[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: 40CFR63.90]



[Page 102-107]

 

                   TITLE 40--PROTECTION OF ENVIRONMENT

 

         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)

 

PART 63_NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS FOR 

SOURCE CATEGORIES--Table of Contents

 

     Subpart E_Approval of State Programs and Delegation of Federal 

                               Authorities

 

Sec.  63.90  Program overview.





    The regulations in this subpart establish procedures consistent with 

section 112(l) of the Clean Air Act (Act) (42 U.S.C. 7401-7671q). This 

subpart establishes procedures for the approval of State rules, 

programs, or other requirements such as permit terms and conditions to 

be implemented and enforced in place of certain otherwise applicable 

section 112 Federal rules, emission standards, or requirements 

(including section 112 rules promulgated under the authority of the Act 

prior to the 1990 Amendments to the Act). The authority to implement and 

enforce section 112 Federal rules as promulgated without changes may be 

delegated under procedures established in this subpart. In this process, 

States may seek approval of a State mechanism for receiving delegation 

of existing and future unchanged Federal section 112 standards. This 

subpart clarifies which part 63, subpart A General Provisions 

authorities can be delegated to States. This subpart also establishes 

procedures for the review and withdrawal of section 112 implementation 

and enforcement authorities delegated through this subpart. This subpart 

also establishes procedures for the approval of State rules or programs 

to establish limitations on the potential to emit pollutants listed in 

or pursuant to section 112(b) of the Act.

    (a) Definitions. The following definitions apply to this subpart.

    Alternative requirements means the requirements, rules, permits, 

provisions, methods, or other enforceable mechanisms that a State 

submits for approval under this subpart or subpart A and, after 

approval, replaces the otherwise applicable Federal section 112 

requirements, provisions, or methods.

    Applicability criteria means the regulatory criteria used to define 

all affected sources subject to a specific section 112 rule.

    Approval means a determination by the Administrator that a State 

rule,



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program, or requirement meets the criteria of Sec.  63.91 and the 

additional criteria of either Sec.  63.92, Sec.  63.93, Sec.  63.94, or 

Sec.  63.97 as appropriate. For accidental release prevention programs, 

the criteria of Sec.  63.95 must be met in addition to the criteria of 

Sec.  63.91. This is considered a ``full approval'' for the purposes of 

this subpart. Partial approvals may also be granted as described in this 

subpart. Any approved requirements become applicable requirements under 

Sec.  70.2 of this chapter.

    Compliance and enforcement measures means requirements relating to 

compliance and enforcement, including but not necessarily limited to 

monitoring methods and procedures, recordkeeping, reporting, plans, 

inspection, maintenance, and operation requirements, pollution 

prevention requirements, noticing, field inspections, entry, sampling, 

or accidental release prevention oversight.

    Intermediate change to monitoring means a modification to federally 

required monitoring involving ``proven technology'' (generally accepted 

by the scientific community as equivalent or better) that is applied on 

a site-specific basis and that may have the potential to decrease the 

stringency of the associated emission limitation or standard. Though 

site-specific, an intermediate change may set a national precedent for a 

source category and may ultimately result in a revision to the federally 

required monitoring. Examples of intermediate changes to monitoring 

include, but are not limited to:

    (1) Use of a continuous emission monitoring system (CEMS) in lieu of 

a parameter monitoring approach;

    (2) Decreased frequency for non-continuous parameter monitoring or 

physical inspections;

    (3) Changes to quality control requirements for parameter 

monitoring; and

    (4) Use of an electronic data reduction system in lieu of manual 

data reduction.

    Intermediate change to test method means a within-method 

modification to a federally enforceable test method involving ``proven 

technology'' (generally accepted by the scientific community as 

equivalent or better) that is applied on a site-specific basis and that 

may have the potential to decrease the stringency of the associated 

emission limitation or standard. Though site-specific, an intermediate 

change may set a national precedent for a source category and may 

ultimately result in a revision to the federally enforceable test 

method. In order to be approved, an intermediate change must be 

validated according to EPA Method 301 (Part 63, Appendix A) to 

demonstrate that it provides equal or improved accuracy and precision. 

Examples of intermediate changes to a test method include, but are not 

limited to:

    (1) Modifications to a test method's sampling procedure including 

substitution of sampling equipment that has been demonstrated for a 

particular sample matrix, and use of a different impinger absorbing 

solution;

    (2) Changes in sample recovery procedures and analytical techniques, 

such as changes to sample holding times and use of a different 

analytical finish with proven capability for the analyte of interest; 

and

    (3) ``Combining'' a federally required method with another proven 

method for application to processes emitting multiple pollutants.

    Level of control means the degree to which a rule, program, or 

requirement limits emissions or employs design, equipment, work 

practice, or operational standards, accident prevention, or other 

requirements or techniques (including a prohibition of emissions) for:

    (1)(i) Each hazardous air pollutant, if individual pollutants are 

subject to emission limitations, and

    (ii) The aggregate total of hazardous air pollutants, if the 

aggregate grouping is subject to emission limitations, provided that the 

rule, program, or requirement would not lead to an increase in risk to 

human health or the environment; and

    (2) Each substance regulated under part 68 of this chapter.

    (3) Test methods and associated procedures and averaging times are 

integral to the level of control.

    Local agency means a local air pollution control agency or, for the 

purposes of Sec.  63.95, any local agency or entity having 

responsibility for preventing accidental releases which may occur at



[[Page 104]]



a source regulated under part 68 of this chapter.

    Major change to monitoring means a modification to federally 

required monitoring that uses ``unproven technology or procedures'' (not 

generally accepted by the scientific community) or is an entirely new 

method (sometimes necessary when the required monitoring is unsuitable). 

A major change to monitoring may be site-specific or may apply to one or 

more source categories and will almost always set a national precedent. 

Examples of major changes to monitoring include, but are not limited to:

    (1) Use of a new monitoring approach developed to apply to a control 

technology not contemplated in the applicable regulation;

    (2) Use of a predictive emission monitoring system (PEMS) in place 

of a required continuous emission monitoring system (CEMS);

    (3) Use of alternative calibration procedures that do not involve 

calibration gases or test cells;

    (4) Use of an analytical technology that differs from that specified 

by a performance specification;

    (5) Decreased monitoring frequency for a continuous emission 

monitoring system, continuous opacity monitoring system, predictive 

emission monitoring system, or continuous parameter monitoring system;

    (6) Decreased monitoring frequency for a leak detection and repair 

program; and

    (7) Use of alternative averaging times for reporting purposes.

    Major change to recordkeeping/reporting means:

    (1) A modification to federally required recordkeeping or reporting 

that:

    (i) May decrease the stringency of the required compliance and 

enforcement measures for the relevant standards;

    (ii) May have national significance (e.g., might affect 

implementation of the applicable regulation for other affected sources, 

might set a national precedent); or

    (iii) Is not site-specific.

    (2) Examples of major changes to recordkeeping and reporting 

include, but are not limited to:

    (i) Decreases in the record retention for all records;

    (ii) Waiver of all or most recordkeeping or reporting requirements;

    (iii) Major changes to the contents of reports; or

    (iv) Decreases in the reliability of recordkeeping or reporting 

(e.g., manual recording of monitoring data instead of required automated 

or electronic recording, or paper reports where electronic reporting may 

have been required).

    Major change to test method means a modification to a federally 

enforceable test method that uses ``unproven technology or procedures'' 

(not generally accepted by the scientific community) or is an entirely 

new method (sometimes necessary when the required test method is 

unsuitable). A major change to a test method may be site-specific, or 

may apply to one or more sources or source categories, and will almost 

always set a national precedent. In order to be approved, a major change 

must be validated according to EPA Method 301 (Part 63, Appendix A). 

Examples of major changes to a test method include, but are not limited 

to:

    (1) Use of an unproven analytical finish;

    (2) Use of a method developed to fill a test method gap;

    (3) Use of a new test method developed to apply to a control 

technology not contemplated in the applicable regulation; and

    (4) Combining two or more sampling/analytical methods (at least one 

unproven) into one for application to processes emitting multiple 

pollutants.

    Minor change to monitoring means:

    (1) A modification to federally required monitoring that:

    (i) Does not decrease the stringency of the compliance and 

enforcement measures for the relevant standard;

    (ii) Has no national significance (e.g., does not affect 

implementation of the applicable regulation for other affected sources, 

does not set a national precedent, and individually does not result in a 

revision to the monitoring requirements); and

    (iii) Is site-specific, made to reflect or accommodate the 

operational characteristics, physical constraints, or safety concerns of 

an affected source.



[[Page 105]]



    (2) Examples of minor changes to monitoring include, but are not 

limited to:

    (i) Modifications to a sampling procedure, such as use of an 

improved sample conditioning system to reduce maintenance requirements;

    (ii) Increased monitoring frequency; and

    (iii) Modification of the environmental shelter to moderate 

temperature fluctuation and thus protect the analytical instrumentation.

    Minor change to recordkeeping/reporting means:

    (1) A modification to federally required recordkeeping or reporting 

that:

    (i) Does not decrease the stringency of the compliance and 

enforcement measures for the relevant standards;

    (ii) Has no national significance (e.g., does not affect 

implementation of the applicable regulation for other affected sources, 

does not set a national precedent, and individually does not result in a 

revision to the recordkeeping or reporting requirement); and

    (iii) Is site-specific.

    (2) Examples of minor changes to recordkeeping or reporting include, 

but are not limited to:

    (i) Changes to recordkeeping necessitated by alternatives to 

monitoring;

    (ii) Increased frequency of recordkeeping or reporting, or increased 

record retention periods;

    (iii) Increased reliability in the form of recording monitoring 

data, e.g., electronic or automatic recording as opposed to manual 

recording of monitoring data;

    (iv) Changes related to compliance extensions granted pursuant to 

Sec.  63.6(i);

    (v) Changes to recordkeeping for good cause shown for a fixed short 

duration, e.g., facility shutdown;

    (vi) Changes to recordkeeping or reporting that is clearly redundant 

with equivalent recordkeeping/reporting requirements; and

    (vii) Decreases in the frequency of reporting for area sources to no 

less than once a year for good cause shown, or for major sources to no 

less than twice a year as required by title V, for good cause shown.

    Minor change to test method means:

    (1) A modification to a federally enforceable test method that:

    (i) Does not decrease the stringency of the emission limitation or 

standard;

    (ii) Has no national significance (e.g., does not affect 

implementation of the applicable regulation for other affected sources, 

does not set a national precedent, and individually does not result in a 

revision to the test method); and

    (iii) Is site-specific, made to reflect or accommodate the 

operational characteristics, physical constraints, or safety concerns of 

an affected source.

    (2) Examples of minor changes to a test method include, but are not 

limited to:

    (i) Field adjustments in a test method's sampling procedure, such as 

a modified sampling traverse or location to avoid interference from an 

obstruction in the stack, increasing the sampling time or volume, use of 

additional impingers for a high moisture situation, accepting 

particulate emission results for a test run that was conducted with a 

lower than specified temperature, substitution of a material in the 

sampling train that has been demonstrated to be more inert for the 

sample matrix; and

    (ii) Changes in recovery and analytical techniques such as a change 

in quality control/quality assurance requirements needed to adjust for 

analysis of a certain sample matrix.

    Partial approval means that the Administrator approves under this 

subpart:

    (1) A State's legal authorities that fully meet the criteria of 

Sec.  63.91(d)(3)(ii)-(v), and substantially meet the criteria of Sec.  

63.91(d)(3)(i) as appropriate; or

    (2) A State rule or program that meets the criteria of Sec. Sec.  

63.92, 63.93, 63.94, 63.95, or 63.97 with the exception of a separable 

portion of that State rule or program which fails to meet those 

criteria. A separable portion of a State rule or program is defined as a 

section(s) of a rule or a portion(s) of a program which can be acted 

upon independently without affecting the overall integrity of the rule 

or program as a whole.

    Program means, for the purposes of an approval under this subpart, a 

collection of State authorities, resources, and other requirements that 

satisfy



[[Page 106]]



the criteria of this subpart and subpart A.

    State agency, for the purposes of this subpart, includes State and 

local air pollution agencies, Indian tribes as defined in Sec.  71.2 of 

this chapter, and territories of the United States to the extent they 

are or will be delegated Federal section 112 rules, emission standards, 

or requirements.

    Stringent or stringency means the degree of rigor, strictness or 

severity a statute, rule, emission standard, or requirement imposes on 

an affected source as measured by the quantity of emissions, or as 

measured by parameters relating to rule applicability and level of 

control, or as otherwise determined by the Administrator.

    Title V operating permit programs means the part 70 permitting 

program and the delegated Indian tribal programs under part 70 of this 

chapter.

    (b) Local agency coordination with State and territorial agencies. 

Local agencies submitting a rule or program for approval under this 

subpart shall consult with the relevant State or Territorial agency 

prior to making a request for approval to the Administrator. A State or 

Territorial agency may submit requests for approval on behalf of a local 

agency after consulting with that local agency.

    (c) Tribal authority. A tribal authority may submit a rule or 

program under this subpart, provided that the tribal authority has 

received approval, under the provisions of part 49 of this chapter, for 

administering Federal rules under section 112 of the Act.

    (d) Authorities retained by the Administrator. (1) The following 

authorities will be retained by the Administrator and will not be 

delegated:

    (i) The authority to add or delete pollutants from the list of 

hazardous air pollutants established under section 112(b);

    (ii)-(iii) [Reserved]

    (iv) The authority to add source categories to or delete source 

categories from the Federal source category list established under 

section 112(c)(1) or to subcategorize categories on the Federal source 

category list after proposal of a relevant emission standard;

    (v) The authority to revise the source category schedule established 

under section 112(e) by moving a source category to a later date for 

promulgation; and

    (vi) Any other authorities determined to be nondelegable by the 

Administrator.

    (2) Nothing in this subpart shall prohibit the Administrator from 

enforcing any applicable rule, emission standard or requirement 

established under section 112.

    (3) Nothing in this subpart shall affect the authorities and 

obligations of the Administrator or the State under title V of the Act 

or under regulations promulgated pursuant to that title.

    (e) Federally-enforceable requirements. All rules, programs, State 

or local permits, or other requirements approved under this subpart and 

all resulting part 70 operating permit conditions are enforceable by the 

Administrator and by citizens under the Act.

    (f) Standards not subject to modification or substitution. With 

respect to radionuclide emissions from licensees of the Nuclear 

Regulatory Commission or licensees of Nuclear Regulatory Commission 

Agreement States which are subject to part 61, subparts I, T, or W of 

this chapter, a State may request that the EPA approve delegation of 

implementation and enforcement of the Federal standard pursuant to Sec.  

63.91, but no changes or modifications in the form or content of the 

standard will be approved pursuant to Sec.  63.92, Sec.  63.93, Sec.  

63.94, or Sec.  63.97.

    (g) Selection of delegation options. (1) With the exception of 

paragraphs (g)(2) and (g)(3) of this section, States may only submit 

requests for approval of alternative requirements for a section 112 

Federal rule, emission standard, or other requirement under a single 

delegation option under this subpart.

    (2) In the case of Sec.  63.94 submittals, if the identified sources 

in any source category comprise a subset of the sources in that 

category, the State must accept delegation under one other section of 

this subpart for the remainder of the sources in that category that are 

required to be permitted by the State under part 70 of this chapter.

    (3) If the Administrator partially approves the State request per 

Sec.  63.91(f), the State may submit a request for the remaining section 

112 rules, emission



[[Page 107]]



standards, or requirements in that category under another section of 

this subpart.



[65 FR 55835, Sept. 14, 2000]