[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: 40CFR63.7]



[Page 36-41]

 

                   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.  63.7  Performance testing requirements.



    (a) Applicability and performance test dates. (1) The applicability 

of this section is set out in Sec.  63.1(a)(4).

    (2) If required to do performance testing by a relevant standard, 

and unless a waiver of performance testing is obtained under this 

section or the conditions of paragraph (c)(3)(ii)(B) of this section 

apply, the owner or operator of the affected source must perform such 

tests within 180 days of the compliance date for such source.

    (i)-(viii) [Reserved]

    (ix) When an emission standard promulgated under this part is more 

stringent than the standard proposed (see Sec.  63.6(b)(3)), the owner 

or operator of a new or reconstructed source subject to that standard 

for which construction or reconstruction is commenced between the 

proposal and promulgation dates of the standard shall comply with 

performance testing requirements within 180 days after the standard's 

effective date, or within 180 days after startup of the source, 

whichever is later. If the promulgated standard is more stringent than 

the proposed standard, the owner or operator may choose to demonstrate 

compliance



[[Page 37]]



with either the proposed or the promulgated standard. If the owner or 

operator chooses to comply with the proposed standard initially, the 

owner or operator shall conduct a second performance test within 3 years 

and 180 days after the effective date of the standard, or after startup 

of the source, whichever is later, to demonstrate compliance with the 

promulgated standard.

    (3) The Administrator may require an owner or operator to conduct 

performance tests at the affected source at any other time when the 

action is authorized by section 114 of the Act.

    (b) Notification of performance test. (1) The owner or operator of 

an affected source must notify the Administrator in writing of his or 

her intention to conduct a performance test at least 60 calendar days 

before the performance test is initially scheduled to begin to allow the 

Administrator, upon request, to review an approve the site-specific test 

plan required under paragraph (c) of this section and to have an 

observer present during the test.

    (2) In the event the owner or operator is unable to conduct the 

performance test on the date specified in the notification requirement 

specified in paragraph (b)(1) of this section due to unforeseeable 

circumstances beyond his or her control, the owner or operator must 

notify the Administrator as soon as practicable and without delay prior 

to the scheduled performance test date and specify the date when the 

performance test is rescheduled. This notification of delay in 

conducting the performance test shall not relieve the owner or operator 

of legal responsibility for compliance with any other applicable 

provisions of this part or with any other applicable Federal, State, or 

local requirement, nor will it prevent the Administrator from 

implementing or enforcing this part or taking any other action under the 

Act.

    (c) Quality assurance program. (1) The results of the quality 

assurance program required in this paragraph will be considered by the 

Administrator when he/she determines the validity of a performance test.

    (2)(i) Submission of site-specific test plan. Before conducting a 

required performance test, the owner or operator of an affected source 

shall develop and, if requested by the Administrator, shall submit a 

site-specific test plan to the Administrator for approval. The test plan 

shall include a test program summary, the test schedule, data quality 

objectives, and both an internal and external quality assurance (QA) 

program. Data quality objectives are the pretest expectations of 

precision, accuracy, and completeness of data.

    (ii) The internal QA program shall include, at a minimum, the 

activities planned by routine operators and analysts to provide an 

assessment of test data precision; an example of internal QA is the 

sampling and analysis of replicate samples.

    (iii) The external QA program shall include, at a minimum, 

application of plans for a test method performance audit (PA) during the 

performance test. The PA's consist of blind audit samples provided by 

the Administrator and analyzed during the performance test in order to 

provide a measure of test data bias. The external QA program may also 

include systems audits that include the opportunity for on-site 

evaluation by the Administrator of instrument calibration, data 

validation, sample logging, and documentation of quality control data 

and field maintenance activities.

    (iv) The owner or operator of an affected source shall submit the 

site-specific test plan to the Administrator upon the Administrator's 

request at least 60 calendar days before the performance test is 

scheduled to take place, that is, simultaneously with the notification 

of intention to conduct a performance test required under paragraph (b) 

of this section, or on a mutually agreed upon date.

    (v) The Administrator may request additional relevant information 

after the submittal of a site-specific test plan.

    (3) Approval of site-specific test plan. (i) The Administrator will 

notify the owner or operator of approval or intention to deny approval 

of the site-specific test plan (if review of the site-specific test plan 

is requested) within 30 calendar days after receipt of the original plan 

and within 30 calendar days after receipt of any supplementary 

information that is submitted under



[[Page 38]]



paragraph (c)(3)(i)(B) of this section. Before disapproving any site-

specific test plan, the Administrator will notify the applicant of the 

Administrator's intention to disapprove the plan together with--

    (A) Notice of the information and findings on which the intended 

disapproval is based; and

    (B) Notice of opportunity for the owner or operator to present, 

within 30 calendar days after he/she is notified of the intended 

disapproval, additional information to the Administrator before final 

action on the plan.

    (ii) In the event that the Administrator fails to approve or 

disapprove the site-specific test plan within the time period specified 

in paragraph (c)(3)(i) of this section, the following conditions shall 

apply:

    (A) If the owner or operator intends to demonstrate compliance using 

the test method(s) specified in the relevant standard or with only minor 

changes to those tests methods (see paragraph (e)(2)(i) of this 

section), the owner or operator must conduct the performance test within 

the time specified in this section using the specified method(s);

    (B) If the owner or operator intends to demonstrate compliance by 

using an alternative to any test method specified in the relevant 

standard, the owner or operator is authorized to conduct the performance 

test using an alternative test method after the Administrator approves 

the use of the alternative method when the Administrator approves the 

site-specific test plan (if review of the site-specific test plan is 

requested) or after the alternative method is approved (see paragraph 

(f) of this section). However, the owner or operator is authorized to 

conduct the performance test using an alternative method in the absence 

of notification of approval 45 days after submission of the site-

specific test plan or request to use an alternative method. The owner or 

operator is authorized to conduct the performance test within 60 

calendar days after he/she is authorized to demonstrate compliance using 

an alternative test method. Notwithstanding the requirements in the 

preceding three sentences, the owner or operator may proceed to conduct 

the performance test as required in this section (without the 

Administrator's prior approval of the site-specific test plan) if he/she 

subsequently chooses to use the specified testing and monitoring methods 

instead of an alternative.

    (iii) Neither the submission of a site-specific test plan for 

approval, nor the Administrator's approval or disapproval of a plan, nor 

the Administrator's failure to approve or disapprove a plan in a timely 

manner shall--

    (A) 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

    (B) Prevent the Administrator from implementing or enforcing this 

part or taking any other action under the Act.

    (4)(i) Performance test method audit program. The owner or operator 

must analyze performance audit (PA) samples during each performance 

test. The owner or operator must request performance audit materials 30 

days prior to the test date. Audit materials including cylinder audit 

gases may be obtained by contacting the appropriate EPA Regional Office 

or the responsible enforcement authority.

    (ii) The Administrator will have sole discretion to require any 

subsequent remedial actions of the owner or operator based on the PA 

results.

    (iii) If the Administrator fails to provide required PA materials to 

an owner or operator of an affected source in time to analyze the PA 

samples during a performance test, the requirement to conduct a PA under 

this paragraph shall be waived for such source for that performance 

test. Waiver under this paragraph of the requirement to conduct a PA for 

a particular performance test does not constitute a waiver of the 

requirement to conduct a PA for future required performance tests.

    (d) Performance testing facilities. If required to do performance 

testing, the owner or operator of each new source and, at the request of 

the Administrator, the owner or operator of each existing source, shall 

provide performance testing facilities as follows:

    (1) Sampling ports adequate for test methods applicable to such 

source. This includes:



[[Page 39]]



    (i) Constructing the air pollution control system such that 

volumetric flow rates and pollutant emission rates can be accurately 

determined by applicable test methods and procedures; and

    (ii) Providing a stack or duct free of cyclonic flow during 

performance tests, as demonstrated by applicable test methods and 

procedures;

    (2) Safe sampling platform(s);

    (3) Safe access to sampling platform(s);

    (4) Utilities for sampling and testing equipment; and

    (5) Any other facilities that the Administrator deems necessary for 

safe and adequate testing of a source.

    (e) Conduct of performance tests. (1) Performance tests shall be 

conducted under such conditions as the Administrator specifies to the 

owner or operator based on representative performance (i.e., performance 

based on normal operating conditions) of the affected source. Operations 

during periods of startup, shutdown, and malfunction shall not 

constitute representative conditions for the purpose of a performance 

test, nor shall emissions in excess of the level of the relevant 

standard during periods of startup, shutdown, and malfunction be 

considered a violation of the relevant standard unless otherwise 

specified in the relevant standard or a determination of noncompliance 

is made under Sec.  63.6(e). Upon request, the owner or operator shall 

make available to the Administrator such records as may be necessary to 

determine the conditions of performance tests.

    (2) Performance tests shall be conducted and data shall be reduced 

in accordance with the test methods and procedures set forth in this 

section, in each relevant standard, and, if required, in applicable 

appendices of parts 51, 60, 61, and 63 of this chapter unless the 

Administrator--

    (i) Specifies or approves, in specific cases, the use of a test 

method with minor changes in methodology (see definition in Sec.  

63.90(a)). Such changes may be approved in conjunction with approval of 

the site-specific test plan (see paragraph (c) of this section); or

    (ii) Approves the use of an intermediate or major change or 

alternative to a test method (see definitions in Sec.  63.90(a)), the 

results of which the Administrator has determined to be adequate for 

indicating whether a specific affected source is in compliance; or

    (iii) Approves shorter sampling times or smaller sample volumes when 

necessitated by process variables or other factors; or

    (iv) Waives the requirement for performance tests because the owner 

or operator of an affected source has demonstrated by other means to the 

Administrator's satisfaction that the affected source is in compliance 

with the relevant standard.

    (3) Unless otherwise specified in a relevant standard or test 

method, each performance test shall consist of three separate runs using 

the applicable test method. Each run shall be conducted for the time and 

under the conditions specified in the relevant standard. For the purpose 

of determining compliance with a relevant standard, the arithmetic mean 

of the results of the three runs shall apply. Upon receiving approval 

from the Administrator, results of a test run may be replaced with 

results of an additional test run in the event that--

    (i) A sample is accidentally lost after the testing team leaves the 

site; or

    (ii) Conditions occur in which one of the three runs must be 

discontinued because of forced shutdown; or

    (iii) Extreme meteorological conditions occur; or

    (iv) Other circumstances occur that are beyond the owner or 

operator's control.

    (4) Nothing in paragraphs (e)(1) through (e)(3) of this section 

shall be construed to abrogate the Administrator's authority to require 

testing under section 114 of the Act.

    (f) Use of an alternative test method--(1)General. Until authorized 

to use an intermediate or major change or alternative to a test method, 

the owner or operator of an affected source remains subject to the 

requirements of this section and the relevant standard.

    (2) The owner or operator of an affected source required to do 

performance testing by a relevant standard may use an alternative test 

method from that specified in the standard provided that the owner or 

operator--



[[Page 40]]



    (i) Notifies the Administrator of his or her intention to use an 

alternative test method at least 60 days before the performance test is 

scheduled to begin;

    (ii) Uses Method 301 in appendix A of this part to validate the 

alternative test method. This may include the use of specific procedures 

of Method 301 if use of such procedures are sufficient to validate the 

alternative test method; and

    (iii) Submits the results of the Method 301 validation process along 

with thnotification of intention and the justification for not using the 

specified test method. The owner or operator may submit the information 

required in this paragraph well in advance of the deadline specified in 

paragraph (f)(2)(i) of this section to ensure a timely review by the 

Administrator in order to meet the performance test date specified in 

this section or the relevant standard.

    (3) The Administrator will determine whether the owner or operator's 

validation of the proposed alternative test method is adequate and issue 

an approval or disapproval of the alternative test method. If the owner 

or operator intends to demonstrate compliance by using an alternative to 

any test method specified in the relevant standard, the owner or 

operator is authorized to conduct the performance test using an 

alternative test method after the Administrator approves the use of the 

alternative method. However, the owner or operator is authorized to 

conduct the performance test using an alternative method in the absence 

of notification of approval/disapproval 45 days after submission of the 

request to use an alternative method and the request satisfies the 

requirements in paragraph (f)(2) of this section. The owner or operator 

is authorized to conduct the performance test within 60 calendar days 

after he/she is authorized to demonstrate compliance using an 

alternative test method. Notwithstanding the requirements in the 

preceding three sentences, the owner or operator may proceed to conduct 

the performance test as required in this section (without the 

Administrator's prior approval of the site-specific test plan) if he/she 

subsequently chooses to use the specified testing and monitoring methods 

instead of an alternative.

    (4) If the Administrator finds reasonable grounds to dispute the 

results obtained by an alternative test method for the purposes of 

demonstrating compliance with a relevant standard, the Administrator may 

require the use of a test method specified in a relevant standard.

    (5) If the owner or operator uses an alternative test method for an 

affected source during a required performance test, the owner or 

operator of such source shall continue to use the alternative test 

method for subsequent performance tests at that affected source until he 

or she receives approval from the Administrator to use another test 

method as allowed under Sec.  63.7(f).

    (6) Neither the validation and approval process nor the failure to 

validate an alternative test method shall abrogate the owner or 

operator's responsibility to comply with the requirements of this part.

    (g) Data analysis, recordkeeping, and reporting. (1) Unless 

otherwise specified in a relevant standard or test method, or as 

otherwise approved by the Administrator in writing, results of a 

performance test shall include the analysis of samples, determination of 

emissions, and raw data. A performance test is ``completed'' when field 

sample collection is terminated. The owner or operator of an affected 

source shall report the results of the performance test to the 

Administrator before the close of business on the 60th day following the 

completion of the performance test, unless specified otherwise in a 

relevant standard or as approved otherwise in writing by the 

Administrator (see Sec.  63.9(i)). The results of the performance test 

shall be submitted as part of the notification of compliance status 

required under Sec.  63.9(h). Before a title V permit has been issued to 

the owner or operator of an affected source, the owner or operator shall 

send the results of the performance test to the Administrator. After a 

title V permit has been issued to the owner or operator of an affected 

source, the owner or operator shall send the results of the performance 

test to the appropriate permitting authority.

    (2) [Reserved]



[[Page 41]]



    (3) For a minimum of 5 years after a performance test is conducted, 

the owner or operator shall retain and make available, upon request, for 

inspection by the Administrator the records or results of such 

performance test and other data needed to determine emissions from an 

affected source.

    (h) Waiver of performance tests. (1) Until a waiver of a performance 

testing requirement has been granted by the Administrator under this 

paragraph, the owner or operator of an affected source remains subject 

to the requirements of this section.

    (2) Individual performance tests may be waived upon written 

application to the Administrator if, in the Administrator's judgment, 

the source is meeting the relevant standard(s) on a continuous basis, or 

the source is being operated under an extension of compliance, or the 

owner or operator has requested an extension of compliance and the 

Administrator is still considering that request.

    (3) Request to waive a performance test. (i) If a request is made 

for an extension of compliance under Sec.  63.6(i), the application for 

a waiver of an initial performance test shall accompany the information 

required for the request for an extension of compliance. If no extension 

of compliance is requested or if the owner or operator has requested an 

extension of compliance and the Administrator is still considering that 

request, the application for a waiver of an initial performance test 

shall be submitted at least 60 days before the performance test if the 

site-specific test plan under paragraph (c) of this section is not 

submitted.

    (ii) If an application for a waiver of a subsequent performance test 

is made, the application may accompany any required compliance progress 

report, compliance status report, or excess emissions and continuous 

monitoring system performance report [such as those required under Sec.  

63.6(i), Sec.  63.9(h), and Sec.  63.10(e) or specified in a relevant 

standard or in the source's title V permit], but it shall be submitted 

at least 60 days before the performance test if the site-specific test 

plan required under paragraph (c) of this section is not submitted.

    (iii) Any application for a waiver of a performance test shall 

include information justifying the owner or operator's request for a 

waiver, such as the technical or economic infeasibility, or the 

impracticality, of the affected source performing the required test.

    (4) Approval of request to waive performance test. The Administrator 

will approve or deny a request for a waiver of a performance test made 

under paragraph (h)(3) of this section when he/she--

    (i) Approves or denies an extension of compliance under Sec.  

63.6(i)(8); or

    (ii) Approves or disapproves a site-specific test plan under Sec.  

63.7(c)(3); or

    (iii) Makes a determination of compliance following the submission 

of a required compliance status report or excess emissions and 

continuous monitoring systems performance report; or

    (iv) Makes a determination of suitable progress towards compliance 

following the submission of a compliance progress report, whichever is 

applicable.

    (5) Approval of any waiver granted under this section shall not 

abrogate the Administrator's authority under the Act or in any way 

prohibit the Administrator from later canceling the waiver. The 

cancellation will be made only after notice is given to the owner or 

operator of the affected source.



[59 FR 12430, Mar. 16, 1994, as amended at 65 FR 62215, Oct. 17, 2000; 

67 FR 16602, Apr. 5, 2002]