[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: 40CFR63.5]

[Page 19-23]
 
                   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 A--General Provisions
 
Sec. 63.5  Preconstruction review and notification requirements.

    (a) Applicability. (1) This section implements the preconstruction 
review requirements of section 112(i)(1). After the effective date of a 
relevant standard, promulgated pursuant to section 112(d), (f), or (h) 
of the Act, under this part, the preconstruction review requirements in 
this section apply to the owner or operator of new affected sources and 
reconstructed affected sources that are major-emitting as specified in 
this section. New and reconstructed affected sources that commence 
construction or reconstruction before the effective date of a relevant 
standard are not subject to the preconstruction review requirements 
specified in paragraphs (b)(3), (d), and (e) of this section.
    (2) This section includes notification requirements for new affected 
sources and reconstructed affected sources that are not major-emitting 
affected sources and that are or become subject to a relevant 
promulgated emission standard after the effective date of a relevant 
standard promulgated under this part.
    (b) Requirements for existing, newly constructed, and reconstructed 
sources. (1) A new affected source for which construction commences 
after proposal of a relevant standard is subject to relevant standards 
for new affected sources, including compliance dates. An affected source 
for which reconstruction commences after proposal of a relevant standard 
is subject to relevant standards for new sources, including compliance 
dates, irrespective

[[Page 20]]

of any change in emissions of hazardous air pollutants from that source.
    (2) [Reserved]
    (3) After the effective date of any relevant standard promulgated by 
the Administrator under this part, no person may, without obtaining 
written approval in advance from the Administrator in accordance with 
the procedures specified in paragraphs (d) and (e) of this section, do 
any of the following:
    (i) Construct a new affected source that is major-emitting and 
subject to such standard;
    (ii) Reconstruct an affected source that is major-emitting and 
subject to such standard; or
    (iii) Reconstruct a major source such that the source becomes an 
affected source that is major-emitting and subject to the standard.
    (4) After the effective date of any relevant standard promulgated by 
the Administrator under this part, an owner or operator who constructs a 
new affected source that is not major-emitting or reconstructs an 
affected source that is not major-emitting that is subject to such 
standard, or reconstructs a source such that the source becomes an 
affected source subject to the standard, must notify the Administrator 
of the intended construction or reconstruction. The notification must be 
submitted in accordance with the procedures in Sec. 63.9(b).
    (5) [Reserved]
    (6) After the effective date of any relevant standard promulgated by 
the Administrator under this part, equipment added (or a process change) 
to an affected source that is within the scope of the definition of 
affected source under the relevant standard must be considered part of 
the affected source and subject to all provisions of the relevant 
standard established for that affected source.
    (c) [Reserved]
    (d) Application for approval of construction or reconstruction. The 
provisions of this paragraph implement section 112(i)(1) of the Act.
    (1) General application requirements. (i) An owner or operator who 
is subject to the requirements of paragraph (b)(3) of this section must 
submit to the Administrator an application for approval of the 
construction or reconstruction. The application must be submitted as 
soon as practicable before actual construction or reconstruction begins. 
The application for approval of construction or reconstruction may be 
used to fulfill the initial notification requirements of 
Sec. 63.9(b)(5). The owner or operator may submit the application for 
approval well in advance of the date actual construction or 
reconstruction begins in order to ensure a timely review by the 
Administrator and that the planned date to begin will not be delayed.
    (ii) A separate application shall be submitted for each construction 
or reconstruction. Each application for approval of construction or 
reconstruction shall include at a minimum:
    (A) The applicant's name and address;
    (B) A notification of intention to construct a new major affected 
source or make any physical or operational change to a major affected 
source that may meet or has been determined to meet the criteria for a 
reconstruction, as defined in Sec. 63.2 or in the relevant standard;
    (C) The address (i.e., physical location) or proposed address of the 
source;
    (D) An identification of the relevant standard that is the basis of 
the application;
    (E) The expected date of the beginning of actual construction or 
reconstruction;
    (F) The expected completion date of the construction or 
reconstruction;
    (G) [Reserved]
    (H) The type and quantity of hazardous air pollutants emitted by the 
source, reported in units and averaging times and in accordance with the 
test methods specified in the relevant standard, or if actual emissions 
data are not yet available, an estimate of the type and quantity of 
hazardous air pollutants expected to be emitted by the source reported 
in units and averaging times specified in the relevant standard. The 
owner or operator may submit percent reduction information if a relevant 
standard is established in terms of percent reduction. However, 
operating parameters, such as flow

[[Page 21]]

rate, shall be included in the submission to the extent that they 
demonstrate performance and compliance; and
    (I) [Reserved]
    (J) Other information as specified in paragraphs (d)(2) and (d)(3) 
of this section.
    (iii) An owner or operator who submits estimates or preliminary 
information in place of the actual emissions data and analysis required 
in paragraphs (d)(1)(ii)(H) and (d)(2) of this section shall submit the 
actual, measured emissions data and other correct information as soon as 
available but no later than with the notification of compliance status 
required in Sec. 63.9(h) (see Sec. 63.9(h)(5)).
    (2) Application for approval of construction. Each application for 
approval of construction must include, in addition to the information 
required in paragraph (d)(1)(ii) of this section, technical information 
describing the proposed nature, size, design, operating design capacity, 
and method of operation of the source, including an identification of 
each type of emission point for each type of hazardous air pollutant 
that is emitted (or could reasonably be anticipated to be emitted) and a 
description of the planned air pollution control system (equipment or 
method) for each emission point. The description of the equipment to be 
used for the control of emissions must include each control device for 
each hazardous air pollutant and the estimated control efficiency 
(percent) for each control device. The description of the method to be 
used for the control of emissions must include an estimated control 
efficiency (percent) for that method. Such technical information must 
include calculations of emission estimates in sufficient detail to 
permit assessment of the validity of the calculations.
    (3) Application for approval of reconstruction. Each application for 
approval of reconstruction shall include, in addition to the information 
required in paragraph (d)(1)(ii) of this section--
    (i) A brief description of the affected source and the components 
that are to be replaced;
    (ii) A description of present and proposed emission control systems 
(i.e., equipment or methods). The description of the equipment to be 
used for the control of emissions shall include each control device for 
each hazardous air pollutant and the estimated control efficiency 
(percent) for each control device. The description of the method to be 
used for the control of emissions shall include an estimated control 
efficiency (percent) for that method. Such technical information shall 
include calculations of emission estimates in sufficient detail to 
permit assessment of the validity of the calculations;
    (iii) An estimate of the fixed capital cost of the replacements and 
of constructing a comparable entirely new source;
    (iv) The estimated life of the affected source after the 
replacements; and
    (v) A discussion of any economic or technical limitations the source 
may have in complying with relevant standards or other requirements 
after the proposed replacements. The discussion shall be sufficiently 
detailed to demonstrate to the Administrator's satisfaction that the 
technical or economic limitations affect the source's ability to comply 
with the relevant standard and how they do so.
    (vi) If in the application for approval of reconstruction the owner 
or operator designates the affected source as a reconstructed source and 
declares that there are no economic or technical limitations to prevent 
the source from complying with all relevant standards or other 
requirements, the owner or operator need not submit the information 
required in paragraphs (d)(3)(iii) through (d)(3)(v) of this section.
    (4) Additional information. The Administrator may request additional 
relevant information after the submittal of an application for approval 
of construction or reconstruction.
    (e) Approval of construction or reconstruction. (1)(i) If the 
Administrator determines that, if properly constructed, or 
reconstructed, and operated, a new or existing source for which an 
application under paragraph (d) of this section was submitted will not 
cause emissions in violation of the relevant standard(s) and any other 
federally enforceable requirements, the Administrator will approve the 
construction or reconstruction.

[[Page 22]]

    (ii) In addition, in the case of reconstruction, the Administrator's 
determination under this paragraph will be based on:
    (A) The fixed capital cost of the replacements in comparison to the 
fixed capital cost that would be required to construct a comparable 
entirely new source;
    (B) The estimated life of the source after the replacements compared 
to the life of a comparable entirely new source;
    (C) The extent to which the components being replaced cause or 
contribute to the emissions from the source; and
    (D) Any economic or technical limitations on compliance with 
relevant standards that are inherent in the proposed replacements.
    (2)(i) The Administrator will notify the owner or operator in 
writing of approval or intention to deny approval of construction or 
reconstruction within 60 calendar days after receipt of sufficient 
information to evaluate an application submitted under paragraph (d) of 
this section. The 60-day approval or denial period will begin after the 
owner or operator has been notified in writing that his/her application 
is complete. The Administrator will notify the owner or operator in 
writing of the status of his/her application, that is, whether the 
application contains sufficient information to make a determination, 
within 30 calendar days after receipt of the original application and 
within 30 calendar days after receipt of any supplementary information 
that is submitted.
    (ii) When notifying the owner or operator that his/her application 
is not complete, the Administrator will specify the information needed 
to complete the application and provide notice of opportunity for the 
applicant to present, in writing, within 30 calendar days after he/she 
is notified of the incomplete application, additional information or 
arguments to the Administrator to enable further action on the 
application.
    (3) Before denying any application for approval of construction or 
reconstruction, the Administrator will notify the applicant of the 
Administrator's intention to issue the denial together with--
    (i) Notice of the information and findings on which the intended 
denial is based; and
    (ii) Notice of opportunity for the applicant to present, in writing, 
within 30 calendar days after he/she is notified of the intended denial, 
additional information or arguments to the Administrator to enable 
further action on the application.
    (4) A final determination to deny any application for approval will 
be in writing and will specify the grounds on which the denial is based. 
The final determination will be made within 60 calendar days of 
presentation of additional information or arguments (if the application 
is complete), or within 60 calendar days after the final date specified 
for presentation if no presentation is made.
    (5) Neither the submission of an application for approval nor the 
Administrator's approval of construction or reconstruction shall--
    (i) Relieve an owner or operator of legal responsibility for 
compliance with any applicable provisions of this part or with any other 
applicable Federal, State, or local requirement; or
    (ii) Prevent the Administrator from implementing or enforcing this 
part or taking any other action under the Act.
    (f) Approval of construction or reconstruction based on prior State 
preconstruction review. (1) Preconstruction review procedures that a 
State utilizes for other purposes may also be utilized for purposes of 
this section if the procedures are substantially equivalent to those 
specified in this section. The Administrator will approve an application 
for construction or reconstruction specified in paragraphs (b)(3) and 
(d) of this section if the owner or operator of a new affected source or 
reconstructed affected source, who is subject to such requirement meets 
the following conditions:
    (i) The owner or operator of the new affected source or 
reconstructed affected source has undergone a preconstruction review and 
approval process in the State in which the source is (or would be) 
located and has received a federally enforceable construction permit 
that contains a finding that the source will meet the relevant 
promulgated emission standard,

[[Page 23]]

if the source is properly built and operated.
    (ii) Provide a statement from the State or other evidence (such as 
State regulations) that it considered the factors specified in paragraph 
(e)(1) of this section.
    (2) The owner or operator must submit to the Administrator the 
request for approval of construction or reconstruction under this 
paragraph (f)(2) no later than the application deadline specified in 
paragraph (d)(1) of this section (see also Sec. 63.9(b)(2)). The owner 
or operator must include in the request information sufficient for the 
Administrator's determination. The Administrator will evaluate the owner 
or operator's request in accordance with the procedures specified in 
paragraph (e) of this section. The Administrator may request additional 
relevant information after the submittal of a request for approval of 
construction or reconstruction under this paragraph (f)(2).

[59 FR 12430, Mar. 16, 1994, as amended at 67 FR 16598, Apr. 5, 2002]