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Revisions to Standards of Performance for New Stationary Sources, National Emission Standards for Hazardous Air Pollutants, and National Emission Standards for Hazardous Air Pollutants for Source Categories
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: August 9, 2006 (Volume 71, Number 153)]
[Proposed Rules]
[Page 45487-45492]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09au06-46]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 60, 61, and 63
[EPA-HQ-OAR-2006-0085; FRL-8207-1]
Revisions to Standards of Performance for New Stationary Sources,
National Emission Standards for Hazardous Air Pollutants, and National
Emission Standards for Hazardous Air Pollutants for Source Categories
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The EPA is proposing to revise the General Provisions for
Standards of Performance for New Stationary Sources, for National
Emission Standards for Hazardous Air Pollutants, and for National
Emission Standards for Hazardous Air Pollutants for Source Categories
to allow extensions to the deadline imposed for source owners and
operators to conduct initial or other required performance tests in
certain specified circumstances. The General Provisions do not
currently provide for extensions of the deadlines for conducting
performance tests.
DATES: Comments must be received on or before November 7, 2006.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2006-0085, by one of the following methods:
? http://www.regulations.gov: Follow the on-line
instructions for submitting comments.
? E-mail: a-and-r-docket@epa.gov.
? Fax: (202) 566-1741.
? Mail: Revisions to Standards of Performance for New
Stationary Sources, National Emission Standards for Hazardous Air
Pollutants, and National Emission Standards for Hazardous Air
Pollutants for Source Categories, Docket ID No. EPA-HQ-OAR-2006-0085,
Environmental Protection Agency, Mailcode 6102T, 1200 Pennsylvania
Ave., NW., Washington, DC 20460. Please include a total of two copies.
In addition, please mail a copy of your comments on the information
collection provisions to the Office of Information and Regulatory
Affairs, Office of Management and Budget (OMB), Attn: Desk Officer for
EPA, 725 17th St., NW., Washington, DC 20503.
? Hand Delivery: EPA Docket Center, 1301 Constitution
Avenue, NW., Room B102, Washington, DC 20460. Such deliveries are only
accepted during the Docket's normal hours of operation, and special
arrangements should be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2006-0085. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through http://www.regulations.gov or e-mail.
The http://www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-mail
comment directly to EPA without going through http://www.regulations.gov
your e-mail address will be automatically captured and included as part
of the comment that is placed in the public docket and made available
on the Internet. If you submit an electronic comment, EPA recommends
that you include your name and other contact information in the body of
your comment and with any disk or CD ROM you submit. If EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket, visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the
http://www.regulations.gov
[[Page 45488]]
index. Although listed in the index, some information is not publicly
available, e.g., CBI or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, will be publicly available only in hard copy. Publicly
available docket materials are available either electronically in
http://www.regulations.gov or in hard copy at the Revisions to Standards
of Performance for New Stationary Sources, National Emission Standards for
Hazardous Air Pollutants, and National Emission Standards for Hazardous
Air Pollutants for Source Categories Docket, EPA/DC, EPA West, Room
B102, 1301 Constitution Ave., NW., Washington, DC. The Public Reading
Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday,
excluding legal holidays. The telephone number for the Public Reading
Room is (202) 566-1744, and the telephone number for the Air Docket is
(202) 566-1742.
FOR FURTHER INFORMATION CONTACT: For questions concerning today's
proposed rule, please contact Ms. Lula Melton, U.S. EPA, Office of Air
Quality Planning and Standards, Air Quality Assessment Division (C304-
02), Research Triangle Park, North Carolina 27711; telephone number:
(919) 541-2910; fax number: (919) 541-4511; e-mail address:
melton.lula@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
This action applies to any source whose owner or operator is
required to conduct performance testing to demonstrate compliance with
applicable standards under the General Provisions for Standards of
Performance for New Stationary Sources, for National Emission Standards
for Hazardous Air Pollutants, and for National Emission Standards for
Hazardous Air Pollutants for Source Categories.
B. What should I consider as I prepare my comments for EPA?
Do not submit information containing Confidential Business Information
(CBI) to EPA through http://www.regulations.gov or e-mail. Send
or deliver information identified as CBI only to the following address:
Roberto Morales, OAQPS Document Control Officer (C404-02), U.S. EPA,
Office of Air Quality Planning and Standards, Research Triangle Park,
North Carolina 27711, Attention Docket ID No. EPA-HQ-OAR-2006-0085.
Clearly mark the part or all of the information that you claim to be
CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark
the outside of the disk or CD ROM as CBI and then identify
electronically within the disk or CD ROM the specific information that
is claimed as CBI. In addition to one complete version of the comment
that includes information claimed as CBI, a copy of the comment that
does not contain the information claimed as CBI must be submitted for
inclusion in the public docket. Information so marked will not be
disclosed except in accordance with procedures set forth in 40 CFR part 2.
C. Where can I get a copy of this document and other related information?
In addition to being available in the docket, an electronic copy of
today's proposed rule is also available on the Worldwide Web (WWW)
through the Technology Transfer Network (TTN). Following the
Administrator's signature, a copy of the proposed amendments will be
placed on the TTN's policy and guidance page for newly proposed or
promulgated rules at http://www.epa.gov/ttn/oarpg. The TTN provides
information and technology exchange in various areas of air pollution
control.
D. How is this document organized?
The information presented in this preamble is organized as follows:
I. General Information
A. Does this action apply to me?
B. What should I consider as I prepare my comments for EPA?
C. Where can I get a copy of this document and other related
information?
D. How is this document organized?
II. Summary of Proposed Amendments and Rationale
A. What are the proposed requirements?
B. Why are we amending the requirements for performance tests in
the General Provisions?
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Action that Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
II. Summary of Proposed Amendments and Rationale
A. What are the proposed requirements?
The proposed rule would allow source owners or operators, in the
event of a force majeure, to petition the Administrator for an
extension of the deadlines by which they are required to conduct
initial and subsequent performance tests required by applicable
regulations. Performance tests required as a result of enforcement
orders or enforcement actions are not covered by this rule because
enforcement agreements contain their own force majeure provisions. A
force majeure would be defined as an event that will be or has been
caused by circumstances beyond the control of the affected facility,
its contractors, or any entity controlled by the affected facility that
prevents the owner or operator from complying with the regulatory
requirement to conduct performance tests within the specified timeframe
despite the affected facility's best efforts to fulfill the obligation.
Examples of such events are acts of nature, acts of war or terrorism,
or equipment failure or safety hazard beyond the control of the
affected facility.
If a force majeure is about to occur, occurs, or has occurred for
which the affected owner or operator intends to assert a claim of force
majeure, the owner or operator must notify the Administrator, in
writing, as soon as practicable following the date the owner or
operator first knew, or through due diligence should have known, that
the event may cause or caused a delay in testing beyond the regulatory
deadline. The owner or operator must provide a written description of
the event and a rationale for attributing the delay in testing beyond
the regulatory deadline to the force majeure; describe the measures
taken or to be taken to minimize the delay; and identify a date by
which the owner or operator proposes to conduct the performance test.
The test must be conducted as soon as practicable after the force
majeure occurs.
B. Why are we amending the requirements for performance tests in the
General Provisions?
We recognize that there may be circumstances beyond a source
owner's or operator's control constituting a force majeure event that
could cause an owner or operator to be unable to conduct performance
tests before the regulatory deadline. We are proposing this rule to
provide a mechanism for consideration of these force majeure events and
granting of extensions where
[[Page 45489]]
warranted. Under current rules, a source owner or operator who is
unable to comply with performance testing requirements within the
allotted timeframe due to a force majeure is regarded as being in
violation and subject to enforcement action. As a matter of policy, EPA
has exercised enforcement discretion when addressing such violations.
However, where circumstances beyond the control of the source owner or
operator constituting a force majeure prevent the performance of timely
performance tests, we believe that it is appropriate to provide an
opportunity to such owners and operators to make good faith
demonstrations and obtain extensions of the performance testing
deadline where approved by the Administrator in appropriate circumstances.
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Reviews
Under Executive Order 12866 (58 FR 51735 October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, Local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review. We have determined that this
regulation would result in none of the economic effects set forth in
Section 1 of the Order because it does not impose emission measurement
requirements beyond those specified in the current regulations, nor
does it change any emission standard.
B. Paperwork Reduction Act
The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The
Information Collection Request (ICR) document prepared by EPA has been
assigned EPA ICR No. 2226.01.
The proposed rule would require a written notification only if a
plant owner or operator needs an extension of a performance test
deadline due to certain rare events, such as acts of nature, acts of
war or terrorism, or equipment failure or safety hazard beyond the
control of the affected facility. Since EPA believes such events will
be rare, the projected cost and hour burden will be minimal.
The increased annual average reporting burden for this collection
(averaged over the first 3 years of the ICR) is estimated to total 6
labor hours per year at a cost of $377.52. This includes one response
per year from six respondents for an average of 1 hour per response. No
capital/startup costs or operation and maintenance costs are associated
with the proposed reporting requirements. Burden means the total time,
effort, or financial resources expended by persons to generate,
maintain, retain, or disclose or provide information to or for a
Federal agency. This includes the time needed to review instructions;
develop, acquire, install, and utilize technology and systems for the
purposes of collecting, validating, and verifying information,
processing and maintaining information, and disclosing and providing
information; adjust the existing ways to comply with any previously
applicable instructions and requirements; train personnel to be able to
respond to a collection of information; search data sources; complete
and review the collection of information; and transmit or otherwise
disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
To comment on the Agency's need for this information, the accuracy
of the provided burden estimates, and any suggested methods for
minimizing respondent burden, including the use of automated collection
techniques, EPA has established a public docket for this rule, which
includes this ICR, under Docket ID number EPA-HQ-OAR-2006-0085. Submit
any comments related to the ICR for this proposed rule to EPA and OMB.
See ADDRESSES section at the beginning of this notice for where to
submit comments to EPA. Send comments to OMB at the Office of
Information and Regulatory Affairs, Office of Management and Budget,
725 17th Street, NW., Washington, DC 20503, Attention: Desk Office for
EPA. Since OMB is required to make a decision concerning the ICR
between 30 and 60 days after August 9, 2006, a comment to OMB is best
assured of having its full effect if OMB receives it by September 8,
2006. The final rule will respond to any OMB or public comments on the
information collection requirements contained in this proposal.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act generally requires an agency to
prepare a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements under the Administrative Procedure
Act or any other statute unless the agency certifies that the rule will
not have a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small not-for-profit
enterprises, and small governmental jurisdictions.
For purposes of assessing the impacts of today's proposed rule on
small entities, small entity is defined as: (1) A small business as
defined by the Small Business Administration's (SBA) regulations at 13
CFR 121.201; (2) a governmental jurisdiction that is a government of a
city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. Extensions
to deadlines for conducting performance tests will provide flexibility
to small entities and reduce the burden on them by providing them an
opportunity for additional time to comply with performance test
deadlines during force majeure events.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written
[[Page 45490]]
statement, including a cost-benefit analysis, for proposed and final
rules with ``Federal mandates'' that may result in expenditures to
State, Local, and Tribal governments, in the aggregate, or to the
private sector, of $100 million or more in any one year. Before
promulgating an EPA rule for which a written statement is needed,
section 205 of the UMRA generally requires EPA to identify and consider
a reasonable number of regulatory alternatives and adopt the least
costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including Tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory requirements.
EPA has determined that the proposed rule does not contain a
Federal mandate that may result in expenditures of $100 million or more
for State, local, and Tribal governments, in the aggregate, or the
private sector in any one year. The maximum total annual cost of this
proposed rule for any year has been estimated to be less than $435.00.
Thus, today's proposed rule is not subject to the requirements of
sections 202 and 205 of the UMRA.
EPA has determined that the proposed rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. Therefore, the proposed rule is not subject to the
requirements of section 203 of the UMRA.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This proposed rule does not have federalism implications. It will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. None of the affected facilities
are owned or operated by State governments, and the proposed rule
requirements will not supercede State regulations that are more
stringent. Thus, Executive Order 13132 does not apply to this rule.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed rule
from State and local officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (59 FR 22951, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This proposed rule does not
have tribal implications as specified in Executive Order 13175. This
proposed rule will not have substantial direct effects on tribal
governments, on the relationship between the Federal government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal government and Indian tribes, as specified in
Executive Order 13175. Thus, Executive Order 13175 does not apply to
this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any
rule that: (1) Is determined to be ``economically significant'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under section 5-501 of the Executive Order has
the potential to influence the regulation. This rule is not subject to
Executive Order 13045 because it is technology based and not based on
health or safety risks. No children's risk was performed because no
alternative technologies exist that would provide greater stringency at
a reasonable cost. Further, this proposed rule has been determined not
to be economically significant as defined under Executive Order 12866.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
The proposed rule is not a ``significant energy action'' as defined
in Executive Order 13211, ``Actions Concerning Regulations that
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355,
May 22, 2001) because it is not likely to have a significant
adverse effect on the supply distribution, or use of energy. Further,
we have concluded that this rule is not likely to have any adverse
energy effects.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272
note), directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards. New
test methods are not being proposed in this rulemaking, but EPA is
allowing for extensions of the regulatory deadlines by which owners or
operators are required to conduct performance tests when a force
majeure is about to occur, occurs, or has occurred which prevents
[[Page 45491]]
owners or operators from testing within the regulatory deadline.
Therefore, NTTAA does not apply.
List of Subjects in 40 CFR Parts 60, 61, and 63
Air pollution control, Environmental protection, Intergovernmental
relations, Reporting and recordkeeping requirements.
Dated: August 3, 2006.
Stephen L. Johnson,
Administrator.
For the reasons stated in the preamble, title 40, chapter I, parts
60, 61, and 63 of the Code of Federal Regulations are proposed to be
amended as follows:
PART 60--[AMENDED]
1. The authority citation for part 60 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart A--[Amended]
2. Section 60.2 is amended by adding, in alphabetical order, a
definition of the term ``Force majeure'' to read as follows:
Sec. 60.2 Definitions.
* * * * *
Force majeure means, for purposes of Sec. 60.8, an event that will
be or has been caused by circumstances beyond the control of the
affected facility, its contractors, or any entity controlled by the
affected facility that prevents the owner or operator from complying
with the regulatory requirement to conduct performance tests within the
specified timeframe despite the affected facility's best efforts to
fulfill the obligation. Examples of such events are acts of nature,
acts of war or terrorism, or equipment failure or safety hazard beyond
the control of the affected facility.
* * * * *
3. Section 60.8 is amended by revising paragraph (a) to read as follows:
Sec. 60.8 Performance tests.
(a) Except as specified in paragraphs (a)(1), (a)(2), (a)(3), and
(a)(4) of this section, within 60 days after achieving the maximum
production rate at which the affected facility will be operated, but
not later than 180 days after initial startup of such facility, or at
such other times specified by this part, and at such other times as may
be required by the Administrator under section 114 of the Act, the
owner or operator of such facility shall conduct performance test(s)
and furnish the Administrator a written report of the results of such
performance test(s).
(1) If a force majeure is about to occur, occurs, or has occurred
for which the affected owner or operator intends to assert a claim of
force majeure, the owner or operator shall notify the Administrator, in
writing, as soon as practicable following the date the owner or operator
first knew, or through due diligence should have known, that the event may
cause or caused a delay in testing beyond the regulatory deadline.
(2) The owner or operator shall provide to the Administrator a
written description of the force majeure event and a rationale for
attributing the delay in testing beyond the regulatory deadline to the
force majeure; describe the measures taken or to be taken to minimize
the delay; and identify a date by which the owner or operator proposes
to conduct the performance test. The performance test shall be
conducted as soon as practicable after the force majeure occurs.
(3) If in the Administrator's judgment, an owner's or operator's
request for an extension of the performance test deadline is warranted,
the Administrator will approve the extension. The Administrator will
notify the owner or operator in writing of approval or disapproval of
the request for an extension as soon as practicable.
(4) Until an extension of the performance test deadline has been
approved by the Administrator under paragraphs (a)(1), (2), and (3) of
this section, the owner or operator of the affected facility remains
strictly subject to the requirements of this part.
* * * * *
PART 61--[AMENDED]
4. The authority citation for part 61 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart A--[Amended]
5. Section 61.02 is amended by adding, in alphabetical order, a
definition of the term ``Force majeure'' to read as follows:
Sec. 61.02 Definitions.
* * * * *
Force majeure means, for purposes of Sec. 61.13, an event that
will be or has been caused by circumstances beyond the control of the
affected facility, its contractors, or any entity controlled by the
affected facility that prevents the owner or operator from complying
with the regulatory requirement to conduct performance tests within the
specified timeframe despite the affected facility's best efforts to
fulfill the obligation. Examples of such events are acts of nature,
acts of war or terrorism, or equipment failure or safety hazard beyond
the control of the affected facility.
* * * * *
6. Section 61.13 is amended by revising paragraph (a) introductory
text, and adding paragraphs (a)(3), (a)(4), (a)(5), and (a)(6) to read
as follows:
Sec. 61.13 Emission tests and waiver of emission tests.
(a) Except as provided in paragraphs (a)(3), (a)(4), (a)(5), and
(a)(6) of this section, if required to do emission testing by an
applicable subpart and unless a waiver of emission testing is obtained
under this section, the owner or operator shall test emissions from the
source:
* * * * *
(3) If a force majeure is about to occur, occurs, or has occurred
for which the affected owner or operator intends to assert a claim of
force majeure, the owner or operator shall notify the delegated agency,
in writing, as soon as practicable following the date the owner or
operator first knew, or through due diligence should have known, that
the event may cause or caused a delay in testing beyond the regulatory
deadline specified in paragraphs (a)(1) or (a)(2) of this section or
beyond a deadline established pursuant to the requirements under
paragraph (b) of this section.
(4) The owner or operator shall provide to the Administrator a
written description of the force majeure event and a rationale for
attributing the delay in testing beyond the regulatory deadline to the
force majeure; describe the measures taken or to be taken to minimize
the delay; and identify a date by which the owner or operator proposes
to conduct the performance test. The performance test shall be
conducted as soon as practicable after the force majeure occurs.
(5) If in the Administrator's judgment, an owner's or operator's
request for an extension of the performance test deadline is warranted,
the Administrator will approve the extension. The Administrator will
notify the owner or operator in writing of approval or disapproval of
the request for an extension as soon as practicable.
(6) Until an extension of the performance test deadline has been
approved by the Administrator under paragraphs (a)(3), (a)(4), and
(a)(5) of this section, the owner or operator of the affected facility
remains strictly subject to the requirements of this part.
* * * * *
[[Page 45492]]
PART 63--[AMENDED]
7. The authority citation for part 63 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart A--[Amended]
8. Section 63.2 is amended by adding, in alphabetical order, a
definition of the term ``Force majeure'' to read as follows:
Sec. 63.2 Definitions.
* * * * *
Force majeure means, for purposes of Sec. 63.7, an event that will
be or has been caused by circumstances beyond the control of the
affected facility, its contractors, or any entity controlled by the
affected facility that prevents the owner or operator from complying
with the regulatory requirement to conduct performance tests within the
specified timeframe despite the affected facility's best efforts to
fulfill the obligation. Examples of such events are acts of nature,
acts of war or terrorism, or equipment failure or safety hazard beyond
the control of the affected facility.
* * * * *
9. Section 63.7 is amended by revising paragraph (a)(2)
introductory text and paragraph (a)(2)(ix) and by adding paragraph
(a)(4) to read as follows:
Sec. 63.7 Performance testing requirements.
(a) * * *
(2) Except as provided in paragraph (a)(4) of this section, 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.
* * * * *
(ix) Except as provided in paragraph (a)(4) of this section, 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
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.
* * * * *
(4) If a force majeure is about to occur, occurs, or has occurred
for which the affected owner or operator intends to assert a claim of
force majeure:
(i) The owner or operator shall notify the delegated agency, in
writing, as soon as practicable following the date the owner or
operator first knew, or through due diligence should have known, that
the event may cause or caused a delay in testing beyond the regulatory
deadline specified in paragraphs (a)(2), (a)(3) of this section, or
elsewhere in this part.
(ii) The owner or operator shall provide to the Administrator a
written description of the force majeure event and a rationale for
attributing the delay in testing beyond the regulatory deadline to the
force majeure; describe the measures taken or to be taken to minimize
the delay; and identify a date by which the owner or operator proposes
to conduct the performance test. The performance test shall be
conducted as soon as practicable after the force majeure occurs.
(iii) If in the Administrator's judgment, an owner's or operator's
request for an extension of the performance test deadline is warranted,
the Administrator will approve the extension. The Administrator will
notify the owner or operator in writing of approval or disapproval of
the request for an extension as soon as practicable.
(iv) Until an extension of the performance test deadline has been
approved by the Administrator under paragraphs (a)(4)(i), (a)(4)(ii),
and (a)(4)(iii) of this section, the owner or operator of the affected
facility remains strictly subject to the requirements of this part.
* * * * *
10. Section 63.91 is amended by adding paragraph (g)(1)(i)(O) to
read as follows:
Sec. 63.91 Criteria for straight delegation and criteria common to
all approval options.
* * * * *
(g) * * *
(1) * * *
(i) * * *
(O) Section 63.7(a)(4), Extension of Performance Test Deadline
* * * * *
[FR Doc. E6-12966 Filed 8-8-06; 8:45 am]
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