[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: 40CFR63.90]

[Page 98-103]
 
                   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 E--Approval of State Programs and Delegation of Federal 
                               Authorities
 
Sec. 63.90  Program overview.


    The regulations in this subpart establish procedures consistent with 
section 112(l) of the Clean Air Act (Act) (42 U.S.C. 7401-7671q). This 
subpart establishes procedures for the approval of State rules, 
programs, or other requirements such as permit terms and conditions to 
be implemented and enforced in place of certain otherwise applicable 
section 112 Federal rules, emission standards, or requirements 
(including section 112 rules promulgated under the authority of the Act 
prior to the 1990 Amendments to the Act). The authority to implement and 
enforce section 112 Federal rules as promulgated without changes may be 
delegated under procedures established in this subpart. In this process, 
States may seek approval of a State mechanism for receiving delegation 
of existing and future unchanged Federal section 112 standards. This 
subpart clarifies which part 63, subpart A General Provisions 
authorities can be delegated to States. This subpart also establishes 
procedures for the review and withdrawal of section 112 implementation 
and enforcement authorities delegated through this subpart. This subpart 
also establishes procedures for the approval of State rules or programs 
to establish limitations on the potential to emit pollutants listed in 
or pursuant to section 112(b) of the Act.
    (a) Definitions. The following definitions apply to this subpart.
    Alternative requirements means the requirements, rules, permits, 
provisions, methods, or other enforceable mechanisms that a State 
submits for approval under this subpart or subpart A and, after 
approval, replaces the otherwise applicable Federal section 112 
requirements, provisions, or methods.
    Applicability criteria means the regulatory criteria used to define 
all affected sources subject to a specific section 112 rule.
    Approval means a determination by the Administrator that a State 
rule,

[[Page 99]]

program, or requirement meets the criteria of Sec. 63.91 and the 
additional criteria of either Sec. 63.92, Sec. 63.93, Sec. 63.94, or 
Sec. 63.97 as appropriate. For accidental release prevention programs, 
the criteria of Sec. 63.95 must be met in addition to the criteria of 
Sec. 63.91. This is considered a ``full approval'' for the purposes of 
this subpart. Partial approvals may also be granted as described in this 
subpart. Any approved requirements become applicable requirements under 
Sec. 70.2 of this chapter.
    Compliance and enforcement measures means requirements relating to 
compliance and enforcement, including but not necessarily limited to 
monitoring methods and procedures, recordkeeping, reporting, plans, 
inspection, maintenance, and operation requirements, pollution 
prevention requirements, noticing, field inspections, entry, sampling, 
or accidental release prevention oversight.
    Intermediate change to monitoring means a modification to federally 
required monitoring involving ``proven technology'' (generally accepted 
by the scientific community as equivalent or better) that is applied on 
a site-specific basis and that may have the potential to decrease the 
stringency of the associated emission limitation or standard. Though 
site-specific, an intermediate change may set a national precedent for a 
source category and may ultimately result in a revision to the federally 
required monitoring. Examples of intermediate changes to monitoring 
include, but are not limited to:
    (1) Use of a continuous emission monitoring system (CEMS) in lieu of 
a parameter monitoring approach;
    (2) Decreased frequency for non-continuous parameter monitoring or 
physical inspections;
    (3) Changes to quality control requirements for parameter 
monitoring; and
    (4) Use of an electronic data reduction system in lieu of manual 
data reduction.
    Intermediate change to test method means a within-method 
modification to a federally enforceable test method involving ``proven 
technology'' (generally accepted by the scientific community as 
equivalent or better) that is applied on a site-specific basis and that 
may have the potential to decrease the stringency of the associated 
emission limitation or standard. Though site-specific, an intermediate 
change may set a national precedent for a source category and may 
ultimately result in a revision to the federally enforceable test 
method. In order to be approved, an intermediate change must be 
validated according to EPA Method 301 (Part 63, Appendix A) to 
demonstrate that it provides equal or improved accuracy and precision. 
Examples of intermediate changes to a test method include, but are not 
limited to:
    (1) Modifications to a test method's sampling procedure including 
substitution of sampling equipment that has been demonstrated for a 
particular sample matrix, and use of a different impinger absorbing 
solution;
    (2) Changes in sample recovery procedures and analytical techniques, 
such as changes to sample holding times and use of a different 
analytical finish with proven capability for the analyte of interest; 
and
    (3) ``Combining'' a federally required method with another proven 
method for application to processes emitting multiple pollutants.
    Level of control means the degree to which a rule, program, or 
requirement limits emissions or employs design, equipment, work 
practice, or operational standards, accident prevention, or other 
requirements or techniques (including a prohibition of emissions) for:
    (1)(i) Each hazardous air pollutant, if individual pollutants are 
subject to emission limitations, and
    (ii) The aggregate total of hazardous air pollutants, if the 
aggregate grouping is subject to emission limitations, provided that the 
rule, program, or requirement would not lead to an increase in risk to 
human health or the environment; and
    (2) Each substance regulated under part 68 of this chapter.
    (3) Test methods and associated procedures and averaging times are 
integral to the level of control.
    Local agency means a local air pollution control agency or, for the 
purposes of Sec. 63.95, any local agency or entity having responsibility 
for preventing accidental releases which may occur at

[[Page 100]]

a source regulated under part 68 of this chapter.
    Major change to monitoring means a modification to federally 
required monitoring that uses ``unproven technology or procedures'' (not 
generally accepted by the scientific community) or is an entirely new 
method (sometimes necessary when the required monitoring is unsuitable). 
A major change to monitoring may be site-specific or may apply to one or 
more source categories and will almost always set a national precedent. 
Examples of major changes to monitoring include, but are not limited to:
    (1) Use of a new monitoring approach developed to apply to a control 
technology not contemplated in the applicable regulation;
    (2) Use of a predictive emission monitoring system (PEMS) in place 
of a required continuous emission monitoring system (CEMS);
    (3) Use of alternative calibration procedures that do not involve 
calibration gases or test cells;
    (4) Use of an analytical technology that differs from that specified 
by a performance specification;
    (5) Decreased monitoring frequency for a continuous emission 
monitoring system, continuous opacity monitoring system, predictive 
emission monitoring system, or continuous parameter monitoring system;
    (6) Decreased monitoring frequency for a leak detection and repair 
program; and
    (7) Use of alternative averaging times for reporting purposes.
    Major change to recordkeeping/reporting means:
    (1) A modification to federally required recordkeeping or reporting 
that:
    (i) May decrease the stringency of the required compliance and 
enforcement measures for the relevant standards;
    (ii) May have national significance (e.g., might affect 
implementation of the applicable regulation for other affected sources, 
might set a national precedent); or
    (iii) Is not site-specific.
    (2) Examples of major changes to recordkeeping and reporting 
include, but are not limited to:
    (i) Decreases in the record retention for all records;
    (ii) Waiver of all or most recordkeeping or reporting requirements;
    (iii) Major changes to the contents of reports; or
    (iv) Decreases in the reliability of recordkeeping or reporting 
(e.g., manual recording of monitoring data instead of required automated 
or electronic recording, or paper reports where electronic reporting may 
have been required).
    Major change to test method means a modification to a federally 
enforceable test method that uses ``unproven technology or procedures'' 
(not generally accepted by the scientific community) or is an entirely 
new method (sometimes necessary when the required test method is 
unsuitable). A major change to a test method may be site-specific, or 
may apply to one or more sources or source categories, and will almost 
always set a national precedent. In order to be approved, a major change 
must be validated according to EPA Method 301 (Part 63, Appendix A). 
Examples of major changes to a test method include, but are not limited 
to:
    (1) Use of an unproven analytical finish;
    (2) Use of a method developed to fill a test method gap;
    (3) Use of a new test method developed to apply to a control 
technology not contemplated in the applicable regulation; and
    (4) Combining two or more sampling/analytical methods (at least one 
unproven) into one for application to processes emitting multiple 
pollutants.
    Minor change to monitoring means:
    (1) A modification to federally required monitoring that:
    (i) Does not decrease the stringency of the compliance and 
enforcement measures for the relevant standard;
    (ii) Has no national significance (e.g., does not affect 
implementation of the applicable regulation for other affected sources, 
does not set a national precedent, and individually does not result in a 
revision to the monitoring requirements); and
    (iii) Is site-specific, made to reflect or accommodate the 
operational characteristics, physical constraints, or safety concerns of 
an affected source.

[[Page 101]]

    (2) Examples of minor changes to monitoring include, but are not 
limited to:
    (i) Modifications to a sampling procedure, such as use of an 
improved sample conditioning system to reduce maintenance requirements;
    (ii) Increased monitoring frequency; and
    (iii) Modification of the environmental shelter to moderate 
temperature fluctuation and thus protect the analytical instrumentation.
    Minor change to recordkeeping/reporting means:
    (1) A modification to federally required recordkeeping or reporting 
that:
    (i) Does not decrease the stringency of the compliance and 
enforcement measures for the relevant standards;
    (ii) Has no national significance (e.g., does not affect 
implementation of the applicable regulation for other affected sources, 
does not set a national precedent, and individually does not result in a 
revision to the recordkeeping or reporting requirement); and
    (iii) Is site-specific.
    (2) Examples of minor changes to recordkeeping or reporting include, 
but are not limited to:
    (i) Changes to recordkeeping necessitated by alternatives to 
monitoring;
    (ii) Increased frequency of recordkeeping or reporting, or increased 
record retention periods;
    (iii) Increased reliability in the form of recording monitoring 
data, e.g., electronic or automatic recording as opposed to manual 
recording of monitoring data;
    (iv) Changes related to compliance extensions granted pursuant to 
Sec. 63.6(i);
    (v) Changes to recordkeeping for good cause shown for a fixed short 
duration, e.g., facility shutdown;
    (vi) Changes to recordkeeping or reporting that is clearly redundant 
with equivalent recordkeeping/reporting requirements; and
    (vii) Decreases in the frequency of reporting for area sources to no 
less than once a year for good cause shown, or for major sources to no 
less than twice a year as required by title V, for good cause shown.
    Minor change to test method means:
    (1) A modification to a federally enforceable test method that:
    (i) Does not decrease the stringency of the emission limitation or 
standard;
    (ii) Has no national significance (e.g., does not affect 
implementation of the applicable regulation for other affected sources, 
does not set a national precedent, and individually does not result in a 
revision to the test method); and
    (iii) Is site-specific, made to reflect or accommodate the 
operational characteristics, physical constraints, or safety concerns of 
an affected source.
    (2) Examples of minor changes to a test method include, but are not 
limited to:
    (i) Field adjustments in a test method's sampling procedure, such as 
a modified sampling traverse or location to avoid interference from an 
obstruction in the stack, increasing the sampling time or volume, use of 
additional impingers for a high moisture situation, accepting 
particulate emission results for a test run that was conducted with a 
lower than specified temperature, substitution of a material in the 
sampling train that has been demonstrated to be more inert for the 
sample matrix; and
    (ii) Changes in recovery and analytical techniques such as a change 
in quality control/quality assurance requirements needed to adjust for 
analysis of a certain sample matrix.
    Partial approval means that the Administrator approves under this 
subpart:
    (1) A State's legal authorities that fully meet the criteria of 
Sec. 63.91(d)(3)(ii)-(v), and substantially meet the criteria of 
Sec. 63.91(d)(3)(i) as appropriate; or
    (2) A State rule or program that meets the criteria of Secs. 63.92, 
63.93, 63.94, 63.95, or 63.97 with the exception of a separable portion 
of that State rule or program which fails to meet those criteria. A 
separable portion of a State rule or program is defined as a section(s) 
of a rule or a portion(s) of a program which can be acted upon 
independently without affecting the overall integrity of the rule or 
program as a whole.
    Program means, for the purposes of an approval under this subpart, a 
collection of State authorities, resources, and other requirements that 
satisfy

[[Page 102]]

the criteria of this subpart and subpart A.
    State agency, for the purposes of this subpart, includes State and 
local air pollution agencies, Indian tribes as defined in Sec. 71.2 of 
this chapter, and territories of the United States to the extent they 
are or will be delegated Federal section 112 rules, emission standards, 
or requirements.
    Stringent or stringency means the degree of rigor, strictness or 
severity a statute, rule, emission standard, or requirement imposes on 
an affected source as measured by the quantity of emissions, or as 
measured by parameters relating to rule applicability and level of 
control, or as otherwise determined by the Administrator.
    Title V operating permit programs means the part 70 permitting 
program and the delegated Indian tribal programs under part 70 of this 
chapter.
    (b) Local agency coordination with State and territorial agencies. 
Local agencies submitting a rule or program for approval under this 
subpart shall consult with the relevant State or Territorial agency 
prior to making a request for approval to the Administrator. A State or 
Territorial agency may submit requests for approval on behalf of a local 
agency after consulting with that local agency.
    (c) Tribal authority.
    A tribal authority may submit a rule or program under this subpart, 
provided that the tribal authority has received approval, under the 
provisions of part 49 of this chapter, for administering Federal rules 
under section 112 of the Act.
    (d) Authorities retained by the Administrator.
    (1) The following authorities will be retained by the Administrator 
and will not be delegated:
    (i) The authority to add or delete pollutants from the list of 
hazardous air pollutants established under section 112(b);
    (ii)-(iii) [Reserved]
    (iv) The authority to add source categories to or delete source 
categories from the Federal source category list established under 
section 112(c)(1) or to subcategorize categories on the Federal source 
category list after proposal of a relevant emission standard;
    (v) The authority to revise the source category schedule established 
under section 112(e) by moving a source category to a later date for 
promulgation; and
    (vi) Any other authorities determined to be nondelegable by the 
Administrator.
    (2) Nothing in this subpart shall prohibit the Administrator from 
enforcing any applicable rule, emission standard or requirement 
established under section 112.
    (3) Nothing in this subpart shall affect the authorities and 
obligations of the Administrator or the State under title V of the Act 
or under regulations promulgated pursuant to that title.
    (e) Federally-enforceable requirements. All rules, programs, State 
or local permits, or other requirements approved under this subpart and 
all resulting part 70 operating permit conditions are enforceable by the 
Administrator and by citizens under the Act.
    (f) Standards not subject to modification or substitution. With 
respect to radionuclide emissions from licensees of the Nuclear 
Regulatory Commission or licensees of Nuclear Regulatory Commission 
Agreement States which are subject to part 61, subparts I, T, or W of 
this chapter, a State may request that the EPA approve delegation of 
implementation and enforcement of the Federal standard pursuant to 
Sec. 63.91, but no changes or modifications in the form or content of 
the standard will be approved pursuant to Sec. 63.92, Sec. 63.93, 
Sec. 63.94, or Sec. 63.97.
    (g) Selection of delegation options.
    (1) With the exception of paragraphs (g)(2) and (g)(3) of this 
section, States may only submit requests for approval of alternative 
requirements for a section 112 Federal rule, emission standard, or other 
requirement under a single delegation option under this subpart.
    (2) In the case of Sec. 63.94 submittals, if the identified sources 
in any source category comprise a subset of the sources in that 
category, the State must accept delegation under one other section of 
this subpart for the remainder of the sources in that category that are 
required to be permitted by the State under part 70 of this chapter.

[[Page 103]]

    (3) If the Administrator partially approves the State request per 
Sec. 63.91(f), the State may submit a request for the remaining section 
112 rules, emission standards, or requirements in that category under 
another section of this subpart.

[65 FR 55835, Sept. 14, 2000]