[Code of Federal Regulations]

[Title 40, Volume 9]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 40CFR63.5]



[Page 21-24]

 

                   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 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.



[[Page 22]]



    (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 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;



[[Page 23]]



    (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.

    (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



[[Page 24]]



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, 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]