[Federal Register Volume 88, Number 176 (Wednesday, September 13, 2023)]
[Proposed Rules]
[Pages 62711-62725]
[FR Doc No: 2023-19674]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-HQ-OAR-2022-0441; FRL-8673-02-OAR]
RIN 2060-AV47

Regulatory Requirements for New HAP Additions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The U.S. Environmental Protection Agency (EPA) is proposing to
amend the General Provisions for National Emission Standards for
Hazardous Air Pollutants (NESHAP) to address applicability and
compliance issues resulting from the addition of a compound to the list
of hazardous air pollutants (HAP) under the Clean Air Act (CAA). This
action focuses on issues related to newly applicable standards for
sources that become major sources solely from the addition of a
compound to the CAA HAP list. This action also includes a discussion of
the impacts of a newly listed HAP on the federal operating permit
program.

DATES:
    Comments: Comments must be received on or before November 13, 2023.
    Public hearing: If anyone contacts us requesting a public hearing
on or before September 18, 2023, we will hold a virtual public hearing.
See SUPPLEMENTARY INFORMATION for

information on requesting and registering for a public hearing.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OAR-2022-0441, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov/
(our preferred method). Follow the online instructions for submitting
comments.
     Email: [email protected]. Include Docket ID No. EPA-
HQ-OAR-2022-0441 in the subject line of the message.
     Fax:<PHONE_NUMBER>. Attention Docket ID No. EPA-HQ-OAR-
2022-0441.
     Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Docket ID No. EPA-HQ-OAR-2022-0441, Mail Code 28221T, 1200
Pennsylvania Avenue NW, Washington, DC 20460.
     Hand Delivery/Courier: EPA Docket Center, WJC West
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004.
The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m.,
Monday-Friday (except Federal Holidays).
    Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to https://www.regulations.gov/, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: For questions about this proposed
action, contact U.S. EPA, Attn: Susan Miller, Mail Drop: D205-02, 109
T.W. Alexander Drive, P.O. Box 12055, RTP, North Carolina 27711;
telephone number:<PHONE_NUMBER>; email address: [email protected].
For additional information, see https://www.epa.gov/stationary-sources-air-pollution/infrastructure-new-hap-additions.

SUPPLEMENTARY INFORMATION: Participation in virtual public hearing. To
request a virtual public hearing, contact the public hearing team at
(888) 372-8699 or by email at [email protected]. If requested,
the virtual hearing will be held on October 4, 2023. The hearing will
convene at 11:00 a.m. Eastern Time (ET) and will conclude at 3:00 p.m.
ET. The EPA may close a session 15 minutes after the last pre-
registered speaker has testified if there are no additional speakers.
The EPA will announce further details at https://www.epa.gov/stationary-sources-air-pollution/infrastructure-new-hap-additions.
    If a public hearing is requested, the EPA will begin pre-
registering speakers for the hearing no later than 1 business day after
a request has been received. To register to speak at the virtual
hearing, please use the online registration form available at https://www.epa.gov/stationary-sources-air-pollution/infrastructure-new-hap-additions or contact the public hearing team at<PHONE_NUMBER> or by
email at [email protected]. The last day to pre-register to
speak at the hearing will be September 25, 2023. Prior to the hearing,
the EPA will post a general agenda that will list pre-registered
speakers at: https://www.epa.gov/stationary-sources-air-pollution/infrastructure-new-hap-additions.
    The EPA will make every effort to follow the schedule as closely as
possible on the day of the hearing; however, please plan for the
hearings to run either ahead of schedule or behind schedule.
    Each commenter will have 4 minutes to provide oral testimony. The
EPA encourages commenters to submit the text of your oral testimony as
written comments to the rulemaking docket.
    The EPA may ask clarifying questions during the oral presentations
but will not respond to the presentations at that time. Written
statements and supporting information submitted during the comment
period will be considered with the same weight as oral testimony and
supporting information presented at the public hearing.
    Please note that any updates made to any aspect of the hearing will
be posted online at https://www.epa.gov/stationary-sources-air-pollution/infrastructure-new-hap-additions. While the EPA expects the
hearing to go forward as set forth above, please monitor our website or
contact the public hearing team at<PHONE_NUMBER> or by email at
[email protected] to determine if there are any updates. The
EPA does not intend to publish a document in the Federal Register
announcing updates.
    If you require the services of a translator or a special
accommodation such as audio description, please pre-register for the
hearing with the public hearing team and describe your needs by
September 20, 2023. The EPA may not be able to arrange accommodations
without advanced notice.
    Docket. The EPA has established a docket for this rulemaking under
Docket ID No. EPA-HQ-OAR-2022-0441. All documents in the docket are
listed in https://www.regulations.gov/. Although listed, some
information is not publicly available, e.g., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the internet and will be publicly available only in hard
copy. With the exception of such material, publicly available docket
materials are available electronically in Regulations.gov or in hard
copy at the EPA Docket Center, Room 3334, WJC West Building, 1301
Constitution Avenue 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 EPA Docket Center is (202)
566-1742.
    Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-
2022-0441. The EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online at https://www.regulations.gov/, including any personal
information provided, unless the comment includes information claimed
to be CBI or other information whose disclosure is restricted by
statute. Do not submit electronically to https://www.regulations.gov
any information that you consider to be CBI or other information whose
disclosure is restricted by statute. This type of information should be
submitted as discussed below.
    The EPA may publish any comment received to its public docket.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e., on the Web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
    The https://www.regulations.gov/ website allows you to submit your
comment anonymously, which means the EPA will not know your identity or
contact information unless you provide it in the body of your comment.
If you send an email comment directly to the EPA without going through
https://www.regulations.gov/, your email 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, the EPA recommends that you
include your name and other contact information in the body of your
comment and with any digital storage media you submit. If the EPA
cannot read your comment due to technical difficulties and cannot
contact you for clarification, the EPA may not be able to consider your
comment. Electronic files should not include special characters or any
form of encryption and be free of any defects or viruses. For
additional information about the EPA's public docket, visit the EPA
Docket Center homepage at https://www.epa.gov/dockets.
    Submitting CBI. Do not submit information containing CBI to the EPA
through https://www.regulations.gov/. Clearly mark the part or all of
the information that you claim to be CBI. For CBI information on any
digital storage media that you mail to the EPA, note the docket ID,
mark the outside of the digital storage media as CBI and identify
electronically within the digital storage media the specific
information that is claimed as CBI. In addition to one complete version
of the comments that includes information claimed as CBI, you must
submit a copy of the comments that does not contain the information
claimed as CBI directly to the public docket through the procedures
outlined in the Instructions section of this document. If you submit
any digital storage media that does not contain CBI, mark the outside
of the digital storage media clearly that it does not contain CBI and
note the docket ID. Information not marked as CBI will be included in
the public docket and the EPA's electronic public docket without prior
notice. Information marked as CBI will not be disclosed except in
accordance with procedures set forth in 40 Code of Federal Regulations
(CFR) part 2.
    Our preferred method to receive CBI is for it to be transmitted
electronically using email attachments, File Transfer Protocol (FTP),
or other online file sharing services (e.g., Dropbox, OneDrive, Google
Drive). Electronic submissions must be transmitted directly to the
OAQPS CBI Office at the email address [email protected], and as
described above, should include clear CBI markings and note the docket
ID. If assistance is needed with submitting large electronic files that
exceed the file size limit for email attachments, and if you do not
have your own file sharing service, please email [email protected] to
request a file transfer link. If sending CBI information through the
postal service, please send it to the following address: OAQPS Document
Control Officer (C404-02), OAQPS, U.S. Environmental Protection Agency,
Research Triangle Park, North Carolina 27711, Attention Docket ID No.
EPA-HQ-OAR-2018-0747. The mailed CBI material should be double wrapped
and clearly marked. Any CBI markings should not show through the outer
envelope.
    Preamble acronyms and abbreviations. Throughout this document the
use of ``we,'' ``us,'' or ``our'' is intended to refer to the EPA. We
use multiple acronyms and terms in this preamble. While this list may
not be exhaustive, to ease the reading of this preamble and for
reference purposes, the EPA defines the following terms and acronyms
here:

1-BP 1-bromopropane
ANPRM advanced notice of proposed rulemaking
CAA Clean Air Act
CBI Confidential Business Information
CFR Code of Federal Regulations
EPA Environmental Protection Agency
HAP hazardous air pollutant(s)
MACT maximum achievable control technology
MSDL Major Source Due to Listing
NESHAP national emission standards for hazardous air pollutants
OMB Office of Management and Budget
PRA Paperwork Reduction Act
PTE potential to emit
UMRA Unfunded Mandates Reform Act

    Organization of this document. The information in this preamble is
organized as follows below.

I. General Information
    A. What action is the Agency taking?
    B. Does this action apply to me?
    C. What is the statutory authority for this action?
    D. Where can I get a copy of this document and other related
information?
II. Basis for the Proposed Action
    A. What changes are we proposing?
    B. Are there any concurrent changes to Title V Programs in this
action?
    C. What is our rationale for the proposed changes?
    1. Are newly listed HAP regulated under NESHAP promulgated
before the effective date of the listing?
    2. When must a newly listed HAP be included in emission
estimates and what are the potential regulatory implications?
    3. What standards apply to MSDL facilities?
    4. When does an MSDL facility have to be in compliance with new
requirements?
    5. Are there any new notification requirements?
III. Solicitation of Additional Comments
    A. Regulatory Changes
    B. Early Input on Future EPA Action to Integrate Newly Listed
HAP Into the CAA Section 112 Program
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulations and Regulatory Review
    B. Paperwork Reduction Act (PRA)
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act (UMRA)
    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: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations and Executive Order 14096: Revitalizing Our Nation's
Commitment to Environmental Justice for All

I. General Information

A. What action is the Agency taking?

    Section 112(b) of the CAA established a list of 189 hazardous air
pollutants (HAP). This provision of the CAA also provides the EPA with
the authority to modify the list. In response to a petition to the
Administrator to list 1-bromopropane or 1-BP (also known as n-propyl
bromide (nPB)), the EPA, for the first time, added a new HAP to the CAA
section 112(b) HAP list (HAP list) on January 5, 2022. Based on this
new addition to the HAP list, the EPA determined that there are several
regulatory implications and issues that must be addressed to fully
integrate a newly listed HAP into the existing CAA section 112 program.
This rule, when finalized, will address the immediate regulatory
effects of adding a pollutant to the HAP list. This proposal addresses
three specific issues that we identified. The first issue is whether
already promulgated National Emission Standards for Hazardous Air
Pollutants (NESHAP) would apply to a newly listed HAP. For example, for
a NESHAP with a limit for total HAP, owners or operators of sources
that emit the newly listed HAP and are subject to the limit need to
understand whether they must include the emissions of the newly listed
HAP to determine whether the source meets that limit. The second issue
is the consideration of the permitting implications for facilities that
become major sources under CAA section 112 solely due to the addition
of a new pollutant to the HAP list (hereinafter Major Source Due to
Listing or ``MSDL'' facilities). The third issue for a MSDL facility
that triggers the applicability of a major source NESHAP is the
determination of the applicable

emission standards (in particular, whether the source is subject to the
standards for new sources or existing sources) and the compliance
deadlines for those newly applicable NESHAP requirements.
    The EPA is not proposing any changes to the part 70 regulations to
address the addition of a new pollutant to the CAA section 112 HAP list
as the current program appropriately covers these issues. However,
after reviewing the existing NESHAP regulations, the EPA intends to
clarify the applicability of previously promulgated NESHAP when the EPA
adds a new pollutant to the HAP list by revising 40 CFR 63.64, subpart
C. In addition, the EPA is proposing initial notifications, several
alternatives to address applicable emission standards and compliance
deadlines for MSDL facilities by revising 40 CFR, subpart A.
    This proposed rulemaking addresses the immediate compliance
obligations for the regulated community following the addition of a new
HAP. This is only one part of the overall program to incorporate a new
HAP into the CAA section 112 regulatory framework. Future actions
within individual NESHAP will address rule-specific issues, including
identification of the sources that emit the new HAP; promulgation of
standards, as warranted, that include the new HAP by either revising
existing NESHAP standards or establishing new standards, as necessary;
and identification of engagement and outreach needs with affected
communities and other entities.
    The actions we are taking regarding section II. are pursuant to our
authority under CAA section 112. We consider the regulatory provisions
we are proposing under 40 CFR part 63, subpart A to be severable from
the regulatory provisions being proposed under 40 CFR part 63, subpart
C, as these are two separate regulatory requirements, each of which
would operate independently from the other, when finalized.

B. Does this action apply to me?

    Categories of entities potentially affected by this proposed action
include sources that emit a pollutant that is added to the HAP list. As
discussed in more detail in section IV. of this preamble the addition
of a pollutant to the HAP list can, for those sources who emit that
pollutant, change the source's potential to emit (PTE) such that an
area source may become a major source. This change to major source
status has regulatory implications that may include CAA operating
permitting obligations and applicability of one or more major source
NESHAP. This proposed rule addresses these situations.

C. What is the statutory authority for this action?

    The statutory authority for this action is provided by sections 112
and 301 of the CAA, as amended (42 U.S.C. 7401 et seq.). CAA section
112(a) provides ``Definitions'' applicable to CAA section 112. A major
source of HAP is defined under CAA section 112(a) as any ``stationary
source or group of stationary sources located within a contiguous area
and under common control that emits or has the potential to emit
considering controls, in the aggregate, 10 tons per year or more of any
hazardous air pollutant or 25 tons per year or more of any combination
of hazardous air pollutants.'' Stationary sources of HAP that are not
major sources are defined as ``area sources.'' Section 112(b)(3)(A) of
the CAA allows any person to petition the EPA to modify the CAA section
112(b)(1) list of HAP by adding or deleting a substance.\1\ Section
112(d) of the CAA establishes the process for establishing national
emissions standards for HAP, commonly referred to as NESHAP but also
frequently referred to as either maximum achievable control technology
(MACT) standards or generally available control technology (GACT)
standards. Section 112(i) of the CAA provides the schedule for
compliance with emission standards. Collectively, these statutory
provisions and the NESHAP General Provisions codified in 40 CFR part
63, subpart A, provide the framework for establishing emission
standards and compliance timing for HAP regulation. These statutory
provisions also provide the authority for the EPA to establish
requirements to address the immediate regulatory effects when a
pollutant is added to the HAP list.
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    \1\ La. Envtl. Action Network v. Envtl. Prot. Agency, 955 F.3d
1088, 1098 (D.C. Cir. 2020) (``the Act[] specifie[s] processes for
adding to or subtracting from the statutory list of hazardous air
pollutants, and its direction to EPA [is] to act within 18 months on
a petition to modify the list. 42 U.S.C. 7412(b)(3)(A).'')
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D. Where can I get a copy of this document and other related
information?

    In addition to being available in the docket (Docket ID No. EPA-HQ-
OAR-2022-0441), an electronic copy of this proposal is available on the
internet. Following signature by the EPA Administrator, the EPA will
post a copy of this proposed action at https://www.epa.gov/stationary-sources-air-pollution/infrastructure-new-hap-additions. Following
publication in the Federal Register, the EPA will post the Federal
Register version of the proposal and key documents at this same
website. In addition, a copy of the redline/strikeout version of the
regulatory language showing the possible edits needed to incorporate
the proposed changes to 40 CFR part 63, subparts A and C is included in
the docket for this action (Docket EPA-HQ-OAR-2022-0441). Following
signature by the Administrator, the EPA also will post a copy of this
document to https://www.epa.gov/stationary-sources-air-pollution/infrastructure-new-hap-additions.

II. Basis for the Proposed Action

    In the 1990 CAA Amendments, Congress established a list of HAP.
These HAP are associated with a wide variety of adverse health effects,
including, but not limited to cancer, neurological effects,
reproductive effects, and developmental effects. The health effects
associated with various HAP differ depending upon the toxicity of the
individual HAP and the circumstances of exposure, such as the amount of
chemical present, the length of time a person is exposed and the stage
of life at which the person is exposed. Prior to the 1990 CAA
Amendments, the EPA was required to list HAP for regulation under a
risk- and health-based approach, which called for a conclusion that a
HAP could ``cause or contribute to, an increase in mortality, an
increase in serious irreversible, or incapacitating reversible
illness.'' CAA section 112(a)(1), Public Law 91-604, 84 Stat. 1676,
1685 (1970). This approach proved unsatisfactory in achieving the goal
of improved public health. In the 1990 CAA Amendments, Congress
dispensed with this provision, listed 189 HAP in CAA section 112(b)(1)
for regulation under CAA section 112(d), and provided for modifications
of the HAP list either by petition or on the Administrator's
determination under CAA sections 112(b)(3)(A) and (B).
    As relevant here, in CAA section 112(b)(3), Congress provided that
any person may petition the Administrator to modify the list of HAP by
adding or deleting a pollutant. On January 5, 2022, the EPA published a
final rule that added 1-BP to the CAA HAP list, with an effective date
of February 4, 2022 (87 FR 393). This addition came as a result of the
EPA's determination that the petition we received requesting that we
list 1-BP as a HAP provided adequate data to support that 1-BP is an
air pollutant and that emissions, ambient concentrations,
bioaccumulation or

deposition of 1-BP are known to cause or may reasonably be anticipated
to cause adverse effects to human health or adverse environmental
effects. Before publishing the final rule, EPA published a draft notice
of its rationale for granting the petition.\2\ (American Forest and
Paper Ass'n v. E.P.A, 294 F.3d 113, 117 n.3 (D.C. Cir. 2002) (``Section
112(b) does not contemplate a formal rulemaking and is not among the
sections enumerated in section 307(d)(1) (although other subsections of
section 112 are included there).''). This was the first time that a HAP
was added to the HAP list that Congress created in 1990. While this was
the first action to add a HAP to the list, the EPA is preparing for
additional future listings. These listings could come from public
petitions, as allowed by CAA section 112(b)(3), through action taken by
the Administrator under CAA section 112(b)(2) of the CAA, or through
actions or directives from Congress.
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    \2\ 82 FR 2354 at 2356 (January 9, 2017).
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    Prior to listing 1-BP as a HAP, the EPA evaluated whether any
regulatory changes were warranted to the NESHAP program to ensure the
effective and efficient implementation of any requirements stemming
from the addition of a new pollutant to the HAP list. As part of this
review, the EPA published an advanced notice of proposed rulemaking
(ANPRM) on June 11, 2021, that sought information about potential
NESHAP regulatory requirements resulting from the listing of the first
new HAP, 1-BP, as well as other potential implications of the listing
of any future HAP (86 FR 31225).
    Based on the EPA's review and the public comments received on the
ANPRM, the EPA determined that there are several regulatory impacts
that could ensue when a pollutant is added to the HAP list. As
described in this document, the EPA considered each of these impacts.
In some cases, the existing regulatory provisions were sufficient to
ensure effective and efficient implementation of the newly listed HAP.
In other cases, the EPA determined that the regulations did not
adequately address the issues that arise when a pollutant is added to
the HAP list. Therefore, for those instances, the EPA is proposing in
this action regulatory language to ensure the effective and efficient
implementation of a newly listed HAP. The EPA requests comments on
whether additional changes are needed to fully and clearly implement
provisions related to a new HAP listing.

A. What changes are we proposing?

    The EPA evaluated several potential issues related to listing a new
HAP. We reviewed whether a new HAP listing has any impact on NESHAP
promulgated before the new HAP was added to the list. As discussed
below, the EPA concluded that the statute does not support a new HAP
being regulated by such a NESHAP unless and until the EPA first
evaluates the specific HAP for regulation under CAA section 112 and
promulgates standards that include the new HAP. In this action, the EPA
is proposing language to be added to 40 CFR part 63, subpart C to
clarify this conclusion.
    Another question that arose was the period of time allowed for a
source to include the newly listed HAP in the source's PTE calculation.
Based on the existing language in CAA section 112 and the NESHAP
General Provisions (40 CFR part 63, subpart A), the EPA determined that
a source must include the new HAP in the source's PTE calculation on
the effective date of the listing of the new HAP. This requires
including the new HAP in the evaluation of whether the facility is a
major source of HAP, or an area source based on the source's PTE
calculation.
    The addition of the emissions of a newly listed HAP in the
calculations of the PTE for a facility could change the facility status
from an area source to a major source per the major and area source
definitions in CAA section 112. If this occurs, the MSDL facility will
face new permitting requirements. In addition, the MSDL facility will
need to evaluate whether, due to its major source status, any of its
existing emission units are subject to one or more NESHAP that are
applicable to emission units located at major sources. For example, in
addition to evaluating the NESHAP applicable to the specific industry,
the MSDL facility will need to evaluate for purposes of applicability
NESHAP that regulate multiple industrial sections such as NESHAP for
industrial boilers or reciprocating engines. If applicable NESHAP are
identified, the facility would need to evaluate the requirements within
each applicable NESHAP and determine compliance requirements. Based on
the rationale discussed in section IV.D., this action proposes
regulatory language to the NESHAP General Provisions to clarify both
the applicability and compliance timelines of newly triggered NESHAP
requirements for MSDL facilities.
    The EPA also evaluated whether there should be any notification
requirements for facilities that emit a newly listed HAP, including
requirements for the facility to notify nearby communities. As
discussed in section II.B., a facility already operating under a title
V operating permit that triggers applicability of any new NESHAP
requirements as it becomes a major source (i.e., MSDL) may need to
apply to modify its permit to include such new applicable NESHAP
requirements in their permit. MSDL facilities seeking an operating
permit for the first time would need to modify or submit a permit
application that addresses all applicable requirements consistent with
the permitting authority's program. See 40 CFR 70.3(c)(1) and 70.2. A
facility that becomes newly subject to a major source NESHAP would also
need to submit the initial notification required by the specific
applicable NESHAP. This action proposes that initial notifications
under 40 CFR part 63, subpart A require some minimal additional
information from sources becoming major due to the inclusion of a newly
listed HAP in emission calculations.

B. Are there any concurrent changes to Title V Programs in this action?

    Section 502(d)(l) of the CAA, 42 U.S.C. paragraph 766la(d)(1),
requires each state to develop and submit to the EPA an operating
permit program to meet the requirements of title V of the CAA and the
EPA's implementing regulations at 40 CFR part 70 (hereinafter ``title
V''). All major stationary sources of air pollution and certain other
non-major sources are required to apply for and operate in accordance
with title V operating permits that include emission limitations and
other conditions as necessary to assure compliance with applicable
requirements of the CAA, including the requirements of the applicable
implementation plan. 42 U.S.C. paragraphs 7661a(a), 7661b.
    When a pollutant is added to the HAP list, sources that have the
potential to emit the new HAP must include the HAP in calculating the
source's potential to emit beginning on the effective date of the
listing of the new HAP. The inclusion of a new HAP in the source's PTE
can result in a change in classification of the source from area source
to major source. A source whose classification changes solely due to
the addition of a HAP to the HAP list (i.e., MSDL) will need to
determine what, if any, future permitting action must be taken.
    Since MSDL facilities are, by definition, not major HAP sources
before the HAP listing action, they would be operating as a non-major
HAP

source under a permit or other authorization. As a non-major (e.g.,
area, synthetic area) HAP source, the facility may have a source
specific permit, but could also be operating under a general permit or
registration permit. Those MSDL facilities that wish to retain their
non-major status will need to consider the newly listed HAP when they
seek to reduce their PTE HAP and (unless they opt to become true area
for HAP) will need to request enforceable permit terms sufficient to
reduce the facility's PTE to below HAP major source levels (i.e., 10
tons of any single HAP and 25 tons of all HAP). Facilities should
coordinate all changes in classification with their permitting
authority.
    If an MSDL facility does not elect to reduce its HAP emissions or
PTE to maintain its area source status, as a major source it would be
subject to the obligation to obtain a title V operating permit. Under
the title V operating permit program, the regulations provide that
``[a] timely application for a source applying for a part 70 permit for
the first time is one that is submitted within 12 months after the
source becomes subject to the permit program or on or before such
earlier date as the permitting authority may establish.'' 40 CFR
70.5(a)(1)(i). Because permitting authorities can establish more
stringent deadlines than 12 months, MSDL facilities should check with
their appropriate title V permitting authority to determine when a
timely part 70 application is required.
    The EPA is not proposing changes to the title V program or
regulations; however, some state, local, and tribal title V programs
may need to initiate a conforming program revision to update their
implementing regulations, e.g., to include newly listed HAP in their
HAP definition if their current regulations do not include newly listed
HAP. The EPA encourages state, local, and tribal programs to evaluate
whether any regulatory changes are needed to their rules to implement
newly listed HAP under their approved program and those programs should
consult with their respective EPA regional permitting contact for the
program if they have questions. State, local, and tribal programs must
keep the EPA apprised of regulatory changes they believe are needed to
their approved part 70. 40 CFR 70.4(i). The EPA has determined that the
current regulations for state programs (i.e., 40 CFR part 70) and the
implementing regulations for federal operating permits (40 CFR part 71)
do not need to be revised concurrently with this action because these
regulations address permitting requirements in agreement with title V
of the CAA, including permitting prompted when new HAP are listed. In
particular, 40 CFR 70.3 and 70.2, require that a state program must
provide for permitting of, among other major sources, a ``major source
under section 112 of the Act'' including those with potential to emit a
HAP or multiple HAP ``which has been listed pursuant to section 112(b)
of the Act'' above major source thresholds. States and some tribes
implement title V permitting under their EPA approved programs for
sources in their jurisdictions. For sources subject to the federal
operating permits program implemented by the EPA, 40 CFR part 71
includes similar applicability provisions (see e.g., 40 CFR 71.3 and
71.2) inclusive of major sources due to listing and other provisions
required for implementing permitting requirements for covered sources.
The EPA requests comments on the determination that no edits are
required to the title V program for this purpose.

C. What is our rationale for the proposed changes?

    This section presents the EPA's proposed rationale for the proposed
changes to the NESHAP General Provisions (40 CFR part 63, subpart A)
and our proposed conclusions regarding key issues and questions related
to listing of new HAP. The issues and questions, along with our
proposed conclusions and rationale, are discussed individually below.
1. Are newly listed HAP regulated under NESHAP promulgated before the
effective date of the listing?
    In the June 11, 2021, ANPRM addressing the addition of 1-BP to the
HAP list, the EPA raised the question of whether an existing NESHAP
should apply to a newly listed HAP on the effective date of the HAP
listing. The ANPRM solicited data and comments on the potential
regulatory impacts of the addition of a HAP to the HAP list.\3\
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    \3\ 86 FR 31225.
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    Because this was the first time the EPA was adding a pollutant to
the HAP list, the ANPRM discussed several potential issues that could
result from the addition of a pollutant to the CAA section 112 HAP
list. One question the EPA raised in the ANPRM was whether a newly
listed HAP is regulated under any NESHAP that is in existence on the
effective date of the newly listed HAP. In the ANPRM, the EPA more
fully discussed this question and provided an example of numeric limits
in coating rules that are often based on a limitation on the amount of
organic HAP per unit. The example was whether the addition of new
pollutant to the HAP list could require counting emissions of the new
HAP in compliance calculations for many NESHAP for coating operations.
This is because in most instances these coatings NESHAP typically
define HAP by a direct reference to the HAP list published in the 1990
CAA and as modified pursuant to section 112(b). We noted that any
modifications to the HAP list are included in 40 CFR part 63, subpart
C. In the ANPRM, the EPA requested comment on whether a newly listed
HAP should be regulated under previously existing NESHAP.
    On January 5, 2022, the EPA published a final rule that added 1-BP
to the HAP list (87 FR 393). Based on our consideration of the comments
on the ANPRM and the EPA's own review of statutory requirements, the
EPA concluded that a newly listed HAP is not regulated under existing
NESHAP and stated that the final rule would ``have no direct immediate
impacts under 40 CFR part 63 on emissions of 1-BP.'' \4\
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    \4\ 87 FR 395.
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    The conclusion that existing NESHAP do not regulate a newly listed
HAP is consistent with CAA section 112. First, CAA section 112(e)(4)
states that ``no action of the Administrator adding a pollutant to the
list under subsection (b) or listing a source category or subcategory
under subsection 112(c) shall be a final agency action subject to
judicial review, except that any such action may be reviewed under such
section 7607 [section 307] of this title when the Administrator issues
emission standards for such pollutant or category.'' This language, by
establishing two distinct steps, supports the EPA's conclusion that
previously promulgated NESHAP do not regulate newly listed HAP.\5\
Rather it is only after the EPA establishes new standards or revises
previous standards to include the newly listed HAP (for instance,
adding a newly listed organic HAP to a standard that covers total
organic HAP) that the listing of a new HAP is subject to review.
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    \5\ See also Util. Air Regul. Grp. v. E.P.A., No. 01-1074, 2001
WL 936363, at *1 (D.C. Cir. July 26, 2001)(dismissing challenge to
listing of coal- and oil-fired electric utility steam generating
units as a source category under Section 112(c) for lack of
jurisdiction). ``Section 112(e)(4) of the Clean Air Act provides
that judicial review of the listing of a source category under
section 112(c) of the Act is not available until after emission
standards are issued. See 42 U.S.C. 7412(e)(4).''
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    Second, having listed the new HAP using the process in CAA section
112(b), CAA section 112(d) sets out prescriptive procedures for
establishing emissions standards for major sources. These statutory
procedures include that a

standard must be established for each HAP--a process that cannot occur
until the EPA gathers sufficient information about which sources emit
the HAP and the emission rate of the HAP.\6\ Moreover, CAA section
112(d) requires that the MACT floor be based on the emission level
actually achieved by the best performing sources.\7\ As part of the
MACT determination, we must also evaluate whether options more
stringent than the floor are justified under the statute. This task
thus requires not only the emissions information of the new HAP from
sources, but a review of information related to the potential emission
controls and systems of controls that are, or could be, employed to
reduce the emissions of the newly listed HAP. Because the EPA did not
consider a pollutant that was not a HAP at the time it established
existing NESHAP, the statutory process for establishing a standard for
the new HAP has not been followed; therefore, the conclusion that
existing NESHAP do not regulate a newly listed HAP is consistent with
the statute.
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    \6\ U.S. Sugar Corp. v. EPA, 830 F.3d 579 (D.C. Cir. 2016)
(``EPA's pollutant-by-pollutant approach [to standard setting] is a
reasonable interpretation and application of the statute;'');
National Lime Association v. EPA, 233 F. 3d 625, 634 (D.C. Cir.
2000). (EPA must set standards under section 112(d) for each listed
HAP. EPA has a ``clear statutory obligation to set emissions
standards for each listed HAP.'').
    \7\ Cement Kiln Recycling Coalition v. EPA, 255 F.3d at 86
(``EPA may not deviate from section 7413(d)(3)'s requirement that
floors reflect what the best performers actually achieve by claiming
that floors must be achievable by all sources using MACT
technology.'').
---------------------------------------------------------------------------

    In summary, the conclusion that a newly listed HAP is not regulated
by any standards promulgated prior to the HAP being listed is
consistent with this statutorily required and well-ordered process
whereby under CAA section 112(b) the EPA lists a new HAP; CAA section
112(d) requires the EPA to gather information (e.g., inventories and
ranking of best performers) sufficient to establish new or revised
standards for the newly listed HAP; and CAA section 112(e) allows for
review of the listing when the new or revised emission standards is
finalized.
    The EPA is requesting comment on whether regulatory text should be
included in either the NESHAP General Provisions, 40 CFR part 63,
subpart A or in part 63, subpart C, where new HAP are listed, to make
it clear that a new HAP is not regulated by a previously promulgated
NESHAP until the NESHAP is reviewed and the inclusion of the new HAP is
fully evaluated for regulation. A redline/strike out version of
proposed regulatory language for the preferred options is included in
the docket for this action.
2. When must a newly listed HAP be included in emission estimates and
what are the potential regulatory implications?
    While the emissions of a newly listed HAP are not regulated by
NESHAP promulgated before the HAP was listed, the pollutant listed
becomes a HAP on the effective date of the listing. On and after the
effective date of the listing of a new HAP, it must be included in
calculating the facility's actual emissions and PTE for the purposes of
determining whether a facility is a major source or area source under
Part 63.\8\ This is because, under CAA section 112(a)(1) a major source
is ``any stationary source or group of stationary sources . . . that
emits or has the potential to emit considering controls, in the
aggregate, 10 tpy or more of any hazardous air pollutant or 25 tpy or
more of any combination of hazardous air pollutants.'' \9\ (Emphasis
added)
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    \8\ 40 CFR 63.2.
    \9\ ``In the context of the CAA, `any' has an expansive meaning
that is, `one or some indiscriminately of whatever kind.' '' New
York v. EPA, 443 F.3d 880, 885 (D.C. Cir. 2006)(citations omitted).
---------------------------------------------------------------------------

    The inclusion of a new HAP could change a facility's status from an
area source to a major source of HAP. If the sole reason for a
facility's status change from area to major is the inclusion of the
newly listed HAP, the facility would be considered a ``major source due
to listing'' or ``MSDL'' facility. For the reasons discussed below MSDL
facilities, as a result of becoming major on the effective date of the
listing of a new HAP, would become subject to any applicable standards
covering HAP other than the newly listed HAP in existing major source
NESHAP. The EPA specifically requests comments and data on whether, as
a result of the listing of a new HAP, there are other sources that are
directly impacted by the listing of a new HAP.
a. Permitting Impacts for Sources and Programs
    All major sources must operate in agreement with a title V
operating permit. Consequently, upon listing of a new HAP, MSDL
facilities will need to determine what, if any, future permitting
action such as application for an initial title V operating permit or
permit revision or an application for other type of permit must be
taken. For example, a source with an individual PTE limit for HAP,
issued in a minor source permit, would have to ensure the supporting
data and calculations of actual HAP emissions used to verify the PTE
limit account for newly listed HAP emissions. Any required permitting
action depends on the individual situation as governed by the
permitting authority rules; thus, sources are advised to coordinate
these actions with the permitting authority with jurisdiction for the
source. Facilities that wish to operate as area sources of HAP and
avoid applicability of major source NESHAP requirements could do so at
any time and must obtain legally and practically enforceable PTE HAP
restrictions below major source levels available under their permitting
authority programs. This does not include true area sources, which do
not need enforceable PTE limits.
    However, if the MSDL facility does not wish to pursue non-major
source status, as a major source of HAP they will be subject to the
title V operating permit program. Under the title V operating permit
program regulations ``A timely application for a source applying for a
part 70 permit for the first time is one that is submitted within 12
months after the source becomes subject to the permit program or on or
before such earlier date as the permitting authority may establish.''
70.5(a)(1)(i). Because permitting authorities can establish different
deadlines, MSDL facilities should check with their appropriate title V
permitting authority to determine exactly when a timely Part 70
application is required.
    The title V regulations are inclusive of all listed HAP; however,
some state, local, and tribal title V programs may need to initiate a
conforming program revision to update their implementing regulations,
e.g., to include newly listed HAP in their HAP definition if their
current regulations do not include newly listed HAP. The EPA encourages
state, local, and tribal programs to evaluate whether any regulatory
changes are needed to their rules to implement newly listed HAP under
their approved program and those programs should consult with their
respective regional permitting contact for the program if they have
questions. State, local, and tribal programs must keep the EPA apprised
of regulatory changes they believe are needed to their approved part 70
program. 40 CFR 70.4(i).
    Also, the EPA is aware that some permitting authority programs for
limiting PTE for categories of similar sources such as general permits,
permits by rule, source registrations currently in use for limiting PTE
HAP may not be authorized for newly listed HAP and may need revisions.
The EPA encourages permitting authorities to

review their programs for issuing PTE limits for HAP sources and ensure
they have adequate regulatory authority as needed to implement legally
and practicably enforceable PTE limits that include newly listed HAP.
b. Part 63 NESHAP
    All sources that become MSDL facilities will need to evaluate
whether any major source NESHAP apply to their operations. In some
cases, there may be a transition from an area source NESHAP to a major
source NESHAP for the same source category. For example, an MSDL
facility may have been subject to the Boiler NESHAP for area sources
prior to becoming an MSDL facility but would now become subject to the
Boiler NESHAP for major sources.
    In addition to a larger number of potentially applicable rules,
NESHAP for major sources tend to be more comprehensive than most area
source NESHAP, covering more pollutants and emission sources and are
generally at least as stringent as area source requirements due to
differing requirements under the CAA.\10\ The EPA recognizes that there
are some unique questions that arise for MSDL facilities when
considering the application of a NESHAP that was developed before the
MSDL facility became a major source. Two main questions that the EPA
evaluated are: (1) what standards apply to MSDL facilities (whether new
source or existing source standards apply to MSDL facilities)? and (2)
what compliance time should be provided for the MSDL facilities?
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    \10\ In particular, CAA section 112(d)(5) allows the EPA to set
standards for area source categories based on ``generally available
control technology or management practices,'' which may be less
stringent than the standards required for major sources under
sections 112(d) or 112(f).
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1. What standards apply to MSDL facilities?
    Section 112 of the CAA and its implementing regulations distinguish
between ``new source'' and ``existing source'' for the purpose of both
the stringency of the emission standard and the time allowed for
compliance with applicable standards. Specifically, CAA section
112(a)(4) defines a new source as a source that commenced construction
or reconstruction after the Administrator first proposes regulations
under section 112, while CAA section 112(a)(10) defines an existing
source as any stationary source other than a new source. The EPA has
also explained that the phrase ``first proposes'' in CAA section
112(a)(4) is somewhat ambiguous such that it could be viewed as
referring to different dates in different circumstances. For example,
it could be read as the first time the Agency proposes any standards
for a source category, the first time the Agency proposes standards
under a particular rulemaking record for a source category, or the
first time the Agency proposes a particular standard.\11\ The
determination of whether the standard that applies to a particular
source is for ``new'' or ``existing'' sources is also important to
determining the compliance deadline.
---------------------------------------------------------------------------

    \11\ See for example, National Emission Standards for Hazardous
Air Pollutants for the Portland Cement Manufacturing Industry and
Standards of Performance for Portland Cement Plants (78 FR 10006,
10025; February 12, 2013).
---------------------------------------------------------------------------

    Current rules also address cases where, after the initial
promulgation of a NESHAP, an area source makes the decision to increase
its emissions such that it becomes a major source. Language is included
in the NESHAP General Provisions at 40 CFR 63.6(b)(7) and (c)(5), as
well as in many individual NESHAP, to address the consequences of this
decision made by an individual facility. In this situation, the EPA has
determined that the designation of ``new source'' and ``existing
source'' should remain defined by the dates given in each individual
NESHAP and that does not change when a source reclassifies from area to
major source.\12\
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    \12\ See 85 FR 73854, 73867 (Nov. 19, 2020) (Revisions to 40 CFR
part 63, subpart A to address the issue of compliance issues for
sources that make the decision to increase their potential to emit
and reclassify from area source status to major source status).
---------------------------------------------------------------------------

    However, the NESHAP General Provisions do not address the unique
situation that arises when a new HAP is listed and an area source
becomes a major source solely due to the addition of a new HAP when
calculating the source's PTE (i.e., MSDL facilities).\13\ In this
action, the EPA is requesting comment on whether to amend the NESHAP
General Provisions to specifically address this issue. In addressing
this issue, the EPA has considered two alternatives: (1) as done with
non-MSDL major sources facilities, determine whether an affected source
was new or existing based on each specific NESHAP for MSDL facilities,
or (2) designate all affected sources for newly applicable NESHAP at an
MSDL facility to be existing affected sources. While the EPA is
proposing the second option, i.e., all MSDL facilities should be
considered existing sources, both alternatives are discussed below.
---------------------------------------------------------------------------

    \13\ In 1994 EPA first promulgated the NESHAP General
Provisions, which are codified in 40 CFR part 63, subpart A, and
which provide the general framework for establishing emission
standards and compliance timing for HAP regulations (59 FR 12408;
March 16, 1994).
---------------------------------------------------------------------------

    Under the first alternative, an MSDL facility would continue to
refer to each individual NESHAP and compare the date of construction of
an affected source to the date an individual NESHAP was proposed. Under
this approach, the determination of ``existing source'' and ``new
source'' would be the same regardless of when a facility became major
and regardless of how a facility became major (i.e., through their own
action or through an EPA action of HAP listing). If the EPA were to
finalize this alternative, no changes would be made to 40 CFR part 63,
subpart A, Sec.  63.1 (Applicability). However, the EPA could provide a
clarifying statement in the current regulatory text with respect to
MSDL facilities. The EPA requests comments on whether such clarifying
statements would be necessary or helpful.
    The EPA has some concerns about the potential impacts for MSDL
facilities that would be considered new sources under this first
alternative. These concerns center around (1) the lack of notice
provided to the MSDL that it is becoming subject to major source
requirements, and (2) the action that created the major source
requirement was solely from the addition of a new HAP.
    A newly listed pollutant becomes a HAP on the effective date of the
listing. As defined, a MSDL facility becomes a major source solely due
to the EPA action to add a new HAP to the HAP list. This accounting is
required because under CAA section 112(a)(1), a facility must include
``any hazardous air pollutant'' in calculating the potential to emit
for the purposes of determining whether it is a major source under this
section of the Act. Thus, on and after the effective date of the
listing of a new HAP, a facility must include such HAP in the actual
emissions and potential to emit calculations.\14\ Within each major
source of HAP (defined at the facility level) there could be one or
more affected sources, and where there are more than one affected
source each one could be either a new or an existing source. Section
112(a)(4) of the CAA defines a new source as a source that commenced
construction or reconstruction after the Administrator first proposes
regulations under this section, while CAA section 112(a)(10) defines an
existing source as any stationary source other than a new source. As
previously noted above, ``first proposes'' could be read to mean the
first time the Agency proposes any

standards for a source category, the first time the Agency proposes
standards under a particular rulemaking record for a source category,
or the first time the Agency proposes a particular standard.\15\ Here,
the EPA's listing of a new HAP is not the proposal of standards under
relevant statutory provisions, and as previously explained, existing
NESHAP do not regulate a newly listed HAP. It also bears note that
there is no specific period for promulgating standards for newly listed
HAPs, under CAA section 112(b)(1). Additionally, the CAA distinction
between new and existing sources is reasonably understood to be
predicated on some basic principles, including that a new source can
potentially be held to more stringent compliance requirements than
existing ones. In some cases, new source requirements are based on the
ability of these sources to design processes to accommodate air
pollution control systems.\16\ The facility choosing to construct or
reconstruct a new affected source can consider the applicable standards
and other requirements in making both the technical and economic
decisions that surround the evaluation to construct or not construct
the emissions unit. Legislative history from the 1990 CAA Amendments
also suggests that ``the test of section 112(a)(4) as to whether a
source is commencing construction or reconstruction is physical and
economic, rather than emissions related.'' S. Rep. No. 229, 101st Cong.
1st Sess. 1989, 1990 U.S.C.C.A.N. at 3385, 1989 WL 236970.\17\
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    \14\ CAA sections 112(a)(1); 40 CFR 63.2.
    \15\ See for example, National Emission Standards for Hazardous
Air Pollutants for the Portland Cement Manufacturing Industry and
Standards of Performance for Portland Cement Plants (78 FR 10006,
10025; February 12, 2013).
    \16\ For new sources, ``the maximum degree of reduction in
emissions that is deemed achievable . . . shall not be less
stringent than the emission control that is achieved in practice by
the best controlled similar source.'' CAA section 112(d)(3).
    \17\ ``It does not require increases in emissions or changes in
the operation of previously existing facilities to be triggered.
Since there is no threshold of emissions increase, it is not
possible for an existing source adding new facilities to avoid being
considered new by `netting out' or reducing so that the increase is
below some threshold of significance.'' Id.
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    In contrast, a MSDL facility is newly subject to standards that
were published long before the HAP listing action that resulted in the
facility exceeding the major source threshold. But when the facility
was being constructed as an area source, the source had no reason to
contemplate the applicability of major source NESHAP.\18\ As discussed
above, notice of the requirements at the time that the facility is
constructed or reconstructed is a key distinction between ``new'' and
``existing'' emission standards under CAA section 112 and the NESHAP
regulations. This is because CAA section 112(a)(4) defines a new source
as a source that commenced construction or reconstruction after the
Administrator proposes regulations for the applicable source category.
The notice of a proposed major source NESHAP allows a source to
consider the proposed standard when considering the design of or
constructing a potentially new affected emissions unit. Having this
notice allows the source to alter the design to eliminate the emissions
of the regulated HAP or alter the design of the emissions unit to
ensure that when the emission unit commences operation it can meet the
``new'' source limit. This is because a MSDL facility that was already
operating when the EPA lists a new HAP is not aware at the time of
construction or reconstruction that it would subsequently be subject to
a major source NESHAP, since no standard applied at that time.
Therefore, it could be more appropriate to treat such source as an
existing source.
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    \18\ EPA also notes that the definition of a new affected source
is made within each emission standard. When making the determination
as to whether a new or revised emission limit warrants the re-
designation of the new affected source date, the EPA must consider
several factors.
---------------------------------------------------------------------------

    Moreover, a listing action is not subject to the robust public
notice and comment requirements provided in CAA section 307(d).\19\ The
EPA acknowledges that the Agency could provide some degree of public
notice before a new HAP is listed, with one or more documents in the
Federal Register because ``in most instances, even where there is no
statutory requirement to take comment, the EPA solicits public comment
on actions it is contemplating.'' \20\ But these documents would
typically address the substantive requirements for listing a substance
as a HAP and would likely provide little or no information on sources
that would be impacted by the listing decision.\21\ Additionally, such
notices would also have been published years after a facility
constructed or reconstructed their affected source at an area source
facility. Further, where the Agency lists a HAP in response to a
petition, the Agency would be unable to impose compliance obligations
for that HAP considering that not all affected sources were involved in
the listing action and as such would be precluded from challenging the
listing decision as specified by section 112(e)(4) until the Agency
promulgates standards for the newly listed HAP.\22\
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    \19\ American Forest and Paper Ass'n v. EPA, 294 F.3d 113, 117
n.3 (D.C. Cir. 2002) (``CAA section 307(d)(9), however, by its terms
applies only to `rulemakings' pursuant to the CAA sections
enumerated in section 307(d)(1), 42 U.S.C. 7607(d)(1). Section
112(b) does not contemplate a formal rulemaking and is not among the
sections enumerated in section 307(d)(1) (although other subsections
of section 112 are included there.'').
    \20\ 68 FR 28198, June 4, 1996.
    \21\ CAA section 112(b)(3)(A) requires the Administrator to
either grant or deny a petition within 18 months of the receipt of a
complete petition by publishing a written explanation of the reasons
for the Administrator's decision. See for example 82 FR 2354,
January 9, 2017 (draft notice of the rationale for granting
petitions to add n-propyl bromide to the HAP list); La. Envtl.
Action Network v. Envtl. Prot. Agency, 955 F.3d 1088, 1098 (D.C.
Cir. 2020) (``the Act[ ] specifie[s] processes for adding to or
subtracting from the statutory list of hazardous air pollutants, and
its direction to EPA [is] to act within 18 months on a petition to
modify the list. 42 U.S.C. 7412(b)(3)(A).'')
    \22\ ``Section 112(e)(4) of the Clean Air Act provides that
judicial review of the listing of a source category under section
112(c) of the Act is not available until after emission standards
are issued. See 42 U.S.C. 7412(e)(4). This court therefore lacks
jurisdiction at this time to review the determination of the
Environmental Protection Agency (``EPA'') that regulation of coal-
and oil-fired electric utility steam generating units is appropriate
and necessary, and that such units should be listed as a source
category under section 112(c).'' See Util. Air Regul. Grp. v.
E.P.A., No. 01-1074, 2001 WL 936363, at *1 (D.C. Cir. July 26,
2001). See also, Conference Group, LLC v. Federal Communications
Commission, 720 F.3d 957 (D.C. Cir. 2013). (Nonparty to adjudication
lacks standing to challenge merits of adjudication). But see Teva
Pharma. v. Sebelius, 595 F.3d 1303 (D.C. Cir. 2010) (Allowing
challenge where there was imminent harm or injury from Agency
decision).
---------------------------------------------------------------------------

    Further, not only is a MSDL facility not able to plan accordingly
to meet the ``new'' source standard, but there is also a possibility
that the source, already in operation, cannot, as a technological
matter, comply with the standard for new sources. For example, during
the development of the NESHAP for Polyvinyl Chloride and Copolymers
Production, the EPA acknowledged that due to the stringency difference
between the new source and existing source standards that it might not
be technically possible for an existing source to meet the new source
standard. In the final rule the EPA modified the definition of existing
source to ensure that existing sources were not subject to the new
source standard, which was impossible for them to meet. See 77 FR 22848
(April 17, 2002).
    Finally, unlike the situation where an area source becomes a major
source (by increasing its HAP emissions or potential to emit), a MSDL
facility becomes a major source due to EPA's listing of a new HAP. As
also previously explained, a MSDL facility has no direct notice as to
the applicability of the major source NESHAP and more importantly as to
the applicability of any ``new'' source standard for major

sources as contemplated under CAA section 112(a)(4). Therefore, the
MSDL facility cannot develop plans to comply with the standard to which
it was not subject before it becomes applicable and could potentially
be in non-compliance immediately upon the effective date of the listing
of the new HAP in the absence of any changes proposed in this action.
This would mean that some rules, while not applicable to the facility
when the rule was proposed, now apply due to the EPA listing action and
through no action of the facility. Moreover, it is not the promulgation
of emissions standards under relevant statutory provisions and
precedent for the newly listed HAP that has resulted in a status
change. Rather, it is the HAP listing itself. This would mean that some
rules, while not applicable to the facility when the rule was proposed,
now apply due to the EPA listing action and through no action of the
facility.
    These concerns lead the EPA to also favor the alternative option
where all newly impacted affected sources at MSDL facilities would be
treated as existing sources.
    Under this preferred option, the EPA would treat affected sources
at MSDL facilities as existing affected sources because affected
sources at MSDL facilities that might otherwise be considered ``new''
under a NESHAP-specific evaluation are not new sources as contemplated
under CAA section 112(a)(4) in the circumstance where the source
becomes a major source due to EPA's listing of a new HAP. First, the
increase in the facilities' emissions or potential to emit that caused
the facility to become a major source was caused solely by an EPA
action to list a HAP and not based on any action by the facility to
change its method of operation, add new equipment, or change any
material throughput. Second, the facility was already operating the
affected sources when the EPA's listing action, which is not the
promulgation of emissions standards under relevant statutory provisions
and precedent, resulted in a status change.\23\ When considering the
construction for these sources, the facility may have evaluated
applicable requirements that would apply to them as a non-major source.
Third, these sources were not afforded advance notice to tailor
construction plans to meet the new source requirements for major
sources, but instead would be required to develop a compliance strategy
on already-constructed emission sources.
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    \23\ Emissions standards ``mean[s] a requirement established by
the State or the Administrator which limits the quantity, rate, or
concentration of emissions of air pollutants on a continuous basis,
including any requirement relating to the operation or maintenance
of a source to assure continuous emission reduction, and any design,
equipment, work practice or operational standard promulgated under
this chapter.'' CAA section 302(k).
---------------------------------------------------------------------------

    In conclusion, the EPA has considered both options discussed above
and is proposing that all affected facilities at MSDL facilities that
become subject to major source requirements solely due to the listing
of a new HAP should be considered existing sources. Under this option,
regulatory language would be added to 40 CFR part 63, subpart A, Sec.
63.1(c) applicability requirements and a definition of MSDL would be
added to Sec.  63.2. The EPA requests comments on all aspects of both
alternatives presented above, as well as on the proposed selection of
treating all MSDL facilities as existing sources. All significant
comments received on issues related to effects of HAP listing on MSDL
facilities during the public comment period will be considered.
2. When does an MSDL facility have to be in compliance with new
requirements?
    When an MSDL facility triggers existing source NESHAP requirements
under our proposed approach described in section II.C.3., there is an
additional question of the appropriate compliance date. Because the
NESHAP of concern have already been promulgated, typically many years
in the past, it is likely that most of the compliance dates will have
passed for both existing and new affected sources. The EPA understands
that a past compliance date would indicate that a facility would need
to be in compliance on the day the NESHAP is triggered; in this case,
the day the HAP listing is effective. The EPA does not view this
outcome as necessarily the most practical conclusion flowing from the
overall intent and reading of CAA section 112 as well as rulemakings
that implement CAA section 112. As this outcome can create significant,
immediate compliance issues for facilities that have already been
constructed, the EPA evaluated several options for establishing
compliance dates for MSDL facilities.
    The General Provisions, 40 CFR part 63, subpart A, include
requirements for facilities that increase their emissions (or potential
to emit) to major source levels. The provision in 40 CFR 63.6 (b)(7)
provides that new affected sources must comply with all requirements of
a standard at start-up of the source.\24\ On the other hand, for
existing sources, the provision in 40 CFR 63.6(c)(5) provides that a
facility has the amount of time listed in a specific NESHAP for sources
increasing emissions to major or ``equivalent to the compliance period
specified in the relevant standard for existing sources in existence at
the time the standard becomes effective.'' \25\ Several NESHAP include
the provisions mentioned in 40 CFR 63.6(c)(5) for when an area source
becomes a major source. Most, but not all, of these provisions tend to
treat new sources very differently from existing sources, by providing
time to come into compliance for existing affected sources that become
major sources, but typically requiring immediate compliance for new
sources that become major sources.
---------------------------------------------------------------------------

    \24\ For new affected sources, CAA section 112(i) provides that
compliance with standards promulgated under CAA section 112(d)(2)
and (3) is on the effective date of the NESHAP or upon startup,
whichever is later.
    \25\ For existing sources, CAA section 112(i)(3) provides there
shall be compliance ``as expeditiously as practicable, but in no
event later than 3 years after the effective date of such standard.
. . .'' (``Section 112(i)(3)'s 3-year maximum compliance period
applies generally to any emission standard . . . promulgated under
[section 112].'' Association of Battery Recyclers v. EPA, 716 F.3d
667, 672 (D.C. Cir. 2013) (brackets in original)).
---------------------------------------------------------------------------

    The EPA reviewed these provisions for potential applicability to
MSDL facility compliance times. The EPA determined that the current
language in 40 CFR 63.6(b)(7), 63.6(c)(5) and the area- to- major
language in individual NESHAP were not developed with MSDL facilities
in mind and are therefore not applicable to MSDL facilities. Therefore,
the EPA is proposing that the NESHAP General Provisions at 40 CFR
63.6(d) be revised to address the compliance timing for MSDL
facilities. As individual NESHAP are reviewed, the EPA can assess
whether additional provisions addressing MSDL facilities are warranted.
Any NESHAP-specific MSDL provision would supersede provisions
promulgated in the General Provisions.
    The EPA is considering four possible approaches for establishing
compliance schedules for MSDL facilities that trigger major source
NESHAP: (a) Maintain the compliance deadlines in individual NESHAP,
even past dates, and require all facilities to work with their
regulatory authority to come into compliance; (b) Establish a
compliance deadline consistent with time provided to existing sources
under the applicable individual NESHAP; (c) Provide a single compliance
timeline for MSDL facilities that have become subject to major source
requirements, regardless of the times provided in the individual
NESHAP; and (d) Provide compliance

deadlines based on the types of emission limitations or requirements.
    Each of these options is discussed in more detail below. While the
EPA is proposing to provide compliance deadlines based on the types of
emission limitations or requirements (option d in this list), the EPA
requests comments on each of the following options and may select any
of these options in the final rule, depending on comments received and
the EPA's final analyses.
a. Maintain Compliance Schedules in Individual NESHAP
    Under this alternative, the EPA would make no changes to the NESHAP
General Provisions (40 CFR part 63, subpart A) and would instead allow
compliance dates in the individual NESHAP to remain the applicable
compliance dates. Under this approach an MSDL facility would likely be
out of compliance with any major source NESHAP that applies on the
effective date of the listing of a new HAP. This is because the
majority of major source NESHAP have compliance dates that pre-date the
effective date of the newly listed HAP.
    This approach would likely lead to the earliest requirements for
emission reductions by MSDL facilities, as they may alter their
operations or work practices to either minimize emissions or work with
their regulatory authority to address their non-compliance status.
Emission reduction will not include direct emission control
requirements for the newly listed HAP, as the EPA must first promulgate
standards for such HAP. It would, however, result in emissions
reductions of other regulated HAP as the facility complies with the
applicable NESHAP. As previously discussed, above, this approach is
predicated on the assumption that facilities are aware of the EPA
actions that may impact their CAA compliance status since pre-notice is
provided by the EPA's prior Federal Register documents on potential
listings.\26\
---------------------------------------------------------------------------

    \26\ CAA section 112(b)(3)(A) merely calls for the Administrator
to either grant or deny a petition within 18 months of the receipt
of a complete petition by publishing a written explanation of the
reasons for the Administrator's decision.
---------------------------------------------------------------------------

b. Provide a Timeline Equivalent to the Time Provided for Initial
Compliance
    Under this alternative, the EPA is considering whether the
compliance time provided to MSDL sources for a specific NESHAP should
be equivalent to the initial time provided to existing affected sources
in that NESHAP. This approach would acknowledge the source category-
specific evaluation of appropriate compliance time for the specific
rule.
    The EPA reviewed numerous existing NESHAP and determined that the
majority of NESHAP provided three years for existing sources to come
into compliance with the standards. The specific justifications for
allowing three years for existing sources to comply varied from NESHAP
to NESHAP but were all predicated on a determination that three years
was as expeditious as possible for those facilities.
    This option would call for the EPA to include in the NESHAP General
Provisions regulatory language similar to existing language at 40 CFR
63.6(c)(5). The regulatory language in the NESHAP General Provisions
would provide MSDL facilities 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 sources'' and would
apply in the absence of any MSDL-specific language in individual
NESHAP.''
    It should be noted that, at present, there are no MSDL-specific
provisions in any individual NESHAP. Language currently in the General
Provisions and NESHAP refers only to area sources that become major
sources through a facility's own action that causes an increase in
emissions or in their potential to emit. If no MSDL-specific language
is included in a specific NESHAP, then the time provided by the new
MSDL language in the General Provision will dictate the requirements.
    As discussed in section II.C.3. (What Standards Apply to MSDL
Facilities?), the EPA is proposing to define all affected sources at
MSDL facilities as existing affected sources for the purposes of
determining the applicable emission standards. If the EPA were to
instead promulgate the option that would require some sources to meet
the new source emission limits, the EPA is still proposing to provide
time for all MSDL facilities to come into compliance under this option.
In this proposal, the EPA is considering whether providing some amount
of compliance time--as typically done for existing sources--is
appropriate for all MSDL sources. Specifically, under this option, all
MSDL sources (including new sources) would be provided a time period
equivalent to the time period provided to existing affected sources in
the specific NESHAP.
    As discussed below, this is not the option that the EPA is
proposing because we believe the final option in this list best
balances the EPA's desire to obtain emission reductions as soon as
practicable, but also allow time required for a facility to effectively
and efficiently come into compliance with potentially multiple
requirements; however, the EPA requests comments and supporting
information on this option.
c. Provide a Single Timeline for all NESHAP Newly Triggered for MSDL
Facilities
    Under this alternative, the EPA is considering whether a single
compliance schedule should be provided for any new requirements at an
MSDL facility when a new HAP is listed. As discussed above, the EPA
conducted a review of current NESHAP and determined that the
predominant compliance time provided to any impacted existing affected
source is 3 years after a rule is promulgated. Based on this review,
the EPA is considering whether to provide up to three years for all
MSDL facilities to come into compliance with all newly applicable
requirements.
    The EPA could consider a set deadline that is less than three
years. In many instances, the EPA considered the availability of
resources in assessing the amount of time needed to comply with a
NESHAP. These resources could include the lack of enough vendors to
supply the expected air pollution control devices in less than three
years. The EPA does not expect that a significant number of sources
that would draw on the same resources (e.g., the same air pollution
control vendor) will become MSDL sources and solicits comment on
whether this assumption is reasonable. To the extent that up to three
years was provided in a specific NESHAP to account for the resource
drain, it could be reasonable to consider a different set time period
under this requirement for MSDL affected sources.
    The EPA is aware that an MSDL facility has the potential to trigger
more than one NESHAP and associated requirements, and these different
NESHAP could provide for different compliance time periods. The EPA is
considering whether providing a single date would enable a facility to
develop a comprehensive strategy to comply with all newly applicable
major source NESHAP requirements. A single date would also provide
absolute clarity to all stakeholders as to when compliance was
required, regardless of the NESHAP subpart that becomes applicable to
them. Under this option, the EPA could select the longest time period
allowed in the various regulations (i.e., 3 years after promulgation
date), the shortest time period (i.e., immediate compliance required
for new sources), or some time in between. The EPA requests

comments on the potential for any of these time periods.
    The EPA recognizes that this option would allow some facilities
more time than was allowed under the original NESHAP. However, this
option recognizes that a facility may need to develop a compliance
strategy for multiple NESHAP that may involve different types of
compliance requirements. For example, a facility may need to design,
order, install and activate an air pollution control device to comply
with one NESHAP, and may need to implement operational changes, or work
practice requirements, for a different NESHAP. Providing the facility
with the ability to strategize their overall compliance approach might
be significantly more efficient than requiring separate dates for
simultaneously triggered requirements.
    This is not the option we are proposing in this document. While
this approach may be reasonable when considering a facility could have
multiple new requirements, the EPA believes that the chosen option best
balances a reasonable time for facilities and the need to not
unnecessarily delay the implementation of certain practices or
technologies that would more quickly reduce emissions and associated
risks. However, the EPA requests comments on this option, including
whether it should be the selected option and whether a different
compliance timeframe should be selected, e.g., within 2 years or within
18 months under this option. In addition, we ask for comment on whether
the EPA, if it were to promulgate this option, should include
additional conditions. For example, the EPA could provide an overall
compliance timeframe of ``no later than 3 years,'' but require that a
MSDL facility demonstrate that any compliance date after 2 years would
have to be justified to and approved by the Administrator (or delegated
authority), unless compliance for a specific requirement required the
installation of equipment, such as air pollution control devices.
    If the EPA were to finalize regulatory text that included some MSDL
facilities being required to meet new source requirements, the EPA
might still provide that all facilities be provided with the identical
time allowance for compliance. The EPA solicits comments on this
conclusion, as well as comments on alternatives that should be
considered.
d. Provide Compliance Deadlines Based on the Types of Emission
Limitations or Requirements
    As discussed above, the majority of existing NESHAP have provided
the 3 years to comply, as allowed under CAA section 112(i)(3)(A).
However, the EPA also has a long-standing history of providing shorter
periods to ensure that the compliance requirements are consistent with
statutory requirements. These shorter compliance periods are based, in
part, on the type of emission standard. Where the emission standard is
a work practice or does not require installation of add-on emission
control device, the EPA has, consistent with CAA section 112(i)(3)(A)
that requires compliance ``as expeditiously as practicable,'' required
compliance in less than 3 years. For example, in establishing the 1995
NESHAP for Chromium Emissions from Hard and Decorative Chromium
Electroplating and Chromium Anodizing Tanks, the EPA stated, ``The EPA
believes that the 1-year timeframe for decorative chromium
electroplaters is sufficient because, based on the EPA's survey data,
80 percent of existing sources already use fume suppressants and very
few will need to install add-on air pollution control devices.'' (60 FR
4948; January 25, 1995). In the 1994 NESHAP for Magnetic Tape
Manufacturing Operations, the EPA provided 2 years to comply unless a
new control device was needed. (December 15, 1994). In the 2004 Iron
and Steel NESHAP the EPA required existing iron and steel foundries to
comply with the scrap selection and inspection program within 1 year of
the effective date of the final rule because no controls were required,
and emission reductions would be achieved as expeditiously as
practicable (69 FR 21906; April 22, 2004).
    Based on the EPA's history of establishing compliance deadlines for
existing sources based on the type of emission standard, the EPA is
proposing that the compliance deadline for MSDL facilities should be
based on the type of emission standard applicable to the facility. For
example, if the applicable emission standard requires the installation
of add-on controls the compliance deadline would be longer (e.g., a 2-
year compliance deadline starting from the date the source becomes
major due to the listing of a new HAP) as compared with an emission
standard that does not require the addition of controls (e.g., 1 year
from the date the source becomes major due to listing of a new HAP if
the emission standard is a work practice). The EPA is requesting
comment on the appropriate compliance deadline (e.g., from 0 up to 3
years) depending on the type of emission standard. The EPA acknowledges
that the CAA allows title V permitting authorities to grant sources, on
a case-by-case basis, extensions to the compliance time of up to 1 year
if such time is needed for the installation of controls. See CAA
section 112(i)(4)(i)(A). Permitting authorities are already familiar
with, and in many cases have experience with, applying the 1-year
extension authority under CAA section 112(i)(4)(A) as the provision
applies to all NESHAP. This option will remain available to MSDL
facilities.
    In addition to the long-standing compliance deadline
differentiation based on the type of emission standard, the EPA
believes that establishing shorter compliance deadlines for MSDL
facilities is reasonable because some of the reasons for providing the
full 3 years for existing sources under initial NESHAP will not exist
for MSDL facilities. For example, during the development of the NESHAP
for the Industrial, Commercial, and Institutional Boilers and Process
Heaters, commenters expressed concern about the compliance deadline for
existing sources stating that a ``large number of sources that will be
competing for the needed resources and materials from engineering
consultants, permitting authorities, equipment vendors, construction
contractors, financial institutions, and other critical suppliers.''
(78 FR 7138; January 31, 2013). The EPA does not expect the number of
MSDL facilities following the listing of a new HAP to be similar to the
overall number of facilities subject to a NESHAP on its initial
promulgation and therefore the resource availability concerns are not
expected.
    Another factor that supported providing the full 3-year compliance
deadline for initial NESHAP was the learning curve associated with
implementing standards or installing new controls to an existing
process. In contrast, MSDL facilities, by definition, only deal with
facilities triggering already existing NESHAP and some of these NESHAP
were promulgated over 20 years ago. Therefore, the industry and
equipment vendors have already experienced, dealt with, and solved many
of the initial application issues associated with applying a NESHAP
standard to a source category for the first time. The years of
experience gained at applying standards and installing controls within
a source category should reduce the time needed to apply the same
technology today at MSDL facilities.

    The EPA is proposing to provide compliance deadlines based on the
types of emission limitations or requirements for MSDL facilities
because it provides the optimum balance between acknowledging that some
time is needed to develop and implement control strategies for newly
applicable NESHAP requirements and the desire to not unnecessarily
delay compliance and the resulting emission reductions. The EPA
requests comments on the use of this approach and specifically the
proposed compliance deadlines of 2 years for facilities that install
add-on controls and 1 year for all other standards. The EPA is
clarifying that no compliance deadline extension will be provided for
NESHAP that have identical requirements for area and major sources,
because these facilities would already be complying with the NESHAP
before becoming an MSDL facility.
    The EPA recognizes that under any of the last three options, there
could be situations where there is a possible temporal gap in
regulatory coverage for MSDL facilities that were, prior to their MSDL
status, subject to an area source NESHAP. For example, a facility that
was subject to area source NESHAP prior to their MSDL status might not
be subject to any emissions standard during a compliance deadline
extension allowed for the newly applicable major source NESHAP.
    The EPA is taking comment on what standard should or can apply
during this period if a compliance deadline extension is provided. For
example, one option the EPA is considering is whether a MSDL facility
might be required, either by their existing permit or by a requirement
added to this rulemaking, to continue to comply with any pre-existing
areas source NESHAP until they are in compliance with newly applicable
major source NESHAP. This gap-filling approach would prevent any
inadvertent increase in emissions that could occur during this
compliance extension period.
    The EPA also requests comment and specific examples of how this
would occur and whether existing area source operating permits would
remain enforceable until a new major source permit is issued.
3. Are there any new notification requirements?
    The EPA evaluated whether any additional data should be required
from facilities when a new HAP is listed. Without any changes, there
are two notifications that would be required under existing NESHAP
requirements. First, any MSDL facility that requires a title V
operating permit would need to apply for the permit within 12 months of
becoming subject to the operating permit requirement. This application
would likely be required to include substantive data about the newly
listed HAP, including a description of the emission sources, the
quantity of emissions, and whether any other requirements were
triggered by becoming a major source. Presumably this would include the
identification of any major source NESHAP that is now applicable to the
facility. As with other title V operating permit requirements, the EPA
is not proposing to make any changes to the existing language.
    Second, an MSDL facility that triggers one or more major source
NESHAP would become subject to the requirement to submit an initial
notification under each newly applicable NESHAP. These requirements are
specified in each NESHAP and in the General Provisions to part 63,
including the details of the information that must be included and
where the notification must be sent. Typically, these notifications are
required within 180 days of becoming subject to a NESHAP, so would be
required before the facility is required to submit a title V operating
permit application, if also required. A permit application would
typically be allowed to serve as the initial notification, if it is
submitted within the timeframe required by the NESHAP and includes all
of the information required by the specific rule. In the absence of
requirements listed in a specific NESHAP, the initial notification
content requirements are dictated by the provision in 40 CFR 63.9(b).
The EPA reviewed the contents of the initial notification requirements
under 40 CFR 63.9(b) and determined that the content for MSDL
notifications should be virtually identical to other notifications but
to provide clarity it warrants a required indication that the facility
is submitting the notification because it is an MSDL facility.
    To provide this clarity, the EPA is proposing that MSDL facilities
include in their notification a statement that the facility is a major
source due to HAP listing (MSDL) if the sole reason that the facility
became major and triggered NESHAP applicability is the addition of a
new HAP to 40 CFR subpart C, Sec.  63.64. A red-lined copy of the
General Provisions, including the proposed notification amendments for
MSDL facilities is included in the docket for review. See OAR-HQ-OAR-
2022-0441.
    The EPA also considered whether additional information should be
required from other facilities that emit a newly listed HAP but are
already subject to major source NESHAP requirements and are not
required to submit either of the above documents when a new HAP is
listed. Additional information on HAP usage, HAP emissions, potential
controls, and other inventory information could aid in the EPA's
development of the best strategy for regulating a new HAP. However,
this benefit needs to be weighed against the potential burden for
developing and submitting this information from facilities that emit
the newly listed HAP, especially as the facilities could include small
businesses. The EPA solicits comments on whether additional
notifications should be required for facilities that emit a newly
listed HAP but are not triggered to submit an initial notification upon
the listing. For example, this proposal solicits comment on whether a
notification should be required from any facility that emits the newly
listed HAP over some de minimis level. The EPA also asks whether
additional public notification requirements should be included to
provide better communication of public health risks by facilities that
emit a newly listed HAP or if other mechanisms already exist, or will
exist, to serve this function. If notice is required, we request
comment on how best to establish a de minimis level, if one is
recommended, and the basis for the proposed level.

III. Solicitation of Additional Comments

    In addition to soliciting comments on the topics discussed earlier
in this document, including the applicability of existing source MACT
requirements for MSDLs and the compliance time allowed for MSDLs, the
EPA additionally requests comments and information on the following
questions.

A. Regulatory Changes

    The EPA has developed a redline-strikeout version of sections of 40
CFR part 63, subparts A and C, that would be revised under the proposed
changes listed in this document. The draft regulatory language for the
recommended options is included for review in the docket for this rule.
See EPA Docket EPA-HQ-OAR-2022-0441. The EPA is requesting comments on
this language.

B. Early Input on Future EPA Action to Integrate Newly Listed HAP Into
the CAA Section 112 Program

    While the focus of this proposed rulemaking is on the immediate
impacts to MSDL facilities, the EPA acknowledges that there are other
steps

that must be taken to fully address a newly listed HAP under CAA
section 112 regulatory framework. Foremost among these steps is the
regulation and the resulting reduction in emissions of a newly listed
HAP. However, as discussed above, existing NESHAP do not regulate the
newly listed HAP unless and until the NESHAP is revised and an emission
standard is established following the requirements of CAA section
112(d).
    This proposed rulemaking addresses only one part of the overall
program to incorporate a new HAP into CAA section 112 regulatory
framework. Future steps that are not addressed in this rulemaking would
likely include addressing issues such as how best to develop an
accurate emissions inventory for the new HAP, identify the sources that
emit the new HAP, and either revising existing NESHAP standards or
establishing new standards, as necessary, to incorporate and thereby
reduce the emissions of the new HAP.
    The EPA is seeking comments on how best to obtain information about
which sources and source categories emit a newly listed HAP, how much
these facilities emit, how best to inform the populations surrounding
these facilities that the facilities that emit a newly listed HAP, and
how to incorporate meaningful engagement with affected communities in
future actions.
    The EPA seeks comment on how to best provide outreach to entities
that could be subject to requirements as an MSDL facility because of an
addition to the HAP list.

IV. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulations and Regulatory Review

    This action is a significant regulatory action that was submitted
to the Office of Management and Budget (OMB) for review under Executive
Order 12866, as amended by Executive Order 14094. Any changes made in
response to reviewer recommendations have been documented in the
docket.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under
the PRA.

C. Regulatory Flexibility Act

    I certify that this action will not have a significant economic
impact on a substantial number of small entities. This proposed rule
will not impose any requirements on small entities. Specifically, this
action proposes a regulatory requirement addressing requirements for
when a new HAP is added to the CAA section 112 HAP list; any burden
from the addition of a new HAP is rightfully considered under the
individual NESHAP that is triggered and not under the actions in this
document.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or
more as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. The action imposes
no enforceable duty on any state, local or tribal governments or the
private sector.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the Federal government and the states, or on the distribution of power
and responsibilities among the various levels of government. This
action does not impose any requirements on facilities or other parties.
    This action proposes amendments to General Provisions that provide
requirements for when a new HAP is added to the CAA section 112 HAP
list.

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    This action does not have tribal implications as specified in
Executive Order 13175. It would not impose substantial direct
compliance costs on tribal governments that have designated facilities
located in their area of Indian country. This action also will not have
substantial direct costs or impacts 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 the action.

G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it does not concern an environmental
health risk or safety risk.

H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use

    This action is not a ``significant energy action'' because it will
not have a significant adverse effect on the supply, distribution or
use of energy. Specifically, this action proposes amendments to General
Provisions to provide requirements for when a new HAP is added to the
CAA section 112 HAP list.

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations and
Executive Order 14096: Revitalizing Our Nation's Commitment to
Environmental Justice for All

    Executive Order 12898 establishes Federal executive policy on
environmental justice. Its main provision directs Federal agencies, to
the greatest extent practicable and permitted by law, to make
environmental justice part of their mission by identifying and
addressing, as appropriate, disproportionately high and adverse health
or environmental effects of their programs, policies and activities on
minority populations and low-income populations in the U.S. This rule
would not increase the level of environmental protection for all
affected populations, and it also will not have any disproportionately
high and adverse health or environmental effects on any population,
including any minority, or low-income population. Specifically, this
action proposes amendments to NESHAP General Provisions to provide
requirements for when a new HAP is added to the CAA section 112 HAP
list. These proposed changes would aid in the implementation of updated
and new

NESHAP that will occur after a new HAP has been listed.

Michael S. Regan,
Administrator.
[FR Doc. 2023-19674 Filed 9-12-23; 8:45 am]
BILLING CODE 6560-50-P