[Code of Federal Regulations]
[Title 40, Volume 9]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR63.43]

[Page 69-73]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 63--NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS FOR SOURCE CATEGORIES--Table of Contents
 
Subpart B--Requirements for Control Technology Determinations for Major 
 Sources in Accordance With Clean Air Act Sections, Sections 112(g) and 
                                 112(j)
 
Sec. 63.43  Maximum achievable control technology (MACT) determinations for constructed and reconstructed major sources.

    (a) Applicability. The requirements of this section apply to an 
owner or operator who constructs or reconstructs a major source of HAP 
subject to a case-by-case determination of maximum achievable control 
technology pursuant to Sec. 63.42(c).
    (b) Requirements for constructed and reconstructed major sources. 
When a case-by-case determination of MACT is required by Sec. 63.42(c), 
the owner and operator shall obtain from the permitting authority an 
approved MACT determination according to one of the review options 
contained in paragraph (c) of this section.
    (c) Review options. (1) When the permitting authority requires the 
owner or operator to obtain, or revise, a permit issued pursuant to 
title V of the Act before construction or reconstruction of the major 
source, or when the permitting authority allows the owner or operator at 
its discretion to obtain or revise such a permit before construction or 
reconstruction, and the owner or operator elects that option, the owner 
or operator shall follow the administrative procedures in the program 
approved under title V of the Act (or in other regulations issued 
pursuant to title V of the Act, where applicable).
    (2) When an owner or operator is not required to obtain or revise a 
title V permit (or other permit issued pursuant to title V of the Act) 
before construction or reconstruction, the owner or operator (unless the 
owner or operator voluntarily follows the process to obtain a title V 
permit) shall either, at the discretion of the permitting authority:

[[Page 70]]

    (i) Apply for and obtain a Notice of MACT Approval according to the 
procedures outlined in paragraphs (f) through (h) of this section; or
    (ii) Apply for a MACT determination under any other administrative 
procedures for preconstruction review and approval established by the 
permitting authority for a State or local jurisdiction which provide for 
public participation in the determination, and ensure that no person may 
begin actual construction or reconstruction of a major source in that 
State or local jurisdiction unless the permitting authority determines 
that the MACT emission limitation for new sources will be met.
    (3) When applying for a permit pursuant to title V of the Act, an 
owner or operator may request approval of case-by-case MACT 
determinations for alternative operating scenarios. Approval of such 
determinations satisfies the requirements of section 112(g) of each such 
scenario.
    (4) Regardless of the review process, the MACT emission limitation 
and requirements established shall be effective as required by paragraph 
(j) of this section, consistent with the principles established in 
paragraph (d) of this section, and supported by the information listed 
in paragraph (e) of this section. The owner or operator shall comply 
with the requirements in paragraphs (k) and (l) of this section, and 
with all applicable requirements in subpart A of this part.
    (d) Principles of MACT determinations. The following general 
principles shall govern preparation by the owner or operator of each 
permit application or other application requiring a case-by-case MACT 
determination concerning construction or reconstruction of a major 
source, and all subsequent review of and actions taken concerning such 
an application by the permitting authority:
    (1) The MACT emission limitation or MACT requirements recommended by 
the applicant and approved by the permitting authority shall not be less 
stringent than the emission control which is achieved in practice by the 
best controlled similar source, as determined by the permitting 
authority.
    (2) Based upon available information, as defined in this subpart, 
the MACT emission limitation and control technology (including any 
requirements under paragraph (d)(3) of this section) recommended by the 
applicant and approved by the permitting authority shall achieve the 
maximum degree of reduction in emissions of HAP which can be achieved by 
utilizing those control technologies that can be identified from the 
available information, taking into consideration the costs of achieving 
such emission reduction and any non-air quality health and environmental 
impacts and energy requirements associated with the emission reduction.
    (3) The applicant may recommend a specific design, equipment, work 
practice, or operational standard, or a combination thereof, and the 
permitting authority may approve such a standard if the permitting 
authority specifically determines that it is not feasible to prescribe 
or enforce an emission limitation under the criteria set forth in 
section 112(h)(2) of the Act.
    (4) If the Administrator has either proposed a relevant emission 
standard pursuant to section 112(d) or section 112(h) of the Act or 
adopted a presumptive MACT determination for the source category which 
includes the constructed or reconstructed major source, then the MACT 
requirements applied to the constructed or reconstructed major source 
shall have considered those MACT emission limitations and requirements 
of the proposed standard or presumptive MACT determination.
    (e) Application requirements for a case-by-case MACT determination. 
(1) An application for a MACT determination (whether a permit 
application under title V of the Act, an application for a Notice of 
MACT Approval, or other document specified by the permitting authority 
under paragraph (c)(2)(ii) of this section) shall specify a control 
technology selected by the owner or operator that, if properly operated 
and maintained, will meet the MACT emission limitation or standard as 
determined according to the principles set forth in paragraph (d) of 
this section.
    (2) In each instance where a constructed or reconstructed major 
source

[[Page 71]]

would require additional control technology or a change in control 
technology, the application for a MACT determination shall contain the 
following information:
    (i) The name and address (physical location) of the major source to 
be constructed or reconstructed;
    (ii) A brief description of the major source to be constructed or 
reconstructed and identification of any listed source category or 
categories in which it is included;
    (iii) The expected commencement date for the construction or 
reconstruction of the major source;
    (iv) The expected completion date for construction or reconstruction 
of the major source;
    (v) the anticipated date of start-up for the constructed or 
reconstructed major source;
    (vi) The HAP emitted by the constructed or reconstructed major 
source, and the estimated emission rate for each such HAP, to the extent 
this information is needed by the permitting authority to determine 
MACT;
    (vii) Any federally enforceable emission limitations applicable to 
the constructed or reconstructed major source;
    (viii) The maximum and expected utilization of capacity of the 
constructed or reconstructed major source, and the associated 
uncontrolled emission rates for that source, to the extent this 
information is needed by the permitting authority to determine MACT;
    (ix) The controlled emissions for the constructed or reconstructed 
major source in tons/yr at expected and maximum utilization of capacity, 
to the extent this information is needed by the permitting authority to 
determine MACT;
    (x) A recommended emission limitation for the constructed or 
reconstructed major source consistent with the principles set forth in 
paragraph (d) of this section;
    (xi) The selected control technology to meet the recommended MACT 
emission limitation, including technical information on the design, 
operation, size, estimated control efficiency of the control technology 
(and the manufacturer's name, address, telephone number, and relevant 
specifications and drawings, if requested by the permitting authority);
    (xii) Supporting documentation including identification of 
alternative control technologies considered by the applicant to meet the 
emission limitation, and analysis of cost and non-air quality health 
environmental impacts or energy requirements for the selected control 
technology; and
    (xiii) Any other relevant information required pursuant to subpart 
A.
    (3) In each instance where the owner or operator contends that a 
constructed or reconstructed major source will be in compliance, upon 
startup, with case-by-case MACT under this subpart without a change in 
control technology, the application for a MACT determination shall 
contain the following information:
    (i) The information described in paragraphs (e)(2)(i) through 
(e)(2)(x) of this section; and
    (ii) Documentation of the control technology in place.
    (f) Administrative procedures for review of the Notice of MACT 
Approval. (1) The permitting authority will notify the owner or operator 
in writing, within 45 days from the date the application is first 
received, as to whether the application for a MACT determination is 
complete or whether additional information is required.
    (2) The permitting authority will initially approve the recommended 
MACT emission limitation and other terms set forth in the application, 
or the permitting authority will notify the owner or operator in writing 
of its intent to disapprove the application, within 30 calendar days 
after the owner or operator is notified in writing that the application 
is complete.
    (3) The owner or operator may present, in writing, within 60 
calendar days after receipt of notice of the permitting authority's 
intent to disapprove the application, additional information or 
arguments pertaining to, or amendments to, the application for 
consideration by the permitting authority before it decides whether to 
finally disapprove the application.
    (4) The permitting authority will either initially approve or issue 
a final disapproval of the application within 90

[[Page 72]]

days after it notifies the owner or operator of an intent to disapprove 
or within 30 days after the date additional information is received from 
the owner or operator; whichever is earlier.
    (5) A final determination by the permitting authority to disapprove 
any application will be in writing and will specify the grounds on which 
the disapproval is based. If any application is finally disapproved, the 
owner or operator may submit a subsequent application concerning 
construction or reconstruction of the same major source, provided that 
the subsequent application has been amended in response to the stated 
grounds for the prior disapproval.
    (6) An initial decision to approve an application for a MACT 
determination will be set forth in the Notice of MACT Approval as 
described in paragraph (g) of this section.
    (g) Notice of MACT Approval. (1) The Notice of MACT Approval will 
contain a MACT emission limitation (or a MACT work practice standard if 
the permitting authority determines it is not feasible to prescribe or 
enforce an emission standard) to control the emissions of HAP. The MACT 
emission limitation or standard will be determined by the permitting 
authority and will conform to the principles set forth in paragraph (d) 
of this section.
    (2) The Notice of MACT Approval will specify any notification, 
operation and maintenance, performance testing, monitoring, reporting 
and record keeping requirements. The Notice of MACT Approval shall 
include:
    (i) In addition to the MACT emission limitation or MACT work 
practice standard established under this subpart, additional emission 
limits, production limits, operational limits or other terms and 
conditions necessary to ensure Federal enforceability of the MACT 
emission limitation;
    (ii) Compliance certifications, testing, monitoring, reporting and 
record keeping requirements that are consistent with the requirements of 
Sec. 70.6(c) of this chapter;
    (iii) In accordance with section 114(a)(3) of the Act, monitoring 
shall be capable of demonstrating continuous compliance during the 
applicable reporting period. Such monitoring data shall be of sufficient 
quality to be used as a basis for enforcing all applicable requirements 
established under this subpart, including emission limitations;
    (iv) A statement requiring the owner or operator to comply with all 
applicable requirements contained in subpart A of this part;
    (3) All provisions contained in the Notice of MACT Approval shall be 
federally enforceable upon the effective date of issuance of such 
notice, as provided by paragraph (j) of this section.
    (4) The Notice of MACT Approval shall expire if construction or 
reconstruction has not commenced within 18 months of issuance, unless 
the permitting authority has granted an extension which shall not exceed 
an additional 12 months.
    (h) Opportunity for public comment on the Notice of MACT Approval. 
(1) The permitting authority will provide opportunity for public comment 
on the Notice of MACT Approval, including, at a minimum:
    (i) Availability for public inspection in at least one location in 
the area affected of the information submitted by the owner or operator 
and of the permitting authority's initial decision to approve the 
application;
    (ii) A 30-day period for submittal of public comment; and
    (iii) A notice by prominent advertisement in the area affected of 
the location of the source information and initial decision specified in 
paragraph (h)(1)(i) of this section.
    (2) At the discretion of the permitting authority, the Notice of 
MACT Approval setting forth the initial decision to approve the 
application may become final automatically at the end of the comment 
period if no adverse comments are received. If adverse comments are 
received, the permitting authority shall have 30 days after the end of 
the comment period to make any necessary revisions in its analysis and 
decide whether to finally approve the application.
    (i) EPA notification. The permitting authority shall send a copy of 
the final Notice of MACT Approval, notice of approval of a title V 
permit application incorporating a MACT determination (in those 
instances where the owner or

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operator either is required or elects to obtain such a permit before 
construction or reconstruction), or other notice of approval issued 
pursuant to paragraph (c)(2)(ii) of this section to the Administrator 
through the appropriate Regional Office, and to all other State and 
local air pollution control agencies having jurisdiction in affected 
States.
    (j) Effective date. The effective date of a MACT determination shall 
be the date the Notice of MACT Approval becomes final, the date of 
issuance of a title V permit incorporating a MACT determination (in 
those instances where the owner or operator either is required or elects 
to obtain such a permit before construction or reconstruction), or the 
date any other notice of approval issued pursuant to paragraph 
(c)(2)(ii) of this section becomes final.
    (k) Compliance date. On and after the date of start-up, a 
constructed or reconstructed major source which is subject to the 
requirements of this subpart shall be in compliance with all applicable 
requirements specified in the MACT determination.
    (l) Compliance with MACT determinations. (1) An owner or operator of 
a constructed or reconstructed major source that is subject to a MACT 
determination shall comply with all requirements in the final Notice of 
MACT Approval, the title V permit (in those instances where the owner or 
operator either is required or elects to obtain such a permit before 
construction or reconstruction), or any other final notice of approval 
issued pursuant to paragraph (c)(2)(ii) of this section, including but 
not limited to any MACT emission limitation or MACT work practice 
standard, and any notification, operation and maintenance, performance 
testing, monitoring, reporting, and recordkeeping requirements.
    (2) An owner or operator of a constructed or reconstructed major 
source which has obtained a MACT determination shall be deemed to be in 
compliance with section 112(g)(2)(B) of the Act only to the extent that 
the constructed or reconstructed major source is in compliance with all 
requirements set forth in the final Notice of MACT Approval, the title V 
permit (in those instances where the owner or operator either is 
required or elects to obtain such a permit before construction or 
reconstruction), or any other final notice of approval issued pursuant 
to paragraph (c)(2)(ii) of this section. Any violation of such 
requirements by the owner or operator shall be deemed by the permitting 
authority and by EPA to be a violation of the prohibition on 
construction or reconstruction in section 112(g)(2)(B) for whatever 
period the owner or operator is determined to be in violation of such 
requirements, and shall subject the owner or operator to appropriate 
enforcement action under the Act.
    (m) Reporting to the Administrator. Within 60 days of the issuance 
of a final Notice of MACT Approval, a title V permit incorporating a 
MACT determination (in those instances where the owner or operator 
either is required or elects to obtain such a permit before construction 
or reconstruction), or any other final notice of approval issued 
pursuant to paragraph (c)(2)(ii) of this section, the permitting 
authority shall provide a copy of such notice to the Administrator, and 
shall provide a summary in a compatible electronic format for inclusion 
in the MACT data base.

[20 FR 68401, Dec. 27, 1996]