[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: 40CFR63.6]



[Page 24-36]

 

                   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.



[[Page 25]]



    (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 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



[[Page 26]]



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 maintenance records, and inspection of the source.

    (ii) Malfunctions must be corrected as soon as practicable after 

their occurrence. 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 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, air pollution control, and monitoring equipment used to comply 

with the relevant standard. The startup, shutdown, and malfunction plan 

does not need to address any scenario that would not cause the source to 

exceed an applicable emission limitation in 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) [Reserved]

    (iii) When actions taken by the owner or operator during a startup 

or shutdown (and the startup or shutdown causes the source to exceed any 

applicable emission limitation in the relevant emission standards), 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



[[Page 27]]



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 and describes the actions taken for that 

event. In addition, the owner or operator must keep records of these 

events as specified in paragraph 63.10(b), including records of the 

occurrence and duration of each startup or shutdown (if the startup or 

shutdown causes the source to exceed any applicable emission limitation 

in the relevant emission standards), 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 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 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.

    (vi) To satisfy the requirements of this section to develop a 

startup, shutdown, and malfunction plan, the owner or operator may use 

the affected source's standard operating procedures (SOP) manual, or an 

Occupational Safety and Health Administration (OSHA) or other plan, 

provided the alternative plans meet all the requirements of this section 

and are made available for inspection or submitted when requested by the 

Administrator.

    (vii) Based on the results of a determination made under paragraph 

(e)(1)(i) of this section, the Administrator may require that an owner 

or operator of an affected source make



[[Page 28]]



changes to the startup, shutdown, and malfunction plan for that source. 

The Administrator must require appropriate revisions to a startup, 

shutdown, and malfunction plan, if the Administrator finds that the 

plan:

    (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 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 develop a startup, shutdown, and malfunction plan 

which conforms to the provisions of this part, but may do so by citing 

to the relevant subpart or subparagraphs of paragraph (e) of this 

section. 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 and the elements of the startup, shutdown, and 

malfunction plan shall not be considered an applicable requirement as 

defined in Sec.  70.2 and Sec.  71.2 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



[[Page 29]]



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, 

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.



[[Page 30]]



    (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--

    (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



[[Page 31]]



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 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



[[Page 32]]



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--

    (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



[[Page 33]]



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 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.



[[Page 34]]



    (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.

    (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



[[Page 35]]



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 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



[[Page 36]]



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]

    (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; 71 FR 20454, Apr. 20, 2006]