[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: 40CFR63.6]

[Page 23-35]
 
                   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. 63.6  Compliance with standards and maintenance requirements.

    (a) Applicability.
    (1) The requirements in this section apply to the owner or operator 
of affected sources for which any relevant standard has been established 
pursuant to section 112 of the Act and the applicability of such 
requirements is set out in accordance with Sec. 63.1(a)(4) unless--
    (i) The Administrator (or a State with an approved permit program) 
has granted an extension of compliance consistent with paragraph (i) of 
this section; or
    (ii) The President has granted an exemption from compliance with any 
relevant standard in accordance with section 112(i)(4) of the Act.
    (2) If an area source that otherwise would be subject to an emission 
standard or other requirement established under this part if it were a 
major source subsequently increases its emissions of hazardous air 
pollutants (or its potential to emit hazardous air pollutants) such that 
the source is a major source, such source shall be subject to the 
relevant emission standard or other requirement.
    (b) Compliance dates for new and reconstructed sources. (1) Except 
as specified in paragraphs (b)(3) and (4) of this section, the owner or 
operator of a new or reconstructed affected source for which 
construction or reconstruction commences after proposal of a relevant 
standard that has an initial startup before the effective date of a 
relevant standard established under this part pursuant to section 
112(d), (f), or (h) of the Act must comply with such standard not later 
than the standard's effective date.
    (2) Except as specified in paragraphs (b)(3) and (4) of this 
section, the owner or operator of a new or reconstructed affected source 
that has an initial startup after the effective date of a relevant 
standard established under this part pursuant to section 112(d), (f), or 
(h) of the Act must comply with such standard upon startup of the 
source.
    (3) The owner or operator of an affected source for which 
construction or reconstruction is commenced after the proposal date of a 
relevant standard established under this part pursuant to section 
112(d), 112(f), or 112(h) of the Act but before the effective date (that 
is, promulgation) of such standard shall comply with the relevant 
emission standard not later than the date 3 years after the effective 
date if:
    (i) The promulgated standard (that is, the relevant standard) is 
more stringent than the proposed standard; for purposes of this 
paragraph, a finding that controls or compliance methods are ``more 
stringent'' must include control technologies or performance criteria 
and compliance or compliance assurance methods that are different but 
are substantially equivalent to those required by the promulgated rule, 
as determined by the Administrator (or his or her authorized 
representative); and
    (ii) The owner or operator complies with the standard as proposed 
during the 3-year period immediately after the effective date.
    (4) The owner or operator of an affected source for which 
construction or reconstruction is commenced after the proposal date of a 
relevant standard established pursuant to section 112(d) of the Act but 
before the proposal date of

[[Page 24]]

a relevant standard established pursuant to section 112(f) shall not be 
required to comply with the section 112(f) emission standard until the 
date 10 years after the date construction or reconstruction is 
commenced, except that, if the section 112(f) standard is promulgated 
more than 10 years after construction or reconstruction is commenced, 
the owner or operator must comply with the standard as provided in 
paragraphs (b)(1) and (2) of this section.
    (5) The owner or operator of a new source that is subject to the 
compliance requirements of paragraph (b)(3) or (4) of this section must 
notify the Administrator in accordance with Sec. 63.9(d)
    (6) [Reserved]
    (7) When an area source becomes a major source by the addition of 
equipment or operations that meet the definition of new affected source 
in the relevant standard, the portion of the existing facility that is a 
new affected source must comply with all requirements of that standard 
applicable to new sources. The source owner or operator must comply with 
the relevant standard upon startup.
    (c) Compliance dates for existing sources. (1) After the effective 
date of a relevant standard established under this part pursuant to 
section 112(d) or 112(h) of the Act, the owner or operator of an 
existing source shall comply with such standard by the compliance date 
established by the Administrator in the applicable subpart(s) of this 
part. Except as otherwise provided for in section 112 of the Act, in no 
case will the compliance date established for an existing source in an 
applicable subpart of this part exceed 3 years after the effective date 
of such standard.
    (2) If an existing source is subject to a standard established under 
this part pursuant to section 112(f) of the Act, the owner or operator 
must comply with the standard by the date 90 days after the standard's 
effective date, or by the date specified in an extension granted to the 
source by the Administrator under paragraph (i)(4)(ii) of this section, 
whichever is later.
    (3)-(4) [Reserved]
    (5) Except as provided in paragraph (b)(7) of this section, the 
owner or operator of an area source that increases its emissions of (or 
its potential to emit) hazardous air pollutants such that the source 
becomes a major source shall be subject to relevant standards for 
existing sources. Such sources must comply by the date specified in the 
standards for existing area sources that become major sources. If no 
such compliance date is specified in the standards, the source shall 
have a period of time to comply with the relevant emission standard that 
is equivalent to the compliance period specified in the relevant 
standard for existing sources in existence at the time the standard 
becomes effective.
    (d) [Reserved]
    (e) Operation and maintenance requirements.
    (1)(i) At all times, including periods of startup, shutdown, and 
malfunction, the owner or operator must operate and maintain any 
affected source, including associated air pollution control equipment 
and monitoring equipment, in a manner consistent with safety and good 
air pollution control practices for minimizing emissions. During a 
period of startup, shutdown, or malfunction, this general duty to 
minimize emissions requires that the owner or operator reduce emissions 
from the affected source to the greatest extent which is consistent with 
safety and good air pollution control practices. The general duty to 
minimize emissions during a period of startup, shutdown, or malfunction 
does not require the owner or operator to achieve emission levels that 
would be required by the applicable standard at other times if this is 
not consistent with safety and good air pollution control practices, nor 
does it require the owner or operator to make any further efforts to 
reduce emissions if levels required by the applicable standard have been 
achieved. Determination of whether such operation and maintenance 
procedures are being used will be based on information available to the 
Administrator which may include, but is not limited to, monitoring 
results, review of operation and maintenance procedures (including the 
startup, shutdown, and malfunction plan required in paragraph (e)(3) of 
this section), review of operation and

[[Page 25]]

maintenance records, and inspection of the source.
    (ii) Malfunctions must be corrected as soon as practicable after 
their occurrence in accordance with the startup, shutdown, and 
malfunction plan required in paragraph (e)(3) of this section. To the 
extent that an unexpected event arises during a startup, shutdown, or 
malfunction, an owner or operator must comply by minimizing emissions 
during such a startup, shutdown, and malfunction event consistent with 
safety and good air pollution control practices.
    (iii) Operation and maintenance requirements established pursuant to 
section 112 of the Act are enforceable independent of emissions 
limitations or other requirements in relevant standards.
    (2) [Reserved]
    (3) Startup, shutdown, and malfunction plan. (i) The owner or 
operator of an affected source must develop and implement a written 
startup, shutdown, and malfunction plan that describes, in detail, 
procedures for operating and maintaining the source during periods of 
startup, shutdown, and malfunction, and a program of corrective action 
for malfunctioning process and air pollution control and monitoring 
equipment used to comply with the relevant standard. This plan must be 
developed by the owner or operator by the source's compliance date for 
that relevant standard. The purpose of the startup, shutdown, and 
malfunction plan is to--
    (A) Ensure that, at all times, the owner or operator operates and 
maintains each affected source, including associated air pollution 
control and monitoring equipment, in a manner which satisfies the 
general duty to minimize emissions established by paragraph (e)(1)(i) of 
this section;
    (B) Ensure that owners or operators are prepared to correct 
malfunctions as soon as practicable after their occurrence in order to 
minimize excess emissions of hazardous air pollutants; and
    (C) Reduce the reporting burden associated with periods of startup, 
shutdown, and malfunction (including corrective action taken to restore 
malfunctioning process and air pollution control equipment to its normal 
or usual manner of operation).
    (ii) During periods of startup, shutdown, and malfunction, the owner 
or operator of an affected source must operate and maintain such source 
(including associated air pollution control and monitoring equipment) in 
accordance with the procedures specified in the startup, shutdown, and 
malfunction plan developed under paragraph (e)(3)(i) of this section.
    (iii) When actions taken by the owner or operator during a startup, 
shutdown, or malfunction (including actions taken to correct a 
malfunction) are consistent with the procedures specified in the 
affected source's startup, shutdown, and malfunction plan, the owner or 
operator must keep records for that event which demonstrate that the 
procedures specified in the plan were followed. These records may take 
the form of a ``checklist,'' or other effective form of recordkeeping 
that confirms conformance with the startup, shutdown, and malfunction 
plan for that event. In addition, the owner or operator must keep 
records of these events as specified in Sec. 63.10(b), including records 
of the occurrence and duration of each startup, shutdown, or malfunction 
of operation and each malfunction of the air pollution control and 
monitoring equipment. Furthermore, the owner or operator shall confirm 
that actions taken during the relevant reporting period during periods 
of startup, shutdown, and malfunction were consistent with the affected 
source's startup, shutdown and malfunction plan in the semiannual (or 
more frequent) startup, shutdown, and malfunction report required in 
Sec. 63.10(d)(5).
    (iv) If an action taken by the owner or operator during a startup, 
shutdown, or malfunction (including an action taken to correct a 
malfunction) is not consistent with the procedures specified in the 
affected source's startup, shutdown, and malfunction plan, and the 
source exceeds any applicable emission limitation in the relevant 
emission standard, then the owner or operator must record the actions 
taken for that event and must report such actions within 2 working days 
after commencing actions inconsistent with the

[[Page 26]]

plan, followed by a letter within 7 working days after the end of the 
event, in accordance with Sec. 63.10(d)(5) (unless the owner or operator 
makes alternative reporting arrangements, in advance, with the 
Administrator).
    (v) The owner or operator must maintain at the affected source a 
current startup, shutdown, and malfunction plan and must make the plan 
available upon request for inspection and copying by the Administrator. 
In addition, if the startup, shutdown, and malfunction plan is 
subsequently revised as provided in paragraph (e)(3)(viii) of this 
section, the owner or operator must maintain at the affected source each 
previous (i.e., superseded) version of the startup, shutdown, and 
malfunction plan, and must make each such previous version available for 
inspection and copying by the Administrator for a period of 5 years 
after revision of the plan. If at any time after adoption of a startup, 
shutdown, and malfunction plan the affected source ceases operation or 
is otherwise no longer subject to the provisions of this part, the owner 
or operator must retain a copy of the most recent plan for 5 years from 
the date the source ceases operation or is no longer subject to this 
part and must make the plan available upon request for inspection and 
copying by the Administrator. The Administrator may at any time request 
in writing that the owner or operator submit a copy of any startup, 
shutdown, and malfunction plan (or a portion thereof) which is 
maintained at the affected source or in the possession of the owner or 
operator. Upon receipt of such a request, the owner or operator must 
promptly submit a copy of the requested plan (or a portion thereof) to 
the Administrator. The Administrator must request that the owner or 
operator submit a particular startup, shutdown, or malfunction plan (or 
a portion thereof) whenever a member of the public submits a specific 
and reasonable request to examine or to receive a copy of that plan or 
portion of a plan. The owner or operator may elect to submit the 
required copy of any startup, shutdown, and malfunction plan to the 
Administrator in an electronic format. If the owner or operator claims 
that any portion of such a startup, shutdown, and malfunction plan is 
confidential business information entitled to protection from disclosure 
under section 114(c) of the Act or 40 CFR 2.301, the material which is 
claimed as confidential must be clearly designated in the submission.
    (A) Does not address a startup, shutdown, or malfunction event that 
has occurred;
    (B) Fails to provide for the operation of the source (including 
associated air pollution control and monitoring equipment) during a 
startup, shutdown, or malfunction event in a manner consistent with the 
general duty to minimize emissions established by paragraph (e)(1)(i) of 
this section;
    (C) Does not provide adequate procedures for correcting 
malfunctioning process and/or air pollution control and monitoring 
equipment as quickly as practicable; or
    (D) Includes an event that does not meet the definition of startup, 
shutdown, or malfunction listed in Sec. 63.2.
    (viii) The owner or operator may periodically revise the startup, 
shutdown, and malfunction plan for the affected source as necessary to 
satisfy the requirements of this part or to reflect changes in equipment 
or procedures at the affected source. Unless the permitting authority 
provides otherwise, the owner or operator may make such revisions to the 
startup, shutdown, and malfunction plan without prior approval by the 
Administrator or the permitting authority. However, each such revision 
to a startup, shutdown, and malfunction plan must be reported in the 
semiannual report required by Sec. 63.10(d)(5). If the startup, 
shutdown, and malfunction plan fails to address or inadequately 
addresses an event that meets the characteristics of a malfunction but 
was not included in the startup, shutdown, and malfunction plan at the 
time the owner or operator developed the plan, the owner or operator 
must revise the startup, shutdown, and malfunction plan within 45 days 
after the event to include detailed procedures for operating and 
maintaining the source during similar malfunction events and a program 
of corrective action for similar malfunctions of process or air 
pollution control and monitoring equipment. In the event

[[Page 27]]

that the owner or operator makes any revision to the startup, shutdown, 
and malfunction plan which alters the scope of the activities at the 
source which are deemed to be a startup, shutdown, or malfunction, or 
otherwise modifies the applicability of any emission limit, work 
practice requirement, or other requirement in a standard established 
under this part, the revised plan shall not take effect until after the 
owner or operator has provided a written notice describing the revision 
to the permitting authority.
    (ix) The title V permit for an affected source must require that the 
owner or operator adopt a startup, shutdown, and malfunction plan which 
conforms to the provisions of this part, and that the owner or operator 
operate and maintain the source in accordance with the procedures 
specified in the current startup, shutdown, and malfunction plan. 
However, any revisions made to the startup, shutdown, and malfunction 
plan in accordance with the procedures established by this part shall 
not be deemed to constitute permit revisions under part 70 or part 71 of 
this chapter. Moreover, none of the procedures specified by the startup, 
shutdown, and malfunction plan for an affected source shall be deemed to 
fall within the permit shield provision in section 504(f) of the Act.
    (f) Compliance with nonopacity emission standards-- (1) 
Applicability. The non-opacity emission standards set forth in this part 
shall apply at all times except during periods of startup, shutdown, and 
malfunction, and as otherwise specified in an applicable subpart. If a 
startup, shutdown, or malfunction of one portion of an affected source 
does not affect the ability of particular emission points within other 
portions of the affected source to comply with the non-opacity emission 
standards set forth in this part, then that emission point must still be 
required to comply with the non-opacity emission standards and other 
applicable requirements.
    (2) Methods for determining compliance. (i) The Administrator will 
determine compliance with nonopacity emission standards in this part 
based on the results of performance tests conducted according to the 
procedures in Sec. 63.7, unless otherwise specified in an applicable 
subpart of this part.
    (ii) The Administrator will determine compliance with nonopacity 
emission standards in this part by evaluation of an owner or operator's 
conformance with operation and maintenance requirements, including the 
evaluation of monitoring data, as specified in Sec. 63.6(e) and 
applicable subparts of this part.
    (iii) If an affected source conducts performance testing at startup 
to obtain an operating permit in the State in which the source is 
located, the results of such testing may be used to demonstrate 
compliance with a relevant standard if--
    (A) The performance test was conducted within a reasonable amount of 
time before an initial performance test is required to be conducted 
under the relevant standard;
    (B) The performance test was conducted under representative 
operating conditions for the source;
    (C) The performance test was conducted and the resulting data were 
reduced using EPA-approved test methods and procedures, as specified in 
Sec. 63.7(e) of this subpart; and
    (D) The performance test was appropriately quality-assured, as 
specified in Sec. 63.7(c).
    (iv) The Administrator will determine compliance with design, 
equipment, work practice, or operational emission standards in this part 
by review of records, inspection of the source, and other procedures 
specified in applicable subparts of this part.
    (v) The Administrator will determine compliance with design, 
equipment, work practice, or operational emission standards in this part 
by evaluation of an owner or operator's conformance with operation and 
maintenance requirements, as specified in paragraph (e) of this section 
and applicable subparts of this part.
    (3) Finding of compliance. The Administrator will make a finding 
concerning an affected source's compliance with a non-opacity emission 
standard, as specified in paragraphs (f)(1) and (2) of this section, 
upon obtaining all the compliance information required by the relevant 
standard (including the written reports of performance test results,

[[Page 28]]

monitoring results, and other information, if applicable), and 
information available to the Administrator pursuant to paragraph 
(e)(1)(i) of this section.
    (g) Use of an alternative nonopacity emission standard. (1) If, in 
the Administrator's judgment, an owner or operator of an affected source 
has established that an alternative means of emission limitation will 
achieve a reduction in emissions of a hazardous air pollutant from an 
affected source at least equivalent to the reduction in emissions of 
that pollutant from that source achieved under any design, equipment, 
work practice, or operational emission standard, or combination thereof, 
established under this part pursuant to section 112(h) of the Act, the 
Administrator will publish in the Federal Register a notice permitting 
the use of the alternative emission standard for purposes of compliance 
with the promulgated standard. Any Federal Register notice under this 
paragraph shall be published only after the public is notified and given 
the opportunity to comment. Such notice will restrict the permission to 
the stationary source(s) or category(ies) of sources from which the 
alternative emission standard will achieve equivalent emission 
reductions. The Administrator will condition permission in such notice 
on requirements to assure the proper operation and maintenance of 
equipment and practices required for compliance with the alternative 
emission standard and other requirements, including appropriate quality 
assurance and quality control requirements, that are deemed necessary.
    (2) An owner or operator requesting permission under this paragraph 
shall, unless otherwise specified in an applicable subpart, submit a 
proposed test plan or the results of testing and monitoring in 
accordance with Sec. 63.7 and Sec. 63.8, a description of the procedures 
followed in testing or monitoring, and a description of pertinent 
conditions during testing or monitoring. Any testing or monitoring 
conducted to request permission to use an alternative nonopacity 
emission standard shall be appropriately quality assured and quality 
controlled, as specified in Sec. 63.7 and Sec. 63.8.
    (3) The Administrator may establish general procedures in an 
applicable subpart that accomplish the requirements of paragraphs (g)(1) 
and (g)(2) of this section.
    (h) Compliance with opacity and visible emission standards--(1) 
Applicability. The opacity and visible emission standards set forth in 
this part must apply at all times except during periods of startup, 
shutdown, and malfunction, and as otherwise specified in an applicable 
subpart. If a startup, shutdown, or malfunction of one portion of an 
affected source does not affect the ability of particular emission 
points within other portions of the affected source to comply with the 
opacity and visible emission standards set forth in this part, then that 
emission point shall still be required to comply with the opacity and 
visible emission standards and other applicable requirements.
    (2) Methods for determining compliance. (i) The Administrator will 
determine compliance with opacity and visible emission standards in this 
part based on the results of the test method specified in an applicable 
subpart. Whenever a continuous opacity monitoring system (COMS) is 
required to be installed to determine compliance with numerical opacity 
emission standards in this part, compliance with opacity emission 
standards in this part shall be determined by using the results from the 
COMS. Whenever an opacity emission test method is not specified, 
compliance with opacity emission standards in this part shall be 
determined by conducting observations in accordance with Test Method 9 
in appendix A of part 60 of this chapter or the method specified in 
paragraph (h)(7)(ii) of this section. Whenever a visible emission test 
method is not specified, compliance with visible emission standards in 
this part shall be determined by conducting observations in accordance 
with Test Method 22 in appendix A of part 60 of this chapter.
    (ii) [Reserved]
    (iii) If an affected source undergoes opacity or visible emission 
testing at startup to obtain an operating permit in the State in which 
the source is located, the results of such testing may be used to 
demonstrate compliance with a relevant standard if--

[[Page 29]]

    (A) The opacity or visible emission test was conducted within a 
reasonable amount of time before a performance test is required to be 
conducted under the relevant standard;
    (B) The opacity or visible emission test was conducted under 
representative operating conditions for the source;
    (C) The opacity or visible emission test was conducted and the 
resulting data were reduced using EPA-approved test methods and 
procedures, as specified in Sec. 63.7(e); and
    (D) The opacity or visible emission test was appropriately quality-
assured, as specified in Sec. 63.7(c) of this section.
    (3) [Reserved]
    (4) Notification of opacity or visible emission observations. The 
owner or operator of an affected source shall notify the Administrator 
in writing of the anticipated date for conducting opacity or visible 
emission observations in accordance with Sec. 63.9(f), if such 
observations are required for the source by a relevant standard.
    (5) Conduct of opacity or visible emission observations. When a 
relevant standard under this part includes an opacity or visible 
emission standard, the owner or operator of an affected source shall 
comply with the following:
    (i) For the purpose of demonstrating initial compliance, opacity or 
visible emission observations shall be conducted concurrently with the 
initial performance test required in Sec. 63.7 unless one of the 
following conditions applies:
    (A) If no performance test under Sec. 63.7 is required, opacity or 
visible emission observations shall be conducted within 60 days after 
achieving the maximum production rate at which a new or reconstructed 
source will be operated, but not later than 120 days after initial 
startup of the source, or within 120 days after the effective date of 
the relevant standard in the case of new sources that start up before 
the standard's effective date. If no performance test under Sec. 63.7 is 
required, opacity or visible emission observations shall be conducted 
within 120 days after the compliance date for an existing or modified 
source; or
    (B) If visibility or other conditions prevent the opacity or visible 
emission observations from being conducted concurrently with the initial 
performance test required under Sec. 63.7, or within the time period 
specified in paragraph (h)(5)(i)(A) of this section, the source's owner 
or operator shall reschedule the opacity or visible emission 
observations as soon after the initial performance test, or time period, 
as possible, but not later than 30 days thereafter, and shall advise the 
Administrator of the rescheduled date. The rescheduled opacity or 
visible emission observations shall be conducted (to the extent 
possible) under the same operating conditions that existed during the 
initial performance test conducted under Sec. 63.7. The visible 
emissions observer shall determine whether visibility or other 
conditions prevent the opacity or visible emission observations from 
being made concurrently with the initial performance test in accordance 
with procedures contained in Test Method 9 or Test Method 22 in appendix 
A of part 60 of this chapter.
    (ii) For the purpose of demonstrating initial compliance, the 
minimum total time of opacity observations shall be 3 hours (30 6-minute 
averages) for the performance test or other required set of observations 
(e.g., for fugitive-type emission sources subject only to an opacity 
emission standard).
    (iii) The owner or operator of an affected source to which an 
opacity or visible emission standard in this part applies shall conduct 
opacity or visible emission observations in accordance with the 
provisions of this section, record the results of the evaluation of 
emissions, and report to the Administrator the opacity or visible 
emission results in accordance with the provisions of Sec. 63.10(d).
    (iv) [Reserved]
    (v) Opacity readings of portions of plumes that contain condensed, 
uncombined water vapor shall not be used for purposes of determining 
compliance with opacity emission standards.
    (6) Availability of records. The owner or operator of an affected 
source shall make available, upon request by the Administrator, such 
records that the Administrator deems necessary to determine the 
conditions under which the visual observations were made and

[[Page 30]]

shall provide evidence indicating proof of current visible observer 
emission certification.
    (7) Use of a continuous opacity monitoring system. (i) The owner or 
operator of an affected source required to use a continuous opacity 
monitoring system (COMS) shall record the monitoring data produced 
during a performance test required under Sec. 63.7 and shall furnish the 
Administrator a written report of the monitoring results in accordance 
with the provisions of Sec. 63.10(e)(4).
    (ii) Whenever an opacity emission test method has not been specified 
in an applicable subpart, or an owner or operator of an affected source 
is required to conduct Test Method 9 observations (see appendix A of 
part 60 of this chapter), the owner or operator may submit, for 
compliance purposes, COMS data results produced during any performance 
test required under Sec. 63.7 in lieu of Method 9 data. If the owner or 
operator elects to submit COMS data for compliance with the opacity 
emission standard, he or she shall notify the Administrator of that 
decision, in writing, simultaneously with the notification under 
Sec. 63.7(b) of the date the performance test is scheduled to begin. 
Once the owner or operator of an affected source has notified the 
Administrator to that effect, the COMS data results will be used to 
determine opacity compliance during subsequent performance tests 
required under Sec. 63.7, unless the owner or operator notifies the 
Administrator in writing to the contrary not later than with the 
notification under Sec. 63.7(b) of the date the subsequent performance 
test is scheduled to begin.
    (iii) For the purposes of determining compliance with the opacity 
emission standard during a performance test required under Sec. 63.7 
using COMS data, the COMS data shall be reduced to 6-minute averages 
over the duration of the mass emission performance test.
    (iv) The owner or operator of an affected source using a COMS for 
compliance purposes is responsible for demonstrating that he/she has 
complied with the performance evaluation requirements of Sec. 63.8(e), 
that the COMS has been properly maintained, operated, and data quality-
assured, as specified in Sec. 63.8(c) and Sec. 63.8(d), and that the 
resulting data have not been altered in any way.
    (v) Except as provided in paragraph (h)(7)(ii) of this section, the 
results of continuous monitoring by a COMS that indicate that the 
opacity at the time visual observations were made was not in excess of 
the emission standard are probative but not conclusive evidence of the 
actual opacity of an emission, provided that the affected source proves 
that, at the time of the alleged violation, the instrument used was 
properly maintained, as specified in Sec. 63.8(c), and met Performance 
Specification 1 in appendix B of part 60 of this chapter, and that the 
resulting data have not been altered in any way.
    (8) Finding of compliance. The Administrator will make a finding 
concerning an affected source's compliance with an opacity or visible 
emission standard upon obtaining all the compliance information required 
by the relevant standard (including the written reports of the results 
of the performance tests required by Sec. 63.7, the results of Test 
Method 9 or another required opacity or visible emission test method, 
the observer certification required by paragraph (h)(6) of this section, 
and the continuous opacity monitoring system results, whichever is/are 
applicable) and any information available to the Administrator needed to 
determine whether proper operation and maintenance practices are being 
used.
    (9) Adjustment to an opacity emission standard. (i) If the 
Administrator finds under paragraph (h)(8) of this section that an 
affected source is in compliance with all relevant standards for which 
initial performance tests were conducted under Sec. 63.7, but during the 
time such performance tests were conducted fails to meet any relevant 
opacity emission standard, the owner or operator of such source may 
petition the Administrator to make appropriate adjustment to the opacity 
emission standard for the affected source. Until the Administrator 
notifies the owner or operator of the appropriate adjustment, the 
relevant opacity emission standard remains applicable.
    (ii) The Administrator may grant such a petition upon a 
demonstration by the owner or operator that--

[[Page 31]]

    (A) The affected source and its associated air pollution control 
equipment were operated and maintained in a manner to minimize the 
opacity of emissions during the performance tests;
    (B) The performance tests were performed under the conditions 
established by the Administrator; and
    (C) The affected source and its associated air pollution control 
equipment were incapable of being adjusted or operated to meet the 
relevant opacity emission standard.
    (iii) The Administrator will establish an adjusted opacity emission 
standard for the affected source meeting the above requirements at a 
level at which the source will be able, as indicated by the performance 
and opacity tests, to meet the opacity emission standard at all times 
during which the source is meeting the mass or concentration emission 
standard. The Administrator will promulgate the new opacity emission 
standard in the Federal Register.
    (iv) After the Administrator promulgates an adjusted opacity 
emission standard for an affected source, the owner or operator of such 
source shall be subject to the new opacity emission standard, and the 
new opacity emission standard shall apply to such source during any 
subsequent performance tests.
    (i) Extension of compliance with emission standards. (1) Until an 
extension of compliance has been granted by the Administrator (or a 
State with an approved permit program) under this paragraph, the owner 
or operator of an affected source subject to the requirements of this 
section shall comply with all applicable requirements of this part.
    (2) Extension of compliance for early reductions and other 
reductions--(i) Early reductions. Pursuant to section 112(i)(5) of the 
Act, if the owner or operator of an existing source demonstrates that 
the source has achieved a reduction in emissions of hazardous air 
pollutants in accordance with the provisions of subpart D of this part, 
the Administrator (or the State with an approved permit program) will 
grant the owner or operator an extension of compliance with specific 
requirements of this part, as specified in subpart D.
    (ii) Other reductions. Pursuant to section 112(i)(6) of the Act, if 
the owner or operator of an existing source has installed best available 
control technology (BACT) (as defined in section 169(3) of the Act) or 
technology required to meet a lowest achievable emission rate (LAER) (as 
defined in section 171 of the Act) prior to the promulgation of an 
emission standard in this part applicable to such source and the same 
pollutant (or stream of pollutants) controlled pursuant to the BACT or 
LAER installation, the Administrator will grant the owner or operator an 
extension of compliance with such emission standard that will apply 
until the date 5 years after the date on which such installation was 
achieved, as determined by the Administrator.
    (3) Request for extension of compliance. Paragraphs (i)(4) through 
(i)(7) of this section concern requests for an extension of compliance 
with a relevant standard under this part (except requests for an 
extension of compliance under paragraph (i)(2)(i) of this section will 
be handled through procedures specified in subpart D of this part).
    (4)(i)(A) The owner or operator of an existing source who is unable 
to comply with a relevant standard established under this part pursuant 
to section 112(d) of the Act may request that the Administrator (or a 
State, when the State has an approved part 70 permit program and the 
source is required to obtain a part 70 permit under that program, or a 
State, when the State has been delegated the authority to implement and 
enforce the emission standard for that source) grant an extension 
allowing the source up to 1 additional year to comply with the standard, 
if such additional period is necessary for the installation of controls. 
An additional extension of up to 3 years may be added for mining waste 
operations, if the 1-year extension of compliance is insufficient to dry 
and cover mining waste in order to reduce emissions of any hazardous air 
pollutant. The owner or operator of an affected source who has requested 
an extension of compliance under this paragraph and who is otherwise 
required to obtain a title V permit shall apply for

[[Page 32]]

such permit or apply to have the source's title V permit revised to 
incorporate the conditions of the extension of compliance. The 
conditions of an extension of compliance granted under this paragraph 
will be incorporated into the affected source's title V permit according 
to the provisions of part 70 or Federal title V regulations in this 
chapter (42 U.S.C. 7661), whichever are applicable.
    (B) Any request under this paragraph for an extension of compliance 
with a relevant standard must be submitted in writing to the appropriate 
authority no later than 120 days prior to the affected source's 
compliance date (as specified in paragraphs (b) and (c) of this 
section), except as provided for in paragraph (i)(4)(i)(C) of this 
section. Nonfrivolous requests submitted under this paragraph will stay 
the applicability of the rule as to the emission points in question 
until such time as the request is granted or denied. A denial will be 
effective as of the date of denial. Emission standards established under 
this part may specify alternative dates for the submittal of requests 
for an extension of compliance if alternatives are appropriate for the 
source categories affected by those standards.
    (C) An owner or operator may submit a compliance extension request 
after the date specified in paragraph (i)(4)(i)(B) of this section 
provided the need for the compliance extension arose after that date, 
and before the otherwise applicable compliance date and the need arose 
due to circumstances beyond reasonable control of the owner or operator. 
This request must include, in addition to the information required in 
paragraph (i)(6)(i) of this section, a statement of the reasons 
additional time is needed and the date when the owner or operator first 
learned of the problems. Nonfrivolous requests submitted under this 
paragraph will stay the applicability of the rule as to the emission 
points in question until such time as the request is granted or denied. 
A denial will be effective as of the original compliance date.
    (ii) The owner or operator of an existing source unable to comply 
with a relevant standard established under this part pursuant to section 
112(f) of the Act may request that the Administrator grant an extension 
allowing the source up to 2 years after the standard's effective date to 
comply with the standard. The Administrator may grant such an extension 
if he/she finds that such additional period is necessary for the 
installation of controls and that steps will be taken during the period 
of the extension to assure that the health of persons will be protected 
from imminent endangerment. Any request for an extension of compliance 
with a relevant standard under this paragraph must be submitted in 
writing to the Administrator not later than 90 calendar days after the 
effective date of the relevant standard.
    (5) The owner or operator of an existing source that has installed 
BACT or technology required to meet LAER [as specified in paragraph 
(i)(2)(ii) of this section] prior to the promulgation of a relevant 
emission standard in this part may request that the Administrator grant 
an extension allowing the source 5 years from the date on which such 
installation was achieved, as determined by the Administrator, to comply 
with the standard. Any request for an extension of compliance with a 
relevant standard under this paragraph shall be submitted in writing to 
the Administrator not later than 120 days after the promulgation date of 
the standard. The Administrator may grant such an extension if he or she 
finds that the installation of BACT or technology to meet LAER controls 
the same pollutant (or stream of pollutants) that would be controlled at 
that source by the relevant emission standard.
    (6)(i) The request for a compliance extension under paragraph (i)(4) 
of this section shall include the following information:
    (A) A description of the controls to be installed to comply with the 
standard;
    (B) A compliance schedule, including the date by which each step 
toward compliance will be reached. At a minimum, the list of dates shall 
include:
    (1) The date by which on-site construction, installation of emission 
control equipment, or a process change is planned to be initiated; and
    (2) The date by which final compliance is to be achieved.

[[Page 33]]

    (3) The date by which on-site construction, installation of emission 
control equipment, or a process change is to be completed; and
    (4) The date by which final compliance is to be achieved;
    (C)--(D)
    (ii) The request for a compliance extension under paragraph (i)(5) 
of this section shall include all information needed to demonstrate to 
the Administrator's satisfaction that the installation of BACT or 
technology to meet LAER controls the same pollutant (or stream of 
pollutants) that would be controlled at that source by the relevant 
emission standard.
    (7) Advice on requesting an extension of compliance may be obtained 
from the Administrator (or the State with an approved permit program).
    (8) Approval of request for extension of compliance. Paragraphs 
(i)(9) through (i)(14) of this section concern approval of an extension 
of compliance requested under paragraphs (i)(4) through (i)(6) of this 
section.
    (9) Based on the information provided in any request made under 
paragraphs (i)(4) through (i)(6) of this section, or other information, 
the Administrator (or the State with an approved permit program) may 
grant an extension of compliance with an emission standard, as specified 
in paragraphs (i)(4) and (i)(5) of this section.
    (10) The extension will be in writing and will--
    (i) Identify each affected source covered by the extension;
    (ii) Specify the termination date of the extension;
    (iii) Specify the dates by which steps toward compliance are to be 
taken, if appropriate;
    (iv) Specify other applicable requirements to which the compliance 
extension applies (e.g., performance tests); and
    (v)(A) Under paragraph (i)(4), specify any additional conditions 
that the Administrator (or the State) deems necessary to assure 
installation of the necessary controls and protection of the health of 
persons during the extension period; or
    (B) Under paragraph (i)(5), specify any additional conditions that 
the Administrator deems necessary to assure the proper operation and 
maintenance of the installed controls during the extension period.
    (11) The owner or operator of an existing source that has been 
granted an extension of compliance under paragraph (i)(10) of this 
section may be required to submit to the Administrator (or the State 
with an approved permit program) progress reports indicating whether the 
steps toward compliance outlined in the compliance schedule have been 
reached. The contents of the progress reports and the dates by which 
they shall be submitted will be specified in the written extension of 
compliance granted under paragraph (i)(10) of this section.
    (12)(i) The Administrator (or the State with an approved permit 
program) will notify the owner or operator in writing of approval or 
intention to deny approval of a request for an extension of compliance 
within 30 calendar days after receipt of sufficient information to 
evaluate a request submitted under paragraph (i)(4)(i) or (i)(5) of this 
section. The Administrator (or the State) 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. The 30-day approval or 
denial period will begin after the owner or operator has been notified 
in writing that his/her application is complete.
    (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.
    (iii) Before denying any request for an extension of compliance, the 
Administrator (or the State with an approved permit program) will notify 
the

[[Page 34]]

owner or operator in writing of the Administrator's (or the State's) 
intention to issue the denial, together with--
    (A) Notice of the information and findings on which the intended 
denial is based; and
    (B) Notice of opportunity for the owner or operator to present in 
writing, within 15 calendar days after he/she is notified of the 
intended denial, additional information or arguments to the 
Administrator (or the State) before further action on the request.
    (iv) The Administrator's final determination to deny any request for 
an extension will be in writing and will set forth the specific grounds 
on which the denial is based. The final determination will be made 
within 30 calendar days after presentation of additional information or 
argument (if the application is complete), or within 30 calendar days 
after the final date specified for the presentation if no presentation 
is made.
    (13)(i) The Administrator will notify the owner or operator in 
writing of approval or intention to deny approval of a request for an 
extension of compliance within 30 calendar days after receipt of 
sufficient information to evaluate a request submitted under paragraph 
(i)(4)(ii) of this section. The 30-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 (or the State) 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 15 calendar days after 
receipt of the original application and within 15 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 15 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.
    (iii) Before denying any request for an extension of compliance, the 
Administrator will notify the owner or operator in writing of the 
Administrator's intention to issue the denial, together with--
    (A) Notice of the information and findings on which the intended 
denial is based; and
    (B) Notice of opportunity for the owner or operator to present in 
writing, within 15 calendar days after he/she is notified of the 
intended denial, additional information or arguments to the 
Administrator before further action on the request.
    (iv) A final determination to deny any request for an extension will 
be in writing and will set forth the specific grounds on which the 
denial is based. The final determination will be made within 30 calendar 
days after presentation of additional information or argument (if the 
application is complete), or within 30 calendar days after the final 
date specified for the presentation if no presentation is made.
    (14) The Administrator (or the State with an approved permit 
program) may terminate an extension of compliance at an earlier date 
than specified if any specification under paragraph (i)(10)(iii) or (iv) 
of this section is not met. Upon a determination to terminate, the 
Administrator will notify, in writing, the owner or operator of the 
Administrator's determination to terminate, together with:
    (i) Notice of the reason for termination; and
    (ii) Notice of opportunity for the owner or operator to present in 
writing, within 15 calendar days after he/she is notified of the 
determination to terminate, additional information or arguments to the 
Administrator before further action on the termination.
    (iii) A final determination to terminate an extension of compliance 
will be in writing and will set forth the specific grounds on which the 
termination is based. The final determination will be made within 30 
calendar days after presentation of additional information or arguments, 
or within 30 calendar days after the final date specified for the 
presentation if no presentation is made.
    (15) [Reserved]

[[Page 35]]

    (16) The granting of an extension under this section shall not 
abrogate the Administrator's authority under section 114 of the Act.
    (j) Exemption from compliance with emission standards. The President 
may exempt any stationary source from compliance with any relevant 
standard established pursuant to section 112 of the Act for a period of 
not more than 2 years if the President determines that the technology to 
implement such standard is not available and that it is in the national 
security interests of the United States to do so. An exemption under 
this paragraph may be extended for 1 or more additional periods, each 
period not to exceed 2 years.

[59 FR 12430, Mar. 16, 1994, as amended at 67 FR 16599, Apr. 5, 2002; 68 
FR 32600, May 30, 2003]