(a) Definition of affected source. The provisions of this subpart apply to each affected source. Affected sources are described in paragraphs (a)(1) through (a)(4) of this section.

(1) An affected source is either an existing affected source or a new affected source. Existing affected source is defined in paragraph (a)(2) of this section, and new affected source is defined in paragraph (a)(3) of this section.

(2) An existing affected source is defined as each group of one or more elastomer product process units (EPPU) and associated equipment, as listed in paragraph (a)(4) of this section, that is not part of a new affected source, as defined in paragraph (a)(3) of this section, that is manufacturing the same primary product and that is located at a plant site that is a major source.

(3) A new affected source is defined by the criteria in paragraph (a)(3)(i), (a)(3)(ii), or (a)(3)(iii) of this section. The situation described in paragraph (a)(3)(i) of this section is distinct from those situations described in paragraphs (a)(3)(ii) and (a)(3)(iii) of this section and from any situation described in paragraph (i) of this section.

(i) At a site without HAP emission points before June 12, 1995 (i.e., a “greenfield” site), each group of one or more EPPU and associated equipment, as listed in paragraph (a)(4) of this section, that is manufacturing the same primary product and that is part of a major source on which construction commenced after June 12, 1995;

(ii) A group of one or more EPPU meeting the criteria in paragraph (i)(1)(i) of this section; or

(iii) A reconstructed affected source meeting the criteria in paragraph (i)(2)(i) of this section.

(4) Emission points and equipment. The affected source also includes the emission points and equipment specified in paragraphs (a)(4)(i) through (a)(4)(iv) of this section that are associated with each applicable group of one or more EPPU constituting an affected source.

(i) Each waste management unit.

(ii) Maintenance wastewater.

(iii) Each heat exchange system.

(iv) Equipment required by, or utilized as a method of compliance with, this subpart which may include control devices and recovery devices.

(5) EPPUs and associated equipment, as listed in paragraph (a)(4) of this section, that are located at plant sites that are not major sources are neither affected sources nor part of an affected source.

(b) EPPUs without organic HAP. The owner or operator of an EPPU that is part of an affected source, as defined in paragraph (a) of this section, but that does not use or manufacture any organic HAP shall comply with the requirements of either paragraph (b)(1) or (b)(2) of this section. Such an EPPU is not subject to any other provision of this subpart and is not required to comply with the provisions of subpart A of this part.

(1) Retain information, data, and analyses used to document the basis for the determination that the EPPU does not use or manufacture any organic HAP. Types of information that could document this determination include, but are not limited to, records of chemicals purchased for the process, analyses of process stream composition, engineering calculations, or process knowledge.

(2) When requested by the Administrator, demonstrate that the EPPU does not use or manufacture any organic HAP.

(c) Emission points not subject to the provisions of this subpart. The affected source includes the emission points listed in paragraphs (c)(1) through (c)(9) of this section, but these emission points are not subject to the requirements of this subpart or to the provisions of subpart A of this part.

(1) Equipment that does not contain organic HAP and is located at an EPPU that is part of an affected source;

(2) Stormwater from segregated sewers;

(3) Water from fire-fighting and deluge systems in segregated sewers;

(4) Spills;

(5) Water from safety showers;

(6) Water from testing of deluge systems;

(7) Water from testing of firefighting systems;

(8) Vessels and equipment storing and/or handling material that contains no organic HAP or organic HAP as impurities only; and

(9) Equipment that is intended to operate in organic HAP service for less than 300 hours during the calendar year.

(d) Processes exempted from the affected source. Research and development facilities are exempted from the affected source.

(e) Applicability determination of elastomer equipment included in a process unit producing a non-elastomer product. If an elastomer product that is subject to this subpart is produced within a process unit that is subject to subpart JJJ of this part, and at least 50 percent of the elastomer is used in the production of the product manufactured by the subpart JJJ process unit, the unit operations involved in the production of the elastomer are considered part of the process unit that is subject to subpart JJJ, and not this subpart.

(f) Primary product determination and applicability. An owner or operator of a process unit that produces or plans to produce an elastomer product shall determine if the process unit is subject to this subpart in accordance with this paragraph. The owner or operator shall initially determine whether a process unit is designated as an EPPU and subject to the provisions of this subpart in accordance with either paragraph (f)(1) or (f)(2) of this section. The owner or operator of a flexible operation unit that was not initially designated as an EPPU, but in which an elastomer product is produced, shall conduct an annual re-determination of the applicability of this subpart in accordance with paragraph (f)(3) of this section. Owners or operators that anticipate the production of an elastomer product in a process unit that was not initially designated as an EPPU, and in which no elastomer products are currently produced, shall determine if the process unit is subject to this subpart in accordance with paragraph (f)(4) of this section. Paragraphs (f)(3) and (f)(5) through (f)(7) of this section discuss compliance only for flexible operation units. Other paragraphs apply to all process units, including flexible operation units, unless otherwise noted. Paragraph (f)(8) of this section contains reporting requirements associated with the applicability determinations. Paragraphs (f)(9) and (f)(10) describe criteria for removing the EPPU designation from a process unit.

(1) Initial determination. The owner or operator shall initially determine if a process unit is subject to the provisions of this subpart based on the primary product of the process unit in accordance with paragraphs (f)(1)(i) through (iii) of this section. If the process unit never uses or manufactures any organic HAP, regardless of the outcome of the primary product determination, the only requirements of this subpart that might apply to the process unit are contained in paragraph (b) of this section. If a flexible operation unit does not use or manufacture any organic HAP during the manufacture of one or more products, paragraph (f)(5)(i) of this section applies to that flexible operation unit.

(i) If a process unit only manufactures one product, then that product shall represent the primary product of the process unit.

(ii) If a process unit produces more than one intended product at the same time, the primary product shall be determined in accordance with paragraph (f)(1)(ii)(A) or (B) of this section.

(A) The product for which the process unit has the greatest annual design capacity on a mass basis shall represent the primary product of the process unit, or

(B) If a process unit has the same maximum annual design capacity on a mass basis for two or more products, and if one of those products is an elastomer product, then the elastomer product shall represent the primary product of the process unit.

(iii) If a process unit is designed and operated as a flexible operation unit, the primary product shall be determined as specified in paragraphs (f)(1)(iii)(A) or (B) of this section based on the anticipated operations for the 5 years following September 5, 1996 at existing process units, or for the first year after the process unit begins production of any product for new process units. If operations cannot be anticipated sufficiently to allow the determination of the primary product for the specified period, applicability shall be determined in accordance with paragraph (f)(2) of this section.

(A) If the flexible operation unit will manufacture one product for the greatest operating time over the specified five year period for existing process units, or the specified one year period for new process units, then that product shall represent the primary product of the flexible operation unit.

(B) If the flexible operation unit will manufacture multiple products equally based on operating time, then the product with the greatest expected production on a mass basis over the specified five year period for existing process units, or the specified one year period for new process units shall represent the primary product of the flexible operation unit.

(iv) If, according to paragraph (f)(1)(i), (ii), or (iii) of this section, the primary product of a process unit is an elastomer product, then that process unit shall be designated as an EPPU. That EPPU and associated equipment, as listed in paragraph (a)(4) of this section, is either an affected source, or part of an affected source comprised of other EPPU and associated equipment, as listed in paragraph (a)(4) of this section, subject to this subpart with the same primary product at the same plant site that is a major source. If the primary product of a process unit is determined to be a product that is not an elastomer product, then that process unit is not an EPPU.

(2) If the primary product cannot be determined for a flexible operation unit in accordance with paragraph (f)(1)(iii) of this section, applicability shall be determined in accordance with this paragraph.

(i) If the owner or operator cannot determine the primary product in accordance with paragraph (f)(1)(iii) of this section, but can determine that an elastomer product is not the primary product, then that flexible operation unit is not an EPPU.

(ii) If the owner or operator cannot determine the primary product in accordance with paragraph (f)(1)(iii) of this section, and cannot determine that an elastomer product is not the primary product as specified in paragraph (f)(2)(i) of this section, applicability shall be determined in accordance with paragraph (f)(2)(ii)(A) or (f)(2)(ii)(B) of this section.

(A) If the flexible operation unit is an existing process unit, the flexible operation unit shall be designated as an EPPU if an elastomer product was produced for 5 percent or greater of the total operating time of the flexible operation unit since March 9, 1999. That EPPU and associated equipment, as listed in paragraph (a)(4) of this section, is either an affected source, or part of an affected source comprised of other EPPU and associated equipment, as listed in paragraph (a)(4) of this section, subject to this subpart with the same primary product at the same plant site that is a major source. For a flexible operation unit that is designated as an EPPU in accordance with this paragraph, the elastomer product produced for the greatest amount of time since March 9, 1999 shall be designated as the primary product of the EPPU.

(B) If the flexible operation unit is a new process unit, the flexible operation unit shall be designated as an EPPU if the owner or operator anticipates that an elastomer product will be manufactured in the flexible operation unit at any time in the first year after the date the unit begins production of any product. That EPPU and associated equipment, as listed in paragraph (a)(4) of this section, is either an affected source, or part of an affected source comprised of other EPPU and associated equipment, as listed in paragraph (a)(4) of this section, subject to this subpart with the same primary product at the same plant site that is a major source. For a process unit that is designated as an EPPU in accordance with this paragraph, the elastomer product that will be produced shall be designated as the primary product of the EPPU. If more than one elastomer product will be produced, the owner or operator may select which elastomer product is designated as the primary product.

(3) Annual applicability determination for non-EPPUs that have produced an elastomer product. Once per year beginning September 5, 2001, the owner or operator of each flexible operation unit that is not designated as an EPPU, but that has produced an elastomer product at any time in the preceding five-year period or since the date that the unit began production of any product, whichever is shorter, shall perform the evaluation described in paragraphs (f)(3)(i) through (f)(3)(iii) of this section. However, an owner or operator that does not intend to produce any elastomer product in the future, in accordance with paragraph (f)(9) of this section, is not required to perform the evaluation described in paragraphs (f)(3)(i) through (f)(3)(iii) of this section.

(i) For each product produced in the flexible operation unit, the owner or operator shall calculate the percentage of total operating time over which the product was produced during the preceding five-year period.

(ii) The owner or operator shall identify the primary product as the product with the highest percentage of total operating time for the preceding five-year period.

(iii) If the primary product identified in paragraph (f)(3)(ii) is an elastomer product, the flexible operation unit shall be designated as an EPPU. The owner or operator shall notify the Administrator no later than 45 days after determining that the flexible operation unit is an EPPU, and shall comply with the requirements of this subpart in accordance with paragraph (i)(1) of this section for the flexible operation unit.

(4) Applicability determination for non-EPPUs that have not produced an elastomer product. The owner or operator that anticipates the production of an elastomer product in a process unit that is not designated as an EPPU, and in which no elastomer products have been produced in the previous 5 year period or since the date that the process unit began production of any product, whichever is shorter, shall determine if the process unit is subject to this subpart in accordance with paragraphs (f)(4)(i) and (ii) of this section. Also, owners or operators who have notified the Administrator that a process unit is not an EPPU in accordance with paragraph (f)(9) of this section, that now anticipate the production of an elastomer product in the process unit, shall determine if the process unit is subject to this subpart in accordance with paragraphs (f)(4)(i) and (ii) of this section.

(i) The owner or operator shall use the procedures in paragraph (f)(1) or (f)(2) of this section to determine if the process unit is designated as an EPPU, with the following exception: for existing process units that are determining the primary product in accordance with paragraph (f)(1)(iii) of this section, production shall be projected for the five years following the date that the owner or operator anticipates initiating the production of an elastomer product.

(ii) If the unit is designated as an EPPU in accordance with paragraph (f)(4)(i) of this section, the owner or operator shall comply in accordance with paragraph (i)(1) of this section.

(5) Compliance for flexible operation units. Owners or operators of EPPUs that are flexible operation units shall comply with the standards specified for the primary product, with the exceptions provided in paragraphs (f)(5)(i) and (f)(5)(ii) of this section.

(i) Whenever a flexible operation unit manufactures a product in which no organic HAP is used or manufactured, the owner or operator is only required to comply with either paragraph (b)(1) or (b)(2) of this section to demonstrate compliance for activities associated with the manufacture of that product. This subpart does not require compliance with the provisions of subpart A of this part for activities associated with the manufacture of a product that meets the criteria of paragraph (b) of this section.

(ii) Whenever a flexible operation unit manufactures a product that makes it subject to subpart GGG of this part, the owner or operator is not required to comply with the provisions of this subpart during the production of that product.

(6) Owners or operators of EPPUs that are flexible operation units have the option of determining the group status of each emission point associated with the flexible operation unit, in accordance with either paragraph (f)(6)(i) or (f)(6)(ii) of this section, with the exception of batch front-end process vents. For batch front-end process vents, the owner or operator shall determine the group status in accordance with §63.488.

(i) The owner or operator may determine the group status of each emission point based on emission point characteristics when the primary product is being manufactured.

(ii) The owner or operator may determine the group status of each emission point separately for each product produced by the flexible operation unit. For each product, the group status shall be determined using the emission point characteristics when that product is being manufactured and using the Group 1 criteria specified for the primary product. (Note: Under this scenario, it is possible that the group status, and therefore the requirement to achieve emission reductions, for an emission point may change depending on the product being manufactured.)

(7) Owners or operators determining the group status of emission points in flexible operation units based solely on the primary product in accordance with paragraph (f)(6)(i) of this section shall establish parameter monitoring levels, as required, in accordance with either paragraph (f)(7)(i) or (f)(7)(ii) of this section. Owners or operators determining the group status of emission points in flexible operation units based on each product in accordance with paragraph (f)(6)(ii) of this section shall establish parameter monitoring levels, as required, in accordance with paragraph (f)(7)(i) of this section.

(i) Establish separate parameter monitoring levels in accordance with §63.505(a) for each individual product.

(ii) Establish a single parameter monitoring level (for each parameter required to be monitored at each device subject to monitoring requirements) in accordance with §63.505(a) that would apply for all products.

(8) Reporting requirements. When it is determined that a process unit is an EPPU and subject to the requirements of this subpart, the Notification of Compliance Status required by §63.506(e)(5) shall include the information specified in paragraphs (f)(8)(i) and (f)(8)(ii) of this section, as applicable. If it is determined that the process unit is not subject to this subpart, the owner or operator shall either retain all information, data, and analysis used to document the basis for the determination that the primary product is not an elastomer product, or, when requested by the Administrator, demonstrate that the process unit is not subject to this subpart.

(i) If the EPPU manufactures only one elastomer product, identification of that elastomer product.

(ii) If the EPPU is designed and operated as a flexible operation unit, the information specified in paragraphs (f)(8)(ii)(A) through (f)(8)(ii)(D) of this section, as appropriate, shall be submitted.

(A) If a primary product could be determined, identification of the primary product.

(B) Identification of which compliance option, either paragraph (f)(6)(i) or (f)(6)(ii) of this section, has been selected by the owner or operator.

(C) If the option to establish separate parameter monitoring levels for each product in paragraph (f)(7)(i) of this section is selected, the identification of each product and the corresponding parameter monitoring level.

(D) If the option to establish a single parameter monitor level in paragraph (f)(7)(ii) of this section is selected, the parameter monitoring level for each parameter.

(9) EPPUs terminating production of all elastomer products. If an EPPU terminates the production of all elastomer products and does not anticipate the production of any elastomer products in the future, the process unit is no longer an EPPU and is not subject to this subpart after notification is made to the Administrator. This notification shall be accompanied by a rationale for why it is anticipated that no elastomer products will be produced in the process unit in the future.

(10) Redetermination of applicability to EPPUs that are flexible operation units. Whenever changes in production occur that could reasonably be expected to change the primary product of an EPPU that is operating as a flexible operation unit from an elastomer product to a product that would make the process unit subject to another subpart of this part, the owner or operator shall re-evaluate the status of the process unit as an EPPU in accordance with paragraphs (f)(10)(i) through (iii) of this section.

(i) For each product produced in the flexible operation unit, the owner or operator shall calculate the percentage of total operating time in which the product was produced for the preceding five-year period, or since the date that the process unit began production of any product, whichever is shorter.

(ii) The owner or operator shall identify the primary product as the product with the highest percentage of total operating time for the period.

(iii) If the conditions in (f)(10)(iii)(A) through (C) of this section are met, the flexible operation unit shall no longer be designated as an EPPU after the compliance date of the other subpart and shall no longer be subject to the provisions of this subpart after the date that the process unit is required to be in compliance with the provisions of the other subpart of this part to which it is subject. If the conditions in paragraphs (f)(10)(iii)(A) through (C) of this section are not met, the flexible operation unit shall continue to be considered an EPPU and subject to the requirements of this subpart.

(A) The product identified in (f)(10)(ii) of this section is not an elastomer product; and

(B) The production of the product identified in (f)(10)(ii) of this section is subject to another subpart of this part; and

(C) The owner or operator submits a notification to the Administrator of the pending change in applicability.

(g) Storage vessel ownership determination. The owner or operator shall follow the procedures specified in paragraphs (g)(1) through (g)(7) of this section to determine to which process unit a storage vessel shall be assigned. Paragraph (g)(8) of this section specifies when an owner or operator is required to redetermine to which process unit a storage vessel is assigned.

(1) If a storage vessel is already subject to another subpart of 40 CFR part 63 on September 5, 1996, that storage vessel shall be assigned to the process unit subject to the other subpart.

(2) If a storage vessel is dedicated to a single process unit, the storage vessel shall be assigned to that process unit.

(3) If a storage vessel is shared among process units, then the storage vessel shall be assigned to that process unit located on the same plant site as the storage vessel that has the greatest input into or output from the storage vessel (i.e., the process unit that has the predominant use of the storage vessel.)

(4) If predominant use cannot be determined for a storage vessel that is shared among process units and if only one of those process units is an EPPU subject to this subpart, the storage vessel shall be assigned to that EPPU.

(5) If predominant use cannot be determined for a storage vessel that is shared among process units and if more than one of the process units are EPPUs that have different primary products and that are subject to this subpart, then the owner or operator shall assign the storage vessel to any one of the EPPUs sharing the storage vessel.

(6) If the predominant use of a storage vessel varies from year to year, then predominant use shall be determined based on the utilization that occurred during the year preceding September 5, 1996 or based on the expected utilization for the 5 years following September 5, 1996, whichever is more representative of the expected operations for that storage vessel for existing affected sources, and based on the expected utilization for the first 5 years after initial start-up for new affected sources. The determination of predominant use shall be reported in the Notification of Compliance Status, as required by §63.506(e)(5)(vii).

(7) Where a storage vessel is located at a major source that includes one or more process units which place material into, or receive materials from the storage vessel, but the storage vessel is located in a tank farm (including a marine tank farm), the applicability of this subpart shall be determined according to the provisions in paragraphs (g)(7)(i) through (g)(7)(iv) of this section.

(i) The storage vessel may only be assigned to a process unit that utilizes the storage vessel and does not have an intervening storage vessel for that product (or raw material, as appropriate). With respect to any process unit, an intervening storage vessel means a storage vessel connected by hard-piping both to the process unit and to the storage vessel in the tank farm so that product or raw material entering or leaving the process unit flows into (or from) the intervening storage vessel and does not flow directly into (or from) the storage vessel in the tank farm.

(ii) If there is no process unit at the major source that meets the criteria of paragraph (g)(7)(i) of this section with respect to a storage vessel, this subpart does not apply to the storage vessel.

(iii) If there is only one process unit at the major source that meets the criteria of paragraph (g)(7)(i) of this section with respect to a storage vessel, the storage vessel shall be assigned to that process unit. Applicability of this subpart to the storage vessel shall then be determined according to the provisions of paragraph (a) of this section.

(iv) If there are two or more process units at the major source that meet the criteria of paragraph (g)(7)(i) of this section with respect to a storage vessel, the storage vessel shall be assigned to one of those process units according to the provisions of paragraphs (g)(3) through (g)(6) of this section. The predominant use shall be determined among only those process units that meet the criteria of paragraph (g)(7)(i) of this section.

(8) If the storage vessel begins receiving material from (or sending material to) a process unit that was not included in the initial determination, or ceases to receive material from (or send material to) a process unit that was included in the initial determination, the owner or operator shall reevaluate the applicability of this subpart to that storage vessel.

(h) Recovery operations equipment ownership determination. The owner or operator shall follow the procedures specified in paragraphs (h)(1) through (h)(6) of this section to determine to which process unit recovery operations equipment shall be assigned. Paragraph (h)(7) of this section specifies when an owner or operator is required to redetermine to which process unit the recovery operations equipment is assigned.

(1) If recovery operations equipment is already subject to another subpart of 40 CFR part 63 on September 5, 1996, that recovery operations equipment shall be assigned to the process unit subject to the other subpart.

(2) If recovery operations equipment is dedicated to a single process unit, the recovery operations equipment shall be assigned to that process unit.

(3) If recovery operations equipment is shared among process units, then the recovery operations equipment shall be assigned to that process unit located on the same plant site as the recovery operations equipment that has the greatest input into or output from the recovery operations equipment (i.e., that process unit has the predominant use of the recovery operations equipment).

(4) If predominant use cannot be determined for recovery operations equipment that is shared among process units and if one of those process units is an EPPU subject to this subpart, the recovery operations equipment shall be assigned to the EPPU subject to this subpart.

(5) If predominant use cannot be determined for recovery operation equipment that is shared among process units and if more than one of the process units are EPPUs that have different primary products and that are subject to this subpart, then the owner or operator shall assign the recovery operation equipment to any one of those EPPUs.

(6) If the predominant use of recovery operations equipment varies from year to year, then the predominant use shall be determined based on the utilization that occurred during the year preceding September 5, 1996 for existing affected sources or based on the expected utilization for the 5 years following September 5, 1996 for existing affected sources, whichever is the more representative of the expected operations for the recovery operations equipment, and based on the expected utilization for the first 5 years after initial start-up for new affected sources. The determination of predominant use shall be reported in the Notification of Compliance Status, as required by §63.506(e)(5)(viii).

(7) If a piece of recovery operations equipment begins receiving material from a process unit that was not included in the initial determination, or ceases to receive material from a process unit that was included in the initial determination, the owner or operator shall reevaluate the applicability of this subpart to that recovery operations equipment.

(i) Changes or additions to plant sites. The provisions of paragraphs (i)(1) through (i)(4) of this section apply to owners or operators that change or add to their plant site or affected source. Paragraph (i)(5) provides examples of what are and are not considered process changes for purposes of paragraph (i) of this section. Paragraph (i)(6) of this section discusses reporting requirements.

(1) Adding an EPPU to a plant site. The provisions of paragraphs (i)(1)(i) and (i)(1)(ii) of this section apply to owners or operators that add one or more EPPUs to a plant site.

(i) If a group of one or more EPPUs that produce the same primary product is added to a plant site, the added group of one or more EPPUs and associated equipment, as listed in paragraph (a)(4) of this section, shall be a new affected source and shall comply with the requirements for a new affected source in this subpart upon initial start-up or by June 19, 2000, whichever is later, if the added group of one or more EPPUs meets the criteria in either paragraph (i)(1)(i)(A) or (i)(1)(i)(B) of this section, and if the criteria in either paragraph (i)(1)(i)(C) or (i)(1)(i)(D) of this section are met.

(A) The construction of the group of one or more EPPUs commenced after June 12, 1995.

(B) The construction or reconstruction, for process units that have become EPPUs, commenced after June 12, 1995.

(C) The group of one or more EPPUs and associated equipment, as listed in paragraph (a)(4) of this section, has the potential to emit 10 tons per year or more of any HAP or 25 tons per year or more of any combination of HAP, and the primary product of the group of one or more EPPUs is currently produced at the plant site as the primary product of an affected source; or

(D) The primary product of the group of one or more EPPUs is not currently produced at the plant site as the primary product of an affected source, and the plant site meets, or after the addition of the group of one or more EPPUs and associated equipment, as listed in paragraph (a)(4) of this section, will meet the definition of a major source.

(ii) If a group of one or more EPPUs that produce the same primary product is added to a plant site, and the group of one or more EPPUs does not meet the criteria specified in paragraph (i)(1)(i) of this section, and the plant site meets, or after the addition will meet, the definition of a major source, the group of one or more EPPUs and associated equipment, as listed in paragraph (a)(4) of this section, shall comply with the requirements for an existing affected source in this subpart upon initial start-up; by June 19, 2001; or by 6 months after notifying the Administrator that a process unit has been designated as an EPPU (in accordance with paragraph (f)(3)(iii) of this section), whichever is later.

(2) Adding emission points or making process changes to existing affected sources. The provisions of paragraphs (i)(2)(i) through (i)(2)(ii) of this section apply to owners or operators that add emission points or make process changes to an existing affected source.

(i) If any components are replaced at an existing affected source such that the criteria specified in paragraphs (i)(2)(i)(A) through (i)(2)(i)(B) of this section are met, the entire affected source shall be a new affected source and shall comply with the requirements for a new affected source upon initial start-up or by June 19, 2000, whichever is later.

(A) The replacement of components meets the definition of reconstruction in §63.482(b); and

(B) Such reconstruction commenced after June 12, 1995.

(ii) If any components are replaced at an existing affected source such that the criteria specified in paragraphs (i)(2)(i)(A) and (i)(2)(i)(B) of this section are not met and that replacement of components creates one or more emission points (i.e., either newly created Group 1 emission points or emission points that change from Group 2 to Group 1) or causes any other emission point to be added (i.e., Group 2 emission points, back-end process operations subject to §§63.493 and 63.500, and heat exchange systems and equipment leak components subject to §63.502), the resulting emission point(s) shall be subject to the applicable requirements for an existing affected source. The resulting emission point(s) shall be in compliance by 120 days after the date of initial start-up or by the appropriate compliance date specified in §63.481 (i.e., July 31, 1997 for most equipment leak components subject to §63.502, and June 19, 2001 for emission points other than equipment leaks), whichever is later.

(iii) If an addition or process change (not including a process change that solely replaces components) is made that creates one or more Group 1 emission points (i.e., either newly created Group 1 emission points or emission points that change group status from Group 2 to Group 1) or causes any other emission point to be added (i.e., Group 2 emission points, back-end process operations subject to §§63.493 through 63.500, and heat exchange systems and equipment leak components subject to §63.502), the resulting emission point(s) shall be subject to the applicable requirements for an existing affected source. The resulting emission point(s) shall be in compliance by 120 days after the date of initial start-up or by the appropriate compliance date specified in §63.481 (i.e., July 31, 1997 for most equipment leak components subject to §63.502, and June 19, 2001 for emission points other than equipment leaks), whichever is later.

(3) Existing affected source requirements for surge control vessels and bottoms receivers that become subject to subpart H requirements. If a process change or the addition of an emission point causes a surge control vessel or bottoms receiver to become subject to §63.170 under this paragraph (i), the owner or operator shall be in compliance upon initial start-up or by June 19, 2001, whichever is later.

(4) Existing affected source requirements for compressors that become subject to subpart H requirements. If a process change or the addition of an emission point causes a compressor to become subject to §63.164 under this paragraph (i), the owner or operator shall be in compliance upon initial start-up or by the compliance date for that compressor, as specified in §63.481(d), whichever is later.

(5) Determining what are and are not process changes. For purposes of paragraph (i) of this section, examples of process changes include, but are not limited to, changes in feedstock type or process catalyst type, or whenever the replacement, removal, or addition of recovery equipment, or equipment changes that increase production capacity. For purposes of paragraph (i) of this section, process changes do not include: process upsets, unintentional temporary process changes, and changes that do not alter the equipment configuration and operating conditions.

(6) Reporting requirements for owners or operators that change or add to their plant site or affected source. Owners or operators that change or add to their plant site or affected source, as discussed in paragraphs (i)(1) and (i)(2) of this section, shall submit a report as specified in §63.506(e)(7)(v).

(j) Applicability of this subpart. Paragraphs (j)(1) through (4) of this section shall be followed during periods of non-operation of the affected source or any part thereof.

(1) The emission limitations set forth in this subpart and the emission limitations referred to in this subpart shall apply at all times except during periods of non-operation of the affected source (or specific portion thereof) resulting in cessation of the emissions to which this subpart applies. However, if a period of non-operation of one portion of an affected source does not affect the ability of a particular emission point to comply with the emission limitations to which it is subject, then that emission point shall still be required to comply with the applicable emission limitations of this subpart during the period of non-operation. For example, if there is an overpressure in the reactor area, a storage vessel that is part of the affected source would still be required to be controlled in accordance with the emission limitations in §63.484.

(2) The emission limitations set forth in subpart H of this part, as referred to in §63.502, shall apply at all times, except during periods of non-operation of the affected source (or specific portion thereof) in which the lines are drained and depressurized, resulting in cessation of the emissions to which §63.502 applies.

(3) The owner or operator shall not shut down items of equipment that are required or utilized for compliance with this subpart during times when emissions (or, where applicable, wastewater streams or residuals) are being routed to such items of equipment if the shutdown would contravene requirements of this subpart applicable to such items of equipment.

(4) In response to an action to enforce the standards set forth in this subpart, an owner or operator may assert an affirmative defense to a claim for civil penalties for exceedances of such standards that are caused by a malfunction, as defined in §63.2. Appropriate penalties may be assessed, however, if the owner or operator fails to meet the burden of proving all the requirements in the affirmative defense. The affirmative defense shall not be available for claims for injunctive relief.

(i) To establish the affirmative defense in any action to enforce such a limit, the owners or operators of a facility must timely meet the notification requirements of paragraph (j)(4)(ii) of this section, and must prove by a preponderance of evidence that:

(A) The excess emissions were caused by a sudden, infrequent, and unavoidable failure of air pollution control and monitoring equipment, or a process to operate in a normal and usual manner; and could not have been prevented through careful planning, proper design, or better operation and maintenance practices; did not stem from any activity or event that could have been foreseen and avoided, or planned for; and were not part of a recurring pattern indicative of inadequate design, operation, or maintenance;

(B) Repairs were made as expeditiously as possible when the applicable emission limitations were being exceeded. Off-shift and overtime labor were used, to the extent practicable to make these repairs;

(C) The frequency, amount, and duration of the excess emissions (including any bypass) were minimized to the maximum extent practicable during periods of such emissions;

(D) If the excess emissions resulted from a bypass of control equipment or a process, then the bypass was unavoidable to prevent loss of life, personal injury, or severe property damage;

(E) All possible steps were taken to minimize the impact of the excess emissions on ambient air quality, the environment, and human health;

(F) All emissions monitoring and control systems were kept in operation, if at all possible, consistent with safety and good air pollution control practices;

(G) All of the actions in response to the excess emissions were documented by properly signed, contemporaneous operating logs;

(H) At all times, the facility was operated in a manner consistent with good practices for minimizing emissions; and

(I) The owner or operator has prepared a written root cause analysis, the purpose of which is to determine, correct, and eliminate the primary causes of the malfunction and the excess emissions resulting from the malfunction event at issue. The analysis shall also specify, using the best monitoring methods and engineering judgment, the amount of excess emissions that were the result of the malfunction.

(ii) Notification. The owner or operator of the facility experiencing an exceedance of its emission limit(s) during a malfunction shall notify the Administrator by telephone or facsimile (FAX) transmission as soon as possible, but no later than 2 business days after the initial occurrence of the malfunction, if it wishes to avail itself of an affirmative defense to civil penalties for that malfunction. The owner or operator seeking to assert an affirmative defense shall also submit a written report to the Administrator within 45 days of the initial occurrence of the exceedance of the standard in this subpart to demonstrate, with all necessary supporting documentation, that it has met the requirements set forth in paragraph (j)(4)(i) of this section. The owner or operator may seek an extension of this deadline for up to 30 additional days by submitting a written request to the Administrator before the expiration of the 45 day period. Until a request for an extension has been approved by the Administrator, the owner or operator is subject to the requirement to submit such report within 45 days of the initial occurrence of the exceedance.

[62 FR 46925, Sept. 5, 1996, as amended at 65 FR 38036, June 19, 2000; 66 FR 36927, July 16, 2001; 71 FR 20456, Apr. 20, 2006; 76 FR 22586, Apr. 21, 2011]