Technical
Document
for
Promulgation
of
Amendments
to
Standards
National
Emission
Standards
for
Hazardous
Air
Pollutants
for
Source
Categories:
General
Provisions;
and
Requirements
for
Control
Technology
Determinations
for
Major
Sources
in
Accordance
with
Clean
Air
Act
Sections,
Sections
112(
g)
and
112(
j)

Comment
and
Response
Summary
May
8,
2003
Prepared
by:
EC/
R,
Inc.
6330
Quadrangle
Drive,
Suite
325
Chapel
Hill,
NC
27517
Prepared
for:
Eastern
Research
Group,
Inc
1600
Perimeter
Park
Morrisville,
NC
27560
EPA
Contract
No.
68­
D­
01­
078
Work
Assignment
No.
1­
12
ii
TABLE
OF
CONTENTS
1.0
SUMMARY
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1
2.0
SUMMARY
OF
PUBLIC
COMMENTS
AND
RESPONSES
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5
2.1
SUBPART
A,
GENERAL
PROVISIONS
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5
2.1.1
SUBMITTING
SSM
PLANS
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5
2.1.2
REVISING
SSM
PLANS
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11
2.1.3
REPORTING
STARTUPS,
SHUTDOWNS,
AND
MALFUNCTIONS
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13
2.1.4
GENERAL
DUTY
CLAUSE
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16
2.1.5
MONITORING
DEFINITION
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18
2.1.6
COMPLIANCE
REPORTS
FOR
ACTIVITIES
WITH
SAME
COMPLIANCE
DATE
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19
2.2
SUBPART
B,
SECTION
112(
j)
PROVISIONS
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19
2.2.1
PHASED
APPROACH
FOR
PART
2
APPLICATION
DEADLINES
.
19
2.2.2
DELAYED
PROMULGATION
OF
MACT
STANDARDS
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21
2.2.3
DEADLINES
FOR
SPECIFIC
SOURCE
CATEGORIES
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22
2.2.4
CONTENT
OF
PART
2
APPLICATIONS
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25
2.2.5
APPLICABILITY
DETERMINATIONS
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28
2.2.6
EQUIVALENCY
DETERMINATIONS
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33
2.2.7
PROCESS
TO
WITHDRAW
PART
1
APPLICATIONS
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34
2.2.8
DISCRETION
TO
EXTEND
SECTION
112(
j)
PERMIT
DEADLINES
.
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35
2.2.9
ADEQUACY
OF
REVIEW
OF
SETTLEMENT
AGREEMENT
.
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36
LIST
OF
TABLES
TABLE
1.
LIST
OF
COMMENTERS
ON
THE
PROPOSED
AMENDMENTS
TO
THE
NESHAP
GENERAL
PROVISIONS
(
40
CFR
63,
SUBPART
A)
AND
CONTROL
TECHNOLOGY
DETERMINATION
REQUIREMENTS
(
40
CFR
63,
SUBPART
B)
.
.
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1
1
1.0
SUMMARY
EPA
proposed
amendments
to
the
National
Emission
Standards
for
Hazardous
Air
Pollutants
(
NESHAP)
for
Source
Categories:
General
Provisions;
and
Requirements
for
Control
Technology
Determination
for
Major
Sources
in
Accordance
with
Clean
Air
Act
sections
112(
g)
and
112(
j).
These
amendments
were
published
in
the
Federal
Register
on
December
9,
2002
(
67
FR
72875).
The
purpose
of
this
document
is
to
present
a
summary
of
the
public
comments
received
on
the
proposed
standards
and
the
responses
developed
by
EPA.
This
summary
of
comments
and
responses
serves
as
the
basis
for
revisions
made
to
the
standards
between
proposal
and
promulgation
of
the
amendments.

The
docket
contains
73
comment
submissions
on
the
proposed
amendments,
including
the
transcript
of
the
public
hearing
that
was
held
on
December
19,
2002
(
see
item
IV­
D­
58).
The
commenters
represent
the
following
affiliations:
industry
(
44
companies),
industrial
trade
associations
(
30),
one
State
and
local
agency
association,
one
State
agency,
one
other
Government
agency,
and
one
environmental
organization
[
Multiple
groups
signing
the
same
letter
were
counted
as
separate
groups].
Some
of
these
commenters
supported
by
reference
the
substantive
comments
made
by
others.
Table
1
presents
a
listing
of
all
persons
submitting
written
comments,
their
affiliation,
and
the
docket
item
number
for
their
comments.
The
docket
number
for
this
rulemaking
is
OAR­
2002­
0038.

TABLE
1.
LIST
OF
COMMENTERS
ON
THE
PROPOSED
AMENDMENTS
TO
THE
NESHAP
GENERAL
PROVISIONS
(
40
CFR
63,
SUBPART
A)
AND
CONTROL
TECHNOLOGY
DETERMINATION
REQUIREMENTS
(
40
CFR
63,
SUBPART
B)

Item
Number
Commenter,
Addressee,
Title
or
Description,
etc.
Date
of
Document
IV­
D­
01
Lloyd
Eagan,
Director,
Bureau
of
Air
Management,
Madison,
WI
01­
08­
03
IV­
D­
02
Alison
Keane,
Counsel,
Government
Affairs,
and
David
Darling,
Director,
Environmental
Affairs,
National
Paint
and
Coatings
Association
(
NPCA),
Washington,
D.
C.
01­
14­
03
IV­
D­
03
Norbert
Dee,
Ph.
D.,
Director
Environmental
Affairs,
National
Petrochemical
&
Refiners
Association,
Washington,
D.
C.
01­
16­
03
IV­
D­
04
Donald
R.
Schregardus,
Deputy
Assistant
Secretary
of
the
Navy
(
Environment),
Washington,
D.
C.
01­
16­
03
IV­
D­
05
Gary
E.
Mosher,
VP
Environmental
Health
&
Safety,
American
Foundry
Society,
Inc.,
Des
Plaines,
IL.
01­
15­
03
IV­
D­
06
R.
Scott
Thomas,
Corporate
Director
Environmental
Affairs,
The
Sherwin­
Williams
Company,
Cleveland,
OH
01­
16­
03
IV­
D­
07
Valerie
Ughetta,
Director
of
Stationary
Sources,
The
Alliance
of
Automobile
Manufacturers
(
the
Alliance),
Washington,
D.
C.
01­
17­
03
IV­
D­
08
Jeffrey
Henninger,
Manager­
Environmental,
Air
Products
and
Chemicals,
Inc.;
Allentown,
PA
01­
15­
03
Item
Number
Commenter,
Addressee,
Title
or
Description,
etc.
Date
of
Document
2
IV­
D­
09
Andrew
T.
O'Hare,
Vice
President,
Regulatory
Affairs,
Portland
Cement
Association
and
Michel
R.
Benoit,
Executive
Director,
Cement
Kiln
Recycling
Coalition,
The
Portland
Cement
Association
(
PCA),
Washington,
D.
C.
01­
19­
03
IV­
D­
10
Angela
M.
DeConti,
Manager,
Government
Relations,
The
Synthetic
Organic
Chemical
Manufacturers
Association
(
SOCMA),
Washington,
D.
C.
01­
17­
03
IV­
D­
11
Allen
M.
Stegman,
Corporate
Manager
of
Environmental
Affairs,
The
Valspar
Corporation.
1­
17­
03
IV­
D­
12
John
F.
Pleasant
III,
Director,
Environmental
Services,
United
States
Pipe
Foundry
Co.,
Inc.
Birmingham,
Al
01­
20­
03
IV­
D­
13
James
Pew,
EarthJustice
01­
20­
03
IV­
D­
14
Geoffrey
Cullen,
Director
of
Governmental
Relations,
The
Can
Manufacturers
Institute,
Washington,
D.
C.
01­
20­
03
IV­
D­
15
Larry
C.
Salmela,
Department
Manager,
Environmental,
Safety
&
Hygiene,
United
States
Steel
Corporation,
Mt.
Iron,
MI
01­
20­
03
IV­
D­
16
Michael
W.
Stroben,
EHS
Manager,
Corporate
Environment,
Health
&
Safety,
Duke
Energy,
Charlotte,
N.
C.
01­
20­
03
IV­
D­
17
Charles
H.
Knauss,
Swidler,
Berlin,
Shereff,
Friedman,
LLP.,
on
behalf
of
the
Coalition
for
Clean
Air
Implementation,
Washington,
D.
C.
01­
21­
03
IV­
D­
18
Charles
H.
Knauss,
Swidler,
Berlin,
Shereff,
Friedman,
LLP.,
on
behalf
of
the
Air
Permitting
Forum,
Washington,
D.
C.
01­
21­
03
IV­
D­
19
Leslie
S.
Ritts,
Counsel
to
National
Environmental
Development
Association's
Clean
Air
Regulatory
Project,
Washington,
D.
C.
01­
21­
03
IV­
D­
20
Robert
Colby,
Chair,
ALAPCO
Air
Toxics
Committee
and
Lloyd
Eagan,
Chair
STAPPA
Air
Toxic
Committee,
Washington,
D.
C.
01­
16­
03
IV­
D­
21
Geri
Shoop,
Senior
Environmental
Coordinator,
Sasol
North
America
Inc,
Westlake,
LA
01­
16­
03
IV­
D­
22
Dirk
J.
Krouskop,
Director,
Environmental
Management,
MeadWestvaco,
Dayton,
OH
01­
21­
03
IV­
D­
23
Richard
T.
Metcalf,
Health,
Safety
and
Environmental
Affairs
Coordinator,
Louisiana
Mid­
Continent
Oil
and
Gas
Association,
Baton
Rouge,
LA
01­
21­
03
IV­
D­
24
Thomas
E.
Prucha,
Vice
President,
Technical
Services,
INTERMET
Corporation,
Troy,
MI.
01­
17­
03
IV­
D­
25
Gregory
A.
Wilkins,
Manager,
Environmental
Support,
Marathon
Ashland
Petroleum
LLC,
Findlay,
Ohio.
01­
16­
03
IV­
D­
26
Ted
Steichen,
Sr.
Regulatory
Analyst,
The
American
Petroleum
Institute
(
API)
01­
17­
03
IV­
D­
27
William
H.
Lewis,
Morgan
Lewis
Counselors
at
Law,
The
Clean
Air
Implementation
Project,
Washington,
D.
C.
01­
21­
03
Item
Number
Commenter,
Addressee,
Title
or
Description,
etc.
Date
of
Document
3
IV­
D­
28
Jordan
Jacobsen,
Acting
General
Counsel,
Alyeska
Pipeline,
Anchorage,
AL
01­
14­
03
IV­
D­
29
Linda
Swaim,
The
Dow
Chemical
Company,
Freeport,
TX
and
Michael
McCarty,
The
Dow
Chemical
Company,
Midland,
MI
01­
17­
03
IV­
D­
30
Keith
M.
Bentley,
Vice
President,
Environmental
Affairs,
Georgia­
Pacific
Corporation,
Atlanta,
GA.
01­
17­
03
IV­
D­
31
Pamela
F.
Faggort,
Vice
President
and
Chief
Environmental
Officer,
Dominion,
Glen
Allen,
VA.
01­
21­
03
IV­
D­
32
John
F.
Metzger,
P.
E.,
Sr.
Environmental
Specialist,
3M,
St.
Paul,
MN
01­
17­
03
IV­
D­
33
John
J.
Deemer,
Environmental
Engineer,
ConocoPhillips­
Trainer
Refinery,
Trainer,
PA
01­
20­
03
IV­
D­
34
David
C.
Evans
and
Stephen
M.
Sorett,
Reed
Smith,
on
behalf
of
the
Brick
Industry
Association
(
the
"
BIA"),
Washington,
D.
C.
01­
21­
03
IV­
D­
35
David
P.
Novello,
Attorney,
on
behalf
of
the
Lafarge
North
America,
Washington,
D.
C.
01­
21­
03
IV­
D­
36
Matthew
O.
Tanzer,
EHS
Counsel
­
Air
Programs,
General
Electric
Company,
Fairfield,
CT.
01­
17­
03
IV­
D­
37
Daniel
T.
Riley,
Vice
President,
Government
Relations,
Tesoro
Petroleum
Companies,
Inc.,
Auburn,
WA.
01­
21­
03
IV­
D­
38
Melvin
E.
Keener,
Ph.
D.,
Executive
Director,
The
Coalition
for
Responsible
Waste
Incinerators
(
CRW),
Washington,
D.
C.
01­
21­
03
IV­
D­
39
Bradley
E.
Anderson,
Manager
of
Environmental
Affairs,
EVTAC
Mining,
Eveleth,
MI.
01­
20­
03
IV­
D­
40
Blake
Jeffrey,
Executive
Director,
Indiana
Cast
Metals
Association,
Indianapolis,
IN.
01­
20­
03
IV­
D­
41
Tony
Germinario,
Corporate
Air
Expertise
Team
Leader,
BASF
Corporation,
Mt.
Olive,
NJ
01­
17­
03
IV­
D­
42
David
B.
Crouch,
Director,
Environmental
Affairs,
Cleveland­
Cliffs
Inc.,
Cleveland,
OH.
01­
20­
03
IV­
D­
43
Paul
Young,
Environmental,
Lion
Oil
Company,
Jackson,
MS
01­
17­
03
IV­
D­
44
Brett
Jenkins,
Environmental
Engineer,
Flying
J
Inc.,
North
Salt
Lake,
UT.
01­
17­
03
IV­
D­
45
Michael
D.
Johnston,
Manager,
Health,
Safety
and
Environment,
ConocoPhillips,
Houston,
TX
01­
21­
03
IV­
D­
46
Douglas
J.
LaFayette,
Senior
Staff
Environmental
Engineer,
ConocoPhillips­
Bayway
Refinery,
Linden,
NJ
01­
17­
03
IV­
D­
47
Donna
L.
Krassinger,
Vice
President,
Health,
Safety
&
Environment,
BP
America
Inc.,
Los
Angeles,
CA
01­
20­
03
IV­
D­
48
Martin
W.
Perga,
Environmental,
Health,
&
Safety
Manager,
Cenex
Harvest
States
Cooperatives,
Inc.,
(
CHS)
Laurel,
MT
01­
17­
03
Item
Number
Commenter,
Addressee,
Title
or
Description,
etc.
Date
of
Document
4
IV­
D­
49
Dennis
J.
Karl,
Manager,
Regulatory
Policy,
Ford
Motor
Company,
Dearborn,
MI.
01­
17­
03
IV­
D­
50
Phillip
T.
Cavanaugh,
Vice
President
Federal
and
International
Government
Relations,
Chevron
Texaco,
Washington,
D.
C.
01­
20­
03
IV­
D­
51
Norman
Renfro,
Vice
President;
Health,
Safety,
&
Environmental,
Valero
Energy
Corporation,
San
Antonio,
TX
01­
17­
03
IV­
D­
52
Don
Christenson,
Vice
President
and
General
Manager,
Rochester
Metal
Products
Corporation,
Rochester,
IN
01­
16­
03
IV­
D­
53
Jim
Carson,
Senior
Staff
Engineer,
Environmental
Affairs,
Ispat
Inland
Inc.,
E.
Chicago,
IN
01­
15­
03
IV­
D­
54
Ramon
L.
Callahan,
Environmental
Manager,
Ergon,
Inc.,
Jackson,
MS
01­
17­
03
IV­
D­
55
John
Olashuk,
National
Steel
Corporation,
Mishawaka,
IN
01­
14­
03
IV­
D­
56
Richard
D.
Langford,
Regulatory
Affairs
Manager,
Celanese
Acetate
LLC,
Narrows,
VA.
Undated
IV­
D­
57
David
C.
Evans
and
Stephen
M.
Sorret,
ReedSmith,
on
behalf
of
the
Brick
Industry
Association
(
the
"
BIA"),
Washington,
D.
C..
12­
16­
03
IV­
D­
58
U.
S.
Environmental
Protection
Agency
Public
Hearing;
RE:
Proposal
to
Amend
40
CFR
63,
Subparts
A
and
B
Before
Rick
Colyer/
OAQPS/
EPA
and
Tim
Backstrom,
OGC/
EPA.
12­
19­
02
IV­
D­
59
Sam
Clowney,
El
Paso
Pipeline
Group,
on
behalf
of
the
Interstate
Natural
Gas
Association
of
America.
Comments
to
be
given
at
the
12/
19/
02
Public
Hearing.
12­
19­
02
IV­
D­
60
David
C.
Pavlich,
Manager,
HSE,
Giant
Yorktown,
Inc.,
Grafton,
VA.
01­
16­
03
IV­
D­
61
John
R.
Evans,
Manager,
Environmental
Affairs,
Lyondell
Chemical
Company,
Houston,
TX.
01­
16­
03
IV­
D­
62
Troy
F.
Stroud,
President,
Ductile
Iron
Pipe
Research
Association.
01­
17­
03
IV­
D­
63
Jack
Azar,
EHST
Manager,
Ergon
West
Virginia,
Inc.
01­
17­
03
IV­
D­
64
Klane
F.
Forsgren,
Vice
President,
Sinclair
Oil
Corporation.
01­
17­
03
IV­
D­
65
Atofina
Chemicals,
Inc.
01­
17­
03
IV­
D­
66
Marcia
Y.
Kinter,
Screenprinting
and
Graphic
Imagining
Association
International,
Gary
Jones,
Printing
Industries
of
America/
Graphic
Arts
Technical
Foundation,
Richard
H.
Dunnington,
Gravure
Association
of
America
01­
17­
03
IV­
D­
67
Stephen
E.
Woock,
Federal
Regulatory
Affairs
Manager,
Weyerhaeuser,
New
Bern,
NC.
01­
17­
03
IV­
D­
68
Ted
Cromwell,
Debra
Phillips,
Ronald
Shipley,
and
Rasma
Zvaners,
American
Chemistry
Council,
Arlington,
VA.
01­
20­
03
Item
Number
Commenter,
Addressee,
Title
or
Description,
etc.
Date
of
Document
5
IV­
D­
69
David
C.
Ailor,
Director
of
Regulatory
Affairs,
on
behalf
of
the
National
Oilseed
Processors
Association,
National
Cotton
Council,
National
Cottonseed
Products
Association,
and
Corn
Refiners
Association,
Washington,
D.
C.
01­
20­
03
IV­
D­
70
Debra
J.
Jezouit
and
Joshua
B.
Frank,
Baker
Botts
L.
L.
P,
on
behalf
of
the
Class
of
`
85
Regulatory
Response
Group,
Washington,
D.
C.
01­
20­
03
IV­
D­
71
Gabriel
Calvo,
Hunton
&
Williams,
on
behalf
of
the
Utility
Air
Regulatory
Group,
Washington,
D.
C.
01­
20­
03
IV­
D­
72
Bernie
Paul,
Eli
Lilly
and
Company.
01­
21­
03
IV­
D­
73
Robert
Bessette,
Council
of
Industrial
Boiler
Owners.
01­
23­
03
2.0
SUMMARY
OF
PUBLIC
COMMENTS
AND
RESPONSES
2.1
SUBPART
A,
GENERAL
PROVISIONS
2.1.1
SUBMITTING
SSM
PLANS
Comment:
In
the
preamble
to
the
proposed
amendments,
EPA
stated
that
startup,
shutdown,
and
malfunction
(
SSM)
plans
must
be
made
available
to
the
public
under
40
CFR
70.4(
b)(
3)(
viii)
and
section
114(
c)
of
the
Clean
Air
Act
(
CAA).
Numerous
commenters
(
IV­
D­
03,
08,
17,
18,
21,
22,
26,
30,
33,
36,
37,
43,
44,
45,
46,
48,
49,
51,
54,
68,
60,
67,
63,
64)
refuted
this
assertion.
In
their
interpretation,
the
cited
provisions
only
require
SSM
plans
that
are
actually
in
the
Administrator's
possession
to
be
made
publicly
available.

The
commenters
point
out
that
§
70.4(
b)(
3)(
viii),
which
is
part
of
regulations
for
State
operating
permits
programs,
provides
that
States
must
make
available
to
the
public
"
any
permit
application,
compliance
plan,
permit,
and
monitoring
and
compliance,
certification
report."
They
note
that
this
requirement
is
based
on
section
503(
e)
of
the
CAA
which
contains
the
following
list
of
items
to
be
made
available
to
the
public:
"
each
permit
application,
compliance
plan
(
including
the
schedule
of
compliance),
emissions
or
compliance
monitoring
report,
certification,
and
each
permit
issued
under
[
title
V]."
The
commenters
conclude
that
the
SSM
plan
does
not
fit
within
any
of
these
listed
categories
and
is,
therefore,
not
required
to
be
made
available
to
the
public
by
§
70.4(
b)(
3)(
viii).
One
commenter
(
IV­
D­
68)
acknowledged
that
permits
often
refer
to
SSM
plans,
but
argued
that
EPA's
policy
has
been
to
not
consider
the
SSM
plan
to
be
a
part
of
the
permit,
otherwise
the
plan
would
need
to
be
submitted
and
approved
every
time
it
is
revised.
Therefore,
it
does
not
need
to
be
made
publicly
available.

Section
114(
c)
of
the
CAA
states,
in
part,
"
Any
records,
reports,
or
information
obtained
under
subsection
(
a)
of
this
section
shall
be
made
available
to
the
public."
Section
114(
a)
allows
the
Administrator
to
obtain,
among
other
things,
an
SSM
plan
from
a
source.
The
commenters
conclude
that
section
114(
c)
only
entitles
the
public
to
the
information
that
EPA
or
the
States
actually
obtain;
it
does
not
require
that
EPA
obtain
SSM
plans.
6
Numerous
commenters
strongly
disagreed
with
the
proposal
to
require
the
submission
of
original
SSM
plans
and
all
subsequent
revisions
because
(
1)
it
is
burdensome
to
sources,
(
2)
it
is
burdensome
to
permitting
authorities,
(
3)
it
threatens
disclosure
of
confidential
business
information
(
CBI)
as
well
as
other
sensitive
information,
(
4)
it
will
decrease
the
utility
of
SSM
plans,
(
5)
the
reasons
for
proposing
the
requirements
are
not
valid,
and
(
6)
it
provides
no
environmental
benefit.
The
commenters
concluded
that
the
proposed
amendment
is
not
"
modest
in
character"
as
EPA
had
suggested
in
the
preamble.
On
the
other
hand,
one
commenter
(
IV­
D­
13)
supported
the
proposed
requirement
because
it
is
difficult
to
obtain
SSM
plans
from
States
through
freedom
of
information
(
FOI)
requests,
especially
in
States
where
the
public
is
not
allowed
access
to
documents
kept
at
a
source
instead
of
at
State
offices.

Many
commenters
(
IV­
D­
02,
03,
06,
07,
08,
09,
10,
11,
17,18,
21,
22,
23,
25,
26,
27,
28,
30,
32,
33,
36,
37,
41,
43,
44,
45,
46,
47,
48,
49,
50,
51,
53,
54,
55,
56,
60,
61,
63,
66,
67,
68,
69,
72,
73)
argued
that,
for
sources
subject
to
the
General
Provisions,
submitting
SSM
plans
is
not
the
simple
task
that
EPA
envisioned
but
rather
an
extremely
burdensome
one.
The
commenters
stated
that,
in
many
cases,
SSM
plans
are
"
fully
integrated
into
the
operating
procedures
for
each
emission
unit."
In
other
words,
they
serve
as
"
road
maps"
that
refer
operators
to
specific
sections
of
an
emission
units'
standard
operating
procedures
(
SOP)
manual,
which
can
be
a
"
voluminous
document"
full
of
detailed
technical
procedures
as
well
as
jargon
and
abbreviations
that
are
used
by
trained
operators.
The
commenters
stated
that
doing
this
allows
for
more
efficient
and
integrated
operator
training.
So,
the
commenters
argued,
rather
than
simply
making
a
copy
of
one
document
or
sending
one
electronic
file,
submitting
an
SSM
plan
is
a
difficult
and
time­
consuming
process.
A
source
would
have
to
copy
the
relevant
pages
out
of
each
SOP
(
which
could
be
numerous
at
a
large
chemical
facility,
for
example),
compile
the
pages
into
one
document,
separate
CBI
material
from
non­
CBI
material,
re­
write
parts
of
the
document
to
be
understandable
to
a
"
lay"
audience,
and
mail
the
plan
to
the
permitting
authority.
In
addition,
each
time
a
minor
change
is
made
to
an
SOP,
which
happens
quite
often
as
SOPs
are
"
in
a
state
of
continuous
improvement,"
the
source
would
have
to
submit
an
updated
SSM
plan
to
the
permitting
authority
or
else
spend
a
lot
of
time
determining
whether
it
is
a
change
that
constitutes
a
"
revision"
to
an
SSM
plan.
Several
commenters
concluded
that
this
requirement
undermines
the
Government
Paperwork
Elimination
Act
(
GPEA)
as
well
as
§
63.6(
e)(
3)(
i)(
C),
which
states
that
one
purpose
of
an
SSM
plan
is
to
reduce
the
reporting
burden
associated
with
SSM
events,
and
would
divert
facility
and
permitting
authority
resources
away
from
compliance
efforts
that
have
environmental
benefit.

Commenters
(
IV­
D­
03,
07,
08,
09,
17,
18,
19,
21,
22,
23,
25,
26,
30,
32,
33,
35,
36,
37,
38,
41,
43,
44,
45,
46,
48,
49,
51,
54,
56,
60,
61,
63,
65,
67,
68,
69,
72,
73)
also
argued
that
submitting
SSM
plans
will
be
unnecessarily
burdensome
to
the
"
already
overburdened"
permitting
authorities
that
receive
the
plans,
especially
given
that
all
this
is
done
"
just
in
case"
someone
requests
to
see
a
particular
SSM
plan
and
that
little
or
no
environmental
benefit
is
gained.
One
commenter
(
IV­
D­
28)
worried
that
permitting
authorities
might
think,
under
the
proposed
system,
that
they
must
review
and
approve
each
plan,
which
would
create
an
even
larger,
and
unnecessary,
burden.
The
commenters
argued
that
States
will
be
receiving
large
volumes
of
information
and
will,
consequently,
need
to
spend
considerable
time
and
resources
to
catalog
and
store
the
documents.
This
would
entail
a
"
bureaucratic
blizzard
of
paperwork"
(
IV­
D­
56).
7
Additionally,
the
States
will
be
responsible
for
managing
a
great
quantity
of
CBI
materials,
and
the
commenters
are
worried
about
the
possibility
of
inadvertent
disclosure
given
this
enormous
new
burden.

A
commenter
(
IV­
D­
38)
argued
that,
given
the
large
volume
of
information
the
States
will
have
in
their
possession
and
the
piecemeal
fashion
in
which
revisions
will
be
submitted,
the
States
are
likely
to
go
to
a
source
to
get
a
copy
of
their
current
SSM
plan
when
it
is
requested
by
a
member
of
the
public
rather
than
search
through
their
whole
library
to
find
a
complete
and
current
copy
of
the
plan.
This
would
negate
the
reason
for
having
the
SSM
plan
"
library"
in
the
first
place.
Commenters
asserted
that
the
current
procedure,
while
it
places
the
burden
on
EPA
and
States
to
evaluate
whether
each
public
request
for
an
SSM
plan
is
based
on
a
legitimate
compliance
concern
or
is
a
mass
request
"
intended
to
harass
facilities,"
helps
eliminate
the
potential
for
abuse
of
the
system
and
the
resultant
unnecessary
burden
on
both
sources
and
permitting
authorities.
Commenters
concluded
that
any
delays
encountered
under
the
current
procedure
would
be
outweighed
by
the
paperwork
burden
imposed
upon
sources
and
permitting
authorities
by
the
proposed
new
procedure.

Numerous
commenters
(
IV­
D­
02,
03,
07,
08,
10,
17,
18,
19,
21,
22,
23,
26,
30,
31,
32,
33,
36,
37,
41,
43,
44,
45,
46,
47,
48,
49,
51,
54,
60,
61,
63,
65,
67,
68,
71)
objected
to
the
proposed
amendment
because
it
does
not
give
adequate
consideration
to
CBI
and
other
security
issues.
Requiring
the
submission
of
SSM
plans
would,
as
mentioned
above,
require
sources
to
spend
a
lot
of
time
and
money
removing
confidential
information
from
their
plans
and
require
permitting
authorities
to
manage
a
large
amount
of
confidential
information.
In
addition,
some
of
the
information
contained
in
SSM
plans
can
be
considered
confidential
under
the
Trade
Secrets
Act,
and
commenters
stated
that
it
would
take
permitting
authorities
a
long
time
to
sort
through
all
the
technical
details
and
determine
which
information
to
withhold
when
the
public
requests
a
copy
of
an
SSM
plan,
thereby
resulting
in
the
"
protracted
delays"
that
the
proposed
amendment
was
intended
to
avoid.
Some
of
the
information
would
also
be
protected
from
public
access
as
off­
site
consequence
analysis
(
OCA)
information
under
the
Chemical
Safety
Information,
Site
Security
and
Fuels
Regulatory
Relief
Act
(
CSISSFRRA)
because
dissemination
of
this
information
would
create
an
increased
risk
of
terrorist
or
other
criminal
acts.
Several
commenters
also
mentioned
potential
Homeland
Security
concerns
associated
with
making
SSM
plans
publicly
available.
One
commenter
(
IV­
D­
65)
insisted
that
EPA
study
the
potential
uses
of
SSM
data,
both
positive
and
negative,
and
investigate
how
to
properly
safeguard
stakeholders
in
or
near
affected
facilities
before
requiring
all
SSM
plans
to
be
submitted.
This
commenter
expressed
a
lack
of
confidence
in
the
ability
of
EPA
and
permitting
authorities
to
safeguard
CBI
submitted
in
SSM
plans.

Several
commenters
(
IV­
D­
09,
17,
23,
27,
32,
56,
61,
68,
73)
stated
that
the
proposed
method
would
reduce
the
practical
utility
of
SSM
plans
by
driving
sources
to
create
separate,
stand­
alone
SSM
plans
that
are
stripped
of
CBI
and
are
as
short
as
possible
while
still
meeting
the
requirements
of
the
General
Provisions.
One
commenter
estimated
the
cost
of
rewriting
the
SSM
plans
for
five
of
its
facilities
at
$
150,000.
One
reason
facilities
would
"
strip
down"
their
plans
is
out
of
fear
that
they
would
held
accountable
for
not
following
exactly
the
more­
detailed
procedures
included
in
a
typical
SOP.
Such
stripped
down
plans
would
be
less
effective
and
8
require
additional
operator
training.
In
addition,
rather
than
making
minor
revisions
as
sources
learn
better
ways
of
doing
things
(
both
through
their
own
experience
as
well
as
through
information
shared
by
other
sources
or
trade
associations),
such
plans
would
only
be
updated
when
they
had
to
be
updated.
This
would
discourage
the
cooperation
in
environmental
protection
that
currently
exists
among
sources,
according
to
one
commenter
(
IV­
D­
38).
As
another
commenter
(
IV­
D­
65)
asserted,
contrary
to
one
of
EPA's
stated
reasons,
making
SSM
plans
publicly
available
is
not
the
way
to
ensure
that
deficiencies
in
plans
are
corrected.
Thus,
these
commenters
concluded
that
the
proposed
amendment
could
serve
to
reduce
the
effectiveness
of
the
current
program.

Commenters
argued
that
there
was
no
proof
that
the
Sierra
Club's
concerns
which
prompted
the
proposed
requirement
were
anything
more
than
theoretical
under
the
current
procedure
for
obtaining
copies
of
SSM
plans.
Commenters
(
IV­
D­
08,
14,
17,
18,
21,
22,
25,
26,
28,
30,
33,
36,
37,
38,
41,
43,
44,
45,
46,
47,
48,
49,
51,
54,
67,
68,
69,
63,
64,
73)
refuted
the
Sierra
Club's
concerns
that
permitting
authorities
"
might
not"
think
they
have
the
authority
to
obtain
SSM
plans
when
they
are
legitimately
requested
by
the
public
and
that
the
rule
does
not
"
expressly
require"
sources
to
submit
SSM
plans
when
they
are
requested
by
a
permitting
authority.
They
noted
that
section
114(
a)
of
the
CAA
gives
the
authority
to
require
submission
of
requested
information
and
that
there
is
"
express
authority"
under
title
V
and
the
General
Provisions
for
permitting
authorities
to
enter
sites
and
obtain
records
required
under
a
maximum
achievable
control
technology
(
MACT)
standard.

While
some
commenters
stressed
that
the
current
procedure
for
obtaining
SSM
plans
is
sufficient
and
does
not
need
to
be
changed,
several
commenters
suggested
that,
after
becoming
more
familiar
with
types
and
content
of
real
SSM
plans,
EPA
should
devise
a
more
"
streamlined"
process
for
the
public
to
have
access
to
SSM
plans.
Several
commenters
(
IV­
D­
02,
29,
66,
69)
suggested
issuing
stronger
and
clearer
guidance
to
permitting
authorities
indicating
that
they
are
responsible
and
have
the
authority
to
obtain
copies
of
SSM
plans
from
sources
when
they
are
legitimately
requested
by
the
public.
Others
(
IV­
D­
03,
04,
14,
19,
27,
35,
60,
69)
suggested
adding
a
clause
to
the
regulatory
language
of
the
General
Provisions
and/
or
§
70.4(
b)(
3)
expressly
requiring
sources
to
submit
SSM
plans
when
requested
by
the
permitting
authority;
the
language
could
specify
that
sources
must
comply
within
a
certain
time
frame
(
e.
g.,
45,
60,
or
90
days).
Commenter
IV­
D­
19
further
suggested
that
such
requests
only
be
made
by
permitting
authorities
when
the
request
is
(
1)
specific
as
to
which
equipment
is
of
interest
and
(
2)
comes
from
a
citizen
who
would
be
directly
affected
by
the
company's
emissions.

Response:
EPA
disagrees
with
the
industry
commenters
who
argued
that
there
is
no
general
obligation
to
provide
public
access
to
SSM
plans,
and
that
only
those
plans
that
the
States
or
EPA
actually
elect
to
obtain
from
the
sources
must
be
made
available
to
the
public.
These
commenters
argued
that
EPA
has
incorrectly
construed
the
SSM
plan
as
an
integral
part
of
the
permit
documentation
that
must
be
made
available
to
the
public
under
CAA
sections
114(
c)
and
503(
e).

Industry
commenters
also
argued
that
requiring
routine
submission
of
SSM
plans
would
be
very
burdensome
for
sources,
because
SSM
plans
are
often
fully
integrated
into
other
9
operating
procedures
at
a
source
and
production
of
a
complete
SSM
plan
might
therefore
require
copying
and
compilation
of
other
documents.
Commenters
also
expressed
concern
about
the
burden
on
sources
associated
with
identification
and
segregation
of
claimed
Confidential
Business
Information
(
CBI),
and
the
danger
that
permitting
authorities
might
inadvertently
disclose
such
information.
Commenters
also
argued
that
routine
submission
of
SSM
plans
would
be
burdensome
for
the
permitting
authorities.

A
number
of
commenters
suggested
that
appropriate
public
access
to
SSM
plans
could
be
assured
by
a
less
burdensome
approach,
focusing
on
the
specific
problems
with
the
current
rule
that
EPA
identified
in
the
proposal.
Some
commenters
suggested
that
EPA
could
adopt
new
regulatory
language
specifically
requiring
sources
to
submit
SSM
plans
when
requested
by
the
permitting
authority.
Others
suggested
that
EPA
provide
clearer
guidance
to
permitting
authorities
indicating
that
they
are
responsible
and
have
the
authority
to
obtain
SSM
plans
when
requested
by
the
public.
EPA
thinks
that
these
ideas
are
constructive.

EPA
acknowledges
that
adopting
a
requirement
that
copies
of
SSM
plans
be
routinely
submitted
to
the
permitting
authorities
would
be
burdensome.
In
particular,
EPA
thinks
that
significant
resources
would
be
expended
on
the
process
of
identifying
and
segregating
claimed
CBI
in
each
plan.
EPA
also
acknowledges
that
the
proper
maintenance
of
these
extra
records
would
necessarily
involve
additional
resource
expenditures
by
the
permitting
authorities.

EPA
has
concluded
that
these
additional
burdens
are
not
necessary
to
assure
appropriate
public
access
to
SSM
plans.
As
suggested
by
some
commenters,
EPA
has
decided
instead
to
adopt
a
less
burdensome
approach
tailored
to
the
specific
problems
identified
in
the
proposal.

We
believe
that
SSM
plans
will
be
most
effective
in
minimizing
emissions
during
periods
of
startup,
shutdown,
or
malfunction
if
they
are
fully
integrated
with
the
detailed
process
and
operating
procedures
of
a
facility.
We
also
recognize
that
these
types
of
procedures
may
contain
trade
secrets
and
other
sensitive
information,
and
that
the
integration
of
SSM
plans
with
these
other
procedures
may
make
it
more
difficult
and
costly
for
a
facility
to
redact
them
in
a
way
that
would
be
suitable
for
public
disclosure.
We
do
not
wish
to
discourage
facilities
from
integrating
SSM
plans
with
other
procedures.

On
the
other
hand,
we
recognize
that
there
will
sometimes
be
substantial
public
interest
in
the
details
of
SSM
plans.
There
is
increasing
concern
about
emissions
that
may
occur
during
a
period
of
startup,
shutdown,
or
malfunction.
In
addition,
SSM
plans
may
include
basic
information
about
when
the
emission
limitations
in
a
MACT
standard
apply
to
a
particular
facility
and
when
they
do
not.
To
strike
the
right
balance
between
public
disclosure
and
the
need
to
make
SSM
plans
comprehensive
and
effective,
we
have
adopted
the
following
approach
in
this
final
rule.

First,
we
believe
that
the
permitting
authorities,
acting
on
behalf
of
the
public,
can
and
should
play
the
primary
role
in
reviewing
SSM
plans
and
ensuring
that
affected
sources
take
the
necessary
steps
to
minimize
emissions
during
periods
of
startup,
shutdown,
or
malfunction.
We
know
that
some
permitting
authorities
review
these
plans
during
the
process
for
initial
permit
10
issuance.
In
other
instances,
we
expect
that
permitting
authorities
will
review
SSM
plans
in
conjunction
with
inspections
and
other
site
visits,
when
they
can
more
readily
observe
how
the
SSM
plan
relates
to
other
operational
procedures
at
the
facility.
In
addition,
under
the
language
EPA
is
adopting,
owners
or
operators
must
promptly
submit
a
copy
of
any
SSM
plan
(
or
any
protion
thereof)
maintained
at
the
affected
source
if
requested
by
the
permitting
authority.

If
a
member
of
the
public
wishes
to
review
the
SSM
plan
for
a
particular
facility,
or
a
specific
portion
of
that
plan,
he
or
she
can
ask
that
the
permitting
authority
request
the
plan
from
the
facility.
We
are
also
adding
language
requiring
that
the
permitting
authority
request
that
the
owner
or
operator
submit
to
the
permitting
authority
a
particular
SSM
plan
(
or
the
relevant
portion
thereof)
whenever
a
member
of
the
public
makes
a
specific
and
reasonablerequest
to
examine
or
receive
a
copy.
Upon
receipt
of
such
a
request,
the
permitting
authority
should
take
prompt
action
to
make
the
plan
available
to
the
requestor.
We
also
expect
that
,
upon
receiving
a
request
that
is
insufficiently
specific
or
may
be
overly
broad
the
permitting
authority
will
work
with
the
requestor
to
clarify
the
request
and
to
assure
that
it
is
focused
on
the
requestor's
specific
needs
or
interests.

As
in
the
proposal,
the
owner
or
operator
may
elect
to
submit
the
requested
SSM
plan
in
an
electronic
format,
and
any
portion
of
the
plan
that
is
claimed
to
be
CBI
entitled
to
protection
under
CAA
section
114(
c)
or
the
Trade
Secrets
Act
must
be
clearly
designated
in
the
submission.
Moreover,
we
want
to
encourage
all
parties
to
adopt
procedures
for
providing
public
access
to
SSM
plans
which
avoid
unnecessary
burdens
or
delays.
Therefore,
if
an
owner
or
operator
and
a
requestor
both
agree
that
it
would
be
more
expedient
or
convenient
for
the
requestor
to
examine
the
SSM
plan
(
or
a
portion
thereof)
at
the
facility
where
it
is
maintained,
this
approach
could
be
utilized
instead
of
requiring
submission
of
the
SSM
plan
to
the
permitting
authority.
This
on­
site
inspection
procedure
would
be
most
practicable
in
those
instances
where
the
owner
or
operator
has
concluded
that
it
is
not
necessary
to
redact
claimed
CBI
when
the
plan
is
being
examined
at
the
facility
that
maintains
it.

EPA
thinks
this
approach
assures
appropriate
public
access
to
SSM
plans,
but
dramatically
reduces
the
aggregate
expenditure
of
resources
by
sources
and
permitting
authorities.
EPA
recognizes
that
this
approach
could
result
in
some
additional
delay
before
a
member
of
the
public
could
obtain
a
copy
of
the
non­
confidential
portions
of
an
SSM
plan.
However,
EPA
thinks
that
requiring
routine
submission
of
every
SSM
plan,
without
regard
for
whether
any
member
of
the
public
will
ultimately
seek
access
to
it,
involves
a
resource
burden
which
is
disproportionate
to
the
time
which
may
be
saved
when
a
specific
plan
is
actually
requested
by
a
member
of
the
public.

As
for
the
concern
of
some
commenters
that
claimed
CBI
information
might
be
inadvertently
disclosed,
EPA
thinks
this
is
less
probable
when
SSM
plans
must
be
submitted
only
on
demand
rather
than
routinely.
If
a
submitter
knows
that
the
non­
confidential
portions
of
a
plan
will
definitely
be
disclosed,
EPA
believes
the
submitter
will
be
more
likely
to
do
a
good
job
of
segregating
claimed
CBI
and
preparing
to
properly
substantiate
its
claim.

Some
commenters
expressed
concern
about
the
Homeland
Security
implications
of
public
access
to
SSM
plans.
It
may
be
that
some
information
in
a
particular
SSM
plan
could
be
sensitive
11
from
a
Homeland
Security
perspective.
In
most
instances,
EPA
thinks
that
such
sensitive
information
would
also
be
entitled
to
confidential
treatment
under
CAA
section
114(
c).
However,
EPA
notes
that
the
entire
Federal
government
is
presently
reviewing
public
access
requirements
to
assure
that
they
are
compatible
with
Homeland
Security,
and
it
is
possible
that
EPA
may
in
the
future
propose
other
changes
in
public
access
to
SSM
plans
as
part
of
this
important
effort.

Comment:
Several
comments
were
provided
regarding
the
proposed
process
for
submitting
SSM
plans.
One
commenter
(
IV­
D­
61)
asked
for
clarification
of
what
constitutes
an
SSM
plan
and
whether
referenced
operating
manuals
would
need
to
be
submitted
as
part
of
an
SSM
plan.
The
commenter
also
asked
for
clarification
of
what
constitutes
a
"
revision"
to
an
SSM
plan,
particularly
for
plans
that
are
integrated
within
SOPs.
One
commenter
(
IV­
D­
69)
stated
that
the
proposed
submission
process
is
flawed
because
not
all
NESHAP
require
sources
to
submit
semi­
annual
reports.
Another
commenter
(
IV­
D­
19)
objected
to
the
submission
of
plan
revisions
because
they
would
be
out
of
context
(
e.
g.,
if
an
individual
revised
page
is
submitted)
and
could
"
cast
doubt
on
the
integrity
of
the
existing
SSM
plan."
Another
commenter
(
IV­
D­
29)
objected
to
the
requirement
to
submit
revisions
with
semi­
annual
reports
because
this
would
delay
improvements
in
SSM
plans
since
the
revisions
do
not
become
effective
until
they
are
submitted.
Finally,
one
commenter
(
IV­
D­
38)
supported
the
provision
allowing
sources
to
submit
plans
electronically
and
asked
EPA
to
add
language
allowing
sources
to
store
SSM
plans
electronically.
One
commenter
(
IV­
D­
13)
encouraged
EPA
to
consider
requiring
electronic
submission
of
SSM
plans.

Some
commenters
(
IV­
D­
20,
61,
68)
provided
comments
on
how
existing
sources
that
have
already
adopted
SSM
plans
could
transition
to
the
new
submission
requirements.
One
commenter
(
IV­
D­
20)
recommended
that
EPA
require
that
existing
SSM
plans
be
submitted
along
with
the
source's
next
semi­
annual
report.
Another
commenter
(
IV­
D­
68)
requested
that
EPA
allow
at
least
a
year
for
sources
with
existing
SSM
plans
to
revise
their
plans
and
submit
them
to
their
permitting
authority.
This
commenter
argued
that
it
will
take
time
for
sources
to
identify
and
eliminate
security
and
CBI
information
from
plans
and
that
large
chemical
plants
will
have
numerous
plans
to
revise.
A
third
commenter
(
IV­
D­
61)
requested
that
EPA
allow
"
adequate
time"
for
sources
with
existing
SSM
plans
to
revise
their
existing
plans
to
remove
CBI
or
develop
separate
stand­
alone
plans.

Response:
Many
of
the
comments
pertaining
to
procedural
issues
for
the
submission
of
SSM
plans
are
no
longer
pertinent,
as
EPA
has
adopted
an
approach
whereby
owners
or
operators
must
submit
a
copy
of
the
SSM
plan
if
requested
to
do
so
by
the
permitting
authority.
Under
this
approach,
the
content
of
the
submission
of
an
SSM
plan
will
be
determined
by
the
requesting
authority.

2.1.2
REVISING
SSM
PLANS
Comment:
Several
commenters
commented
on
the
proposed
change
to
§
63.6(
e)(
3)(
vii)
which
would
make
revisions
to
an
SSM
plan
mandatory
when
a
permitting
authority
finds
certain
deficiencies
in
the
plan.
One
commenter
(
IV­
D­
13)
supported
the
proposed
revision
without
12
qualification.
Three
other
commenters
(
IV­
D­
14,
17,
18)
stated
that,
while
they
did
not
object
to
this
proposal,
the
requirement
should
be
clarified
to
indicate
that
an
SSM
plan
is
not
"
deficient"
simply
because
it
does
not
address
an
unanticipated
event.

Many
commenters
(
IV­
D­
02,
03,
14,
17,
18,
19,
28,
29,
36,
38,
60,
66,
68,
72)
objected
to
the
proposal
expressing
concerns
over
branding
an
SSM
plan
as
"
deficient"
or
"
inadequate"
if
it
does
not
meet
certain
criteria.
The
commenters
were
specifically
concerned
about
§
63.6(
e)(
3)(
vii)(
B)
which
requires
plans
to
be
revised
if
they
do
not
provide
for
the
operation
of
the
source
"
for
minimizing
emissions
to
the
levels
required
by
the
relevant
standards."
The
commenters
noted
that
this
"
deficiency
criterion"
is
inconsistent
with
EPA's
policy
that
emissions
do
not
need
to
be
minimized
to
the
level
of
the
relevant
standard
during
an
SSM
event
and
expressed
concern
over
misinterpretation
of
the
change
as
currently
proposed
(
e.
g.,
permitting
authorities
would
require
an
SSM
plan
to
be
changed
every
time
excess
emissions
occur
during
an
SSM
event
even
if
the
plan
was
followed).
They
suggested
either
not
making
the
proposed
change
or
changing
the
language
of
§
63.6(
e)(
3)(
vii)(
B)
to
clarify
that
emissions
do
not
have
to
be
minimized
to
the
level
of
the
relevant
standard
during
an
SSM
event.
These
commenters
also
stated
that
the
current
practice
of
giving
permitting
authorities
discretion
and
flexibility
as
to
whether
to
require
changes
on
a
case­
by­
case
basis
works
well
and
saw
no
reason
to
make
a
change
without
proof
that
the
current
practice
is
insufficient.
Another
commenter
(
IV­
D­
53)
added
that
permitting
authorities
can
best
evaluate
SSM
plans
for
adequacy
at
the
source
(
e.
g.,
within
the
environment
of
the
process
and
control
equipment)
after
an
apparent
problem
is
raised.
One
commenter
(
IV­
D­
02)
went
on
to
argue
that
the
proposed
change
does
not
address
such
issues
as
a
time
frame
for
revisions,
procedures
for
appealing
decisions,
CBI
issues,
and
the
definitions
of
"
appropriate
revision"
and
"
adequate
procedures."
One
commenter
(
IV­
D­
32)
added
that
the
proposal
amounts
to
requiring
permitting
authorities
to
review
plans
for
their
adequacy
which
would
increase
the
burden
on
permitting
authorities.

Response:
The
principal
concern
expressed
is
that
the
criterion
requiring
the
SSM
plan
to
satisfy
the
duty
to
minimize
emissions
might
be
interpreted
in
a
manner
contrary
to
the
other
general
principles
EPA
has
articulated.
EPA
believes
this
concern
is
fully
resolved
by
the
amendments
to
the
provisions
concerning
the
general
duty
to
minimize
emissions
which
EPA
is
adopting
(
see
Section
2.1.4).

Some
commenters
also
argued
that
the
current
practice
of
giving
permitting
authorities
discretion
concerning
whether
to
require
changes
in
an
SSM
plan
works
well,
and
there
is
no
reason
to
change
it
unless
a
problem
can
be
demonstrated.
EPA
finds
this
argument
unpersuasive.
If
a
permitting
authority
has
specifically
found
that
a
plan
is
deficient
according
to
one
of
the
criteria,
EPA
sees
no
reason
why
it
should
not
be
mandatory
for
corrective
action
to
be
taken.
Therefore
EPA
has
retained
the
proposed
revision
to
§
63.6(
e)(
3)(
vii).

2.1.3
REPORTING
STARTUPS,
SHUTDOWNS,
AND
MALFUNCTIONS
Comment:
Numerous
commenters
(
IV­
D­
02,
03,
09,
14,
17,
18,
19,
27,
29,
32,
35,
36,
38,
55,
60,
61,
66,
67,
68,
71,
73)
supported
EPA's
proposal
to
remove
startups
and
shutdowns
from
the
SSM
reporting
requirements
(
§
63.10(
d)(
5)(
i)),
while
one
commenter
(
IV­
D­
13)
opposed
13
this
proposal.
Commenter
IV­
D­
13
asserted
that,
contrary
to
EPA's
claim,
there
is
utility
in
requiring
semiannual
reporting
of
startups
and
shutdowns
because
this
information
can
help
permitting
authorities
determine
whether
sources
have
improperly
defined
events
as
startups
or
shutdowns.
The
commenter
further
asserted
that
EPA
made
an
"
irrational
and
arbitrary"
decision
to
require
semiannual
reporting
of
malfunctions
but
not
startups
and
shutdowns,
all
of
which
need
to
be
checked
by
the
permitting
authority
to
ensure
that
sources
are
not
improperly
defining
events
as
SSMs
to
circumvent
compliance
with
a
relevant
standard.

The
other
commenters
agreed
with
EPA's
conclusion
that
reporting
startups
and
shutdowns
semi­
annually
is
unnecessary
because
it
provides
no
meaningful
information
to
a
permitting
authority's
review
of
a
source's
operation
and,
furthermore,
it
imposes
an
additional
and
unnecessary
paperwork
burden.
The
commenters
further
noted
that
sources
are
already
required
to
report
SSM
events
during
which
the
SSM
plan
was
not
followed.
One
commenter
(
IV­
D­
19)
added
that
reporting
such
a
large
number
of
startups
and
shutdowns
as
occurs
in
many
industries
would
obscure
the
malfunction
events
that
are
included
in
this
reporting.
The
commenters
requested
that
EPA
ensure
that
all
references
to
the
requirement
to
report
startups
and
shutdowns
semi­
annually
be
deleted
from
the
rule.
One
commenter
(
IV­
D­
67)
specifically
noted
that
the
language
of
§
63.10(
d)(
5)(
i)
preceding
that
which
was
proposed
to
be
changed
should
also
be
changed
to
make
it
clear
that
sources
do
not
have
report
whether
the
SSM
plan
was
followed
for
each
startup
and
shutdown.

Response:
EPA
considers
the
type
of
abuse
described
by
commenter
IV­
D­
13
(
e.
g.,
that
sources
might
improperly
define
events
as
startups
and
shutdowns)
to
be
unlikely,
and
does
not
believe
in
any
case
that
the
routine
reporting
of
all
startups
and
shutdowns
would
be
particularly
helpful
in
preventing
it.

In
some
industries,
startup
and
shutdown
events
are
numerous
and
routine.
So
long
as
the
provisions
of
the
SSM
plan
are
followed,
there
does
not
appear
to
be
any
real
utility
in
requiring
that
each
individual
startup
and
shutdown
be
reported
or
described.
As
many
commenters
noted,
in
those
instances
where
a
startup
or
shutdown
includes
actions
which
do
not
conform
to
the
SSM
plan
and
the
standard
is
exceeded,
the
facility
is
otherwise
required
to
promptly
report
these
deviations
from
the
plan.
Therefore,
EPA
has
deleted
startups
and
shutdowns
from
the
requirement
to
report
the
number,
duration,
and
a
brief
description
of
SSM
events
in
§
63.10(
d)(
5)(
i).

Comment:
Many
commenters
(
IV­
D­
02,
03,
09,
13,
14,
17,
18,
19,
29,
35,
36,
38,
49,
55,
60,
61,
71,
73)
responded
to
EPA's
request
for
comments
on
their
decision
to
retain
the
requirement
to
report
information
about
malfunctions
in
semi­
annual
reports.
As
one
commenter
(
IV­
D­
09)
pointed
out,
this
requirement
was
finalized
in
a
previous
rulemaking
without
providing
the
public
an
opportunity
to
comment
on
it.
One
commenter
(
IV­
D­
13)
supported
retaining
the
requirement
because
it
would
help
permitting
authorities
determine
whether
sources
are
improperly
defining
events
as
malfunctions.
Another
commenter
(
IV­
D­
71)
agreed
that
the
reported
information
"
should
be
limited
to
malfunctions."
14
Several
commenters
(
IV­
D­
03,
07,
14,
17,
18,
19,
27,
32,
35,
36,
49,
55,
60)
requested
that
EPA
make
it
clear
in
the
regulatory
language,
as
it
does
in
this
preamble
as
well
as
in
a
prior
preamble
(
59
FR
12422),
that
only
malfunctions
that
affect,
or
are
likely
to
affect,
a
source's
ability
to
meet
the
relevant
standard
need
to
be
reported.
The
commenters
suggested
revising
the
definition
of
"
malfunction"
to
accomplish
this.
The
commenters
noted
that
EPA
could
emphasize,
either
in
the
definition
or
in
the
preamble,
that
sources
should
report
events
that
are
likely
to
cause
an
exceedance
of
the
relevant
standard
because
sources
are
not
always
certain
as
to
whether
an
exceedance
occurred.
One
commenter
(
IV­
D­
55)
suggested
also
changing
the
definitions
of
"
startup"
and
"
shutdown"
to
reflect
the
focus
on
events
that
cause,
or
are
likely
to
cause,
an
exceedance.
One
commenter
(
IV­
D­
19)
specifically
asked
that
§
63.10(
d)(
5)
be
revised
to
allow
sources
to
certify
compliance
as
long
as
they
have
reported
those
malfunctions
that
cause
an
exceedance
of
the
relevant
emission
standard.

Several
commenters
(
IV­
D­
19,
29,
32)
asked
for
clarification
of
relevant
terms.
Commenter
IV­
D­
19
asked
for
clarification
of
"
minor"
(
e.
g.,
"
minor
or
routine
events...
need
not
be...
included
in
periodic
reports")
and
"
significant,"
which
they
interpret
to
mean
a
malfunction
that
has
the
potential
to
cause
an
exceedance
of
an
emission
standard.
Commenter
IV­
D­
29
asked
for
clarification
of
"
minor
or
routine"
events
and
complained
that
it
is
difficult
to
determine
what
to
include
or
not
include
in
an
SSM
plan
given
the
piecemeal
guidance
EPA
has
given
on
SSM
plans
over
the
years.
The
commenter
described
in
detail
their
interpretation
of
which
types
of
events
should
be
included
in
the
SSM
plan
as
"
malfunctions."
These
malfunctions
fell
into
three
classes:
(
1)
parametric
or
CEMS
monitoring
events,
(
2)
control
device
malfunctions,
and
(
3)
process
equipment
malfunctions.
The
commenter
also
described
their
interpretation
of
minor
events
within
these
classes
and
asked
for
confirmation/
clarification.
Commenter
IV­
D­
32
asked
EPA
to
include
in
the
final
rule
examples
of
"
minor"
malfunctions
that
would
not
need
to
be
reported.

Some
commenters
(
IV­
D­
02,
09,
19,
27,
29,
35,
38,
61,
73)
objected
to
retaining
the
malfunction
reporting
requirement.
Commenters
pointed
out
that
reports
are
already
required:
(
1)
when
an
SSM
plan
was
not
followed
during
an
SSM
event
(
§
63.10(
d)(
5)(
ii));
(
2)
when
excess
emissions
and/
or
exceedances
occur
during
SSM
events
(
§
63.10(
c)(
7)
and
§
63.10(
e)(
3)(
v));
and
(
3)
when
title
V
permit­
holders
deviate
from
permit
requirements
(
Part
70).
The
commenters
concluded,
therefore,
that
the
requirement
to
report
all
malfunctions
is
duplicative
of
these
other
reporting
requirements
except
in
cases
when
an
SSM
plan
was
followed
during
an
SSM
event
and
no
excess
emissions
occurred.
And,
as
one
commenter
(
IV­
D­
29)
argued,
since
it
is
considered
a
"
normal"
part
of
the
source's
operation
when
the
SSM
plan
is
followed
during
an
SSM
event
and
since
the
purpose
of
the
semi­
annual
report
is
to
document
excursions
from
the
rule
requirements,
sources
should
not
be
required
to
report
every
time
they
followed
their
SSM
plan
and
no
excess
emissions
occurred.

Response:
EPA
does
not
agree
with
these
commenters
that
the
malfunction
reporting
requirement
should
be
entirely
eliminated,
but
we
have
concluded
that
its
scope
can
be
narrowed.

With
respect
to
malfunctions,
the
rule
expressly
requires
that
the
SSM
plan
must
be
revised
by
the
facility
if
there
is
an
event
meeting
the
characteristics
of
a
malfunction
which
is
not
15
addressed
by
the
plan
(
40
CFR
63.6(
e)(
3)(
vii)).
At
the
time
of
proposal,
we
believed
that
reporting
of
all
malfunctions
is
necessary
to
assure
that
this
requirement
is
satisfied.
However,
after
reviewing
the
comments
and
evaluating
this
issue
in
the
context
of
the
rule
as
a
whole,
we
believe
that
the
problem
of
identifying
new
kinds
of
malfunctions
which
would
require
revision
of
the
SSM
plan
is
adequately
addressed
by
other
provisions
in
the
rule.
If
a
type
of
malfunction
is
not
addressed
by
the
current
SSM
plan,
we
believe
that
any
actions
taken
during
such
a
malfunction
cannot
be
reasonably
construed
as
actions
consistent
with
the
plan
and
that
such
actions
would
otherwise
be
reportable
under
§
63.10(
d)(
5)(
i)
or
§
63.10(
d)(
5)(
ii).
We
discuss
these
reporting
provisions
further
below.

EPA
also
agrees
with
a
commenter
IV­
D­
13
that
reporting
of
malfunctions
would
help
permitting
authorities
determine
whether
sources
are
attempting
to
circumvent
the
standard
by
improperly
defining
events
as
malfunctions.
To
prevent
this
type
of
potential
abuse,
we
do
not
think
that
all
malfunctions
need
to
be
reported.
Rather,
we
think
this
problem
can
be
addressed
by
requiring
that
the
affected
source
report
only
those
malfunctions
which
occurred
during
the
reporting
period
and
which
caused
or
may
have
caused
an
emission
limitation
in
the
relevant
standard
to
be
exceeded.
Thus,
EPA
has
decided
to
retain
the
requirement
that
the
owner
or
operator
report
malfunctions
in
the
periodic
report,
but
to
limit
its
scope
to
those
malfunctions
which
caused
or
may
have
caused
an
emission
limitation
in
the
relevant
standard
to
be
exceeded.

Moreover,
EPA
stated
in
the
proposal
that
minor
or
routine
events
that
do
not
have
a
significant
impact
on
the
ability
of
a
source
to
meet
the
standard
need
not
be
classified
as
a
malfunction,
addressed
by
the
SSM
plan,
or
included
in
periodic
reports.
EPA
thinks
there
is
no
reason
to
classify
an
event
as
a
malfunction
if
it
does
not
cause,
or
have
the
potential
to
cause,
the
emission
limitations
in
an
applicable
standard
to
be
exceeded.

A
number
of
commenters
requested
that
EPA
make
this
policy
clear
in
the
regulatory
language,
rather
than
only
in
the
preamble.
These
commenters
suggested
that
the
definition
of
malfunction
could
be
revised
to
accomplish
this.
EPA
thinks
this
is
a
good
idea
and
has
revised
the
definition
accordingly.
EPA
thinks
that
this
change
will
make
it
clear
that
minor
events
that
do
not
cause,
or
have
the
potential
to
cause,
emission
limitations
in
an
applicable
standard
to
be
exceeded
need
not
be
included
either
in
the
SSM
plan
or
in
periodic
malfunction
reports.

EPA
notes
that
40
CFR
63.10(
d)
describes
two
distinct
types
of
startup,
shutdown,
and
malfunction
reports.
Periodic
SSM
reports
are
submitted
on
a
semiannual
basis
and
are
described
in
§
63.10(
d)(
i).
Immediate
SSM
reports
which
are
triggered
by
a
particular
event,
and
which
require
an
oral
or
facsimile
report
within
2
working
days
and
a
written
report
within
7
working
days,
are
described
in
§
63.10(
d)(
ii).
During
EPA's
review
of
the
comments
concerning
the
various
SSM
reporting
provisions,
EPA
realized
that
there
is
an
unresolved
conflict
between
an
amendment
it
made
in
the
April
5,
2002
final
rule
and
the
language
of
40
CFR
63.10(
d)
as
it
is
currently
codified.
Although
EPA
amended
40
CFR
63.6(
e)(
3)(
iv)
to
limit
the
immediate
reporting
obligation
for
actions
which
are
not
consistent
with
the
SSM
plan
to
those
instances
where
the
source
exceeds
the
relevant
emission
standard,
EPA
did
not
make
a
similar
conforming
change
in
40
CFR
63.10(
d)(
ii).
This
discrepancy
was
also
specifically
identified
by
one
commenter.
EPA
is
amending
§
63.10(
d)(
ii)
to
correct
this
problem.
16
EPA
is
also
making
another
conforming
amendment
in
§
63.10(
d)(
i).
Since
immediate
reports
of
actions
not
consistent
with
the
SSM
plan
are
not
required
if
the
emission
limitations
in
the
standard
are
not
exceeded,
EPA
believes
that
the
periodic
startup,
shutdown,
and
malfunction
report
should
identify
any
instances
in
which
actions
taken
were
not
consistent
with
the
plan
but
no
emission
limitations
were
exceeded.

2.1.4
GENERAL
DUTY
CLAUSE
Comment:
Numerous
commenters
(
IV­
D­
02,
03,
10,
13,
14,
17,
18,
19
,
25,
29,
35,
36,
38,
47,
60,
68,
69,
72,
73)
provided
comments
on
EPA's
clarification
of
the
relationship
between
the
general
duty
to
minimize
emissions
and
a
source's
compliance
with
its
SSM
plan.

Many
commenters
(
IV­
D­
02,
03,
07,
09,
14,
17,
19,
25,
27,
29,
35,
38
,
47,
60,
68,
69,
72)
agreed
with
EPA's
statements
in
the
preamble
that
(
1)
compliance
with
an
inadequate
or
improperly
developed
SSM
plan
during
an
SSM
event
does
not
satisfy
the
general
duty
to
minimize
emissions,
(
2)
compliance
with
a
MACT
standard
is
not
mandatory
during
an
SSM
event,
and
(
3)
sources
are
not
required
to
further
minimize
emissions
once
the
MACT
standard
level
has
been
achieved
during
an
SSM
event.
These
commenters
requested
that
these
intentions
be
made
clear
in
the
regulatory
language
(
both
in
§
63.6(
e)(
1)(
i)
and
§
63.6(
e)(
3)(
vii)(
B)),
not
just
in
the
preamble.
In
the
case
of
the
second
statement,
some
of
the
commenters
noted
that
the
previous
language
in
§
63.6(
e)(
1)(
i)
("
i.
e.,
meet
the
emission
standard
or
comply
with
the
startup,
shutdown,
and
malfunction
plan")
was
clearer
than
the
proposed
language
and
should
be
retained
to
avoid
creating
the
implication
that
it
was
incorrect.
Commenters
suggested
adding
"
an
adequate"
or
"
developed
in
accordance
with
§
63.6(
e)(
3)"
to
this
"
i.
e.,"
statement
(
§
63.6(
e)(
1)(
i))
in
order
to
make
the
intended
clarification.
Another
commenter
(
IV­
D­
69)
stated
that
the
proposed
language
in
§
63.6(
e)(
1)(
i)
changes
the
intent
of
the
paragraph
from
determining
whether
an
owner/
operator
has
followed
the
prescribed
procedures
to
determining
whether
the
SSM
plan
itself
contains
acceptable
procedures.
This
commenter
expressed
fear
that
criteria
other
than
those
in
§
63.6(
e)(
3)(
i)
and
§
63.6(
e)(
3)(
vii)
and/
or
information
available
only
after
the
occurrence
of
a
particular
SSM
event
could
be
used
to
evaluate
the
adequacy
of
an
SSM
plan.

One
commenter
(
IV­
D­
13)
argued
that
EPA
has
no
basis
for
exempting
or
"
shielding"
sources
from
compliance
with
MACT
emission
standards
during
SSM
events.
The
only
basis
the
commenter
could
possibly
see
for
an
exemption
would
be
for
unavoidable
violations
of
emissions
limitations
(
Marathon
Oil
v.
Environmental
Protection
Agency,
564
F.
2d
1253
(
1977)).
The
commenter
argued
that
the
problem
with
exempting
a
source
from
liability
as
long
as
its
SSM
plan
is
followed
is
that
SSM
plans
go
into
effect
without
being
affirmatively
approved
by
EPA
or
another
permitting
authority.
The
commenter
concluded
that
EPA
has
created
a
"
compliance
gap"
because
EPA
and
States
cannot
enforce
a
MACT
standard,
or
even
ensure
that
an
adequate
SSM
plan
is
being
followed,
during
SSM
events,
even
when
it
is
clear
that
such
events
are
not
unavoidable.
The
commenter
conceded
that,
if
EPA
persists
in
exempting
sources
from
MACT
standards
during
SSM
events,
the
proposed
amendment
must
be
included
at
a
minimum
to
ensure
that
following
an
SSM
plan
during
an
SSM
event
does
not
automatically
satisfy
the
general
duty
to
minimize
emissions.
17
Response:
In
general,
the
commenters
did
not
disagree
with
the
general
principles
concerning
the
relationship
between
the
general
duty
to
minimize
emissions
and
the
compliance
of
a
source
with
its
SSM
plan
which
EPA
articulated
in
the
preamble
of
the
proposal.
Rather,
the
commenters
expressed
concerns
about
the
interpretation
of
the
proposed
language.
EPA
believes
that
much
of
the
concern
expressed
by
the
commenters
is
based
on
one
alternative
construction
of
the
phrase
"
to
the
levels
required
by
the
relevant
standards,"
which
replaced
the
phrase
"
at
least
to
the
levels
required
by
the
relevant
standards"
in
several
sections
of
the
April
5,
2002
final
rule.
While
EPA
intended
this
phrase
to
mean
that
emissions
must
be
minimized
to
the
greatest
extent
which
is
practicable,
unless
and
until
the
levels
required
by
the
applicable
MACT
standard
are
achieved,
some
commenters
were
concerned
that
this
phrase
would
be
construed
to
require
that
the
standard
be
met
at
all
times.
While
EPA
believes
that
such
a
construction
would
be
unreasonable
whatsoever
in
the
context
of
the
remainder
of
the
rule,
EPA
does
understand
how
the
literal
language
could
be
construed
in
this
manner.
The
parenthetical
phrase
which
followed
this
language
in
one
section
of
the
April
5,
2002
final
rule
helped
to
mitigate
the
potential
that
readers
might
adopt
this
alternative
construction.
However,
it
also
created
the
significant
problem
that
was
identified
by
Sierra
Club,
i.
e.,
the
requirement
could
be
construed
to
indicate
that
a
facility
complies
with
its
SSM
plan,
regardless
of
whether
the
plan
is
inadequate
or
improperly
developed,
thereby
satisfies
its
general
duty
to
minimize
emissions..

EPA
agrees
with
the
commenters
who
suggested
that
the
language
of
the
rule
itself
be
modified
to
more
clearly
establish
those
general
principles
which
were
stated
in
the
preamble
of
the
proposal.
Accordingly,
EPA
has
adopted
new
language
for
§
63.6(
e)(
1)(
i),
which
establishes
the
general
duty
to
minimize
emissions.
This
new
language
makes
it
clear
that
during
a
period
of
startup,
shutdown,
or
malfunction,
the
general
duty
to
minimize
emissions
requires
the
owner
or
operator
to
reduce
emissions
to
the
greatest
extent
consistent
with
safety
and
good
air
pollution
control
practices.
However,
during
an
SSM
event
the
general
duty
to
minimize
emissions
does
not
require
an
owner
or
operator
to
achieve
the
levels
required
by
the
applicable
MACT
standard
at
other
times,
or
to
make
further
efforts
to
reduce
emissions
if
such
levels
have
been
successfully
achieved.

Rather
than
restating
these
principles
in
other
sections
of
the
rule,
EPA
has
instead
crossreferenced
the
revised
language
of
§
63.6(
e)(
1)(
i)
in
§
63.6(
e)(
3)(
i)(
A)
and
§
63.6(
e)(
3)(
vii)(
B).
This
assures
that
the
same
principles
concerning
the
duty
to
minimize
emissions
will
also
be
applied
in
the
drafting
of
an
SSM
plan
and
in
determining
whether
a
particular
SSM
plan
requires
revision.
EPA
believes
that
this
combination
of
amendments
is
responsive
to
the
concerns
expressed
by
the
industry
commenters.
However,
it
also
achieves
EPA's
original
purpose,
by
assuring
that
a
source
will
not
be
considered
to
have
satisfied
the
duty
to
minimize
emissions
merely
because
it
has
complied
with
the
provisions
of
an
inadequate
SSM
plan.

EPA
has
noted
commenter
IV­
D­
13'
s
argument
that
the
whole
concept
that
a
MACT
standard
does
not
apply
during
periods
of
startup,
shutdown,
and
malfunction
has
a
questionable
legal
basis,
and
that
any
exemption
for
such
activities
should
be
strictly
limited
to
those
instances
where
violation
of
emission
limitations
is
"
unavoidable."
EPA
believes
that
it
has
discretion
to
make
reasonable
distinctions
concerning
those
particular
activities
to
which
the
emission
limitations
in
a
MACT
standard
apply,
and
therefore
disagrees
with
the
legal
position
taken
by
this
18
commenter.
However,
EPA
notes
that
the
general
duty
to
minimize
emissions
is
intended
to
be
a
legally
enforceable
duty
which
applies
when
the
emission
limitations
in
a
MACT
standard
do
not
apply,
thereby
limiting
exceedances
of
generally
applicable
emission
limitations
to
those
instances
where
they
cannot
be
reasonably
avoided.

The
general
duty
to
minimize
emissions
requires
that
owners
or
operators
review
their
SSM
plans
on
an
ongoing
basis
and
make
appropriate
improvements
to
assure
that
excess
emissions
are
avoided.
Our
experience
in
another
regulatory
context
illustrates
how
sources
and
regulatory
authorities
can
work
together
to
improve
procedures
for
SSM
events.
We
have
been
working
with
the
refining
industry
to
reduce
the
number
and
significance
of
refinery
acid
gas
flaring
episodes,
and
a
refinery
flaring
reduction
protocol
has
now
been
implemented
at
about
35
refinery
facilities
nationwide.
The
protocol
helps
sources
to
determine
the
root
cause
of
certain
flaring
events,
determine
the
corrective
action(
s)
for
such
problems,
and
then
to
implement
the
corrections.

Use
of
this
protocol
has
resulted
in
a
dramatic
drop
in
the
number
of
SSM
events.
For
example,
one
company
reduced
the
percentage
of
time
in
flare
at
its
refineries
(
including
all
startup,
shutdown,
maintenance,
upset
activities)
from
29.0%
in
1998
to
1.6%
in
2002.
Another
company
reduced
acid
gas
flaring
from
31
incidents
releasing
over
170
tons
of
SOx
in
1997
to
4
flaring
incidents
releasing
less
than
30
tons
per
year
SOx
in
2002.
The
EPA
intends
to
develop
guidance
this
year
that
will
highlight
the
best
practices
that
have
been
implemented
by
various
refiners
around
the
country
to
improve
their
response
to
SSM
events.
We
believe
that
the
experience
we
have
gained
in
this
process
may
also
be
beneficial
to
other
facilities
as
they
work
to
improve
the
quality
and
comprehensiveness
of
their
SSM
plans.

2.1.5
MONITORING
DEFINITION
Comment:
Three
commenters
(
IV­
D­
14,
68,
71)
responded
to
EPA's
request
for
comments
on
a
change
to
the
definition
of
"
monitoring"
made
during
a
prior
rulemaking.
One
commenter
(
IV­
D­
71)
supported
the
revised
definition
for
the
reasons
stated
in
the
preamble
to
this
rulemaking.
Two
commenters
(
IV­
D­
14,
68)
requested
that
EPA
return
to
the
previous
definition
of
"
monitoring"
because
the
revision
has
unintended
consequences.
One
commenter
(
IV­
D­
68)
stated
that,
unlike
for
monitoring
equipment,
procedures
to
verify
a
work
practice
standard
change
frequently
and
expressed
concern
that
every
change
to
a
work
practice
standard
verification
procedure
would
require
a
permit
modification
under
§
70.7(
e).
Another
commenter
(
IV­
D­
14)
expressed
concern
that
the
revised
definition
would
mandate
that
sources
subject
to
any
type
of
work
practice
standard(
s)
conduct
monitoring
of
those
activities
to
demonstrate
compliance.
This
commenter
specifically
referred
to
the
Metal
Can
MACT
which
requires
sources
to
develop
a
work
practice
plan
and
keep
records
that
it
is
being
implemented
but
not
to
demonstrate
compliance
via
monitoring.
This
commenter
suggested
that,
instead
of
revising
the
definition
of
monitoring
as
done
in
the
prior
rulemaking,
EPA
could
indicate
in
the
preamble
that
verifying
work
practice
standards
does
not
require
the
"
collection
and
use
of
measurement
data."
19
Response:
EPA
is
not
persuaded
that
the
revised
definition
will
cause
either
of
the
problems
described
by
commenters
IV­
D­
14
and
68.
Therefore,
EPA
has
retained
the
revised
definition
without
change.

2.1.6
COMPLIANCE
REPORTS
FOR
ACTIVITIES
WITH
SAME
COMPLIANCE
DATE
Comment:
Several
commenters
(
IV­
D­
29,
36,
68,
71)
responded
to
EPA's
request
for
comments
on
a
change
made
during
a
prior
rulemaking
to
the
requirement
to
submit
compliance
reports
(
§
63.9(
h)(
2)(
ii)).
The
commenters
all
agreed
with
EPA's
intention
for
making
the
change,
but
several
of
the
commenters
suggested
language
changes
to
further
clarify
EPA's
intent.
One
commenter
(
IV­
D­
68)
suggested
that,
instead
of
the
language
added
during
the
prior
rulemaking,
EPA
add
the
following
sentence
to
§
63.9(
h)(
2)(
ii):
"
Sources
may
combine
notifications,
as
long
as
the
due
date
requirement
for
each
individual
report
is
met."
Another
commenter
(
IV­
D­
29)
suggested
adding
the
word
"
all"
to
the
additional
language
(
e.
g.,
"
or
all
activities
that
have
the
same
compliance
date")
to
indicate
that
a
report
is
due
on
the
60th
day
after
the
last
compliance
demonstration
is
complete.
Another
commenter
(
IV­
D­
36)
agreed
with
this
interpretation
(
e.
g.,
that
a
compliance
report
should
be
submitted
once
all
of
the
compliance
demonstration
activities
with
the
same
compliance
date
have
been
completed,
even
if
they
are
completed
on
different
days)
and
suggested
the
following
changes
to
§
63.9(
h)(
2)(
ii):

...
For
example,
the
notification
shall
be
sent
before
close
of
business
on
the
60th
(
or
other
required)
day
following
the
completion
of
the
initial
performance
test,
or
group
of
tests
for
compliance
obligations
with
the
same
compliance
date
and
again
before
the
close
of
business
on
the
60th
(
or
other
required)
day
following
completion
of
subsequent
required
performance
test...

Response:
EPA
understands
the
need
for
clarification
of
its
intent
pertaining
to
the
submission
of
compliance
reports
and
has
added
the
following
language
to
§
63.9(
h)(
2)(
ii):

The
notification
must
be
sent
before
the
close
of
business
on
the
60th
day
following
the
completion
of
the
relevant
compliance
demonstration
activity
specified
in
the
relevant
standard
(
unless
a
different
reporting
period
is
specified
in
the
standard,
in
which
case
the
letter
must
be
sent
before
the
close
of
business
on
the
day
the
report
of
the
relevant
testing
or
monitoring
results
is
required
to
be
delivered
or
postmarked).
***
Notifications
may
be
combined
as
long
as
the
due
date
requirements
for
each
notification
are
met.

2.2
SUBPART
B,
SECTION
112(
j)
PROVISIONS
2.2.1
PHASED
APPROACH
FOR
PART
2
APPLICATION
DEADLINES
Comment:
Commenters
(
IV­
D­
01,
02,
03,
07,
08,
11,
14,
16,
17,
18,
19,
20,
21,
22,
26,
27,
28,
30,
33,
36,
37,
38,
43,
44,
45,
46,
47,
48,
49,
50,
51,
54,
58,
60,
61,
63,
64,
67,
68,
71,
72,
73)
wrote
that
if
EPA
does
not
retain
the
24­
month
time
period
between
the
required
20
submission
of
Part
1
and
Part
2
applications,
then
the
phased
approach
described
in
the
proposed
rule
should
be
adopted.
The
commenters
added
that
the
May
15,
2003
deadline
for
all
Part
2
applications
established
in
the
original
settlement
agreement,
Sierra
Club
v.
U.
S.
Environmental
Protection
Agency,
02­
1135
(
D.
C.
C.),
would
have
subjected
both
industry
and
permitting
agencies
to
the
unnecessary
investment
of
significant
resources.
One
commenter
(
IV­
D­
09)
argued
that
it
is
inappropriate
for
EPA
to
alter
the
2­
year
period
between
submission
deadlines
for
Part
1
and
Part
2
applications.

Commenters
(
IV­
D­
09,
27,
29,
65,
73)
noted
concern
that
60
days
between
the
promulgation
deadline
and
the
Part
2
application
deadline
does
not
provide
sufficient
time
for
submission
of
a
Part
2
application.
Several
commenters
(
IV­
D­
27,
29,
73)
suggested
requiring
a
120­
day
period
between
the
promulgation
deadline
and
the
Part
2
application
deadline.
Another
commenter
(
IV­
D­
65)
requested
that
EPA
allow
facilities
180
days
after
publication
of
this
rule
to
submit
any
required
Part
2
applications
if
they
must
re­
request
an
applicability
determination.
Alternatively,
the
commenter
suggested
EPA
provide
an
automatic
90­
day
extension
for
any
facility
that
must
submit
a
Part
2
application
within
90
days
of
the
publication
of
this
rule
in
the
Federal
Register.

Several
commenters
(
IV­
D­
17,
18,
27,
65,
68)
suggested
EPA
use
the
signature
date
as
the
event
that
avoids
submission
of
a
Part
2
application
rather
than
date
of
publication
in
the
Federal
Register.
This
would
avoid
the
unnecessary
preparation
of
Part
2
applications
due
to
delays
in
the
publication
of
final
rules.

Response:
Under
the
final
settlement
agreement
with
Sierra
Club,
EPA
proposed
to
replace
the
existing
schedule
for
submission
of
section
112(
j)
Part
2
applications
(
also
referred
to
as
Part
2
MACT
applications
or
simply
Part
2
applications),
under
which
most
Part
2
applications
would
have
been
due
on
May
15,
2004,
with
a
new
schedule
establishing
a
specific
deadline
for
submission
of
all
Part
2
applications
for
all
affected
sources
in
a
given
category
or
subcategory.
With
respect
to
those
categories
or
subcategories
for
which
MACT
standards
are
scheduled
to
be
promulgated
after
this
rulemaking
is
complete,
EPA
proposed
specific
Part
2
application
deadlines
which
are
60
days
after
each
respective
scheduled
promulgation
date.
For
those
categories
or
subcategories
for
which
MACT
standards
were
scheduled
to
be
promulgated
while
this
rulemaking
was
pending,
EPA
proposed
a
Part
2
application
deadline
of
May
15,
2003.
However,
because
all
of
the
standards
scheduled
to
be
promulgated
during
this
rulemaking
have
in
fact
been
promulgated,
there
is
no
need
to
take
any
further
action
concerning
the
proposed
Part
2
application
deadline
for
those
categories.

Commenters
suggested
using
the
signature
date
as
the
event
that
avoids
submission
of
a
section
112(
j)
Part
2
application.
According
to
statutory
language
in
section112(
j),
the
event
that
eliminates
the
need
for
any
further
action
concerning
the
preparation
of
Part
2
applications
is
promulgation
of
a
final
rule.
However,
as
a
practical
matter,
EPA
expects
all
parties
to
cease
activities
related
to
the
preparation
and
processing
of
section
112(
j)
applications
upon
signature
of
a
MACT
standard
by
the
Administrator.
21
EPA
notes
that
commenters
were
generally
supportive
of
the
new
approach
to
scheduling
of
section
112(
j)
Part
2
applications
which
EPA
proposed.
EPA
agrees
with
commenters
that
the
proposed
schedule
will
permit
EPA
to
avoid
a
wasteful
expenditure
of
public
and
private
resources,
so
long
as
there
are
no
further
delays
in
promulgation
of
the
remaining
MACT
standards.

2.2.2
DELAYED
PROMULGATION
OF
MACT
STANDARDS
Comment:
Several
commenters
(
IV­
D­
01,
02,
03,
07,
08,
11,
14,
17,
18,
19,
20,
21,
22,
26,
27,
29,
30,
33,
36,
37,
43,
44,
45,
46,
48,
49,
50,
51,
54,
60,
61,
63,
64,
67,
68,
71,
73)
stressed
the
importance
of
advance
notice
to
affected
sources
and
permitting
agencies
if
EPA
will
fail
to
meet
a
deadline
for
the
issuance
of
a
MACT
standard.
Commenters
(
IV­
D­
02,
03,
07,
08,
14,
17,
18,
19,
21,
22,
26,
27,
29,
30,
33,
36,
37,
43,
44,
45,
46,
48,
49,
51,
54,
60,
64,
67,
68,
73,
63)
suggested
that
EPA
provide
60
days
advance
notice
if
it
will
miss
a
deadline
for
the
issuance
of
a
MACT
standard
so
that
sources
are
able
to
plan
for
submission
of
Part
2
applications.
Several
commenters
(
IV­
D­
03,
27,
29,
73)
specifically
requested
EPA
clarify
in
the
final
rule
that
the
advance
notice
will
appear
in
the
Federal
Register
as
well
as
on
the
EPA
website.
Other
commenters
(
IV­
D­
27,
68)
requested
that
EPA
provide
informal
notice
so
that
additional
delays
would
not
be
created
by
the
notification
process.
Commenters
(
IV­
D­
02,
60)
also
noted
that
the
advance
notice
should
address
the
standards
and
applicability
of
the
affected
source
category.

Response:
As
stated
in
the
proposal,
EPA
recognizes
that
the
schedule
for
submission
of
section
112(
j)
Part
2
applications
leaves
relatively
little
time
for
sources
to
prepare
and
submit
such
applications
if
a
particular
promulgation
deadline
is
missed.
In
recognition
of
the
tight
time
frames,
EPA
will
try
to
provide
prompt
advance
notice
to
affected
sources
and
to
permitting
authorities
if
it
has
seen
reason
to
believe
that
an
impending
promulgation
deadline
for
a
particular
MACT
standard
will
not
be
met.

Comment:
Commenters
(
IV­
D­
02,
03,
06,
08,
11,
14,
17,
18,
21,
22,
26,
27,
30,
33,
36,
37,
43,
44,
45,
46,
48,
49,
50,
51,
54,
60,
63,
64,
67,
68,
63)
also
requested
that
EPA
extend
the
deadline
for
a
Part
2
application
if
the
issuance
deadline
is
extended
for
the
corresponding
MACT
standard
in
the
pending
settlement
agreement,
Sierra
Club
v.
Whitman,
01­
1337
(
D.
D.
C.).
Commenters
(
IV­
D­
08,
17,
18,
21,
30,
36,
49)
suggested
that
the
extension
period
for
a
Part
2
application
should
be
equivalent
to
the
extension
period
of
the
MACT
issuance
date.
Other
commenters
(
IV­
D­
02,
06,
11,
27,
68)
suggested
that
EPA
provide
at
least
60
days
for
every
section
112(
j)
Part
2
application
following
the
revised
MACT
promulgation
deadlines.
The
commenters
suggested
basing
the
deadline
for
Part
2
applications
on
the
actual
promulgation
dates
agreed
upon
in
the
final
consent
decree
to
avoid
the
need
for
a
new
rulemaking.
Commenters
(
IV­
D­
27,
68)
also
noted
that
if
promulgation
dates
are
moved
up
in
the
pending
settlement,
the
deadlines
for
Part
2
applications
should
remain
the
same.
Another
commenter
(
IV­
D­
61)
noted
their
assumption
that
the
deadlines
for
promulgating
the
MACT
standards
in
any
final
rule
will
remain
unchanged
regardless
of
changes
in
the
pending
settlement
agreement
Sierra
Club
v.
Whitman.
Another
commenter
(
IV­
D­
04)
fully
supports
the
timetable
for
22
submitting
Part
2
applications
if
EPA
is
committed
to
promulgating
the
remaining
MACT
standards
before
their
deadlines.

Response:
The
Part
2
application
deadlines
which
EPA
proposed
for
each
category
or
subcategory
were
based
on
a
separate
agreement
in
principle
EPA
had
reached
with
Sierra
Club
on
a
schedule
for
promulgation
of
all
remaining
MACT
standards
which
were
included
in
the
original
schedule
established
pursuant
to
CAA
sections
112(
e)(
1)
and
112(
e)(
3).
While
this
rulemaking
was
pending,
this
agreed
schedule
was
incorporated
in
a
proposed
consent
decree
and
filed
in
Sierra
Club
v.
Whitman,
01­
1337
(
D.
D.
C.).
On
March
27,
2003
(
68
FR
14976.),
EPA
published
a
notice
pursuant
to
CAA
section
113(
g)
affording
interested
persons
30
days
to
submit
comments
concerning
the
proposed
consent
decree.
EPA
has
now
reviewed
all
timely
comments
received
concerning
the
proposed
consent
decree,
and
has
determined
that
there
is
no
basis
at
this
time
for
modification
of
the
schedule
incorporated
in
that
decree.

EPA
notes
that
the
dates
it
is
adopting
in
this
rulemaking
for
submission
of
Part
2
applications
for
particular
categories
and
subcategories
cannot
be
made
automatically
contingent
on
the
content
of
a
consent
decree
which
has
not
itself
been
codified.
EPA
does
not
expect
to
consider
any
future
revisions
to
the
schedule
for
submission
of
Part
2
applications
unless
the
schedule
set
forth
in
the
consent
decree
is
itself
modified.
If
the
deadline
for
promulgation
of
any
MACT
standard
which
appears
in
the
consent
decree
is
extended
by
the
District
Court
in
accordance
with
the
provisions
of
that
decree,
EPA
will
consider
at
that
time
whether
any
corresponding
adjustment
in
the
schedule
for
Part
2
applications
set
forth
in
this
rule
is
necessary
and
appropriate.
If
EPA
concludes
that
a
change
in
the
schedule
for
Part
2
applications
is
warranted,
it
will
consider
the
use
of
expedited
procedures
including
direct
final
rulemaking.

Comment:
One
commenter
(
IV­
D­
20)
noted
that
it
is
critical
EPA
meet
the
deadlines
for
establishing
MACT
standards
that
are
reflected
in
the
proposal
in
order
to
minimize
the
risk
to
public
health
from
exposure
to
hazardous
air
pollutants
(
HAPs)
and
because
case­
by­
case
MACT
determinations
resulting
from
a
missed
deadline
would
be
inefficient,
time­
consuming,
costly,
and
burdensome
to
state
and
local
permitting
agencies.

Response:
EPA
notes
that
the
prompt
and
significant
consequences
if
a
promulgation
deadline
is
missed
will
create
new
incentives
for
EPA
and
the
other
stakeholders
to
assure
that
the
agreed
promulgation
deadlines
are
met.

2.2.3
DEADLINES
FOR
SPECIFIC
SOURCE
CATEGORIES
Comment:
Commenters
(
IV­
D­
02,
05,
06,
11,
12,
14,
15,
16,
24,
32,
34,
39,
40,
42,
49,
52,
58,
59,
60,
71)
said
that
the
deadline
for
the
submission
of
section
112(
j)
Part
2
applications
for
the
specific
source
that
they
represent
is
not
reasonable
for
the
following
reasons:

According
to
commenters
(
IV­
D­
34,
58)
the
EPA
has
denied
their
industry
due
process
rights
and
the
protection
afforded
to
other
industries
by
including
their
source
category
in
the
earlier
MACT
standard
promulgation
and
Part
2
application
deadline
bins.
Additionally,
the
commenters
(
IV­
D­
34,
58)
stated
that
the
shortened
schedule
for
promulgation
of
the
MACT
for
23
their
industry
and
for
the
submission
of
Part
2
application
deadlines
has
not
allowed
time
for
EPA
to
review
the
rule
with
the
Office
of
Management
and
Budget
(
OMB)
and
the
Small
Business
Administration
(
SBA).
The
commenters
suggested
that
EPA
postpone
the
promulgation
date
for
the
Brick
and
Structural
Clay
Products
Manufacturing
NESHAP
from
February
28,
2003
and
postpone
the
associated
MACT
Hammer
date
in
order
to
insure
proper
review
of
the
rule
and
sufficient
time
for
consideration
of
risk­
based
approaches
for
the
industry.

Commenters
(
IV­
D­
05,
12,
24,
40,
49,
52)
suggested
that
EPA
revise
the
deadline
for
completing
the
section
112(
j)
Part
2
applications
for
Iron
and
Steel
Foundries
from
October
30,
2003
to
April
28,
2004.
The
commenters
stated
that
the
additional
time
is
necessary
to
address
technical
issues
in
the
December
23,
2002
proposed
NESHAP
for
Iron
and
Steel
Foundries.
Commenters
(
IV­
D­
05,
24,
40,
52)
also
noted
that
EPA
failed
to
include
required
information
in
the
docket
by
the
publication
of
the
proposed
NESHAP
for
Iron
and
Steel
Foundries,
and
that
this
information
should
be
placed
in
the
docket
and
the
deadline
extended
in
order
to
allow
for
review
and
comments.

Commenters
(
IV­
D­
15,
39,
42)
requested
that
EPA
move
the
Taconite
Iron
Ore
Processing
source
category
from
the
second
bin
into
the
fourth
bin.
The
commenters
wrote
that
the
additional
time
is
necessary
for
preparation
of
a
delisting
petition,
EPA
review
of
the
petition,
and,
in
the
event
the
petition
fails,
compliance
by
affected
sources
with
the
applicable
requirements.

Several
commenters
(
IV­
D­
16,
58,
59,
71)
suggested
that
EPA
extend
the
October
30,
2003
due
date
for
Part
2
applications
for
the
Combustion
Turbine
source
category
by
at
least
6
months.
Commenters
noted
concern
that
EPA
would
not
be
able
to
promulgate
the
standard
in
time
for
the
due
date
and
that
the
due
date
has
caused
EPA
to
shorten
the
comment
period
by
30
days.
Other
commenters
(
IV­
D­
16,
58,
59)
pointed
out
that
the
early
deadline
will
not
allow
EPA
to
fully
consider
public
comments,
resolve
significant
testing
and
monitoring
issues
related
to
the
proposed
rule,
consider
the
proposed
risk­
based
alternatives,
or
consider
the
pending
petition
to
delist
the
Combustion
Turbine
source
category.
The
commenters
also
pointed
out
that
EPA
will
be
forced
to
abbreviate
the
development
of
the
final
Combustion
Turbine
MACT
standard
or
miss
the
August
30th
deadline.
Finally,
the
commenters
noted
that
the
Combustion
Turbine
source
category
is
the
only
combustion
source
category
that
has
been
assigned
the
August
30,
2003
promulgation
date.

Several
commenters
(
IV­
D­
02,
06,
11,
60)
expressed
concern
that
the
promulgation
date
for
the
Miscellaneous
Organic
Chemical
Production
Processes
(
MON)
MACT
is
too
early.
Commenters
(
IV­
D­
02,
06,
11)
requested
that
EPA
move
the
coatings
subpart
of
the
MON
MACT
standard
to
the
February
28,
2004
promulgation
deadline
and
the
April
28,
2004
Part
2
application
deadline,
at
the
earliest.
The
commenters
pointed
out
that
the
promulgation
deadline
for
the
coating
subpart
of
the
MON
should
correspond
with
the
deadline
for
the
other
surface
coating
MACTs.
The
commenters
suggested
that
affected
sources
may
be
able
to
reduce
emissions
to
minor
or
area
source
levels
if
the
surface
coating
MACTs
are
promulgated
far
enough
in
advance
of
the
MON
MACT.
Another
commenter
(
IV­
D­
32)
requested
that
EPA
allow
sources
subject
to
the
MON
MACT
120
days
to
submit
a
section
112(
j)
Part
2
application
if
24
EPA
misses
the
deadline
for
the
promulgation
of
the
final
rule.
The
commenter
also
requested
EPA
allow
sources
to
have
an
extra
30
days
to
re­
submit
requests
for
applicability
determinations,
and
allow
permitting
authorities
an
extra
60
days
to
review
such
requests.
The
commenter
pointed
out
that
these
provisions
are
necessary
because
of
the
complexity
of
the
MON
rule.

Another
commenter
(
IV­
D­
14)
requested
that
EPA
move
the
Part
2
application
deadline
for
the
Metal
Can
Coating
source
category
to
April
28,
2004.
The
commenter
expressed
concern
that
EPA
would
be
able
to
promulgate
the
Metal
Can
Coating
NESHAP
by
the
scheduled
deadline
of
August
31,
2003.

Another
commenter
(
IV­
D­
38)
supported
the
August
13,
2005
deadline
for
the
industrial
boilers,
industrial/
commercial
boilers,
process
heaters,
and
hydrochloric
acid
production
furnaces
source
category.

One
commenter
(
IV­
D­
20)
recommended
that
EPA
promulgate
the
following
rules
without
the
risk­
based
exemptions
that
EPA
is
currently
taking
comment
on
and
that
could
delay
the
final
standards:
Stationary
Reciprocating
Internal
Combustion
Engines;
Surface
Coating
of
Automobiles
and
Light
Duty
Trucks;
Stationary
Combustion
Turbines;
Industrial,
Commercial
and
Institutional
Boilers
and
Process
Heaters;
and
Plywood
and
Composite
Wood
Products.

Response:
EPA
notes
that
many
commenters
in
this
rulemaking
submitted
comments
opposing
the
promulgation
schedule
for
particular
MACT
standards.
EPA
understands
why
these
comments
were
submitted
in
this
rulemaking,
since
the
notice
providing
an
opportunity
to
comment
on
the
proposed
consent
decree
had
not
been
published
at
the
time
they
were
submitted.
However,
EPA
also
believes
that
the
most
appropriate
context
for
consideration
of
these
comments
is
the
review
of
the
proposed
consent
decree
under
CAA
section
113(
g).
Accordingly,
EPA
has
deemed
all
comments
submitted
in
this
rulemaking
concerning
the
schedule
for
promulgation
of
particular
MACT
standards
to
also
be
comments
concerning
the
proposed
consent
decree
in
Sierra
Club
v.
Whitman.

In
general,
EPA
believes
that
it
is
incumbent
on
EPA
to
issue
all
MACT
standards
for
which
the
mandatory
statutory
promulgation
date
has
already
passed
as
rapidly
as
is
practicable.
EPA
also
believes
that
it
is
in
the
best
position
to
evaluate
those
tasks
that
remain
and
the
resources
that
are
available
to
accomplish
those
tasks,
and
then
to
establish
an
appropriate
schedule
for
promulgation
of
overdue
standards.
EPA
respectfully
disagrees
with
those
commenters
who
argue
that
EPA
will
be
unable
to
adhere
to
the
agreed
schedule
for
promulgation
of
particular
standards.
As
discussed
above,
EPA
will
endeavor
to
provide
timely
information
to
affected
sources
and
permitting
authorities
if
it
becomes
apparent
that
the
promulgation
schedule
for
any
of
the
remaining
MACT
standards
will
not
be
met.

After
considering
all
of
the
comments,
EPA
has
decided
to
adopt
the
schedule
for
section
112(
j)
Part
2
applications
with
respect
to
MACT
standards
that
have
not
yet
been
promulgated,
exactly
as
it
was
proposed.
EPA
has
added
appropriate
implementing
language
and
related
tables
to
40
CFR
63.52(
e)(
1).
25
2.2.4
CONTENT
OF
PART
2
APPLICATIONS
Comment:
Commenters
(
IV­
D­
02,
03,
06,
08,
09,
11,
14,
17,
18,
19,
21,
22,
26,
27,
30,
33,
36,
37,
43,
44,
45,
46,
47,
48,
49,
50,
51,
53,
54,
60,
61,
63,
64,
67,
68,
70,
73)
requested
that
EPA
streamline
the
content
of
Part
2
applications
in
order
to
minimize
resources
expended
upon
them.

In
response
to
EPA's
request
for
comments
on
whether
there
are
Part
2
application
requirements
that
can
be
met
by
referring
to
the
applicable
proposed
MACT
standard,
the
commenters
(
IV­
D­
02,
03,
06,
07,
08,
09,
11,
14,
17,
18,
19,
21,
22,
25,
26,
27,
30,
33,
36,
37,
43,
44,
45,
46,
48,
49,
51,
53,
54,
60,
63,
64,
67,
68,
70,
73)
requested
specifically
that
EPA:
(
1)
allow
a
simple
reference
to
a
proposed
MACT
standard
to
satisfy
all
of
the
elements
required
for
a
Part
2
application,
and
(
2)
allow
sources
that
do
not
wish
to
reference
a
proposed
MACT
standard
to
cross­
reference
other
materials
such
as
responses
to
section
114
information
requests,
title
V
applications
and
permits,
and
emissions
inventories.
The
commenters
emphasized
that
a
reference
to
a
proposed
rule
does
not
imply
the
applicant
endorses
the
proposal.
Commenters
also
emphasized
that,
because
some
facilities
may
object
to
a
particular
MACT
standard,
EPA
should
explicitly
state
that
cross­
referencing
previously
submitted
documents
and
parts
of
an
EPA
proposal
can
satisfy
the
requirements
of
Part
2
applications.
One
commenter
(
IV­
D­
25)
stated
that
the
reference
approach
has
been
used
in
other
EPA
regulations
such
as
the
New
Source
Performance
Standards.
Another
commenter
(
IV­
D­
48)
wrote
that
section
112(
d)
standards
are
based
on
the
same
section
114
information
requests,
so
allowing
this
type
of
reference
would
lead
to
development
of
an
equivalent
standard.
Commenters
(
IV­
D­
07,
08,
09,
17,
18,
19,
21,
27,
30,
49,
68,
73)
also
suggested
that,
to
the
extent
EPA
does
require
sources
that
do
not
reference
proposed
MACT
standards
to
submit
HAP
information,
the
information
should
not
be
required
to
be
HAP­
specific.

Another
commenter
(
IV­
D­
31)
agreed
that
a
source
should
have
the
option
of
directly
relying
on
a
proposed
MACT
standard
for
a
Part
2
application,
but
that
it
is
important
to
preserve
the
options
an
affected
source
has
for
submitting
a
Part
2
application
that
meets
the
criteria
for
an
alternative
emissions
limitation
under
section
112(
i)(
5)
or
other
relevant
provisions
of
the
Act.

Another
commenter
(
IV­
D­
71)
suggested
that
EPA
streamline
the
Part
2
application
process
by
allowing
affected
sources
that
do
not
object
to
the
proposed
rule
to
satisfy
the
requirements
of
section
112(
j)
by
stating
that
they
will
comply
with
the
proposed
standards.

Commenters
(
IV­
D­
08,
17,
18,
21,
30,
36,
49)
noted
that
while
the
use
of
the
proposed
rule
as
a
template
for
Part
2
applications
could
be
helpful
if
a
burdensome
application
is
required,
the
need
for
a
template
can
be
eliminated
if
EPA
states
that
a
reference
to
the
Federal
Register
citation
for
a
proposed
MACT
standard
is
a
sufficient
approach
to
meeting
Part
2
application
requirements.
One
commenter
(
IV­
D­
19)
opposed
the
recommendation
to
use
the
proposed
rule
as
a
template.

Commenters
also
suggested
EPA
allow
cross­
referencing
to
satisfy
other
specific
requirements.
Commenters
(
IV­
D­
07,
27,
68)
noted
that
Part
2
applications
trigger
title
V
major
26
modification
issues
which
necessitates
the
submission
of
an
updated
title
V
application
permit
for
the
entire
unit
at
an
affected
source.
Commenters
(
IV­
D­
27,
68)
noted
that
this
would
be
an
additional
cost
burden
and
suggested
EPA
allow
affected
sources
to
cross­
reference
title
V
applications
in
lieu
of
submitting
updated
title
V
forms
for
all
of
the
affected
emission
units.

Another
commenter
(
IV­
D­
65)
suggested
that
EPA
specifically
allow
facilities
in
the
process
of
preparing
title
V
or
federally
enforceable
synthetic
minor
permit
applications
(
opt­
out
applications)
to
use
these
to
update
applicability
determinations
and,
if
necessary,
substitute
as
Part
2
applications
when
they
do
not
plan
to
be
subject
to
specific
MACT
standards
after
the
first
substantive
compliance
date.
Alternatively,
if
the
opt­
out
application
would
be
completed
before
the
first
compliance
date
of
the
MACT
standard,
the
commenter
suggested
that
the
affected
source
reference
the
opt­
out
application
in
their
Part
2
application
in
lieu
of
submitting
a
complete
Part
2
application.

One
commenter
(
IV­
D­
11)
requested
that
EPA
streamline
the
content
of
Part
2
applications,
taking
into
consideration
facilities
that
have
received
or
submitted
applications
to
agencies
establishing
or
requesting
synthetic
limits
on
HAPs.

Commenters
(
IV­
D­
17,
18,
50)
suggested
that
EPA
provide
implementation
guidance
to
sources
and
permitting
authorities
to
minimize
the
burden
of
Part
2
applications.
They
stressed
the
importance
of
guidance
in
the
instance
when
a
MACT
standard
has
been
proposed.

In
response
to
EPA's
question
of
whether
applicants
need
to
provide
estimated
total
uncontrolled
and
controlled
emission
rates
to
enable
the
permitting
authority
to
prepare
for
a
potential
case­
by­
case
determination,
several
commenters
(
IV­
D­
08,
17,
18,
19,
21,
22,
26,
30,
33,
36,
43,
44,
45,
46,
48,
49,
51,
54,
63,
64,
67)
requested
that
this
be
deleted
as
a
requirement
and
made
optional.
The
commenters
(
IV­
D­
08,
17,
18,
19,
21,
22,
26,
30,
33,
36,
37,
43,
44,
45,
46,
48,
49,
51,
54,
63,
64,
67,
73)
also
pointed
out
that
HAP
information
can
be
requested
by
the
State
as
it
is
needed.
Commenters
(
IV­
D­
07,
08,
17,
18,
19,
22,
26,
30,
33,
37,
43,
44,
46,
48,
49,
54,
61,
63,
64,
67,
73)
reiterated
that
sources
relying
on
a
proposed
rule
have
met
any
HAP
emissions
information
requirements
necessary
to
begin
processing
an
application
and
that
the
rule
should
specifically
state
that
for
those
sources
that
do
not
rely
on
a
proposed
MACT
in
their
Part
2
applications,
referencing
previously
submitted
materials
is
sufficient.
Another
commenter
(
IVD
70)
suggested
that
an
affected
source
should
not
be
required
to
supply
estimates
of
HAP
emission
rates
if
the
proposed
rule
does
not
specifically
limit
emissions
of
HAPs
(
e.
g.
where
a
specific
pollutant
limitation
is
not
provided).
Other
commenters
(
IV­
D­
27,
68)
pointed
out
that
this
information
is
often
part
of
a
title
V
permit
or
pending
application
and
that
sources
should
merely
cross­
reference
or
attach
pages
from
their
title
V
application.

In
response
to
EPA's
request
for
comments
on
whether
new
emission
testing
should
be
required
if
the
applicant
does
not
have
the
information
required
to
provide
meaningful
estimates
of
emission
rates,
several
commenters
(
IV­
D­
02,
07,
08,
11,
17,
18,
21,
22,
26,
27,
30,
33,
36,
43,
44,
45,
46,
48,
49,
51,
54,
60,
63,
64,
67,
68,
73
)
were
opposed
to
required
emissions
testing.
Commenters
(
IV­
D­
22,
26,
33,
43,
44,
45,
46,
48,
51,
54,
63,
64,
67)
stated
that
this
is
not
required
in
the
current
rule
and
should
not
be
made
a
requirement
in
a
new
rule.
Commenters
27
(
IV­
D­
02,
08,
17,
18,
21,
27,
30,
36,
49,
68,
73)
argue
that
when
a
source
chooses
to
reference
a
proposed
rule,
there
should
not
be
any
need
for
even
emissions
estimating
and
that
when
a
source
does
not
rely
on
a
proposed
rule,
emissions
testing
goes
beyond
(
1)
what
is
needed
to
issue
a
case­
by­
case
MACT
and
(
2)
what
EPA
typically
requires
for
an
information
request
under
section
114
of
the
CAA.
One
commenter
(
IV­
D­
36)
added
that
requiring
emissions
testing
goes
beyond
the
process
EPA
follows
when
developing
MACT
standards,
whereby
EPA
relies
on
existing
information
and
does
not
conduct
emissions
testing.

In
response
to
EPA's
request
for
comments
on
whether
it
is
appropriate
to
require
individual
applicants
to
submit
information
relevant
to
establishing
the
MACT
floor
in
their
Part
2
applications,
commenters
(
IV­
D­
08,
17,
18,
21,
22,
26,
30,
33,
36,
37,
43,
44,
45,
46,
48,
49,
51,
54,
63,
64,
67)
wrote
that
information
gathering
for
establishment
of
MACT
floors
is
not
the
responsibility
of
the
industry,
and
that
this
information
is
not
necessary
to
begin
processing
an
application.
The
commenters
also
pointed
out
that
this
information
can
be
requested
by
the
State
as
it
is
needed.

Commenters
(
IV­
D­
19,
73)
further
requested
that
the
provisions
for
"
optional
information"
(
e.
g.
floor
analyses)
be
removed
from
the
content
of
Part
2
applications.
The
commenters
are
concerned
that
a
source
could
be
denied
the
opportunity
to
submit
additional
information
later
in
the
proceedings
on
its
permit,
and
requested
that
EPA
clarify
in
the
final
rule
that
a
source
has
until
the
closure
of
the
comment
period
to
supplement
its
MACT
determination
with
additional
floor
analyses.
Other
commenters
(
IV­
D­
27,
68)
pointed
out
that
based
on
the
proposed
schedule
for
promulgating
final
MACT
standards,
EPA
will
have
proposed
all
MACT
rules
before
Part
2
applications
will
be
due,
and
affected
sources
should
therefore
cross­
reference
the
EPA
docket
where
the
information
is
contained
that
was
used
as
the
basis
for
the
floor
determination
in
the
proposed
standard.

One
commenter
(
IV­
D­
70)
requested
that
if
a
source
proposes
no
controls
in
a
Part
2
application
in
accordance
with
a
proposed
MACT
rule,
it
can
submit
a
simplified
Part
2
application.
The
Part
2
application
should
rely
on
the
proposed
rule,
and
emissions
information
and
information
relevant
to
establishing
the
MACT
floor
should
not
be
required.

Response:
EPA
intends
to
meet
the
obligations
it
will
be
assuming
under
the
consent
decree
in
Sierra
Club
v.
Whitman
to
promulgate
the
remaining
MACT
standards
in
a
timely
manner.
If
EPA
succeeds
in
promulgating
all
remaining
MACT
standards
by
the
applicable
deadlines,
there
will
be
no
need
for
submission
of
any
Part
2
applications.
However,
it
is
also
made
clear
in
the
proposed
rule
that
EPA
wants
to
minimize
any
unnecessary
burdens
associated
with
the
submission
of
Part
2
applications
if
such
applications
do
become
necessary.
EPA
does
not
want
to
require
the
submission
of
any
information
which
is
not
truly
necessary
to
prepare
for
potential
issuance
of
case­
by­
case
MACT
determinations.
To
that
end,
the
proposal
included
some
general
guidance
concerning
the
relationship
between
Part
2
applications
and
an
applicable
proposed
MACT
standard,
and
EPA
also
asked
some
additional
questions
intended
to
assist
in
further
limiting
any
unnecessary
burden
associated
with
Part
2
applications.
28
Many
commenters
argued
that
the
burden
of
compiling
a
Part
2
application
could
be
diminished
by
permitting
cross­
referencing
of
various
other
documents.
EPA
agrees
generally
with
this
concept,
although
the
specific
information
which
is
being
cross­
referenced
needs
to
be
clearly
identified
and
the
information
being
cross­
referenced
should
also
be
information
that
is
readily
available
to
the
permitting
authority.
Rather
than
attempting
to
specify
those
particular
documents
that
may
be
appropriately
cross­
referenced,
EPA
has
decided
to
adopt
language
setting
forth
general
principles
regarding
the
cross­
referencing
of
other
documents
in
Part
2
applications.
These
general
principles
are
included
in
a
new
paragraph
codified
as
40
CFR
63.53(
b)(
1).
EPA
has
concluded
that
an
applicant
should
be
permitted
to
cross­
reference
specific
information
in
any
prior
submission
to
the
permitting
authority,
so
long
as
the
applicant
does
not
presume
favorable
action
on
any
prior
application
or
request
which
is
still
pending.
Further,
EPA
has
concluded
that
an
applicant
should
be
permitted
to
cross­
reference
any
part
of
a
standard
proposed
by
EPA
pursuant
to
CAA
section
112(
d)
or
112(
h)
for
a
category
or
subcategory
which
includes
sources
to
which
the
Part
2
application
applies.
We
also
want
to
assure
applicants
that
they
can
cross­
reference
a
proposed
standard
as
part
of
their
Part
2
application
without
necessarily
supporting
the
proposal
itself.
Thus,
an
applicant
who
cross­
references
a
proposed
standard
is
free
to
argue
that
another
approach
(
other
than
the
approach
proposed
by
EPA)
should
be
used
in
making
the
case­
by­
case
MACT
determination.

In
evaluating
these
comments,
EPA
considered
whether
estimates
of
controlled
and
uncontrolled
emission
rates
are
consistently
needed
to
process
a
Part
2
application.
In
some
instances,
such
emission
data
may
be
necessary
to
identify
those
emission
points
which
would
be
subject
to
control
under
a
proposed
MACT
standard,
but
EPA
believes
that
the
provision
requiring
the
applicant
to
otherwise
identify
such
emission
points
is
sufficient
in
those
instances
where
this
is
true.
Such
emission
information
may
also
be
necessary
in
some
cases
to
develop
permit
terms
which
apply
the
general
requirements
of
a
particular
MACT
standard
or
determination
to
the
particular
characteristics
of
an
affected
source.
However,
EPA
believes
that
it
is
sufficient
to
assure
that
the
permitting
authority
can
request
that
an
applicant
provide
specific
emission
information
it
needs
for
this
purpose.
EPA
notes
that
if
such
information
is
not
provided
in
the
Part
2
application,
the
permitting
authority
will
still
be
able
to
obtain
it
in
the
context
of
the
permitting
process
which
follows.
Based
on
this
analysis,
EPA
has
decided
to
delete
the
provision
requiring
estimates
of
total
uncontrolled
and
controlled
HAP
emission
rates
in
Part
2
applications,
and
to
add
a
provision
requiring
the
applicant
to
submit
any
additional
emission
data
or
other
information
specifically
requested
by
the
permitting
authority.

EPA
does
not
think
applicants
should
be
required
to
submit
"
information
relevant
to
establishing
the
MACT
floor,"
but
they
should
be
free
to
do
so
if
they
wish
to
propose
an
alternative
to
the
floor
determination
set
forth
in
the
proposed
MACT
standard.
Accordingly,
EPA
has
deleted
this
information
as
a
mandatory
requirement,
but
has
retained
the
provision
permitting
the
applicant
to
suggest
an
alternative
set
of
emission
limitations
or
work
practice
provisions
on
a
discretionary
basis.

2.2.5
APPLICABILITY
DETERMINATIONS
29
Comment:
Commenters
(
IV­
D­
01,
19,
27,
65,
68,
73)
supported
EPA's
proposal
to
state
in
the
amendments
to
section
112(
j)
that
no
further
process
to
develop
case­
by­
case
MACT
determinations
under
section
112(
j)
is
required
for
any
source
once
a
generally
applicable
federal
MACT
standard
governing
that
source
has
been
promulgated
and
requested
that
EPA
clarify
this
in
the
final
rule.
Another
commenter
(
IV­
D­
19)
further
stated
that
when
EPA
finalizes
a
MACT
rule
for
an
affected
source
category,
it
should
also
suspend
the
obligation
of
the
permitting
agency
to
issue
a
case­
by­
case
MACT
determination.
One
commenter
(
IV­
D­
65)
requested
that
EPA
specify
that
any
permitting
authority
processing
any
applicability
determinations
or
Part
2
applications
immediately
stop
processing
upon
signature
of
any
final
MACT
standard
by
the
EPA
Administrator.
One
commenter
(
IV­
D­
19)
provided
the
following
supporting
arguments
for
this
request;
(
1)
the
legislative
history
of
the
CAA
and
section
112(
d)
does
not
support
an
interpretation
that
would
result
in
50
separate
case­
by­
case
determinations
for
a
source
category
and
(
2)
the
CAA
does
not
support
the
waste
of
resources
that
would
result
if
state
determinations
must
be
made
once
a
MACT
rule
is
finalized.

Response:
In
EPA's
view,
it
is
obvious
that
no
further
process
to
implement
section
112(
j)
with
respect
to
a
particular
source
is
required
or
appropriate
once
a
Federal
standard
governing
that
source
has
been
promulgated
under
CAA
section
112(
d)
or
112(
h).
All
commenters
who
addressed
this
issue
supported
EPA's
proposal.
A
new
paragraph
effectuating
it
has
been
added
to
the
general
applicability
provisions
as
40
CFR
63.50(
c).

Just
as
it
is
obvious
that
all
activities
to
develop
an
equivalent
emission
limitation
under
section
112(
j)
should
end
following
promulgation
of
a
generally
applicable
Federal
standard,
it
is
also
clear
from
the
statutory
language
that
any
final
equivalent
emission
limitation
which
may
be
issued
prior
to
adoption
of
such
a
standard
is
itself
an
enforceable
Federal
requirement,
which
remains
in
force
until
revised
or
supplanted
pursuant
to
section
112(
j)(
6)
and
40
CFR
63.56.
Although
it
is
clear
from
the
statute
that
permitting
authorities
are
expected
to
utilize
the
title
V
permitting
procedures
to
adopt
and
issue
an
equivalent
emission
limitation
under
section
112(
j),
it
is
also
clear
that
the
authority
to
establish
and
require
compliance
with
such
a
limitation
is
provided
by
section
112(
j)
itself
rather
than
title
V.
Section
112(
j)(
4)
requires
that
each
equivalent
emission
limitation
can
be
submitted
for
review
and
approval
by
EPA
under
the
procedures
established
by
section
505,
and
upon
final
adoption
at
the
time
of
permit
issuance
such
an
equivalent
emission
limitation
is
a
binding
order
which
may
be
enforced
directly
under
Federal
law.
An
equivalent
emission
limitation
takes
effect
upon
issuance
of
the
permit
containing
it
under
section
112(
j)(
5),
and
it
remains
applicable
to
the
source
until
it
is
revised
or
superceded,
regardless
of
the
subsequent
status
of
the
permit
in
which
it
was
initially
contained.
For
the
sake
of
clarity,
EPA
has
included
additional
general
applicability
language
in
40
CFR
63.50(
d)
which
embodies
these
principles.

Comment:
Commenters
(
IV­
D­
27,
65,
68,
73)
expressed
concern
that
the
proposed
rule
demands
a
complex
assessment
of
applicability
by
regulatory
agencies
over
a
rapid
time
frame.
Other
commenters
(
IV­
D­
27,
68)
suggested
that
EPA
provide
the
option
for
permitting
authorities
to
take
a
one­
time
60­
day
extension
to
respond
to
applicability
determination
requests
so
that
they
may
make
informed
decisions.
Other
commenters
(
IV­
D­
27,
73)
requested
that
EPA
state
in
the
final
rule
that
the
MACT
standard
will
be
deemed
not
applicable
if
the
regulatory
30
authority
does
not
make
a
determination,
addressing
in
good
faith
the
points
raised
in
the
applicability
determination
request,
within
60
days.
Another
commenter
(
IV­
D­
65)
requested
that
any
applicability
determination
requests
pending
after
the
60­
day
response
period
remain
pending
until
EPA
issues
the
applicable
final
regulations.
The
same
commenter
suggested
that
if
EPA
adopts
a
60­
day
required
response
period,
permitting
authorities
need
to
have
the
flexibility
to
determine
if
a
standard
applies,
does
not
apply,
or
may
apply
depending
on
further
guidance
from
EPA.

Commenters
(
IV­
D­
27,
68)
suggested
that
notification
of
a
positive
applicability
determination
should
serve
as
the
trigger
for
the
source
to
submit
a
Part
2
application
within
120
days
after
receiving
the
notification.

Commenters
(
IV­
D­
27,
65,
68)
also
requested
that
EPA
inform
permitting
authorities
of
post­
proposal
details
for
MACT
standards
so
that
the
permitting
authorities
may
make
determinations
that
are
consistent
with
the
final
rule.

One
commenter
(
IV­
D­
19)
noted
that
the
proposed
rule
would
require
the
permitting
agencies
to
review
the
same
number
of
applicability
determinations
and
that
they
would
be
more
lengthy.
The
commenter
suggested
that
EPA
revise
§
63.52(
d)
to
deem
that
all
requests
for
applicability
are
denied
and
that
if
sources
do
not
intend
to
submit
a
Part
2
application,
that
they
submit
by
the
promulgation
date
for
their
Part
2
application,
a
request
for
"
nonapplicability"
with
supporting
information
Other
commenters
(
IV­
D­
07,
17,
18,
72)
noted
that
it
is
inappropriate
for
EPA
to
require
sources
that
genuinely
submitted
a
request
for
an
applicability
determination
to
resubmit
a
request.

Response:
EPA
understands
that
the
time
frame
for
action
on
a
resubmitted
request
for
applicability
determination
by
the
permitting
authority
is
an
expedited
one,
but
believes
that
extending
this
time
frame
would
undermine
the
efforts
to
establish
a
single
uniform
schedule
for
Part
2
applications.
EPA
is
hopeful
that
sources
will
act
in
a
responsible
manner
and
will
resubmit
only
those
requests
for
which
genuine
unresolved
applicability
issues
remain
after
publication
of
a
proposed
MACT
standard.
This
is
a
reasonable
expectation
because
the
procedural
incentives
for
submission
of
such
requests
which
existed
previously
will
be
eliminated.
EPA
also
thinks
that
the
availability
of
a
proposed
MACT
standard
and
the
mandatory
supplementation
of
the
resubmitted
request
to
address
the
effect
of
that
proposed
standard,
should
assure
an
adequate
record
for
expedited
decisions
by
the
permitting
authorities
on
those
requests
that
are
resubmitted.

Some
commenters
requested
that
EPA
establish
a
presumption
of
negative
applicability
if
the
permitting
authority
does
not
make
a
timely
decision
concerning
a
resubmitted
request.
EPA
disagrees
with
this
concept
because
it
would
establish
a
substantial
new
incentive
for
a
source
to
resubmit
a
pending
request,
regardless
of
whether
there
are
any
genuine
and
significant
remaining
questions
regarding
applicability.
However,
EPA
also
believes
it
would
not
be
appropriate
to
establish
a
presumption
of
positive
applicability
if
the
permitting
authority
does
not
act
in
a
timely
manner
on
a
resubmitted
request.
This
would
penalize
those
sources
who
sincerely
believe
that
31
they
are
not
covered
by
the
proposed
rule,
but
are
merely
seeking
confirmation
of
that
conclusion
by
the
permitting
authority.
EPA
intends
the
absence
of
either
a
negative
or
a
positive
presumption
to
create
a
strong
incentive
for
a
source
to
work
closely
with
the
permitting
authority
to
resolve
any
genuine
applicability
issues
in
a
timely
manner.

Comment:.
Commenters
(
IV­
D­
27,
68)
requested
that
sources
be
given
the
opportunity
to
supplement
pending
requests
for
applicability
determinations
and
submit
new
initial
applicability
determination
requests
if
new
regulatory
information,
technical
information,
or
a
new
proposal
creates
section
112(
j)
applicability
questions.
One
commenter
(
IV­
D­
65)
noted
that
EPA
must
allow
facilities
to
supplement
requests
for
applicability
determinations
as
they
receive
additional
information
regarding
the
applicability
of
specific
MACT
standard
source
categories.
The
commenter
suggested
that
EPA
allow
facilities
to
file
a
supplemental
request
for
an
applicability
determination
within
the
public
comment
period
of
any
MACT
standard
proposed
after
the
date
of
publication
of
this
rule.
Commenters
(
IV­
D­
17,
18,
27,
68,
73)
suggested
EPA
clarify
in
the
final
rule
that
in
supplementing
applicability
determination
requests,
sources
are
only
required
to
address
the
proposed
MACT
standard
and
briefly
explain
why
it
does
not
resolve
the
issue
of
applicability
or
why
it
creates
new
issues.

Another
commenter
(
IV­
D­
71)
stated
that
since
EPA
has
published
proposed
rules
for
outstanding
MACT
standards,
affected
sources
that
did
not
request
an
applicability
determination
by
May
15,
2002,
should
be
able
to
file
a
request
for
one
now.
The
commenter
added
that
a
legitimate
request
for
an
applicability
determination
should
extend
the
requestor's
Part
2
application
due
date
by
a
minimum
of
4
months.

Commenters
(
IV­
D­
27,
65,
68)
requested
that
EPA
provide
an
appeals
process
for
section
112(
j)
applicability
determinations.

Response:
EPA
does
not
believe
that
the
creation
of
a
new
adjudicatory
process
for
the
submission
of
new
requests
for
applicability
determinations
or
for
an
appeals
process
in
this
rulemaking
is
either
appropriate
or
practical.
Similarly,
EPA
does
not
think
it
is
appropriate
to
create
a
process
for
supplementing
existing
applicability
applications
beyond
that
created
in
the
final
rule.
However,
EPA
does
not
want
to
constrain
sources
with
existing
requests
for
applicability
determinations
from
supplementing
those
requests
with
additional
factual
information
during
the
resubmission
process.
EPA
encourages
those
sources
that
have
new
questions
concerning
the
applicability
of
a
proposed
MACT
standard
to
their
operations
or
equipment
to
seek
guidance
from
responsible
personnel
at
the
permitting
authority
and
the
EPA
regional
office.

Comment:
One
commenter
(
IV­
D­
19,
73)
recommended
that
upon
promulgation
of
this
final
rule,
EPA
notify
all
sources
that
had
previously
submitted
applicability
determination
requests
of
the
new
requirements
to
resubmit
and
supplement
applicability
determination
requests.
Another
commenter
(
IV­
D­
65)
suggested
that
EPA
clarify
that
the
proposed
provisions
for
submission
of
applicability
determination
requests
include
not
only
sources
whose
requests
have
been
acted
upon,
but
also
those
who
have
received
preliminary
determinations
from
permit
authorities.
Another
commenter
(
IV­
D­
07)
suggested
that
EPA
consider
all
previously
submitted
requests
for
applicability
determinations
and
provide
an
additional
60
days
from
final
32
promulgation
of
this
rule
and
60
days
from
the
date
of
publication
of
the
applicable
proposed
MACT
rule
for
any
additional
applicability
requests.

Response:
EPA
lacks
precise
information
concerning
how
many
requests
for
applicability
determination
were
submitted
to
permitting
authorities
on
or
before
May
15,
2002,
but
believes
that
hundreds
of
such
requests
are
pending.
EPA
knows
that
some
of
these
requests
reflected
genuine
uncertainty
concerning
the
scope
of
the
activities
or
equipment
governed
by
a
particular
category
or
subcategory.
For
some
of
these
requests,
the
subsequent
issuance
of
a
proposed
MACT
standard
or
other
subsequent
events
may
have
resolved
such
uncertainty.
However,
EPA
also
believes
that
many
of
these
requests
were
filed
merely
because
the
filing
of
such
a
request
operated
to
defer
the
deadline
for
submission
of
a
Part
2
application.

To
reconcile
the
processing
of
pending
requests
for
applicability
determination
with
the
new
uniform
schedule
for
Part
2
applications,
EPA
proposed
that
each
affected
source
which
still
wishes
to
pursue
a
previously
filed
request
for
applicability
determination
under
40
CFR
63.52(
e)(
2)(
i)
be
required
to
resubmit
and
supplement
that
request
within
60
days
after
EPA
publishes
final
action
in
this
rulemaking,
or
within
60
days
after
EPA
publishes
a
proposed
MACT
standard
for
the
category
or
subcategory
in
question,
whichever
is
later.
After
reviewing
these
comments,
EPA
has
decided
to
adopt
amendments
to
the
procedures
for
requests
for
applicability
determinations
as
proposed.

Comment:
Commenters
(
IV­
D­
27,
68)
suggested
that
EPA
require
sources
to
base
their
final
determination
of
applicability
on
the
language
contained
in
the
final
section
112(
d)
standard
regardless
of
previous
applicability
determinations.
This
is
necessary
to
avoid
discrepancies
where:
(
1)
a
positive
applicability
determination
is
made
invalid
by
language
in
the
final
standard
that
clearly
indicates
a
source
is
not
regulated,
or
(
2)
a
negative
applicability
determination
is
made
invalid
by
language
in
the
final
rule
that
indicates
a
source
is
regulated.
One
commenter
(
IV­
D­
73)
requested
that
EPA
clarify
that,
if
upon
promulgation
of
a
final
rule
a
source
determines
despite
receiving
a
positive
applicability
determination,
that
the
MACT
standard
is
not
applicable
to
the
site;
that
site
is
not
obligated
to
comply
with
the
final
MACT
standard,
but
may
advise
EPA
that
based
on
clarification
in
the
final
MACT,
that
MACT
is
not
applicable
to
the
site.

Response:
EPA
agrees
that
a
determination
of
applicability
based
on
the
language
of
the
proposed
standard
may
not
always
correctly
anticipate
the
ultimate
applicability
of
the
final
promulgated
standard.
Requests
for
applicability
determination
submitted
under
40
CFR
63.52(
e)(
2)(
i)
are
intended
solely
to
determine
whether
a
source
must
submit
a
section
112(
j)
application,
not
to
resolve
applicability
issues
which
may
arise
in
other
contexts.
As
stated
above,
no
further
process
to
develop
an
equivalent
emission
limitation
under
section
112(
j)
is
necessary
or
appropriate
once
a
generally
applicable
Federal
standard
has
been
promulgated.

Comment:
One
commenter
(
IV­
D­
65)
suggested
that
when
a
process
unit
within
a
facility
is
potentially
subject
to
multiple
MACT
standards
due
to
be
finalized
on
different
dates,
a
facility
may
receive
information
from
the
first
final
standard
that
clarifies
its
pending
applicability
determination
for
some
or
all
units
within
a
specific
process
unit.
The
commenter
requested
that
33
EPA
allow
the
facility
to
update
its
applicability
determination
for
that
process
unit
in
the
Initial
Notification
submittal
that
is
required
by
MACT
standards.

The
same
commenter
(
IV­
D­
65)
also
pointed
out
that
a
potential
conflict
among
MACT
standards
could
exist
where
the
same
emission
point
may
be
subject
to
multiple
MACT
standards.
The
commenter
used
the
example
of
a
hazardous
waste
incinerator
that
is
used
as
a
control
device
for
multiple
process
streams,
and
generates
hydrochloric
acid
from
the
emissions
control
system.
The
commenter
requested
that
for
emission
points
potentially
subject
to
multiple
MACT
standards
due
to
equipment
configuration,
EPA
clarify
that
compliance
with
one
MACT
standard
at
that
point
will
not
subject
that
point
to
any
Part
2
determinations,
and
that
the
affected
source
may
use
the
applicability
determination
process
to
facilitate
this
determination.

Another
commenter
(
IV­
D­
19)
stressed
that
it
is
important
for
a
source
to
be
able
to
rely
directly
on
the
content
of
the
applicable
proposed
MACT
standard
regarding
the
identification
of
emission
points
and
affected
emissions.
The
commenter
suggested
deleting
§
63.53(
b)(
1)(
ii)
from
the
final
rule
or
revising
it
to
clarify
that
sources
only
need
to
identify
general
categories
of
emission
points
that
will
be
regulated
under
a
case­
by­
case
determination.

Response:
In
the
proposal,
EPA
stated
that
it
is
reasonable
for
an
affected
source
submitting
a
Part
2
application
to
rely
directly
on
the
content
of
the
applicable
proposed
MACT
standard
in
identifying
affected
emission
points.
EPA
also
stated
that
applicants
could
reasonably
limit
the
information
they
submit
concerning
HAP
emissions
to
those
specific
HAP
or
groups
of
HAP
which
would
be
subject
to
actual
control
in
the
applicable
proposed
MACT
standard.
Rather
than
merely
providing
guidance,
EPA
has
decided
to
revise
the
language
of
40
CFR
63.53(
b)
to
expressly
incorporate
these
principles.

For
source
categories
covered
by
MACT
standards
that
have
already
been
proposed
with
affected
sources
that
are
potentially
subject
to
multiple
MACT
standards,
the
process
of
supplementing
requests
for
applicability
determination
can
be
satisfied
with
a
single
resubmission.
EPA
acknowledges
that
it
is
possible
that
an
affected
source
would
have
to
re­
submit
separate
requests
for
applicability
determination
for
sources
in
the
hazardous
waste
subcategories
due
to
be
promulgated
in
2005
if
there
are
legitimate
unresolved
concerns
once
those
standards
have
been
proposed.
However,
a
case­
by­
case
determination
would
not
be
required
for
any
part
of
the
source
that
is
already
regulated.

2.2.6
EQUIVALENCY
DETERMINATIONS
Comment:
Commenters
(
IV­
D­
27,
68)
suggested
that
if
promulgation
of
a
MACT
standard
is
delayed,
the
deadline
for
submission
of
an
equivalency
determination
should
also
be
delayed
so
it
remains
60
days
after
the
MACT
rule
is
published
in
the
Federal
Register.
The
commenter
suggested
that
EPA
undertake
emergency
rulemaking
under
the
Administrative
Procedures
Act
to
notify
sources
of
the
revised
deadline
for
section
112(
g)
determinations.
The
commenters
also
requested
that
EPA
clarify
that
the
deadline
applies
to
all
sources
that
have
undergone
a
section
112(
g)
determination.
34
One
commenter
(
IV­
D­
07)
agreed
with
EPA
that
it
is
not
necessary
for
sources
that
have
undergone
a
case­
by­
case
determination
under
section
112(
g)
to
submit
any
further
documentation.
The
commenter
also
supported
the
proposal
to
make
the
Part
2
application
date
the
same
as
the
date
to
request
an
equivalency
determination.

Commenters
(
IV­
D­
27,
68)
suggested
EPA
modify
40
CFR
63.52(
e)(
2)
for
cases
where
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
section
112(
g)
application
submitted
under
§
63.43(
e)
may
be
considered
as
being
the
Part
2
MACT
application
or
the
owner
or
operator
must
submit
a
Part
2
MACT
application.

Commenters
(
IV­
D­
27,
68)
suggested
that
EPA
allow
a
source
up
to
4
months
or
120
days
to
submit
a
Part
2
application
after
receiving
a
negative
equivalency
determination.

Response:
Since
EPA
is
proposing
that
the
deadline
for
submission
of
requests
for
an
equivalency
determination
be
the
same
as
the
deadline
for
Part
2
applications,
the
discussion
above
of
the
effect
of
potential
delays
applies
equally
to
this
issue.

In
the
event
of
a
negative
equivalency
determination,
the
permitting
authority
will
proceed
to
adopt
a
separate
set
of
case­
by­
case
requirements
pursuant
to
section
112(
j).
This
process
will
be
completed
in
the
same
18
month
period
that
applies
to
the
processing
of
all
other
Part
2
applications.
This
revised
process
will
not
impose
any
new
burden
on
sources
or
permitting
authorities,
because
the
permitting
authority
should
already
have
all
of
the
information
required
for
a
Part
2
application
in
any
instance
where
it
is
already
administering
section
112(
g)
requirements
applicable
to
the
same
source.

After
reviewing
all
of
the
comments,
EPA
has
decided
to
adopt
amendments
to
the
procedures
for
requests
for
equivalency
determinations
exactly
as
they
were
proposed.
New
language
has
been
added
to
40
CFR
63.52(
e)(
2)(
ii)
which
effectuates
this
decision.

2.2.7
PROCESS
TO
WITHDRAW
PART
1
APPLICATIONS
Comment:
One
commenter
(
IV­
D­
02)
noted
that
true
minor
sources,
including
synthetic
minor
sources
that
filed
a
Part
1
application
stating
minor
source
status
or
pending
status
should
be
exempt
from
filing
Part
2
applications,
and
that
sources
that
did
not
include
notification
with
their
Part
1
application
should
now
be
allowed
to
use
a
similar
notification
in
lieu
of
their
Part
2
application.
Another
commenter
(
IV­
D­
60)
requested
that
EPA
develop
a
procedure
whereby
a
facility
could
withdraw
a
Part
1
application.

Response:
Although
EPA
does
not
intend
to
create
a
procedure
for
withdrawal
of
Part
1
applications,
applicants
are
entitled
to
withdraw
Part
1
applications
that
were
erroneously
submitted
or
which
concern
sources
not
included
in
the
proposed
MACT
standard.

2.2.8
DISCRETION
TO
EXTEND
SECTION
112(
j)
PERMIT
DEADLINES
35
Comment:
One
commenter
(
IV­
D­
71)
wrote
that
the
statutory
language
of
section
112(
j)(
2),
"...
beginning
18
months
after"
(
emphasis
in
comment)
authorizes
the
staggered
filing
dates
proposed
by
EPA.

Another
commenter
(
IV­
D­
13)
argued
that
EPA's
statutory
interpretation
of
section
112(
j)(
2)
is
unlawful
and
that
EPA
does
not
have
discretion
to
extend
the
section
112(
j)
permit
application
deadlines.
The
commenter
provided
the
following
reasons
that
if
the
final
rule
includes
dates
other
than
those
proposed,
that
rule
would
be
legally
flawed
and
would
likely
be
challenged
in
court.

According
to
the
commenter,
when
sections
112(
j)(
2)
and
112(
j)(
3)
are
read
together,
they
unambiguously
require
complete
applications
to
be
submitted
18
months
after
EPA's
regulations
were
due
under
section
112(
e)(
1)(
E).
The
commenter
cited
the
statutory
language
in
Davis
v.
Michigan
Dept.
Of
Treasury,
489
U.
S.
803,
809
(
1989)
("
It
is
a
fundamental
canon
of
statutory
construction
that
the
words
of
a
statute
must
be
read
in
their
context
and
with
a
view
to
their
place
in
the
overall
statutory
scheme")
to
support
the
argument
that
sections
112(
j)(
2)
and
112(
j)(
3)
must
be
read
together.
The
commenter
also
wrote
that
the
word
"
beginning"
in
section
112(
j)(
2)
does
not
suggest
that
the
permit
application
deadline
is
incremental,
as
EPA
proposes,
but
that
the
submission
of
permit
applications
is
the
first
of
a
sequence
of
section
112(
j)
requirements.
See
42
U.
S.
C.
section
7412(
j)(
2)
(
referring
to
requirements
under
sections
112(
j)(
3),
(
5),
and
(
6)).

By
allowing
permit
applications
to
be
submitted
incrementally
over
a
period
of
time
that
EPA
chooses,
EPA
nullifies
the
requirement
for
timely
and
complete
permit
applications
under
section
112(
j)(
3)
and
defeats
the
purpose
of
section
112(
j).
See
Pennsylvania
Department
of
Public
Welfare
v.
Davenport,
495
U.
S.
552,
562
(
1990)
("
Our
cases
express
a
deep
reluctance
to
interpret
a
statutory
provision
so
as
to
render
superfluous
other
provisions
in
the
same
enactment").
See
also
Original
Honey
Baked
Ham
v.
Glickman,
172
F.
3d
885,
890
(
D.
C.
Cir.
1999)
(
rejecting
statutory
interpretation
that
"
bears
no
logical
relationship"
to
the
statutory
goal).
See
also
AKA
v.
Washington
Hosp.
Center,
156
F.
3d
1284,
1301
(
D.
C.
Cir.
1998)
(
rejecting
paradoxical
reading
of
statute).

The
statutory
interpretation
EPA
has
used
to
support
extended
deadlines
for
section
112(
j)
applications
is
unreasonable,
as
it
is
against
Congress's
"
unambiguously
expressed
intent"
see
Chevron
U.
S.
A.,
Inc.
v.
Natural
Resources
Defense
Council,
467
U.
S.
837,
842­
843
(
1984)
("
if
the
intent
of
Congress
is
clear
that
is
the
end
of
the
matter;
for
the
court
as
well
as
the
agency
must
give
effect
to
the
unambiguously
expressed
intent
of
Congress").
If
section
112(
j)
was
ambiguous,
EPA's
interpretation
deviates
from
"
any
realistic
meaning,"
see
also
NRDC
v.
Daley,
209
F.
3d
747,
755
(
D.
C.
Cir.
2000).
See
also
Securities
and
Exchange
Comm'n
v.
Sloan,
436
U.
S.
103,
111
(
1978)
(
SEC
cannot
summarily
suspend
trading
of
a
security
for
longer
than
10
days
when
statute
expressly
limits
such
suspensions
to
10
days);
NRDC
v.
Reilly,
976
F.
2d
36,
41
(
D.
C.
Cir.
1996)
(
where
statute
allowed
only
one
3­
month
stay
of
emission
standards,
EPA
had
no
authority
to
grant
additional
stays).
36
Response:
EPA
believes
that
its
construction
of
the
statute
is
correct.
However,
because
EPA
is
adopting
the
section
112(
j)
provisions
essentially
as
they
were
proposed
pursuant
to
a
settlement
agreement
with
the
commenter,
EPA
presumes
that
disagreements
with
respect
to
the
construction
of
the
statute
are
moot.

2.2.9
ADEQUACY
OF
REVIEW
OF
SETTLEMENT
AGREEMENT
Comment:
Commenters
(
IV­
D­
34,
58)
noted
that,
to
date,
the
public
has
not
had
an
opportunity
to
comment
on
the
pending
settlement
agreement,
Sierra
Club
v.
Whitman,
01­
1337
(
D.
D.
C.),
which
establishes
a
schedule
for
promulgation
of
the
remaining
MACT
standards
and
was
a
basis
for
the
development
of
the
timetable
for
submission
of
section
112(
j)
Part
2
applications.
The
commenters
noted
that
by
failing
to
comply
with
notice
obligations,
the
EPA
excluded
"
interested
persons,"
according
to
the
meaning
of
the
Administrative
Procedures
Act,
from
participating
in
the
full
rule
making
process.

Response:
Although
some
commenters
complained
that
they
were
denied
due
process
or
otherwise
prejudiced
by
the
failure
of
EPA
to
provide
a
comment
opportunity
concerning
that
consent
decree,
these
objections
are
now
moot
in
view
of
the
fact
that
their
comments
have
been
considered
both
in
this
rulemaking
and
as
part
of
the
section
113(
g)
process.
