prior
submission by the owner or operator to
the permitting authority, but in crossreferencing such information the owner
or operator may not presume favorable
action on any prior application or
request which is still pending. In
compiling a permit application, the
owner or operator may also crossreference any part of a standard
proposed by the Administrator pursuant
to section 112(d) of the Act for any
category or subcategory which includes
sources to which the permit application
applies.
(2) The permit application for a
MACT determination must contain the
information in paragraphs (b)(2)(i)
through (b)(2)(vi) of this section.
(i) The information required by
paragraph (a) of this section if a request
for 112(g) equivalency was not
previously submitted.
(ii) For a new affected source, the
anticipated date of startup of operation.
(iii) Each emission point or group of
emission points at the affected source
which is part of a category or
subcategory for which a permit
application is required, and each of the
hazardous air pollutants emitted at
those emission points. When the
Administrator has proposed a standard
pursuant to section 112(d) of the Act for
a category or subcategory, such
information may be limited to those
emission points and hazardous air
pollutants which would be subject to
control under the proposed standard.
(iv) Any existing Federal, State, or
local limitations or requirements
governing emissions of hazardous air
pollutants from those emission points
which are part of a category or
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Federal Register / Vol. 75, No. 60 / Tuesday, March 30, 2010 / Proposed Rules
subcategory for which a permit
application is required.
(v) For each identified emission point
or group of affected emission points, an
identification of control technology in
place.
(vi) Any additional emission data or
other information specifically requested
by the permitting authority.
(3) The permit application for a
MACT determination may, but is not
required to, contain the following
information:
*
*
*
*
*
§ 63.54
[Amended]
6. Section 63.54 is amended by
removing the first sentence of the
introductory text of the section.
7. Section 63.55 is amended by
revising paragraphs (a) introductory text
and (b) to read as follows:
§ 63.55 Maximum achievable control
technology (MACT) determinations for
affected sources subject to case-by-case
determination of equivalent emission
limitations.
WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS
(a) Requirements for permitting
authorities. The permitting authority
must determine whether the permit
application is complete or an
application for a Notice of MACT
Approval is approvable. In either case,
when the application is complete or
approvable, the permitting authority
must establish hazardous air pollutant
emissions limitations equivalent to the
limitations that would apply if an
emission standard had been issued in a
timely manner under section 112(d) of
the Act. The permitting authority must
establish these emissions limitations
consistent with the following
requirements and principles:
*
*
*
*
*
(b) Reporting to EPA. The owner or
operator must submit additional copies
of its application for a title V permit,
permit revision, or Notice of MACT
Approval, whichever is applicable, to
the EPA at the same time the material
is submitted to the permitting authority.
8. Section 63.56 is amended by
revising the first sentence of paragraph
(b), and paragraphs (c)(1) and (2) to read
as follows:
§ 63.56 Requirements for case-by-case
determination of equivalent emission
limitations after promulgation of
subsequent MACT standard.
*
*
*
*
*
(b) If the Administrator promulgates a
relevant emission standard under
section 112(d) of the Act that is
applicable to a source after the date a
permit is issued pursuant to § 63.52 or
§ 63.54, the permitting authority must
incorporate requirements of that
VerDate Nov<24>2008
15:13 Mar 29, 2010
Jkt 220001
standard in the title V permit upon its
next renewal. * * *
(c) * * *
(1) If the Administrator promulgates
an emission standard under section
112(d) that is applicable to an affected
source after the date a permit
application under this paragraph is
approved under § 63.52 or § 63.54, the
permitting authority is not required to
change the emission limitation in the
permit to reflect the promulgated
standard if the permitting authority
determines that the level of control
required by the emission limitation in
the permit is substantially as effective as
that required by the promulgated
standard pursuant to § 63.1(e).
(2) If the Administrator promulgates
an emission standard under section
112(d) of the Act that is applicable to an
affected source after the date a permit
application is approved under § 63.52 or
§ 63.54, and the level of control required
by the promulgated standard is less
stringent than the level of control
required by any emission limitation in
the prior case-by-case MACT
determination, the permitting authority
is not required to incorporate any less
stringent emission limitation of the
promulgated standard in the title V
permit and may in its discretion
consider any more stringent provisions
of the MACT determination to be
applicable legal requirements when
issuing or revising such a title V permit.
Table 1 to Subpart B of Part 63—
[Removed]
9. Table 1 to Subpart B of part 63 is
removed.
Table 2 to Subpart B of Part 63—
[Removed]
10. Table 2 to Subpart B of part 63 is
removed.
[FR Doc. 2010–7041 Filed 3–29–10; 8:45 am]
BILLING CODE 6560–50–P
CORPORATION FOR NATIONAL AND
COMMUNITY SERVICE
45 CFR Parts 2527, 2551, and 2552
RIN 3045–AA51
Serve America Act Amendments to the
National and Community Service Act
of 1990 and the Domestic Volunteer
Service Act of 1973
Corporation for National and
Community Service.
ACTION: Proposed rule with request for
comments; correction.
AGENCY:
SUMMARY: The Corporation for National
and Community Service (the
PO 00000
Frm 00038
Fmt 4702
Sfmt 4702
Corporation) is correcting a proposed
rule to implement changes to the
operation of the National Service Trust
and the Senior Corps programs under
the Serve America Act, that appeared in
the Federal Register of February 23,
2010 (75 FR 8013). That document
incorrectly amended 45 CFR 2527.10(c)
by removing current paragraph (c)(2).
Additionally, there were two
misstatements in the preamble. First, in
an example to illustrate the limitation
on the value of education awards an
individual may receive, the preamble
stated that a person who had previously
earned the aggregate value of 1.71
awards could enroll in a quarter-time,
minimum-time, reduced part-time, or
Silver Scholar position. The inclusion of
reduced part-time as an option in this
example was in error. Second, the
preamble incorrectly described the
hardship waiver for Senior Companion
and Foster Grandparent programs in the
preamble. This document corrects the
interim final rule by revising the
preamble language providing an
example of the aggregate value of
education awards and the language
describing the hardship waiver for
Senior Companion and Foster
Grandparent programs and by revising
the instructions for 45 CFR 2527.10.
DATES: To be sure your comments are
considered, they must reach the
Corporation on or before April 26, 2010.
FOR FURTHER INFORMATION CONTACT:
Amy Borgstrom, Docket Manager,
Corporation for National and
Community Service, (202) 606–6930,
TDD (202) 606–3472. Persons with
visual impairments may request this
document in an alternate format.
SUPPLEMENTARY INFORMATION: In FR Doc.
2010–3385, beginning on page 8013 in
the Federal Register of Thursday,
February 23, 2010, make the following
corrections:
1. In the Supplementary Information
section, on page 8019, revise the second
paragraph of the second column to read
as follows:
Using the example above, if an individual
had received an aggregate value of 1.71
awards in the past, that individual may be
eligible to enroll in a quarter-time, minimumtime, or Silver Scholar position, but would
not be eligible to enroll in a part-time or fulltime position, since the value of a part-time
award, .5, plus 1.71, is greater than 2.
2. In the Supplementary Information
section, on page 8023, in the second
column, revise the paragraph entitled
‘‘Hardship Waiver Permitted for Cost
Reimbursement Cap for Senior
Companion and Foster Grandparent
Programs (§§ 2552.92, 2552.92)’’ to read
as follows:
E:\FR\FM\30MRP1.SGM
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]]>Agencies
[Federal Register Volume 75, Number 60 (Tuesday, March 30, 2010)]
[Proposed Rules]
[Pages 15655-15664]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-7041]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[EPA-HQ-OAR-2009-0746; FRL-9131-8]
RIN 2060-AP91
Requirements for Control Technology Determinations for Major
Sources in Accordance With Clean Air Act Sections, Sections 112(g) and
112(j)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: We are proposing to amend the rule governing case-by-case
emission limits for major sources of hazardous air pollutants under
section 112(j) of the Clean Air Act. Specifically, we are proposing
revisions to the section 112(j) rule to clarify and streamline the
process for establishing case-by-case emission limits in the case of
the complete vacatur of a section 112(d) rule applicable to a major
source category initially listed pursuant to section 112(c)(1). In
addition, we are also proposing revisions that would eliminate
provisions of the section 112(j) rule that have become obsolete or are
redundant.
DATES: Comments must be received on or before April 29, 2010, unless a
public hearing is requested by April 14, 2010. If a hearing is
requested on the proposed amendments, written comments must be received
by May 14, 2010. Under the Paperwork Reduction Act, comments on the
information collection provisions are best assured of having full
effect if the Office of Management and Budget (OMB) receives a copy of
your comments on or before April 29, 2010.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2009-0746, by one of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov:
Follow the on-line instructions for submitting comments.
Agency Web Site: https://www.epa.gov/oar/docket.html.
Follow the instructions for submitting comments on the EPA Air and
Radiation Docket Web Site.
E-mail: a-and-r-docket@epa.gov. Include Docket ID No. EPA-
HQ-OAR-2009-0746 in the subject line of the message.
Fax: Fax your comments to: (202) 566-9744, Docket ID No.
EPA-HQ-OAR-2009-0746.
Mail: Air and Radiation Docket and Information Center,
Environmental Protection Agency, Mailcode: 2822T, 1200 Pennsylvania
Ave., NW., Washington, DC 20460, Docket ID No. EPA-HQ-OAR-2009-0746.
Please include a total of two copies. In addition, please mail a copy
of your comments on the information collection provisions to the Office
of Information and Regulatory Affairs, OMB, Attn: Desk Officer for EPA,
725 17th St., NW., Washington, DC 20503.
Hand Delivery: EPA Docket Center, Public Reading Room, EPA
West, Room 3334, 1301 Constitution Ave., NW, Washington, DC 20460. Such
deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2009-0746. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
https://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through https://www.regulations.gov or e-mail. The https://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through https://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket, visit the EPA Docket Center homepage at https://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting
comments, see the ``Public Participation'' heading of the SUPPLEMENTARY
INFORMATION section of this document.
Docket: All documents in the docket are listed in the https://www.regulations.gov index. Although
[[Page 15656]]
listed in the index, some information is not publicly available, e.g.,
CBI or other information whose disclosure is restricted by statute.
Certain other material, such as copyrighted material, will be publicly
available only in hard copy. Publicly available docket materials are
available either electronically in https://www.regulations.gov or in
hard copy at EPA Center EPA Docket Center, 1301 Constitution Ave., NW.,
Room 3334, Washington, DC 20460. The Public Reading Room is open from
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number for the Public Reading Room is (202)
566-1744, and the telephone number for the Air Docket is (202) 566-
1742.
FOR FURTHER INFORMATION CONTACT: Mr. Rick Colyer, Sector Policies and
Programs Division, Office of Air Quality Planning and Standards (D205-
02), Environmental Protection Agency, Research Triangle Park, NC 27711;
telephone number: (919) 541-5262; fax number: (919) 541-5600; e-mail
address: colyer.rick@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does This Action Apply to Me?
The regulated categories and entities potentially affected by the
proposed amendments include:
----------------------------------------------------------------------------------------------------------------
Category NAICS * code Examples of regulated entities
----------------------------------------------------------------------------------------------------------------
Polyvinyl Chloride and Copolymers 325211 Facilities that polymerize vinyl chloride monomer
Production. to produce polyvinyl chloride and/or copolymer
products.
Brick and Structural Clay Products...... 327121 Brick and structural clay tile manufacturing
facilities.
Brick and Structural Clay Products; Clay 327122 Ceramic wall and floor tile manufacturing
Ceramics. facilities and extruded tile manufacturing
facilities.
Brick and Structural Clay Products...... 327123 Other structural clay products manufacturing
facilities.
Clay Ceramics........................... 327111 Vitreous plumbing fixtures (sanitaryware)
manufacturing facilities.
Any industry or institution using a 321 Manufacturers of lumber and wood products.
boiler or process heater.
322 Pulp and paper mills.
325 Chemical manufacturers.
324 Petroleum refiners and manufacturers of coal
products.
316, 326, 339 Manufacturers of rubber and miscellaneous plastic
products.
331 Steel works, blast furnaces.
332 Electroplating, plating, polishing, anodizing, and
coloring.
336 Manufacturers of motor vehicle parts and
accessories.
221 Electric, gas, and sanitary services.
622 Health services.
611 Educational services.
Industry................................ ................. Sources in a source category ``initially listed''
and regulated under any other section 112(d)
emission standard for hazardous air pollutants
that is completely vacated by the Court of Appeals
for the District of Columbia.
----------------------------------------------------------------------------------------------------------------
* North American Industry Classification System.
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
action. If you have any questions regarding the applicability of this
action to a particular entity or operation at your facility, consult
either the air permit authority for the entity or your EPA regional
representative as listed in 40 CFR 63.13 of subpart A of this part
(General Provisions).
B. What should I consider as I prepare my comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
https://www.regulations.gov or e-mail. Clearly mark the part or all of
the information that you claim to be CBI. For CBI information in a disk
or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM
as CBI and then identify electronically within the disk or CD ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree, suggest alternatives,
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
C. Where can I get a copy of this document?
In addition to being available in the docket, an electronic copy of
this proposed action will also be available on the Worldwide Web (WWW)
through the Technology Transfer Network (TTN). Following signature, a
copy of this proposed action will be posted on the TTN's policy and
guidance page for newly proposed or promulgated rules at the following
address: https://www.epa.gov/ttn/oarpg/. The TTN provides information
and technology exchange in various areas of air pollution control.
D. When would a public hearing occur?
If anyone contacts EPA requesting to speak at a public hearing
concerning the proposed rule by April 14, 2010, we will hold a public
hearing on April 19, 2010. If you are interested in attending the
[[Page 15657]]
public hearing, contact Ms. Joan Rogers at (919) 541-4487 to verify
that a hearing will be held. If a public hearing is held, it will be
held at 10 a.m. at the EPA's Environmental Research Center Auditorium,
Research Triangle Park, NC, or an alternate site nearby.
II. Background Information for Proposed Amendments
A. What is section 112(j)?
Section 112(j) of the Clean Air Act as amended in 1990 (CAA)
provides generally that major sources in a listed category or
subcategory for which EPA fails to promulgate section 112(d) MACT
(Maximum Achievable Control Technology) standards by deadlines
established pursuant to sections 112(e)(1) and (3) of the CAA must
submit permit applications beginning 18 months after such deadlines,
and that Federal or State permit writers must then determine on a case-
by-case basis an emission limitation equivalent to the limitation that
would apply if an emission standard had been issued in a timely manner
under CAA section 112(d) of the Act. See CAA 112(j)(2)-(5).
States (with approved title V operating permit programs) or EPA
will issue permits containing MACT emission limitations determined on a
case-by-case basis to be equivalent to what would have been promulgated
by EPA. Regulations implementing section 112(j) were originally
promulgated by EPA in 1994 and amended several times since then; they
are contained in subpart B, 40 CFR 63.50 through 63.56.
B. Applicability of Section 112(j) When a Section 112(d) Rule for Major
Sources Is Vacated in Its Entirety
The United States Court of Appeals for the District of Columbia
Circuit (D.C. Circuit) vacated the national emission standards for
hazardous air pollutants (NESHAP) for the Polyvinyl Chloride and
Copolymers Production (``PVC''), Brick and Structural Clay Products
Manufacturing (``Brick''), Clay Ceramics Manufacturing (``Clay
Ceramics''), and the Industrial, Commercial and Institutional Boilers
and Process Heaters (``Boilers'') source categories. (See Mossville
Environmental Action Now v. EPA, 370 F.3d. 1232 (D.C.Cir. 2004), Sierra
Club v. EPA, 479 F.3d. 875 (D.C. Cir. 2007) and NRDC v. EPA, 489 F.3d.
1250 (D.C. Cir. 2007), respectively.) The Court vacated each of these
regulations in their entirety and issued the mandate effectuating the
vacatur of the PVC standards on May 11, 2005, the mandate effectuating
the vacatur of the Brick and Clay Ceramics standards on June 18, 2007,
and the mandate effectuating the vacatur of the Boilers standards on
July 30, 2007.
EPA's long-standing position is that the ``hammer'' requirements of
CAA section 112(j) apply in the case of a complete vacatur of a section
112(d) rule for a major source initially listed pursuant to section
112(c)(1).\1\ This position is supported by Congressional intent
reflected in the overall structure of the CAA as amended in 1990.
---------------------------------------------------------------------------
\1\ See, e.g., Federal Title V permit for Veolia ES, Technical
Services L.L.C. with a Section 112(j) limit for a gas-fired boiler
to (STATEMENT OF BASIS, Air Pollution Control Title V Permit to
Operate Permit No. V-IL-1716300103-08-01, EPA Docket ID No. EPA-R05-
OAR-2008-0235-0285.3) and materials developed in support of EPA's
request to OMB for renewal of the Section 112(j) Information
Collection Request (ICR).(``Information Collection Request for
Requirements for Control Technology Determinations from Major
Sources in Accordance with Clean Air Act Sections, Sections 112(g)
and 112(j)--Supporting Statement'' EPA Docket ID No. EPA-HQ-OAR-
2002-0038-0092), ``Reply in Support of Motion for Voluntary Vacatur
and Remand'' and ``Opposition to Petitioners' Cross-Motion to
Establish Deadline to Govern Remand'' in Natural Resources Defense
Council, et. al. v. EPA (No. 04-1385 and consolidated cases) and
``EPA's Petition for Panel Rehearing'' in Mossville Environmental
Action Now and Sierra Club v. EPA, (No. 02-1282).
---------------------------------------------------------------------------
Congress amended the CAA in 1990 by naming 190 hazardous air
pollutants and requiring EPA to promulgate emission standards to reduce
emissions of these and any additional hazardous air pollutants
subsequently identified by EPA. 42 U.S.C. 7412(b)(1), (d). Congress
first directed EPA to list categories and subcategories of major
sources that emit one or more hazardous air pollutants. 42 U.S.C.
7412(c). EPA was next required to establish technology-based MACT
standards for the listed categories and subcategories of major sources.
Id. Sec. 7412(d), (e).
Congress further required that these standards be promulgated ``as
expeditiously as practicable'' on a phased schedule, with standards for
all source categories promulgated by November 15, 2000. 42 U.S.C.
7412(e)(1)(E). Section 112(j) was enacted to ensure that these major
sources would be subject to case-by-case MACT standards even if no
national MACT standards were in place after the deadlines established
pursuant to section 112(e).
In light of Congressional intent that sources in listed source
categories be subject to either national or case-by-case MACT
standards, EPA's view is that when a section 112(d) rule establishing
MACT standards is vacated in its entirety after such deadlines, there
has been, in effect, a ``[f]ailure to promulgate a standard'' within
the meaning of section 112(j)(2).\2\ This view is also supported by
case law that establishes that to vacate means to annul or make void
and is a reasonable interpretation of section 112(j). See, e.g., Action
on Smoking Health v. CAB, 713 F.2d 795, 797-800 (D.C. Cir. 1983).
---------------------------------------------------------------------------
\2\ If only some of the MACT standards within a section 112(d)
rule applicable to a source category are vacated, EPA's view is that
section 112(j) is not applicable to such source category because
there is ``a standard'' in place.
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C. What source categories would be affected?
These amendments would immediately affect sources in any source
category ``initially listed'' in 1992 (57 FR 31576, 15991; July 16,
1992) for which all applicable MACT standards have been vacated,
namely, MACT standards for PVC, Brick, Clay Ceramics, and Boilers. In
addition, the amendments would apply to sources in any source category
``initially listed'' in 1992 (57 FR 31576, 15991; July 16, 1992) for
which a section 112(d) rule establishing MACT standards is completely
vacated in the future. It is important to note that section 112(j) and
EPA's section 112(j) regulations will apply only where there has been
or is in the future a vacatur of a section 112(d) rule establishing
MACT standards. EPA has issued section 112(d) MACT standards for all
source categories ``initially listed'' and thus a failure to promulgate
within the meaning of section 112(j) can only arise in the future if
the entire MACT regulation for such a source category is completely
vacated. Thus, the provisions in the current section 112(j) regulations
that are premised upon schedules established for issuance of MACT
standards for ``initially listed'' source categories are obsolete or
unnecessary and are revised or eliminated in today's proposal.
III. Summary of Proposed Amendments
We are proposing these amendments to clarify and streamline the
process for sources and permitting authorities to follow in
establishing case-by-case emissions limitations under section 112(j) in
the case of complete vacatur of a section 112(d) MACT standard. There
has been confusion and uncertainty among some permitting authorities
and sources as to how section 112(j) and EPA's regulations implementing
section 112(j) apply in the case of a complete vacatur of a section
112(d) rule establishing MACT standards, especially with respect to the
timing of the application process. The amendments we are proposing
today will clarify how the section 112(j) regulations apply in the case
of such vacatur. We note that EPA's proposed
[[Page 15658]]
revisions are limited primarily to revisions that will clarify and
streamline the application process when section 112(j) is triggered by
a complete vacatur. The proposed revisions will also remove obsolete or
redundant regulatory language. EPA is not revising or seeking comment
on any other provision of the section 112(j) regulations.
A. Clarification of Applicability of Section 112(j)
As discussed above in Section II.B., EPA's long-standing position
is that section 112(j) applies in the case of the complete vacatur of a
section 112(d) rule establishing MACT standards for an initially listed
major source. We are proposing language changes within the rule to
clarify the applicability of section 112(j) in the case of such a
complete vacatur. Specifically, we are proposing to revise the
definition of the affected source to identify the triggering mechanism
for section 112(j) from when ``the Administrator has failed to
promulgate emission standards by the section 112(j) deadline'' to when
``there is no section 112(d) standard in place on or after the section
112(j) deadline.'' This is consistent with EPA's view that when there
has been a complete vacatur of a section 112(d) rule establishing MACT
standards, there has been in effect a ``[f]ailure to promulgate a
standard'' within the meaning of section 112(j).
We are also proposing minor revisions to the regulations to further
clarify the applicability of section 112(j) and to reduce redundancies.
For example, where the rule language refers to section 112(d) or (h)
standards, as in the definition of ``Equivalent Emission Limitation,''
we are proposing to delete the reference to 112(h) to eliminate
redundancy because a 112(h) standard falls within the definition of a
112(d) standard (see section 112(d)(2)(D)).
Further, we are proposing to add a definition of ``Listed Source
Category or Subcategory'' to clarify which source categories would be
potentially subject to section 112(j) in the event that a section
112(d) rule for a major source is vacated in its entirety. This
definition would specify that only those categories and subcategories
on the initial 1992 source category list would be potentially affected.
Section 112(j) applies to categories or subcategories of sources that
are subject to a schedule for promulgation of MACT standards pursuant
to section 112(e)(1) and (3) (See section 112(j)(2)). The scheduling
requirements of section 112(e)(1) and (e)(3) apply to categories and
subcategories of sources ``initially listed'' for regulation pursuant
to section 112(c)(1). Thus, source categories listed after the initial
listing (such as coal-and oil-fired electric generating units) that
were not initially listed pursuant to section 112(c)(1) and thus are
not covered by the schedules in section 112 (e)(1) and (e)(3), are not
subject to section 112(j). See 57 FR 31576, 15991 (July 16, 1992)
(initial source category list) and 58 FR 63941 (Dec. 3, 1993) (schedule
establishing deadlines for the promulgation of emission standards for
the categories of sources initially listed pursuant to section
112(c)(1) and (3)).
B. Permit Application Content
We are proposing to streamline the permit application by combining
the Part 1 and Part 2 permit application. The original section 112(j)
rule had a single permit application. We created the bifurcated process
in 2003 (68 FR 32586; May 30, 2003) to allow a source additional time
to compile the information necessary for the permitting authority to
make a MACT floor determination. We find this bifurcation to be
unnecessary now that section 112(j) is only applicable to sources in
source categories for which a section 112(d) rule has been or will be
vacated in its entirety. As discussed below, under the circumstances
surrounding complete vacatur of a section 112(d) rule, many sources
will have already compiled and submitted to the permitting authority
the information required by a section 112(j) application. We are
proposing no other changes to the permit application content. However,
we are proposing to retain the requirement that sources seeking
equivalency determinations pursuant to 63.52(e)(2)(ii) submit
information that would be submitted as part of a Part 1 application
under the current rule, i.e., the information set out at 63.53(a)(1)-
(4). Today's proposal changes that heading for section 63.53(a) from
``Part 1 MACT application'' to ``Section 112(g) equivalency
determination request.''
C. Section 112(j) Permit Application Deadline
We are proposing to establish the deadline for submittal of a
permit application to obtain a section 112(j) limit in the case of a
complete vacatur by redefining ``Section 112(j) Deadline.'' For those
source categories for which the mandate effectuating the complete
vacatur of the MACT rule was issued over 18 months ago, namely the
Boilers, Brick, Clay Ceramics, and PVC source categories, we are
proposing to revise 40 CFR 63.52(a) \3\ to require that sources in
those categories submit permit applications the earlier of 90 days
after promulgation of these amendments or the date by which the
source's permitting authority has requested in writing a section 112(j)
Part 2 application.
---------------------------------------------------------------------------
\3\ 40 CFR 63.52(a) applies to sources subject to section 112(j)
as of the section 112(j) deadline.
---------------------------------------------------------------------------
We have selected 90 days consistent with the timing set forth in 40
CFR 63.52(a)(2) of the current rule.\4\ The above proposed approach
recognizes that there may have been some uncertainty as to the
application of section 112(j) after the complete vacatur of the PVC,
Brick, Clay Ceramics, and Boiler MACT standards. Under the existing
section 112(j) regulations, where a source subject to section 112(j) as
of the section 112(j) deadline is not able to ``reasonably determine''
that one or more sources at the major source belong in the category or
subcategory subject to section 112(j), pursuant to section 40 CFR
63.52(a)(2) of the current regulations, notification by the permitting
authority initiates the 30-day period for submittal of a Part 1
application. Under such circumstances, the current rule provides that
the Part 2 application is due 60 days after the date that the Part 1
application is due (40 CFR 63.52(e)(1)). EPA is proposing to revise the
regulation to provide that for sources in the PVC, Brick, Clay Ceramics
and Boiler source categories subject to section 112(j) as of the
section 112(j) deadline, a section 112(j) application is due the
earlier of 90 days after the date of promulgation of the revisions or
by the date specified by the source's permitting authority for
submittal of a Part 2 permit application. In either case, sources will
have had at least 90 days notice of the obligation to submit a section
112(j) application. If a section 112(d) rule establishing emission
standards for a category of major sources is vacated in the future, we
are proposing that permit applications be submitted within 18 months
after the date of the court mandate effectuating the complete vacatur
of the standards applicable to such sources covered by 40 CFR 63.52(a)
(sources subject to section 112(j) as of the 112(j) deadline).
---------------------------------------------------------------------------
\4\ As explained in section III. D. of this preamble, we are
deleting 63.52(a)(2) of the current rule.
---------------------------------------------------------------------------
We believe that these deadlines would provide sufficient time for
the source owner or operator to prepare a permit application for
submittal. Sources in the PVC, Brick, Clay Ceramics and Boilers source
categories that were unsure of the applicability of section 112(j) have
at least 90 days notice of their obligation to complete the permit
application process as
[[Page 15659]]
contemplated by the current regulations. This proposed rule also serves
to provide notice of when applications will be due if these rule
amendments are promulgated as proposed. Further, many sources will have
had much more notice by virtue of communications with permitting
authorities. If a section 112(d) rule establishing emission standards
for a major source category is vacated in the future, a source would
have up to 18 months after the date of the mandate effectuating the
vacatur to prepare its permit application. Eighteen months is
consistent with the timing for submittal of section 112(j) permit
applications provided for in section 112(j)(2) of the CAA.
In both cases sources and permitting authorities should already
have most, if not all, of the information required to be included in
the application for a section 112(j) case-by-case limit. Sources that
were subject to the vacated PVC, Brick, Clay Ceramics and Boilers
standards should have previously compiled and provided information to
the permitting authority in the process of obtaining their title V
permit conditions for meeting the standards before such standards were
vacated. Pulling the existing information together in a permit
application for case-by-case MACT and reviewing it prior to submittal
to the permitting authority should add little additional burden. This
is also likely to be the case in the event of any future vacaturs,
especially given the 18 month period for submittal of applications.
EPA seeks comments on the 90 day period and whether a longer or
shorter time period for submission of applications is appropriate for
the PVC, Brick, Clay Ceramics and Boiler source categories. We also are
seeking comments on our proposal to establish an earlier deadline when
a permitting authority has notified a source in the PVC, Brick, Clay
Ceramics and Boiler source categories that it is obligated to submit a
Part 2 application on a date that falls before 90 days after
promulgation of the final rule. We further solicit comment on whether
the deadline for applications should be 90 days after promulgation of
the final rule in every case for the PVC, Brick, Clay Ceramics and
Boiler source categories.
D. Elimination of Current Provisions Relating to Questions of
Applicability in Sec. 63.52(a)(2), (d)(1), and (e)(2)
The current rule provides for the owner or operator of a source to
request an applicability determination from a permitting authority in
the event that they are unsure whether or not the source is in a
covered category or subcategory.
We are proposing to eliminate applicability determination requests.
The provisions governing applicability determinations have become
obsolete because they are premised upon and tied to dates and time
periods in the section 112(j) regulations that have expired (See Sec.
63.52(e)(2)(i)). Further, we believe requests for applicability
determinations are no longer necessary. With the exception of some
sources that were subject to the vacated Boilers MACT, sources should
know whether or not they are within a source category for a vacated
rule because the definition of source in the vacated rule should
provide sufficient guidance as to applicability. Some portion of
boilers that were subject to the vacated boiler MACT rule, however, may
be designated solid waste incineration units if they combust solid
waste, as that term is defined in section 129(g). The Agency is in the
process of defining the term ``solid waste'' under Subtitle D of the
Resource Conservation and Recovery Act (RCRA). We anticipate that there
will be further clarification of that issue by the time sources have to
submit section 112(j) permit applications in light of EPA's intent to
propose a rule defining the term ``solid waste'' under Subtitle D of
RCRA by April 2010.
Sources are free to consult with permitting authorities to resolve
applicability issues before submitting a section 112(j) permit
application or can submit a section 112(j) application as a protective
measure and work with the permitting authority during the completeness
determination phase to resolve applicability issues.
For the same reason, we are eliminating section 63.52(a)(2) of the
current rule. As explained above, section 63.52(a)(2) of the current
rule provides that, when a source is not able to ``reasonably
determine'' that one or more sources at the major source belong in the
category or subcategory subject to section 112(j), notification by the
permitting authority initiates the 30-day period for submittal of a
Part 1 application. For the reasons explained above, we believe that
there should not be uncertainty as to the obligation to submit a
section 112(j) permit application. As noted above, if there is
uncertainty, the source can consult with the permitting authority to
resolve such issues before submittal of a section 112(j) application or
submit a section 112(j) application as a protective measure and work
with the permitting authority during the completeness determination
phase to resolve applicability issues.
E. Other Minor Edits
We have made minor edits and corrections to the definition of
``Available Information.'' One correction identifies ``8'' information
sources instead of the erroneous ``5'' in the last sentence prior to
the list. The second correction is to replace the term ``Part 2 MACT''
application to ``Permit'' application to conform with the streamlining
discussed in section III.B. Finally, in information source(5), we have
revised language from ``Aerometric Information Retrieval System
(AIRS)'' which no longer exists, by providing an example EPA database,
the ``Air Facility Subsystem.''
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is a ``significant regulatory action'' because it may raise
novel legal or policy issues. Accordingly, EPA submitted this action to
OMB for review under Executive Order 12866, and any changes made in
response to OMB recommendations have been documented in the docket for
this action.
B. Paperwork Reduction Act
The information collection requirements in this proposed rule have
been submitted for approval to OMB under the Paperwork Reduction Act,
44 U.S.C. 3501, et seq. The Information Collection Request (ICR)
document prepared by EPA has been assigned EPA ICR number 1648.07.
The permit application requirements in the proposed rule are
required in subpart B of part 63. All information submitted to EPA
pursuant to the information collection requirements for which a claim
of confidentiality is made is safeguarded according to CAA section
114(c) and the Agency's implementing regulations at 40 CFR part 2,
subpart B. The proposed information collection requirements consist of
a title V permit application or revision, or a request for a section
112(g) equivalency determination.
We estimate that these amendments would affect about 19 PVC
sources, 122 Brick and Structural Clay sources, 8 Clay Ceramics
sources, and 15,500 individual Boilers.
The annual burden for this information collection averaged over the
first 3 years of this ICR is estimated to total 83,670 labor hours per
year at a cost of $6.59 million for the estimated total number of
sources. Burden is defined at 5 CFR 1320.3(b).
[[Page 15660]]
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR part 63 are listed in 40 CFR part 9.
To comment on the Agency's need for this information, the accuracy
of the provided burden estimates, and any suggested methods for
minimizing respondent burden, EPA has established a public docket for
this rule, which includes this ICR, under Docket ID number EPA-HQ-OAR-
2009-0746. Submit any comments related to the ICR to EPA and OMB. See
ADDRESSES section at the beginning of this notice for where to submit
comments to EPA. Send comments to OMB at the Office of Information and
Regulatory Affairs, Office of Management and Budget, 725 17th Street,
NW., Washington, DC 20503, Attention: Desk Office for EPA. Since OMB is
required to make a decision concerning the ICR between 30 and 60 days
after March 30, 2010, a comment to OMB is best assured of having its
full effect if OMB receives it by April 29, 2010. The final rule will
respond to any OMB or public comments on the information collection
requirements contained in this proposal.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule would not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small not-for-profit enterprises, and small governmental jurisdictions.
For the purposes of assessing the impacts of the proposed
amendments on small entities, small entity is defined as: (1) A small
business that meets the Small Business Administration size standards
for small businesses found at 13 CFR 121.201 (less than 500, 750, or
1,000 employees depending on the category); (2) a small governmental
jurisdiction that is a government of a city, county, town, school
district, or special district with a population of less than 50,000;
and (3) a small organization that is any not-for-profit enterprise
which is independently owned and operated and is not dominant in its
field.
After considering the economic impacts of the proposed amendments
on small entities, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
These proposed amendments merely clarify the application process for
obtaining case-by-case MACT limits in the case of complete vacatur of a
112(d) MACT rule. The requirements of the current rule and the
amendments proposed today implement existing CAA requirements and do
not impose additional requirements not already required by the CAA.
Therefore, this rule does not impose any new costs. Section 112(j) of
the Clean Air Act requires sources to submit applications for case-by-
case limits and requires permitting authorities to develop case-by-case
limits (See 112(j)(3)-(5)). These proposed amendments do not establish
any new section 112 standards. Case-by-case standards are developed by
the permitting authority, which in most cases is a State. In addition,
as is explained above, these proposed amendments narrow the
applicability of the current section 112(j) regulations to major
sources in source categories for which a MACT standard was promulgated
and subsequently vacated in its entirety. Further, because this rule
only applies to source categories for which a MACT standard was
promulgated and subsequently vacated, permitting authorities and
sources should already have a significant amount of the information
required in the permit application for a case-by-case MACT limit.
Sources that were subject to the vacated PVC, Brick, Clay Ceramics and
Boilers standards should have previously compiled and provided
information to the permitting authority in the process of obtaining
their title V permit conditions for meeting the standards before such
standards were vacated. Pulling the existing information together in a
permit application for case-by-case MACT and reviewing it prior to
submittal to the permitting authority should add little additional
burden. This is also likely to be the case in the event of any future
vacaturs. Sources are allowed to reference previously submitted
information. Additional effort could include pulling the information
together, reviewing the information, and submitting the application.
EPA does not expect this additional effort to be significant. In
addition, sources can recommend emission limitations and other
requirements, but the proposed amendments do not require this. Finally,
this certification is consistent with EPA's certification that the
current 112(j) would not have a significant economic impact on a
substantial number of small entities.
We continue to be interested in the potential impacts of the
proposed amendments on small entities and welcome comments on issues
related to such impacts.
D. Unfunded Mandates Reform Act
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for State, local, and tribal governments or the private
sector. This action imposes no enforceable duty on any State, local,
tribal governments or the private sector.
This action is also not subject to the requirements of section 203
of UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments not otherwise
required by the CAA. The proposed amendments contain no requirements
that apply to such governments, and impose no obligations upon them.
E. Executive Order 13132: Federalism
These proposed amendments do not have federalism implications. It
will not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132. This action
implements existing CAA requirements on owners and operators of
specified major sources and does not impose additional requirements on
State and local governments not specified in the CAA. Thus, Executive
Order 13132 does not apply to these proposed amendments.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
government, EPA specifically solicits comments on the proposed
amendments from State and local officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). This action
would not have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes. The action implements existing CAA
requirements on owners and operators of specified major sources and
does not
[[Page 15661]]
impose additional requirements on tribal governments not already
required by the CAA. Thus, Executive Order 13175 does not apply to this
action.
EPA specifically solicits additional comment on this proposed
action from tribal officials.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying to those regulatory actions that concern health or safety
risks, such that the analysis required under section 5-501 of the Order
has the potential to influence the regulation. This action is not
subject to Executive Order 13045 because it is based solely on
technology performance.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Further, we have concluded that these
proposed amendments are not likely to have any adverse energy impacts.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113 (15 U.S.C. 272 note) directs
EPA to use voluntary consensus standards (VCS) in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. VCS are technical standards (e.g., materials
specifications, test methods, sampling procedures, and business
practices) that are developed or adopted by VCS bodies. NTTAA directs
EPA to provide Congress, through OMB, explanations when the Agency
decides not to use available and applicable VCS.
This proposed rulemaking does not involve technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards.
J. Executive Order 12898: Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this action will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it increases the
level of environmental protection for all affected populations without
having any disproportionately high and adverse human health or
environmental effects on any population, including any minority or low-
income population. The proposed amendments require permitting
authorities to develop case-by-case emission limits for all sources in
each source category for which standards have been vacated.
List of Subjects in 40 CFR Part 63
Environmental protection, Air pollution control, Hazardous
substances, Reporting and recordkeeping requirements.
Dated: March 24, 2010.
Lisa P. Jackson,
Administrator.
For the reasons stated in the preamble, title 40, chapter I, part
63 of the Code of Federal Regulations is proposed to be amended as
follows:
PART 63--[AMENDED]
1. The authority citation for part 63 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart B--[Amended]
2. Section 63.50 is amended by:
a. Revising the first sentence of paragraph (a)(2)(i);
b. Revising paragraph (c); and
c. Revising the first sentence of paragraph (d) to read as follows:
Sec. 63.50 Applicability.
(a) * * *
(2) * * *
(i) The owner or operator of affected sources within a listed
source category or subcategory under this part that are located at a
major source that is subject to an approved title V permit program and
for which there is no section 112(d) emission standard in place on or
after the section 112(j) deadline. * * *
* * * * *
(c) The procedures in Sec. Sec. 63.50 through 63.56 apply for each
affected source only after its section 112(j) deadline has passed and
there is no generally applicable Federal standard governing that source
under section 112(d) of the Act. If a generally applicable Federal
standard governing that source is in place, the owner or operator of
the affected source and the permitting authority are not required to
take further action to develop an equivalent emission limitation under
section 112(j) of the Act.
(d) Any final equivalent emission limitation for an affected source
which is issued by the permitting authority pursuant to Sec. Sec.
63.50 through 63.56 prior to promulgation of a generally applicable
Federal standard governing that source under section 112(d) of the Act
shall be deemed an applicable Federal requirement adopted pursuant to
section 112(j) of the Act. * * *
3. Section 63.51 is amended by:
a. Revising the definition of Affected source;
b. Revising the definition of Available information;
c. Revising the definition of Equivalent emission limitation;
d. Revising the definition of Section 112(j) deadline; and
e. Adding in alphabetical order a definition for Listed source
category or subcategory to read as follows:
Sec. 63.51 Definitions.
* * * * *
Affected source means the collection of equipment, activities, or
both within a single contiguous area and under common control that is
in a listed source category or subcategory for which there is no
section 112(d) emission standard on or after the section 112(j)
deadline, and that is addressed by an applicable MACT emission
limitation established pursuant to this subpart.
Available information means, for purposes of conducting a MACT
floor finding and identifying control technology options under this
subpart, any information that is available as of the date on which the
first permit application under this subpart is filed for a source in
the relevant source category or subcategory in the State or
jurisdiction; and, pursuant to the requirements of this subpart, is
additional relevant information that can be expeditiously provided by
the Administrator, is submitted by the applicant or others prior to or
during the public comment period on the section 112(j) equivalent
emission limitation for that source, or information contained in any of
the information sources in paragraphs (1) through (8) of this
definition.
[[Page 15662]]
(1) A relevant proposed regulation, including all supporting
information;
(2) Relevant background information documents for a draft or
proposed regulation;
(3) Any relevant regulation, information or guidance collected by
the Administrator establishing a MACT floor finding and/or MACT
determination;
(4) Relevant data and information available from the Clean Air
Technology Center developed pursuant to section 112(l)(3) of the Act;
(5) Relevant data and information contained in EPA databases such
as the Air Facility Subsystem;
(6) Any additional information that can be expeditiously provided
by the Administrator;
(7) Any information provided by applicants in an application for a
permit, permit modification, administrative amendment, or Notice of
MACT Approval pursuant to the requirements of this subpart; and
(8) Any additional relevant information provided by the applicant.
* * * * *
Equivalent emission limitation means an emission limitation,
established under section 112(j) of the Act, which is equivalent to the
MACT standard that EPA would have promulgated under section 112(d) of
the Act.
Listed source category or subcategory means a source category or
subcategory initially listed pursuant to section 112(c)(1) at 57 FR
31576, 15991 (July 16, 1992).
* * * * *
Section 112(j) deadline means:
(1) for a source in the Polyvinyl Chloride and Copolymers
Production, Brick and Structural Clay Products Manufacturing, Clay
Ceramics Manufacturing, or the Industrial, Commercial and Institutional
Boilers and Process Heaters source category, the earlier of [THE DATE
90 DAYS AFTER THE PROMULGATION DATE IN THE FEDERAL REGISTER] or the
date by which the source's permitting authority has requested in
writing a section 112(j) permit application containing the information
set out in section 63.53(b); or
(2) for any other major source in a listed source category or
subcategory, 18 months after the date of a court mandate effectuating
the complete vacatur of a section 112(d) rule applicable to such
source.
* * * * *
4. Section 63.52 is amended by:
a. Revising the first sentence of paragraph (a) introductory text;
b. Revising paragraph (a)(1);
c. Removing paragraph (a)(2) and redesignating paragraph (a)(3) as
(a)(2);
d. Revising newly designated paragraph (a)(2) introductory text;
e. Revising the first sentence of newly designated paragraph
(a)(2)(i);
f. Revising the second sentence of newly designated paragraph
(a)(2)(ii);
g. Revising the first sentence of paragraph (b)(1);
h. Revising the third sentence of paragraph (b)(2);
i. Revising the first sentence of paragraph (b)(3);
j. Revising the first sentence of paragraph (b)(4);
k. Revising paragraph (c) introductory text;
l. Revising the first sentence of paragraph (c)(2);
m. Revising paragraph (d);
n. Revising paragraphs (e)(1), (e)(2), (e)(3), and (e)(4); and
o. Revising paragraph (g) to read as follows:
Sec. 63.52 Approval process for new and existing affected sources.
(a) Sources subject to section 112(j) as of the section 112(j)
deadline. The requirements of paragraph (a)(1) of this section apply to
major sources that include, as of the section 112(j) deadline, one or
more sources in a category or subcategory for which there is no section
112(d) emission standard in place on or after the section 112(j)
deadline. * * *
(1) The owner or operator must submit an application for a title V
permit or for a revision to an existing title V permit or a pending
title V permit meeting the requirements of Sec. 63.53(b) by the
section 112(j) deadline unless the owner or operator has submitted a
request for 112(g) equivalency determination under paragraph (a)(2) of
this section.
(2) The requirements in paragraphs (a)(2)(i) through (ii) of this
section apply when the owner or operator has obtained a title V permit
that incorporates a case-by-case MACT determination by the permitting
authority under section 112(g) or has submitted a title V permit
application for a revision that incorporates a case-by-case MACT
determination under section 112(g), but has not submitted an
application for a title V permit revision that addresses the emission
limitation requirements of section 112(j).
(i) When the owner or operator has a title V permit that
incorporates a case-by-case MACT determination by the permitting
authority under section 112(g), the owner or operator must submit a
request meeting the requirements of Sec. 63.53(a) for a title V permit
revision within 30 days of the section 112(j) deadline. * * *
(ii) * * * Within 30 days of issuance of that title V permit, the
owner or operator must submit a request meeting the requirements of
Sec. 63.53(a) for an equivalency determination. * * *
(b) * * *
(1) When one or more sources in a category or subcategory subject
to the requirements of this subpart are installed at a major source, or
result in the source becoming a major source due to the installation,
and the installation does not invoke section 112(g) requirements, the
owner or operator must submit an application meeting the requirements
of Sec. 63.53(b) within 30 days of startup of the source. * * *
(2) * * * Within 30 days of issuance of that title V permit, the
owner or operator must submit a request meeting the requirements of
Sec. 63.53(a) for an equivalency determination. * * *
(3) The owner or operator of an area source that, due to a
relaxation in any federally enforceable emission limitation (such as a
restriction on hours of operation), increases its potential to emit
hazardous air pollutants such that the source becomes a major source
that is subject to this subpart, must submit an application meeting the
requirements of Sec. 63.53(b) for a title V permit or for an
application for a title V permit revision within 30 days after the date
that such source becomes a major source. * * *
(4) On or after April 5, 2002, if the Administrator establishes a
lesser quantity emission rate under section 112(a)(1) of the Act that
results in an area source becoming a major source that is subject to
this subpart, then the owner or operator of such a major source must
submit an application meeting the requirements of Sec. 63.53(b) for a
title V permit or for a change to an existing title V permit or pending
title V permit on or before the date 6 months after the date that such
source becomes a major source. * * *
(c) Sources that have a title V permit addressing section 112(j)
requirements. The requirements of paragraphs (c)(1) and (2) of this
section apply to major sources within a listed source category or
subcategory for which there is no section 112(d) emission standard in
place on or after the section 112(j) deadline, and the owner or
operator has a permit meeting the section 112(j) requirements, and
where changes occur at the major source to equipment, activities, or
both, subsequent to the section 112(j) deadline.
* * * * *
(2) If the title V permit does not contain the appropriate
requirements
[[Page 15663]]
that address the events that occur under paragraph (c) of this section
subsequent to the section 112(j) deadline, then the owner or operator
must submit an application for a revision to the existing title V
permit that meets the requirements of Sec. 63.53(b). * * *
(d) Requests for notice of MACT approval. In addition to meeting
the requirements of paragraphs (a), (b), and (c) of this section, the
owner or operator of a new affected source may submit an application
for a Notice of MACT Approval before construction, pursuant to Sec.
63.54.
(e) * * *
(1) Permit applications must be reviewed by the permitting
authority according to procedures established in Sec. 63.55. The
resulting MACT determination must be incorporated into the source's
title V permit according to procedures established under title V, and
any other regulations approved under title V in the jurisdiction in
which the affected source is located.
(2) As specified in paragraphs (a) and (b) of this section, an
owner or operator who has submitted a request meeting the requirements
of Sec. 63.53(a) may request a determination by the permitting
authority of whether emission limitations adopted pursuant to a prior
case-by-case MACT determination under section 112(g) that apply to one
or more sources at a major source in a relevant category or subcategory
are substantially as effective as the emission limitations which the
permitting authority would otherwise adopt pursuant to section 112(j)
for the source in question. Each request for an equivalency
determination under this paragraph (e)(2) will be construed in the
alternative as a complete application for an equivalent emission
limitation under section 112(j). The process for determination by the
permitting authority of whether the emission limitations in the prior
case-by-case MACT determination are substantially as effective as the
emission limitations which the permitting authority would otherwise
adopt under section 112(j) must include the opportunity for full
public, EPA, and affected State review prior to a final determination.
If the permitting authority determines that the emission limitations in
the prior case-by-case MACT determination are substantially as
effective as the emission limitations which the permitting authority
would otherwise adopt under section 112(j), then the permitting
authority must adopt the existing emission limitations in the permit as
the emission limitations to effectuate section 112(j) for the source in
question. If more than 3 years remain on the current title V permit,
the owner or operator must submit an application for a title V permit
revision to make any conforming changes in the permit required to adopt
the existing emission limitations as the section 112(j) MACT emission
limitations. If less than 3 years remain on the current title V permit,
any required conforming changes must be made when the permit is
renewed. If the permitting authority determines that the emission
limitations in the prior case-by-case MACT determination under section
112(g) are not substantially as effective as the emission limitations
which the permitting authority would otherwise adopt for the source in
question under section 112(j), the permitting authority must make a new
MACT determination and adopt a title V permit incorporating an
appropriate equivalent emission limitation under section 112(j). Such a
determination constitutes final action for purposes of judicial review
under 40 CFR 70.4(b)(3)(x) and corresponding State title V program
provisions.
(3) Within 60 days of submittal of the permit application, the
permitting authority must notify the owner or operator in writing
whether the application is complete or incomplete. The permit
application shall be deemed complete on the date it was submitted
unless the permitting authority notifies the owner or operator in
writing within 60 days of the submittal that the permit application is
incomplete. A permit application is complete if it is sufficient to
begin processing the application for a title V permit addressing
section 112(j) requirements. In the event that the permitting authority
disapproves a permit application or determines that the application is
incomplete, the owner or operator must revise and resubmit the
application to meet the objections of the permitting authority. The
permitting authority must specify a reasonable period in which the
owner or operator is required to remedy the deficiencies in the
disapproved or incomplete application. This period may not exceed 6
months from the date the owner or operator is first notified that the
application has been disapproved or is incomplete.
(4) Following submittal of a permit application, the permitting
authority may request additional information from the owner or
operator. The owner or operator must respond to such requests in a
timely manner.
* * * * *
(g) Permit issuance dates. The permitting authority must issue a
title V permit meeting section 112(j) requirements within 18 months
after submittal of the complete permit application.
* * * * *
5. Section 63.53 is amended by:
a. Revising the section heading;
b. Revising paragraph (a) introductory text; and
c. Revising paragraphs (b) introductory text, (b)(1), (b)(2), and
(b)(3) introductory text.
Sec. 63.53 Section 112(g) equivalency determination requests and
application content for case-by-case MACT determinations.
(a) Section 112(g) equivalency determination request. A section
112(g) equivalency determination request must contain the information
in paragraphs (a)(1) through (4) of this section.
* * * * *
(b) Permit application. (1) In compiling a permit application, the
owner or operator may cross-reference specific information in any prior
submission by the owner or operator to the permitting authority, but in
cross-referencing such information the owner or operator may not
presume favorable action on any prior application or request which is
still pending. In compiling a permit application, the owner or operator
may also cross-reference any part of a standard proposed by the
Administrator pursuant to section 112(d) of the Act for any category or
subcategory which includes sources to which the permit application
applies.
(2) The permit application for a MACT determination must contain
the information in paragraphs (b)(2)(i) through (b)(2)(vi) of this
section.
(i) The information required by paragraph (a) of this section if a
request for 112(g) equivalency was not previously submitted.
(ii) For a new affected source, the anticipated date of startup of
opera
