(a) Adoption of program. Each permitting authority shall review its existing programs, procedures, and criteria for preconstruction review for conformity to the requirements established by §§63.40 through 63.44, shall make any additions and revisions to its existing programs, procedures, and criteria that the permitting authority deems necessary to properly effectuate §§63.40 through 63.44, and shall adopt a program to implement section 112(g) with respect to construction or reconstruction of major sources of HAP. As part of the adoption by the permitting authority of a program to implement section 112(g) with respect to construction or reconstruction of major sources of HAP, the chief executive officer of the permitting authority shall certify that the program satisfies all applicable requirements established by §§63.40 through 63.44, and shall specify an effective date for that program which is not later than June 29, 1998. Prior to the specified effective date, the permitting authority shall publish a notice stating that the permitting authority has adopted a program to implement section 112(g) with respect to construction or reconstruction of major sources of HAP and stating the effective date, and shall provide a written description of the program to the Administrator through the appropriate EPA Regional Office. Nothing in this section shall be construed either:

(1) To require that any owner or operator of a stationary source comply with any requirement adopted by the permitting authority which is not intended to implement section 112(g) with respect to construction or reconstruction of major sources of HAP; or

(2) To preclude the permitting authority from enforcing any requirements not intended to implement section 112(g) with respect to construction or reconstruction of major sources of HAP under any other provision of applicable law.

(b) Failure to adopt program. In the event that the permitting authority fails to adopt a program to implement section 112(g) with respect to construction or reconstruction of major sources of HAP with an effective date on or before June 29, 1998, and the permitting authority concludes that it is able to make case-by-case MACT determinations which conform to the provisions of §63.43 in the absence of such a program, the permitting authority may elect to make such determinations. However, in those instances where the permitting authority elects to make case-by-case MACT determinations in the absence of a program to implement section 112(g) with respect to construction or reconstruction of major sources of HAP, no such case-by-case MACT determination shall take effect until after it has been submitted by the permitting authority in writing to the appropriate EPA Regional Adminstrator and the EPA Regional Administrator has concurred in writing that the case-by-case MACT determination by the permitting authority is in conformity with all requirements established by §§63.40 through 63.44. In the event that the permitting authority fails to adopt a program to implement section 112(g) with respect to construction or reconstruction of major sources of HAP with an effective date on or before June 29, 1998, and the permitting authority concludes that it is unable to make case-by-case MACT determinations in the absence of such a program, the permitting authority may request that the EPA Regional Administrator implement a transitional program to implement section 112(g) with respect to construction or reconstruction of major sources of HAP in the affected State of local jurisdiction while the permitting authority completes development and adoption of a section 112(g) program. Any such transitional section 112(g) program implemented by the EPA Regional Administrator shall conform to all requirements established by §§63.40 through 63.44, and shall remain in effect for no more than 30 months. Continued failure by the permitting authority to adopt a program to implement section 112(g) with respect to construction or reconstruction of major sources of HAP shall be construed as a failure by the permitting authority to adequately administer and enforce its title V permitting program and shall constitute cause by EPA to apply the sanctions and remedies set forth in the Clean Air Act section 502(I).

(c) Prohibition. After the effective date of section 112(g)(2)(B) (as defined in §63.41) in a State or local jurisdiction and the effective date of the title V permit program applicable to that State or local jurisdiction, no person may begin actual construction or reconstruction of a major source of HAP in such State or local jurisdiction unless:

(1) The major source in question has been specifically regulated or exempted from regulation under a standard issued pursuant to section 112(d), section 112(h) or section 112(j) in part 63, and the owner and operator has fully complied with all procedures and requirements for preconstruction review established by that standard, including any applicable requirements set forth in subpart A of this part 63; or

(2) The permitting authority has made a final and effective case-by-case determination pursuant to the provisions of §63.43 such that emissions from the constructed or reconstructed major source will be controlled to a level no less stringent than the maximum achievable control technology emission limitation for new sources.

[61 FR 68400, Dec. 27, 1996, as amended at 64 FR 35032, June 30, 1999]