4.1 Overview of 4.0 of this regulation

The 4.0 of this regulation consists of two separate sets of requirements. One set of requirements, which are included in 4.2 through 4.6 of this regulation, implement the Section 112(g)(2)(B) provisions of the Act. These requirements apply to owners or operators who construct or reconstruct a major source of hazardous air pollutants after June 29, 1998. The Department adopted these requirements into this regulation in April 1998.

The other set of requirements, which are included in 4.12 through 4.18 of this regulation, implement the Section 112(j) provisions of the Act. These requirements apply to owners or operators of any collection of equipment defined in a Section 112(c) (of the Act) source category for which the Administrator has failed to promulgate an emission standard by the Section 112(j) deadline and the collection of equipment is located at a source that is subject to 7 DE Admin. Code 1130.

The 4.7 through 4.11 of this regulation have been reserved.

4.2 Applicability of 4.2 through 4.6 of this regulation.

4.2.1 Applicability.

The requirements of 4.2 through 4.6 of this regulation carry out Section 112(g)(2)(B) of the Act.

4.2.2 Overall requirements.

The requirements of 4.2 through 4.6 of this regulation apply to any owner or operator who constructs or reconstructs a major source of hazardous air pollutants after June 29, 1998 unless 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) of the Act and incorporated in another subpart of 40 CFR Part 63, or the owner or operator of such major source has received all necessary air quality permits for such construction or reconstruction project before June 29, 1998.

4.2.3 Exclusion for electric utility steam generating units.

The requirements in 4.0 of this regulation do not apply to electric utility steam generating units unless and until such time as these units are added to the source category list pursuant to Section 112(c)(5) of the Act.

4.2.4 Relationship to State and local requirements.

Nothing in 4.0 of this regulation shall prevent a state or local agency from imposing more stringent requirements than those contained in this section.

4.2.5 Exclusion for stationary sources in deleted source categories.

The requirements in 4.0 of this regulation do not apply to stationary sources that are within a source category that has been deleted from the source category list pursuant to Section 112(c)(9) of the Act.

4.2.6 Exclusion for research and development activities.

The requirements in 4.2 through 4.6 of this regulation do not apply to research and development activities, as defined in 4.3 of this regulation.

4.3 Definitions.

Unless defined below, all terms in 4.2 through 4.6 of this regulation have the meaning given to them in the Act or in 2.0 of this regulation.

“Affected source” means the stationary source or group of stationary sources which, when fabricated (on site), erected, or installed meets the definition of “construct a major source” or the definition of “reconstruct a major source” contained in 4.3 of this regulation.

“Affected States” are all States:

• Whose air quality may be affected and that are contiguous to the State in which a MACT determination is made in accordance with 4.2 through 4.6 of this regulation or

• Whose air quality may be affected and that are within 50 miles of the major source for which a MACT determination is made in accordance with 4.2 through 4.6 of this regulation.

“Available information” means, for purposes of 4.2 through 4.6 of this regulation, information contained in the following information sources as of the date of issuance of the construction permit which incorporates the final and effective case-by-case MACT determination:

• A relevant proposed regulation, including all supporting information;

• Background information documents for a draft or proposed regulation;

• Data and information available from the Control Technology Center developed pursuant to Section 113 of the Act;

• Data and information contained in the Aerometric Informational Retrieval System including information in the MACT data base;

• Any additional information that can be expeditiously provided by the Administrator or Department; and

• For the purpose of determinations by the permitting authority, any additional information provided by the applicant or others, and any additional information considered available by the permitting authority.

“Construct a major source” means:

• To fabricate, erect, or install at any greenfield site a stationary source or group of stationary sources which is located within a contiguous area and under common control and which emits or has the potential to emit 10 tons per year of any hazardous air pollutant or 25 tons per year of any combination of hazardous air pollutants or

• To fabricate, erect, or install at any developed site a new process or production unit which in and of itself emits or has the potential to emit 10 tons per year of any hazardous air pollutant or 25 tons per year of any combination of hazardous air pollutants, unless the process or production unit satisfies the following criteria in this definition.

• All hazardous air pollutants emitted by the process or production unit that would otherwise be controlled under the requirements of 4.2 through 4.6 of this regulation will be controlled by emission control equipment which was previously installed at the same site as the process or production unit;

• Either of the following two criteria:

• The permitting authority has determined within a period of five years prior to the fabrication, erection, or installation of the process or production unit that the existing emission control equipment represented best available control technology (BACT) or lowest achievable emission rate (LAER) under 7 DE Admin. Code 1125 of the State of Delaware “Regulations Governing the Control of Air Pollution” for those hazardous air pollutants to be emitted by the process or production unit or

• The permitting authority determines that the control of hazardous air pollutant emissions provided by the existing equipment will be equivalent to that level of control currently achieved by other well-controlled similar sources (i.e., equivalent to the level of control that would be provided by a current BACT or LAER determination);

• The permitting authority determines that the percent control efficiency for emissions of hazardous air pollutants from all sources to be controlled by the existing control equipment will be equivalent to the percent control efficiency provided by the control equipment prior to the inclusion of the new process or production unit;

• The permitting authority has provided notice and an opportunity for public comment concerning its determination that above criteria in this definition apply and concerning the continued adequacy of any prior LAER or BACT determination;

• If any commenter has asserted that a prior LAER or BACT determination is no longer adequate, the permitting authority has determined that the level of control required by that prior determination remains adequate; and

• Any emission limitations, work practice requirements, or other terms and conditions upon which the above determinations are made by the permitting authority are applicable requirements under Section 504(a) of the Act and under 6.0 of 7 DE Admin. Code 1130 of the State of Delaware “Regulations Governing the Control of Air Pollution” and either have been incorporated into any existing 7 DE Admin. Code 1130 permit for the affected facility or will be incorporated into such permit upon issuance or revision.

“Construction permit” means a construction permit issued pursuant to 7 DE Admin. Code 1102 or 1125 of the State of Delaware “Regulations Governing the Control of Air Pollution”.

“Control technology” means measures, processes, methods, systems, or techniques to limit the emission of hazardous air pollutants in a way that would --

• Reduce the quantity of, or eliminate emissions of, such pollutants through process changes, substitution of materials or other modifications;

• Enclose systems or processes to eliminate emissions;

• Collect, capture or treat such pollutants when released from a process, stack, storage or fugitive emissions point;

• Are design, equipment, work practice, or operational standards (including requirements for operator training or certification) as provided in 42 U.S.C. 7412(h); or

• Are any combination of the above.

“Electric utility steam generating unit” means any fossil fuel fired combustion unit that serves a generator with a nameplate capacity of more than 25 megawatts that produces electricity for sale. A unit that co-generates steam and electricity and supplies more than one-third of its nameplate electric output capacity and more than 25 megawatts electric output to any utility power distribution system for sale shall be considered an electric utility steam generating unit.

“Greenfield site” means a contiguous area under common control that is an undeveloped site.

“List of Source Categories” means the Source Category List required by Section 112(c) of the Act.

“Maximum achievable control technology (MACT) emission limitation for new sources” means the emission limitation which is not less stringent that the emission limitation achieved in practice by the best controlled similar source, and which reflects the maximum degree of reduction in emissions that the permitting authority, taking into consideration the cost of achieving such emission reduction, and any non-air quality health and environmental impacts and energy requirements, determines is achievable by the constructed or reconstructed major source.

“Permitting authority” means the Department of Natural Resources and Environmental Control as defined in 29 Del.C., Ch 80, as amended.

“Process or production unit” means any collection of structures or equipment, that processes, assembles, applies, or otherwise uses material inputs to produce or store an intermediate or final product. A single facility may contain more than one process or production unit.

“Reconstruct a major source” means the replacement of components at an existing process or production unit that in and of itself emits or has the potential to emit 10 tons per year of any hazardous air pollutant or 25 tons per year of any combination of hazardous air pollutants, whenever:

• The fixed capital cost of the new components exceeds 50% of the fixed capital cost that would be required to construct a comparable process or production unit and

• It is technically and economically feasible for the reconstructed major source to meet the applicable maximum achievable control technology emission limitation for new sources established under 4.2 through 4.6 of this regulation.

“Research and development activities” means activities conducted at a research or laboratory facility whose primary purpose is to conduct research and development into new processes and products, where such source is operated under the close supervision of technically trained personnel and is not engaged in the manufacture of products for sale or exchange for commercial profit, except in a de minimis manner.

“Similar source” means a stationary source or process that has comparable emissions and is structurally similar in design and capacity to a constructed or reconstructed major source such that the source could be controlled using the same control technology.

4.4 Program requirements governing construction or reconstruction of major sources.

4.4.1 [Reserved].

4.4.2 [Reserved].

4.4.3 Prohibition.

After June 29, 1998, no person may begin actual construction or reconstruction of a major source of hazardous air pollutants unless:

4.4.3.1 The major source in question has been specifically regulated or exempted from regulation under a standard in 40 CFR Part 63 issued pursuant to Section 112(d), Section 112(h) or Section 112(j) of the Act , and the owner or operator has fully complied with all procedures and requirements for preconstruction review established by that standard, including any applicable requirements set forth in 2.0 of this regulation or

4.4.3.2 The permitting authority has issued a construction permit which incorporates a final and effective case-by-case determination pursuant to the provisions of 4.5 of this regulation; requiring the emissions from the constructed or reconstructed major source to be controlled to a level no less stringent than the maximum achievable control technology emission limitation for new sources.

4.5 Maximum achievable control technology (MACT) determinations for constructed and reconstructed major sources.

4.5.1 Applicability.

The requirements in 4.5 of this regulation apply to an owner or operator who constructs or reconstructs a major source of hazardous air pollutants subject to a case-by-case determination of maximum achievable control technology pursuant to 4.4.3 of this regulation.

4.5.2 Requirements for constructed and reconstructed major sources.

When a case-by-case determination of MACT is required by 4.4.3 of this regulation, the owner or operator shall obtain from the permitting authority an approved MACT determination pursuant to 4.5.3 of this regulation.

4.5.3 Review options.

4.5.3.1 [Reserved].

4.5.3.2 The owner or operator shall follow all procedures in 7 DE Admin. Code 1102 or 1125, as appropriate, except that --

4.5.3.2.1 The provisions of 2.2 of 7 DE Admin. Code 1102 do not apply to any owner or operator that is subject to the requirements of 4.2 through 4.6 of this regulation and

4.5.3.2.2 In addition to the provisions of 11.10 of 7 DE Admin. Code 1102, the final MACT determination and the construction permit shall expire if construction or reconstruction has not commenced within 18 months of permit issuance. The owner or operator may request and the permitting authority may grant an extension which shall not exceed an additional 12 months.

4.5.3.3 When desiring alternative operating scenarios, an owner or operator may request approval of case-by-case MACT determinations for each alternative operating scenario. Approval of such determinations satisfies the requirements of Section 112(g) of the Act for each such scenario.

4.5.3.4 The MACT emission limitation and requirements established in the approved construction permit shall be effective as required in 4.5.10 of this regulation, consistent with the principles established in 4.5.4 of this regulation, and supported by the information listed in 4.5.5 of this regulation. The owner or operator shall comply with the requirements in 4.5.11 and 4.5.12 of this regulation, and with all applicable requirements in 3.0 of this regulation.

4.5.4 Principles of MACT determinations.

The following general principles shall govern preparation by the owner or operator of each construction permit application requesting a case-by-case MACT determination concerning construction or reconstruction of a major source, and all subsequent review of and actions taken concerning such an application by the permitting authority:

4.5.4.1 The MACT emission limitation or MACT requirements recommended by the applicant and approved by the permitting authority shall not be less stringent than the emission control which is achieved in practice by the best controlled similar source, as determined by the permitting authority.

4.5.4.2 Based upon available information, as defined in 4.3 of this regulation section, the MACT emission limitation and control technology (including any requirements in 4.5.4.3 of this regulation) recommended by the applicant and approved by the permitting authority shall achieve the maximum degree of reduction in emissions of hazardous air pollutants which can be achieved by utilizing those control technologies that can be identified from the available information, taking into consideration the costs of achieving such emission reduction and any non-air quality health and environmental impacts and energy requirements associated with the emission reduction.

4.5.4.3 The applicant may recommend a specific design, equipment, work practice, or operational standard, or a combination thereof, and the permitting authority may approve such a standard if the permitting authority specifically determines that it is not feasible to prescribe or enforce an emission limitation under the criteria set forth in Section 112(h)(2) of the Act.

4.5.4.4 If the Administrator has either proposed a relevant emission standard pursuant to Section 112(d) or Section 112(h) of the Act or adopted a presumptive MACT determination for the source category which includes the constructed or reconstructed major source, then the MACT requirements applied to the constructed or reconstructed major source shall have considered those MACT emission limitations and requirements of the proposed standard or presumptive MACT determination.

4.5.5 Application requirements for a case-by-case MACT determination.

4.5.5.1 An application for a MACT determination shall be submitted at the same time as the construction permit application and shall specify a control technology selected by the owner or operator that, if properly operated and maintained, will meet the MACT emission limitation or standard as determined according to the principles set forth in 4.5.4 of this regulation. At the time of submittal, the owner or operator shall request that the permit application be processed pursuant to 11.2.9 or 11.2.10 of 7 DE Admin. Code 1102, whichever is appropriate.

4.5.5.2 In each instance where a constructed or reconstructed major source would require additional control technology or a change in control technology, the application for a MACT determination shall contain, independent of the permit application, the following information:

4.5.5.2.1 The name and address (physical location) of the major source to be constructed or reconstructed;

4.5.5.2.2 reconstructed and identification of any listed source category or categories in which it is included;

4.5.5.2.3 The expected commencement date for the construction or reconstruction of the major source;

4.5.5.2.4 The expected completion date for construction or reconstruction of the major source;

4.5.5.2.5 The anticipated date of start-up for the constructed or reconstructed major source;

4.5.5.2.6 The hazardous air pollutants emitted by the constructed or reconstructed major source, and the estimated emission rate for each such hazardous air pollutant, to the extent this information is needed by the permitting authority to determine MACT;

4.5.5.2.7 Any federally enforceable emission limitations applicable to the constructed or reconstructed major source;

4.5.5.2.8 The maximum and expected utilization of capacity of the constructed or reconstructed major source, and the associated uncontrolled emission rates for that source, to the extent this information is needed by the permitting authority to determine MACT;

4.5.5.2.9 The controlled emissions for the constructed or reconstructed major source in tons/year at expected and maximum utilization of capacity, to the extent this information is needed by the permitting authority to determine MACT;

4.5.5.2.10 A recommended emission limitation for the constructed or reconstructed major source consistent with the principles set forth in 4.5.4 of this regulation;

4.5.5.2.11 The selected control technology to meet the recommended MACT emission limitation, including technical information on the design, operation, size, estimated control efficiency of the control technology (and the manufacturer's name, address, telephone number, and relevant specifications and drawings, if requested by the permitting authority);

4.5.5.2.12 Supporting documentation including identification of alternative control technologies considered by the applicant to meet the emission limitation, and analysis of cost and non-air quality health and environmental impacts or energy requirements for the selected control technology; and

4.5.5.2.13 Any other relevant information required pursuant to 2.0 of this regulation.

4.5.5.3 In each instance where the owner or operator contends that a constructed or reconstructed major source will be in compliance, upon startup, with case-by-case MACT under 4.2 through 4.6 of this regulation without a change in control technology, the application for a MACT determination shall contain, independent of the permit application, the following information:

4.5.5.3.1 The information described in 3.5.5.2.1 through 4.5.5.2.10 of this regulation and

4.5.5.3.2 Documentation of the control technology in place.

4.5.6 [Reserved].

4.5.7 [Reserved].

4.5.8 [Reserved].

4.5.9 EPA notification.

The permitting authority shall send notice of any approvals pursuant to 4.5.3.2 of this regulation to the Administrator through the appropriate Regional Office, and to all other State and local air pollution control agencies having jurisdiction in affected States.

4.5.10 Effective date.

The effective date of a MACT determination shall be the date the permitting authority issues the construction permit which incorporates the final and effective MACT determination.

4.5.11 Compliance date.

On and after the date of start-up, a constructed or reconstructed major source which is subject to the requirements in 4.2 through 4.6 of this regulation shall be in compliance with all applicable requirements specified in the MACT determination.

4.5.12 Compliance with MACT determinations.

4.5.12.1 An owner or operator of a constructed or reconstructed major source that is subject to a MACT determination shall comply with all requirements in the issued construction permit, including but not limited to any MACT emission limitation or MACT work practice standard, and any notification, operation and maintenance, performance testing, monitoring, reporting, and recordkeeping requirements.

4.5.12.2 An owner or operator of a constructed or reconstructed major source which has obtained a MACT determination shall be deemed to be in compliance with Section 112(g)(2)(B) of the Act only to the extent that the constructed or reconstructed major source is in compliance with all requirements set forth in the issued construction permit. Any violation of such requirements by the owner or operator shall be deemed by the permitting authority and by EPA to be a violation of the prohibition on construction or reconstruction in Section 112(g)(2)(B) for whatever period the owner or operator is determined to be in violation of such requirements, and shall subject the owner or operator to appropriate enforcement action under the Act.

4.5.13 Reporting to the Administrator.

Within 60 days of the issuance of a construction permit, the permitting authority shall provide a copy of such permit to the Administrator, and shall provide a summary in a compatible electronic format for inclusion in the MACT data base.

4.6 Requirements for constructed or reconstructed major sources subject to a subsequently promulgated MACT standard or MACT requirement.

4.6.1 If the Administrator promulgates an emission standard under Section 112(d) or Section 112(h) of the Act or the permitting authority issues a determination under Section 112(j) of the Act that is applicable to a stationary source or group of sources which would be deemed to be a constructed or reconstructed major source under 4.2 through 4.6 of this regulation before the date that the owner or operator has obtained a final and legally effective MACT determination pursuant to 4.5 of this regulation, the owner or operator of the sources shall comply with the promulgated standard or determination rather than any MACT determination under Section 112(g) of the Act by the permitting authority, and the owner or operator shall comply with the promulgated standard by the compliance date in the promulgated standard.

4.6.2 If the Administrator promulgates an emission standard under Section 112(d) or Section 112(h) of the Act or the permitting authority makes a determination under Section 112(j) of the Act that is applicable to a stationary source or group of sources which was deemed to be a constructed or reconstructed major source under 4.2 through 4.6 of this regulation and has been subject to a prior case-by-case MACT determination pursuant to 4.5 of this regulation, and the owner and operator obtained a final and legally effective case-by-case MACT determination prior to the promulgation date of such emission standard, then the permitting authority shall (if the initial 7 DE Admin. Code 1130 permit has not yet been issued) issue an initial operating permit which incorporates the emission standard or determination, or shall (if the initial 7 DE Admin. Code 1130 permit has been issued) revise the operating permit according to the reopening procedures in 7 DE Admin. Code 1130 to incorporate the emission standard or determination.

4.6.2.1 The EPA may include in the emission standard established under Section 112(d) or Section 112(h) of the Act a specific compliance date for those sources which have obtained a final and legally effective MACT determination under 4.2 through 4.6 of this regulation and which have submitted the information required in 4.5 of this regulation to the EPA before the close of the public comment period for the standard established under Section 112(d) of the Act. Such date shall assure that the owner or operator shall comply with the promulgated standard as expeditiously as practicable, but not longer than eight years after such standard is promulgated. In that event, the permitting authority shall incorporate the applicable compliance date in the 7 DE Admin. Code 1130 operating permit.

4.6.2.2 If no compliance date has been established in the promulgated Section 112(d) or Section 112(h) standard or Section 112(j) determination of the Act, for those sources which have obtained a final and legally effective MACT determination under 4.2 through 4.6 of this regulation, then the permitting authority shall establish a compliance date in the permit that assures that the owner or operator shall comply with the promulgated standard or determination as expeditiously as practicable, but not longer than eight years after such standard is promulgated or a Section 112(j) determination is made.

4.6.3 Notwithstanding the requirements in 4.6.1 and 4.6.2 of this regulation, if the Administrator promulgates an emission standard under Section 112(d) or Section 112(h) of the Act or the permitting authority issues a determination under Section 112(j) of the Act that is applicable to a stationary source or group of sources which was deemed to be a constructed or reconstructed major source under 4.2 through 4.6 of this regulation and which is the subject of a prior case-by-case MACT determination pursuant to 4.5 of this regulation, and the level of control required by the emission standard issued under Section 112(d) or Section 112(h) of the Act or the determination issued under Section 112(j) of the Act is less stringent than the level of control required by any emission limitation or standard in the prior MACT determination, the permitting authority is not required to incorporate any less stringent terms of the promulgated standard in the 7 DE Admin. Code 1130 operating permit applicable to such sources and may in its discretion consider any more stringent provisions of the prior MACT determination to be applicable legal requirements when issuing or revising such an operating permit.

4.7 [Reserved].

4.8 [Reserved].

4.9 [Reserved].

4.10 [Reserved].

4.11 [Reserved].

4.12 Applicability.

4.12.1 General applicability.

4.12.1.1 The requirements of 3.12 through 4.18 of this regulation implement Section 112(j) of the Act.

4.12.1.2 The requirements of 4.12 through 4.18 of this regulation apply to owners or operators of affected 112(j) sources that are located at a major source that is subject to 7 DE Admin. Code 1130 of the State of Delaware “Regulations Governing the Control of Air Pollution.”

4.12.1.3 The requirements of 4.12 through 4.18 of this regulation do not apply to research or laboratory activities as defined in 4.13 of this regulation.

4.12.2 Relationship to other State and Federal requirements.

The requirements of 4.12 through 4.18 of this regulation are additional to all other applicable State and Federal requirements.

4.13 Definitions.

Unless defined below, all terms in 4.12 through 4.18 of Section 4.0 of this regulation have the meaning given to them in the Act or in 2.0 of this regulation.

“Affected 112(j) source” means the collection of equipment, activities or both within a single contiguous area and under common control that is in a Section 112(c) (of the Act) source category for which the Administrator has failed to promulgate an emission standard by the Section 112(j) (of the Act ) deadline.

“Available information” means, for purposes of 4.12 through 4.18 of this regulation, any information contained in the following information sources as of issuance of a final and legally effective case-by-case MACT determination according to 4.17.1 of this regulation:

• A relevant proposed regulation, including all supporting information;

• Relevant background information documents for a draft or proposed regulation;

• Any relevant regulation, information or guidance collected by the Administrator establishing a MACT floor finding or MACT determination;

• Relevant data and information available from the Clean Air Technology Center developed according to Section 112(l)(3) of the Act;

• Relevant data and information contained in the Aerometric Information Retrieval System (AIRS) including information in the MACT database;

• Any additional information that can be expeditiously provided by the Administrator or Department;

• Any information provided by applicants in a Part 3 MACT application, an application for a permit, permit modification or administrative amendment according to the requirements 4.12 through 4.18 of this regulation; and

• Any additional relevant information provided by the applicant or others prior to or during the public comment period for a final and legally effective case-by-case MACT determination for an affected or a new affected 112(j) (of the Act) source.

“Control technology” means measures, processes, methods, systems or techniques to limit the emission of hazardous air pollutants in a way that would -

• Reduce the quantity of, or eliminate emissions of, such pollutants through process changes, substitution of materials or other modifications;

• Enclose systems or processes to eliminate emissions;

• Collect, capture or treat such pollutants when released from a process, stack, storage or fugitive emissions point;

• Are design, equipment, work practice or operational standards; or

• Are any combination of the above.

“Equivalent emission limitation” means an emission limitation, established under 4.12 through 4.18 of this regulation, which is equivalent to the MACT standard that the EPA would have promulgated under Section 112(d) or Section 112(h) of the Act, had they done so by the Section 112(j) (of the Act ) deadline.

“Existing source maximum achievable control technology (MACT) requirements” means the requirements, which include, where feasible, an equivalent emission limitation, reflecting the maximum degree of reduction in emissions of hazardous air pollutants that the Department, taking into consideration the cost of achieving such emission reductions and any non-air quality health and environmental impacts and energy requirements, determines is achievable by sources in the category to which such MACT standard applies. These requirements shall be based upon available information and shall not be less stringent than the MACT floor.

“Maximum achievable control technology (MACT) floor” means:

• For existing sources:

• The average emission limitation achieved by the best performing 12% of the existing sources (for which the Department or Administrator has emissions information), excluding those sources that have, within 18 months before the Department issues a final and legally effective MACT determination under 4.12 through 4.18 of this regulation, within 18 months before the emission standard is proposed or within 30 months before such standard is promulgated, whichever is later, first achieved a level of emission rate or emission reduction which complies, or would comply if the source is not subject to such standard, with the lowest achievable emission rate (as defined in Section 171 of the Act) applicable to the source category and prevailing at the time, in the category, for categories of stationary sources with 30 or more sources or

• The average emission limitation achieved by the best performing five sources (for which the Department or Administrator has emissions information) in the category, for categories with fewer than 30 sources.

• For new sources, the emission limitation achieved in practice by the best controlled source in the Section 112(c) (of the Act ) source category, where such source is equipment or collection of equipment that, by virtue of its structure, operability, type of emissions and volume and concentration of emissions, is substantially equivalent to the new affected 112(j) (of the Act) source and employs control technology for control of emissions of hazardous air pollutants that is practical for use on the new affected 112(j) source.

“New affected 112(j) source” means the collection of equipment, activities or both, that if constructed after the issuance of a final and legally effective case-by-case MACT determination according to 4.17.1 of this regulation, is subject to the applicable new source MACT requirements. According to 4.14.6.3.1 of this regulation, each permit shall define the term “new affected 112(j) source”, which will be the same as the “affected 112(j) source” unless a different collection is warranted based on consideration of factors including:

• Emission reduction impacts of controlling individual sources versus groups of sources;

• Cost effectiveness of controlling individual equipment;

• Flexibility to accommodate common control strategies;

• Cost/benefits of emissions averaging;

• Incentives for pollution prevention;

• Feasibility and cost of controlling processes that share common equipment (e.g., product recovery devices);

• Feasibility and cost of monitoring; and

• Other relevant factors.

“New source maximum achievable control technology (MACT) requirements” means the requirements, which include, where feasible, an equivalent emission limitation, which shall be based upon available information and shall not be less stringent than the MACT floor and which reflects the maximum degree of reduction in emissions of hazardous air pollutants that the Department, taking into consideration the cost of achieving such emission reduction and any non-air quality health and environmental impacts and energy requirements, determines is achievable by sources in the category to which such MACT standard applies.

“Research or laboratory activities” means activities whose primary purpose is to conduct research and development into new processes and products; where such activities are operated under the close supervision of technically trained personnel and are not engaged in the manufacture of products for commercial sale in commerce, except in a de minimis manner and where the source is not in a source category, specifically addressing research or laboratory activities, that is listed according to Section 112(c)(7) of the Act.

“Section 112(j) deadline” means the date 18 months after the date for which a relevant standard is scheduled to be promulgated under 40 CFR Part 63, except that for all major sources listed in those source categories scheduled to be promulgated by November 15, 1994, the Section 112(j) (of the Act) deadline is November 15, 1996 and for all major sources listed in those source categories scheduled to be promulgated by November 15, 1997, the Section 112(j) deadline is December 15, 1999.

4.14 Approval process for new and existing affected 112(j) sources.

4.14.1 Sources that are affected 112(j) sources on the Section 112(j) deadline.

4.14.1.1 Except as provided for in 4.14.1.2 of this regulation, the owner or operator of any source that is an affected 112(j) source on the Section 112(j) deadline shall comply with the following.

4.14.1.1.1 Submit to the Department by the Section 112(j) deadline:

4.14.1.1.1.1 A Part 1 MACT application according to 4.15.1 of this regulation or

4.14.1.1.1.2 If desired, a request for an applicability determination by the Department of whether a source is an affected 112(j) source.

4.14.1.1.2 An owner or operator that submitted a timely request for an applicability determination in accordance with 4.14.1.1.1.2 of this regulation that did not receive a response from the Department by May 11, 2003 shall submit the following:

4.14.1.1.2.1 A Part 2 MACT application in accordance with 4.14.1.1.3 of this regulation or

4.14.1.1.2.2 If needed, a new request for an applicability determination not later than July 11, 2003. Any such new request shall include the following:

4.14.1.1.2.2.1 Identification of the affected 112(j) source category for which the request is being made;

4.14.1.1.2.2.2 Description of the specific emission sources of concern;

4.14.1.1.2.2.3 The specific language in the EPA proposed standard associated with each specified concern identified in 4.14.1.1.2.2.2 of this regulation; and

4.14.1.1.2.2.4 Any additional information, as appropriate, that illustrates why a determination of applicability is still required.

4.14.1.1.3 Submit to the Department a Part 2 MACT application according to 4.15.2 of this regulation not later than the applicable “Part 2 Due Date” listed in Table 4-1 of this regulation, unless the Administrator has promulgated the final rule for the applicable source category or subcategory on or before the applicable “Part 2 Due Date”.

4.14.1.1.4 If desired, include with the Part 2 MACT application submitted according to 4.14.1.1.3 of this regulation, a Part 3 MACT application according to 4.15.3 of this regulation.

4.14.1.2 The owner or operator of any source that has received a final and legally effective case-by-case MACT determination under Section 112(g) of the Act according to 4.5 of this regulation on or before the Section 112(j) deadline shall submit a Part 1 MACT application to the Department by the Section 112(j) deadline.

4.14.2 Sources that become affected 112(j) sources after the Section 112(j) deadline and that do not have a permit addressing the Section 112(j) requirements of the Act.

4.14.2.1 The owner or operator of any source shall comply with 4.14.2.2 and 4.14.2.3 of this regulation, when Section 112(g) requirements are not invoked and when that source would become an affected 112(j) source due to:

4.14.2.1.1 Construction, reconstruction or modification;

4.14.2.1.2 Relaxation of any state or federally enforceable permit limitation; or

4.14.2.1.3 The Department, under 2.0 of this regulation, or the Administrator, under Section 112(a)(1) of the Act, establishes a lesser quantity emission threshold that results in a source becoming an affected 112(j) source.

4.14.2.2 The owner or operator of any source identified in 4.14.2.1 or 4.14.3.2.1 of this regulation shall submit the following to the Department:

4.14.2.2.1 Part 1, Part 2 and Part 3 MACT applications according to 4.15.1 through 4.15.3 of this section.

4.14.2.2.2 One of the following requests, as appropriate.

4.14.2.2.2.1 A request that any associated 7 DE Admin. Code 1102 construction permit be processed according to 11.2.10 of 7 DE Admin. Code 1102.

4.14.2.2.2.2 A request that the relaxation of any existing permit limitation specified in a 7 DE Admin. Code 1130 permit be processed as a significant permit modification.

4.14.2.2.2.3 A request that the relaxation of any existing permit limitation specified in a 7 DE Admin. Code 1102 operating permit, where there is an associated pending initial 7 DE Admin. Code 1130 permit, be processed according to 11.2.10 of 7 DE Admin. Code1102.

4.14.2.3 Where the relaxation of any existing permit limitation specified in a 7 DE Admin. Code1102 operating permit is requested, and there is not an associated 7 DE Admin. Code 1130 or pending initial 7 DE Admin. Code 1130 permit, operation as an affected 112(j) source shall not commence until a 7 DE Admin. Code 1130 permit that addresses the Section 112(j) requirements of the Act is issued by the Department.

4.14.2.4 The owner or operator of any source that would become an affected 112(j) source due to construction or reconstruction and Section 112(g) requirements of the Act are invoked shall apply for and obtain a final and legally effective case-by-case MACT determination according to 4.5 of this regulation.

(1) Includes Chromium Refractories Production.

(2) Two subcategories of Clay Products Manufacturing.

(3) Two source categories.

(4) Includes all sources within the Hydrochloric Acid Production standard that burn no hazardous waste and all acid production sources at fume silica facilities.

(5) Covers the 23 source categories listed in Table 4-2 of this regulation.

(6) Includes all sources in the Industrial/Commercial/Institutional Boilers and Process Heaters standard that burn no hazardous waste.

(7) Includes all sources in the Industrial/Commercial/Institutional Boilers and Process Heaters standard that burn hazardous waste.

(8) Includes furnaces that produce acid from hazardous waste at sources in the category Hydrochloric Acid Production.

4.14.3 Sources that have a permit addressing the section 112(j) requirements of the Act.

The requirements of 4.14.3.1 and 4.14.3.2 of this regulation apply to affected 112(j) sources that have a permit addressing the Section 112(j) requirements according to 4.12 through 4.18 of this regulation, but where changes to equipment, activities or both, subsequently, occur at the source.

4.14.3.1 If the existing permit already provides the appropriate requirements that address the subsequent changes that are to occur in 4.14.3 of this regulation, then that source shall comply with the applicable new source MACT requirements, and the Section 112(j) requirements are thus satisfied.

4.14.3.2 If the existing permit does not provide the appropriate requirements that address the subsequent changes that are to occur in 4.14.3 of this regulation, the owner or operator shall comply with 4.14.3.2.1 or 4.14.3.2.2 of this regulation, whichever appropriate.

4.14.3.2.1 If Section 112(g) requirements of the Act are not invoked, the owner or operator of that source shall comply with the provisions in 4.14.2.2 of this regulation.

4.14.3.2.2 If Section 112(g) requirements are invoked, the owner or operator of that source shall apply for and obtain a final and legally effective case-by-case MACT determination according to 4.5 of this regulation.

4.14.4 Applicability and equivalency determinations.

4.14.4.1 Applicability Determinations.

4.14.4.1.1 The Department shall review any request for an applicability determination when requested to do so according to 4.14.1.1.1.2 of this regulation. If the Department’s applicability determination is positive, the owner or operator shall comply with 4.14.1.1.3 and 4.14.1.1.4 of this regulation. If the Department’s applicability determination is negative, no further action by the owner or operator is necessary.

4.14.4.1.2 The Department shall review any request for an applicability determination resubmitted in accordance with 4.14.1.1.1.2 of this regulation not later than September 10, 2003. If the Department’s applicability determination is negative, no further action by the owner or operator is necessary. If the Department’s applicability determination is positive, the owner or operator shall comply with 4.14.1.1.3 and 4.14.1.1.4 of this regulation.

4.14.4.2 For any Part 1 application received pursuant to 4.14.1.2 of this regulation, the Department shall review the final and legally effective case-by-case MACT determination approved according to 4.5 of this regulation. If the Department determines that the emission limitations in that final and legally effective case-by-case MACT determination are substantially as effective as the emission limitations which the Department would otherwise adopt to effectuate Section 112(j) of the Act for that source, then the Department shall retain the existing emission limitations in the permit as the emission limitations to effectuate Section 112(j) of the Act by reopening the 7 DE Admin. Code 1130 permit for cause or amending the Regulation 1102 permit following the procedures in 12.4 through 12.6 of 7 DE Admin. Code 1102, as applicable. If the Department determines that the emission limitations in that final and legally effective case-by-case MACT determination are not substantially as effective as the emission limitations which the Department would otherwise adopt to effectuate Section 112(j) of the Act for that source, then the Department shall impose the requirements specified in 4.14.6.3 of this regulation by reopening the 7 DE Admin. Code 1130 permit for cause or amending the 7 DE Admin. Code 1102 permit following the procedures in 11.4 through 11.6 of 7 DE Admin. Code 1102, as applicable.

4.14.4.3 In issuing any final and legally effective case-by-case MACT determination according to 4.5 of this regulation after the Section 112(j) deadline (i.e., according to 4.14.2.4 or 4.14.3.2.2 of this regulation), the Department shall specify in that determination that the associated emission limitations effectuate both Section 112(g) and Section 112(j) requirements of the Act.

4.14.5 Completion determination and application shield.

4.14.5.1 Within 60 days of the receipt of the Part 2 or Part 3 MACT application, the Department shall notify the owner or operator in writing whether the application is complete or incomplete. The Part 2 or Part 3 MACT application shall be deemed complete unless the Department notifies the owner or operator in writing within 60 days of the submittal that the application is incomplete.

4.14.5.2 Following submittal of any application, the Department may request additional information from the owner or operator. The owner or operator shall respond to such requests in a timely manner.

4.14.5.3 If the owner or operator has submitted timely and complete applications as required by this section, any failure to have a 7 DE Admin. Code 1130 permit addressing the Section 112(j) requirements of the Act shall not be a violation of Section 112(j) of the Act, unless the delay in final action is due to the failure of the applicant to submit, in a timely manner, information required or requested to process the application. Once complete applications are submitted, the owner or operator shall not be in violation of the requirement to have a 7 DE Admin. Code 1130 permit addressing the Section 112(j) requirements of the Act.

4.14.6 Permit issuance and content.

4.14.6.1 For each Part 2 application received according to 4.14.1 of this regulation, the Department shall reopen the source’s 7 DE Admin. Code 1130 permit for cause according to the requirements of 7 DE Admin. Code 1130 and shall impose the requirements in 4.14.6.3 of this regulation, as appropriate, through the 7 DE Admin. Code 1130 permit. If the Department has not yet issued a 7 DE Admin. Code 1130 permit, the Department shall revise the applicable 7 DE Admin. Code 1102 operating permits using the procedures in 11.4 through 11.6 of 7 DE Admin. Code 1102.

4.14.6.2 For each Part 2 application received according to 4.14.2 or 4.14.3 of this regulation, the Department shall issue a 7 DE Admin. Code 1102 construction or operating permit using the procedures of 11.2.10 of 7 DE Admin. Code 1102, shall reopen the source’s 7 DE Admin. Code 1130 permit for cause, shall revise the source’s 7 DE Admin. Code 1130 permit as a significant permit revision or shall issue a 7 DE Admin. Code 1130 permit, as applicable, to impose the requirements in 4.14.6.3 of this regulation, as appropriate.

4.14.6.3 Permit requirements for affected 112(j) sources.

4.14.6.3.1 Identification of the affected 112(j) source and the new affected 112(j) source.

4.14.6.3.2 An equivalent emission limitation established by the Department that reflects existing source MACT requirements for the equipment and activities within the affected 112(j) source, based on the degree of emission reductions that can be achieved if the control technologies or work practices are installed, maintained and operated properly.

4.14.6.3.3 An equivalent emission limitation established by the Department that reflects new source MACT requirements for the equipment and activities within the affected 112(j) source, based on the degree of emission reductions that can be achieved if the control technologies or work practices are installed, maintained and operated properly.

4.14.6.3.4 In lieu of 4.14.6.3.2 and 4.14.6.3.3 of this regulation, any specific design, equipment, work practice or operational standard or combination thereof, when the Administrator or Department determines that hazardous air pollutants cannot be emitted through a conveyance designed and constructed to capture such pollutants, or that any requirement for, or use of, such a conveyance would be inconsistent with any Federal, State or local law, or the application of measurement methodology to a particular class of sources is not practicable due to technological and economic limitations.

4.14.6.3.5 The appropriate provisions of 2.0 of this regulation and the information specified in 4.14.6.3.5.1 through 4.14.6.3.5.3 of this regulation.

4.14.6.3.5.1 Any additional emission limits, production limits, operational limits or other terms and conditions necessary to ensure practicable enforceability of the MACT emission limitation.

4.14.6.3.5.2 Compliance certifications, testing, monitoring, reporting and recordkeeping requirements that are consistent with requirements established according to 7 DE Admin. Code 1130.

4.14.6.3.5.3 Compliance dates by which the owner or operator shall be in compliance with the MACT emission limitation and all other applicable terms and conditions of the permit.

4.14.6.3.5.3.1 The owner or operator of an affected 112(j) source subject to 4.14.1, 4.14.2 or 4.14.3.2 of this regulation shall comply with existing source MACT requirements by the date established in the source’s 7 DE Admin. Code 1130 or 7 DE Admin. Code 1102 permit, as applicable. The compliance date shall not be later than three years after the issuance of the permit for that source, except where the Department issues a permit that grants an additional year to comply in accordance with Section 112(i)(3)(B) of the Act or unless otherwise specified in Section 112(i) of the Act.

4.14.6.3.5.3.2 The owner or operator of a new affected 112(j) source subject to 4.14.3.1 of this regulation shall comply with new source MACT requirements immediately upon startup of the new affected 112(j) source.

4.14.7 Permit issuance dates.

The Department shall issue all permits that address the requirements in 4.12 through 4.18 of this regulation in accordance with the requirements of 7 DE Admin. Code 1102, 1125, or 1130 of the State of Delaware “Regulations Governing the Control of Air Pollution”, as is applicable.

4.14.8 MACT emission limitations.

4.14.8.1 Owners or operators of affected 112(j) sources subject to 4.14.1, 4.14.2 or 4.14.3.2 of this regulation shall comply with all requirements in 4.12 through 4.18 of this regulation that are applicable to affected 112(j) sources, including the compliance date for affected 112(j) sources established in 4.14.6.3.5.3.1 of this regulation.

4.14.8.2 Owners or operators of new affected 112(j) sources subject to 4.14.3.1 of this regulation shall comply with all requirements in 4.12 through 4.18 of this regulation that are applicable to new affected 112(j) sources, including the compliance date for new affected 112(j) sources established in 4.14.6.3.5.3.2 of this regulation.

4.15 Application content for case-by-case MACT determinations.

4.15.1 Part 1 MACT Application.

The Part 1 application for a MACT determination shall contain the information in 4.15.1.1 through 4.15.1.4 of this regulation.

4.15.1.1 The name and address (physical location) of the major source.

4.15.1.2 A brief description of the major source and an identification of the relevant source category.

4.15.1.3 An identification of the types of sources belonging to the relevant source category.

4.15.1.4 An identification of any affected 112(j) sources for which an application has been made for a final and legally effective case-by-case MACT determination under Section 112(g) of the Act according to 4.2 through 4.6 of this regulation.

4.15.2 Part 2 MACT Application.

The Part 2 application for a MACT determination shall contain the information in 13.15.2.1 through 13.15.2.6 of this regulation.

4.15.2.1 For an affected 112(j) source subject to construction, reconstruction or modification, the expected commencement date of installation, the expected completion date of installation and the anticipated date of startup of the affected 112(j) source.

4.15.2.2 The hazardous air pollutants emitted by each affected 112(j) source in the relevant source category and an estimated total uncontrolled and controlled emission rate for hazardous air pollutants from the affected 112(j) source.

4.15.2.3 Any existing Federal, State or local limitations or requirements applicable to the affected 112(j) source.

4.15.2.4 For each piece of equipment, activity or source, an identification of control technology in place.

4.15.2.5 Information relevant to establishing the MACT floors.

4.15.2.6 Certification by a responsible official of truth, accuracy, and completeness. This certification shall be signed by a responsible official and shall contain the following language: “I certify, based on information and belief formed after reasonable inquiry, the statements and information in the document are true, accurate, and complete.”

4.15.3 Part 3 MACT Application.

The Part 3 application for a MACT determination shall contain the information in 4.15.3.1 through 4.15.3.4 of this regulation.

4.15.3.1 Recommended MACT floors, an emission standard or emission limitation that is equivalent to existing source MACT requirements and an emission standard or emission limitation that is equivalent to new source MACT requirements for the affected 112(j) source, and supporting information consistent with 4.14.6 of this regulation. The owner or operator may recommend a specific design, equipment, work practice, operational standard or combination thereof, as an emission limitation.

4.15.3.2 Proposed control technology that, if properly operated and maintained, will meet, at minimum, the existing source and new source MACT requirements, including identification of the affected 112(j) sources to which the control technology shall be applied.

4.15.3.3 Relevant parameters to be monitored and frequency of monitoring to demonstrate continuous compliance with the MACT emission limitation over the applicable reporting period.

4.15.3.4 Certification by a responsible official of truth, accuracy, and completeness. This certification shall be signed by a responsible official and shall contain the following language: “I certify, based on information and belief formed after reasonable inquiry, the statements and information in the document are true, accurate, and complete.”

4.16 Pre-construction review procedures for affected 112(j) sources.

The owner or operator who constructs, reconstructs or modifies an affected 112(j) source after the Section 112(j) deadline shall follow the procedures established under 7 DE Admin. Code 1102, 1125 or 1130, as is applicable, before commencing construction, reconstruction, or modification of the affected 112(j) source.

4.17 Maximum achievable control technology (MACT) determinations for affected 112(j) sources subject to case-by-case determination of equivalent emission limitations.

4.17.1 Determination of case-by-case MACT requirements.

The Department shall issue final and legally effective case-by-case MACT determinations for affected 112(j) and new affected 112(j) sources that are consistent with the existing source MACT and the new source MACT requirements, as defined in 4.13 of this regulation.

4.17.2 Reporting to the Administrator.

The owner or operator shall submit copies of the Part 1, Part 2 and Part 3 MACT applications to the Administrator at the same time these applications are submitted to the Department.

4.18 Requirements for case-by-case determination of equivalent emission limitations after promulgation of subsequent MACT standard.

4.18.1 If the Administrator promulgates a relevant emission standard that is applicable to one or more affected 112(j) sources that are located at a major source before the date that the Department has issued a final and legally effective case-by-case MACT determinations according to 4.17.1 of this regulation, the 7 DE Admin. Code 1130 permit shall contain the promulgated standard rather than the emission limitation determined under 4.14 of this regulation, and the owner or operator shall comply with the promulgated standard by the compliance date in the promulgated standard.

4.18.2 If the Administrator promulgates a relevant emission standard that is applicable to one or more affected 112(j) sources that are located at a major source on or after the date that the Department has issued a final and legally effective case-by-case MACT determinations according to 4.17.1 of this regulation, the Department shall incorporate requirements of that standard in the 7 DE Admin. Code 1130 permit upon its next renewal. The Department shall establish a compliance date in the revised permit that assures that the owner or operator shall comply with the promulgated standard within a reasonable time, but not longer than eight years after such standard is promulgated or eight years after the issuance of the final and legally effective case-by-case MACT determinations according to 4.17.1 of this regulation, whichever is earlier. However, in no event shall the period for compliance for existing sources be shorter than that provided for existing sources in the promulgated standard.

4.18.3 Notwithstanding the requirements of 4.18.1 or 4.18.2 of this regulation, the requirements of 4.18.3.1 and 4.18.3.2 of this regulation shall apply.

4.18.3.1 If the Administrator promulgates an emission standard under Section 112(d) or Section 112(h) of the Act that is applicable to an affected 112(j) source after the date a final and legally effective case-by-case MACT determination is issued according to 4.17.1 of this regulation, the Department is not required to change the emission limitation in the permit to reflect the promulgated standard if the Department determines that the level of control required in that prior case-by-case MACT determinations is substantially as effective as that required by the promulgated standard according to 2.1.5 of this regulation.

4.18.3.2 If the Administrator promulgates an emission standard under Section 112(d) or Section 112(h) of the Act that is applicable to an affected 112(j) source after the date a final and legally effective case-by-case MACT determination is issued according to 4.17.1 of this regulation and the level of control required by the promulgated emission standard is less stringent than the level of control required by that prior case-by-case MACT determination, the Department may, but is not required to incorporate any less stringent emission limitation of the promulgated standard in the 7 DE Admin. Code 1130 permit applicable to such sources and shall consider any more stringent provisions of that prior case-by-case MACT determination to be applicable legal requirements when issuing or revising such a 7 DE Admin. Code 1130 permit.