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1. THE TIME FRAME FOR CONDUCTING STACK TESTS
• The primary issue is whether facilities can be granted an extension beyond the required time
period to complete an initial stack test under the general provisions of the NSPS, NESHAP, and
MACT programs. Individual standards may establish different time periods for testing, and
some may be shorter than the general provisions. For example, in 40 CFR § 63.152(b), the
Notice of Compliance Status must be submitted by sources subject to NSPS Subpart G within
150 calendar days after the specified compliance dates. In addition, individual standards may
allow facilities to petition for an extension of an initial (or subsequent) stack test. See, e.g., 40
CFR
§§ 63.1207(e)(3), 63.1207(i) (NSPS Subpart EEE).
• The time frame for conducting initial stack tests is established in 40 CFR § 60.8 for NSPS; and
40 CFR §§ 61.13 and 63.7 for NESHAP and MACT. Both the NSPS and MACT regulations
regarding performance tests include provisions under which owners or operators of facilities
shall notify appropriate authorities in the event that the scheduled test must be delayed, and
further discuss rescheduling of the test. 40 CFR §§ 60.8(d), 63.7(b)(2). The MACT provision
regarding rescheduling of performance tests further states: "This notification of delay in
conducting the performance test shall not relieve the owner or operator of legal responsibility for
compliance with any applicable provisions of this part or with any other applicable Federal,
state, or local requirement, nor will it prevent the Administrator from implementing or enforcing
this part or taking any other action under the Act." While these programs include provisions
regarding notification of a test delay and rescheduling of the test, there are no regulatory
provisions providing for extension of the testing deadlines in these programs, except in the event
of a force majeure. 40 CFR §§ 60.8(a)(1-4), 61.13(a)(3-6), 63.7(a)(4).
• A force majeure is defined by the applicable regulations as an event that will be or has been
caused by circumstances beyond the control of the affected facility, its contractors, or any entity
controlled by the affected facility that prevents the owner or operator from complying with the
regulatory requirement to conduct performance tests within the specified time frame despite the
affected facility’s best efforts to fulfill the obligation. Examples of such events are acts of
Page 7
nature, acts of war or terrorism, or equipment failure or safety hazard beyond the control of the
affected facility. 40 CFR §§ 60.2, 61.02, 63.2.
• If a claim of force majeure is to be asserted, the facility shall provide written notification to the
Administrator in accordance with the applicable regulations. The performance test shall be
conducted as soon as practicable after the force majeure occurs. Whether to grant an extension
to the performance test deadline is solely within the discretion of the Administrator. Until an
extension has been approved by the Administrator, the facility remains strictly subject to the
performance test requirements of the applicable regulations. 40 CFR §§ 60.8(a)(1-4),
61.13(a)(3-6), 63.7(a)(4).
• Because the applicable regulations governing initial stack tests do not provide for extensions
of the performance test deadline except in the event of a force majeure, a facility that has not
completed a stack test within the requisite time frame or has not received approval of an
extension due to force majeure would not be in compliance with the regulatory provisions to
stack test and demonstrate compliance with the underlying standard within the required
time period.
• Except for the circumstance whereby a claim of force majeure has been asserted, the delegated
agency is constrained by the fact that the General Provisions do not provide for an extension of
the initial performance test deadline. However, the agency may provide, in the exercise of its
enforcement discretion, additional time beyond the regulatory deadline within which the facility
must perform the test.2 This ensures that a stack test is conducted as expeditiously as possible in
order for the facility to demonstrate that it is capable of complying with the underlying
regulatory requirements. In providing for additional time, the delegated agency should review
the circumstances that led to the test not being conducted by the regulatory deadline, including
any explanation by the facility, before deciding the appropriate course of action for not testing by
the deadline. The following are examples of how the delegated agency, using its enforcement
discretion, may respond to facilities that do not meet performance test deadlines.
(1) A facility contacts the delegated agency before the test deadline has passed and requests
additional time to conduct an initial stack test because it is unable to reach its maximum
production rate within the start-up period. Insisting that the facility conduct the test
within the required time frame may not be appropriate because the information obtained
during the test would not be meaningful in determining compliance with the underlying
emissions requirements. Therefore, it may be appropriate for the facility to postpone the
test. Such postponement under these circumstances would result in the facility not being
in compliance with the regulatory provision to conduct a stack test by the regulatory
deadline. Additional time may be added through an enforcement discretion letter or an
2 Some EPA-approved SIPs may allow states authority to grant extensions of the
deadline to conduct a stack test without the issuance of an enforcement order. Extensions of
deadlines may be granted in such states where allowed by the EPA-approved SIP.
Page 8
administrative order. Such a delay beyond the deadline should not be automatically
considered a violation of the underlying emissions requirement. The delegated agency
should take into consideration the facility’s unique circumstances when choosing an
appropriate response, and whether penalties should be assessed consistent with the HPV
Policy and the CAA Civil Penalty Policy (Penalty Policy). The Penalty Policy can be
obtained at:
http://www.epa.gov/compliance/resources/policies/civil/caa/stationary/penpol.pdf
(2) A facility requests, either before or after the test deadline, additional time to conduct an
initial stack test because it realizes that it is not meeting or cannot meet the underlying
regulatory requirements and would fail the test. Additional time may be granted through
an administrative order. However, the failure to test is a violation of the requirement to
test within the required time frame, and the facility also is in violation of the underlying
regulatory requirements. Penalties should be assessed consistent with the HPV Policy
and the Penalty Policy.
(3) A facility fails to test within the regulatory deadline, and either fails to notify the agency,
or notifies the agency after the regulatory deadline has passed. The full range of
enforcement actions should be considered when deciding how to address the failure to
test within the required time frame, and to establish a date certain for testing. Penalties
should be assessed consistent with the HPV Policy and the Penalty Policy.
• The facility need not wait for the agency response before rescheduling the test provided it is in
compliance with the notification and rescheduling provisions of 40 CFR §§ 60.8(d) and
63.7(b)(2) as appropriate. In those instances where the stack test is ultimately conducted before
the agency formally responds to the facility’s noncompliance with the initial test deadline, the
agency response should acknowledge the test, but document the facility’s non-compliance with
the regulatory provision.
• The primary issue is whether facilities can be granted an extension beyond the required time
period to complete an initial stack test under the general provisions of the NSPS, NESHAP, and
MACT programs. Individual standards may establish different time periods for testing, and
some may be shorter than the general provisions. For example, in 40 CFR § 63.152(b), the
Notice of Compliance Status must be submitted by sources subject to NSPS Subpart G within
150 calendar days after the specified compliance dates. In addition, individual standards may
allow facilities to petition for an extension of an initial (or subsequent) stack test. See, e.g., 40
CFR
§§ 63.1207(e)(3), 63.1207(i) (NSPS Subpart EEE).
• The time frame for conducting initial stack tests is established in 40 CFR § 60.8 for NSPS; and
40 CFR §§ 61.13 and 63.7 for NESHAP and MACT. Both the NSPS and MACT regulations
regarding performance tests include provisions under which owners or operators of facilities
shall notify appropriate authorities in the event that the scheduled test must be delayed, and
further discuss rescheduling of the test. 40 CFR §§ 60.8(d), 63.7(b)(2). The MACT provision
regarding rescheduling of performance tests further states: "This notification of delay in
conducting the performance test shall not relieve the owner or operator of legal responsibility for
compliance with any applicable provisions of this part or with any other applicable Federal,
state, or local requirement, nor will it prevent the Administrator from implementing or enforcing
this part or taking any other action under the Act." While these programs include provisions
regarding notification of a test delay and rescheduling of the test, there are no regulatory
provisions providing for extension of the testing deadlines in these programs, except in the event
of a force majeure. 40 CFR §§ 60.8(a)(1-4), 61.13(a)(3-6), 63.7(a)(4).
• A force majeure is defined by the applicable regulations as an event that will be or has been
caused by circumstances beyond the control of the affected facility, its contractors, or any entity
controlled by the affected facility that prevents the owner or operator from complying with the
regulatory requirement to conduct performance tests within the specified time frame despite the
affected facility’s best efforts to fulfill the obligation. Examples of such events are acts of
Page 7
nature, acts of war or terrorism, or equipment failure or safety hazard beyond the control of the
affected facility. 40 CFR §§ 60.2, 61.02, 63.2.
• If a claim of force majeure is to be asserted, the facility shall provide written notification to the
Administrator in accordance with the applicable regulations. The performance test shall be
conducted as soon as practicable after the force majeure occurs. Whether to grant an extension
to the performance test deadline is solely within the discretion of the Administrator. Until an
extension has been approved by the Administrator, the facility remains strictly subject to the
performance test requirements of the applicable regulations. 40 CFR §§ 60.8(a)(1-4),
61.13(a)(3-6), 63.7(a)(4).
• Because the applicable regulations governing initial stack tests do not provide for extensions
of the performance test deadline except in the event of a force majeure, a facility that has not
completed a stack test within the requisite time frame or has not received approval of an
extension due to force majeure would not be in compliance with the regulatory provisions to
stack test and demonstrate compliance with the underlying standard within the required
time period.
• Except for the circumstance whereby a claim of force majeure has been asserted, the delegated
agency is constrained by the fact that the General Provisions do not provide for an extension of
the initial performance test deadline. However, the agency may provide, in the exercise of its
enforcement discretion, additional time beyond the regulatory deadline within which the facility
must perform the test.2 This ensures that a stack test is conducted as expeditiously as possible in
order for the facility to demonstrate that it is capable of complying with the underlying
regulatory requirements. In providing for additional time, the delegated agency should review
the circumstances that led to the test not being conducted by the regulatory deadline, including
any explanation by the facility, before deciding the appropriate course of action for not testing by
the deadline. The following are examples of how the delegated agency, using its enforcement
discretion, may respond to facilities that do not meet performance test deadlines.
(1) A facility contacts the delegated agency before the test deadline has passed and requests
additional time to conduct an initial stack test because it is unable to reach its maximum
production rate within the start-up period. Insisting that the facility conduct the test
within the required time frame may not be appropriate because the information obtained
during the test would not be meaningful in determining compliance with the underlying
emissions requirements. Therefore, it may be appropriate for the facility to postpone the
test. Such postponement under these circumstances would result in the facility not being
in compliance with the regulatory provision to conduct a stack test by the regulatory
deadline. Additional time may be added through an enforcement discretion letter or an
2 Some EPA-approved SIPs may allow states authority to grant extensions of the
deadline to conduct a stack test without the issuance of an enforcement order. Extensions of
deadlines may be granted in such states where allowed by the EPA-approved SIP.
Page 8
administrative order. Such a delay beyond the deadline should not be automatically
considered a violation of the underlying emissions requirement. The delegated agency
should take into consideration the facility’s unique circumstances when choosing an
appropriate response, and whether penalties should be assessed consistent with the HPV
Policy and the CAA Civil Penalty Policy (Penalty Policy). The Penalty Policy can be
obtained at:
http://www.epa.gov/compliance/resources/policies/civil/caa/stationary/penpol.pdf
(2) A facility requests, either before or after the test deadline, additional time to conduct an
initial stack test because it realizes that it is not meeting or cannot meet the underlying
regulatory requirements and would fail the test. Additional time may be granted through
an administrative order. However, the failure to test is a violation of the requirement to
test within the required time frame, and the facility also is in violation of the underlying
regulatory requirements. Penalties should be assessed consistent with the HPV Policy
and the Penalty Policy.
(3) A facility fails to test within the regulatory deadline, and either fails to notify the agency,
or notifies the agency after the regulatory deadline has passed. The full range of
enforcement actions should be considered when deciding how to address the failure to
test within the required time frame, and to establish a date certain for testing. Penalties
should be assessed consistent with the HPV Policy and the Penalty Policy.
• The facility need not wait for the agency response before rescheduling the test provided it is in
compliance with the notification and rescheduling provisions of 40 CFR §§ 60.8(d) and
63.7(b)(2) as appropriate. In those instances where the stack test is ultimately conducted before
the agency formally responds to the facility’s noncompliance with the initial test deadline, the
agency response should acknowledge the test, but document the facility’s non-compliance with
the regulatory provision.
1. The Time Frame for Conducting Stack Tests
2. Stack Test Waivers
3. Stack Test Notifications
4. Observation of Stack Tests
5. Representative Testing Conditions
6. Stoppages
7. Postponements
8. Test Reports
2. Stack Test Waivers
3. Stack Test Notifications
4. Observation of Stack Tests
5. Representative Testing Conditions
6. Stoppages
7. Postponements
8. Test Reports
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