[Federal Register Volume 59, Number 223 (Monday, November 21, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-28292]
[[Page Unknown]]
[Federal Register: November 21, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 9, 63 and 71
[FRL-5106-2]
RIN 2060-AF10
Federal Operating Permit Programs; Permits for Early Reductions
Sources
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: This rulemaking establishes an interim Federal permitting
program solely for sources participating in the Early Reductions
Program under section 112(i)(5) of the Clean Air Act (Act), as amended.
It is designed to provide a temporary permitting mechanism until such
time as permanent permitting programs become effective pursuant to
title V of the Act. Under this interim program, EPA will be able to
permit early reductions sources in a timely manner, thus ensuring that
emission reductions achieved are maintained and providing assurance to
participating sources that they have qualified for the benefits of the
Early Reductions Program.
Also promulgated in this rulemaking are two amendments to the Early
Reductions Rule. The first appends to enforceable commitments made
under the Early Reductions Program information on emission reduction
measures employed to achieve early reductions and the second clarifies
deadlines for submitting post-reduction emission information to EPA.
EFFECTIVE DATE: November 21, 1994.
ADDRESSES: Background Information Document. The background information
document (BID) for the promulgated standards may be obtained from the
U.S. EPA Library (MD-35) , Research Triangle Park, North Carolina
27711, telephone number 919-541-2777. Please refer to ``Federal
Operating Permit Programs: Permits for Early Reductions Sources--
Background Information for Promulgated Rule'' (EPA-453/R-94-061b). The
BID contains (1) a summary of changes made to the rule since proposal
and (2) a summary of all public comments made on the proposed standards
and EPA's response to those comments.
Docket. Docket number A-93-08, containing supporting information
used in developing the promulgated rule is available for public
inspection and copying between 8:30 a.m. and 3:30 p.m., Monday through
Friday, at EPA's Air Docket, room M1500, U.S. Environmental Protection
Agency, 401 M Street, SW., Washington, DC. A reasonable fee may be
charged for copying.
FOR FURTHER INFORMATION CONTACT: Mr. David Beck, Emission Standards
Division (MD-13), U.S. Environmental Protection Agency, Research
Triangle Park, North Carolina 27711, telephone number 919-541-5421.
SUPPLEMENTARY INFORMATION: The information presented in this preamble
is organized as follows:
I. Introduction
II. Summary of Significant Comments and Changes Since Proposal
III. Administrative Requirements
I. Introduction
The Clean Air Act Amendments of 1990 rewrote existing section 112,
which directs the EPA to establish national emission standards for
hazardous air pollutants (HAP). A new provision, section 112(i)(5),
offers to sources that achieve substantial early reductions of HAP
emissions an extension in the compliance date for applicable standards
to be promulgated under section 112(d). To help implement this ``Early
Reductions Program,'' EPA is acting in this notice to promulgate an
interim, limited scope permit program, pursuant to title V of the Act.
This interim program will allow EPA to process applications under the
Early Reductions Program in a timely manner, until such time as
comprehensive title V permitting mechanisms become available. A
detailed rationale for this rulemaking accompanied the proposal notice,
which was published in the Federal Register on December 29, 1993 (57 FR
68804).
II. Summary of Significant Comments and Changes Since Proposal
The comment period for the proposed early reductions permits rule
ended on March 3, 1994, and EPA received five comment letters. Copies
of the comments reside in the docket for this rulemaking and are
available for public inspection (see ``Docket'' in the ADDRESSES
section of this preamble for further information). A summary of public
comments and EPA's responses to the comments are contained in the
background information document mentioned in the ADDRESSES section of
this preamble.
Consideration of these comments and other deliberations within the
Agency led to a few changes from the proposed permits rule, although
none of the changes altered the rule significantly. A brief summary of
the more notable changes appear in the list below (an expanded
explanation of these changes is contained in the background information
document).
1. A definition of ``post-reduction year'' has been added, as well
as clarifying language pertaining to deadlines for filing post-
reduction emission information. These changes make clearer the
requirements for demonstrating that qualifying reductions have been
achieved, and provide more flexibility to sources that wish to make
reduction demonstrations before the statutory deadline.
2. The proposed requirement to submit an application in a
computerized format, in addition to the typed application, has been
deleted. The EPA has not yet settled on a computer format for such
submittals.
3. The proposed rule contained a provision requiring permittees to
report any deviations from permit terms or conditions within ten days
of occurrence. This requirement has been revised to require ``prompt''
reporting of deviations, where ``prompt'' will be defined in each early
reductions permit and will be based on the type and degree of the
deviation. This is consistent with similar language in the part 70 for
State title V permit programs.
4. The procedures for making administrative amendments to existing
early reductions permits have been revised. The revisions are
consistent with recently proposed revisions to the administrative
amendments procedures specified in the part 70 rule for State title V
programs. The revised procedures clarify the permittee's actions in
initiating an administrative amendment and set the effective date of an
amendment at 60 days after receipt by the Administrator of the
amendment application (assuming the Administrator does not reject the
amendment prior to that time).
Also changed under the administrative amendments provisions of the
rule is the list of actions qualifying as administrative amendments
(Sec. 71.26(c)(1)). A new provision (Sec. 71.26(c)(1)(v)) allows
certain additional permit revisions to be treated as administrative
amendments provided that the Administrator determines, on a case-by-
case basis, that a proposed revision is similar to those qualifying
actions already specifically listed. The new provision is based upon a
similar provision in the part 70 rule and is a response to certain
commenters requests for additional flexibility to make relatively
insignificant changes at an early reductions source without having to
wait for a lengthy EPA approval process. Under the new provision, EPA
would be able to process through administrative amendment procedures
certain changes not listed in paragraphs Sec. 71.26(c)(1)(i) through
(iv) but which are ministerial in nature and therefore do not require
the exercise of judgment on the part of EPA, or review by the public or
affected States.
5. Another proposed provision deleted in the final rule was the
requirement that specialty permit applications contain a statement
indicating the source's compliance status with any applicable enhanced
monitoring and compliance certification requirements of the Act. This
provision was included in the proposal because a similar provision
appears in the part 70 rule. However, upon further reflection, EPA has
realized that the provision is not relevant to early reductions permit
applications. This specialty permit program focuses narrowly on
implementing the Early Reductions Program for a defined early
reductions source and associated HAP emissions, and within that context
the only monitoring and compliance certification requirements
applicable to the early reductions source will be those delineated in
the specialty permit issued later to the participating company. Each
specialty permit will implement the Act directive to provide for
enhanced monitoring on major sources by specifying monitoring
requirements tailored to the early reductions source and consistent
with the characteristics of the Early Reductions Program. Compliance
certification requirements also will be imposed to comply with title V
of the Act. However, it is inappropriate to ask a source to discuss, in
the permit application, its compliance status for these requirements
because they do not yet exist.
In the proposed rule preamble, EPA requested comment on whether the
final early reductions permits rule should contain procedures for minor
permit revisions. Such procedures would be used to process changes that
could not be processed as administrative amendments but which encompass
relatively minor changes to the source or its operation and, therefore,
would not warrant the longer (12 month) review and issuance process
allotted to significant source changes. Two commenters requested that
EPA include minor permit revision procedures in the final rule to
provide sources the ability to make certain changes in the early
reductions source quickly, which they consider to be key to remaining
competitive within their respective industries. The EPA has carefully
considered the commenters' requests for a more expedited permit
revision procedure, and has decided not to include such a procedure at
this time. There are two primary reasons for this decision. First, the
part 70 permit revision procedures are currently the subject of
litigation in the D.C. Circuit Court of Appeals. In part as a response
to this litigation, EPA has proposed revisions to these part 70
procedures. The current uncertainty over EPA's legal discretion to
provide for expeditious permit revision procedures cautions against
providing for any such procedures here in this final rule. Second, as
stated in the preamble to the proposal of this rule, EPA believes the
nature of these specialty permits, containing limitations that are
uniquely tailored to the facility, should reduce the need for permit
revisions. Another factor that deemphasizes the need for a more
expedited revision procedure is the fact that a specialty permit will,
relatively soon after permit issuance, be transferred to the
jurisdiction of the State, following which it will be subject to the
revision procedures of the State program.
The EPA may in the future decide to revise this rule to provide
more expedited procedures for minor permit revisions. However, EPA
currently intends await the outcome of the revisions to part 70 before
taking any such action.
As noted earlier, this notice also contains amendments to the Early
Reductions Rule. One of the amendments, proposed along with the early
reductions permits proposal, is promulgated without change and appends
to enforceable commitments made under the Early Reductions Program the
information on emission reduction measures employed to achieve early
reductions. Such information is required as part of a participant's
post-reduction emission demonstration. The other amendments mirror the
changes described in item 1 of the above list pertaining to the post-
reduction emissions demonstration. These amendments make the Early
Reductions Rule consistent with the permits rule promulgated in this
notice.
III. Administrative Requirements
A. Docket
The docket for this regulatory action is A-93-08. The docket is an
organized and complete file of all the information submitted to, or
otherwise considered by, EPA in the development of this rulemaking. The
principal purposes of the docket are:
(1) To allow interested parties a means to identify and locate
documents so that they can effectively participate in the rulemaking
process, and
(2) To serve as the record in case of judicial review. The docket
is available for public inspection at the EPA's Air Docket, which is
listed under the ADDRESSES section of this document.
B. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, 10/04/93), the Agency
must determine whether the regulatory action is ``significant'' and
therefore subject to Office of Management and Budget (OMB) review and
the requirements of the Executive Order. The Order defines
``significant'' regulatory action as one that is likely to lead to a
rule that may:
(1) Have an annual effect on the economy of $100 million or more,
or adversely and materially affect a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligation of recipients
thereof;
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the ``Executive Order.''
It has been determined that this action is not a ``significant
regulatory action'' within the meaning of Executive Order 12866 and is
therefore not subject to OMB review.
C. Regulatory Flexibility Act
Pursuant to the provisions of 5 U.S.C. 605(b), I hereby certify
that the specialty permits rule and the amendments to the Early
Reductions Rule will not have a significant economic impact on a
substantial number of small business entities. The EPA estimates that
this rule will have no direct economic impact on any business entities
for two reasons. First, the Early Reductions Program is a voluntary
program, an alternate means of complying with otherwise applicable
standards forthcoming under section 112(d) of the Act. Generally,
companies would participate in the program if they thought their
compliance costs would be less than those associated with meeting
otherwise applicable standards. Costs could be less because the 90 (95)
percent reduction threshold to qualify for an extension likely will be
lower than the reduction required by applicable section 112(d)
standards. Moreover, the Early Reductions Rule provides owners or
operators considerable flexibility to average qualifying reductions
among participating emissions units.
Second, the specialty permits program rulemaking simply adapts for
earlier use the intended mechanism for eventually delineating and
enforcing all Act requirements at individual facilities, namely the
title V permit. Sources not electing to participate in the Early
Reductions Program would have to obtain title V permits anyway when
comprehensive title V. Therefore, this rulemaking does not add any
additional requirements to participants. The impacts from the
requirements of title V were considered in the promulgated part 70 rule
for State comprehensive programs (57 FR 32250). Moreover, the proposed
change to the Early Reductions Rule would have no economic effect on
any large or small business entities.
D. Paperwork Reduction Act
The information collection requirements in this rule have been
approved by the OMB under the Paperwork Reduction Act, 44 U.S.C. 3501
et seq., and has been assigned the OMB control no. 2060-0276. An
Information Collection Request (ICR) document has been prepared by the
EPA (ICR No. 1650.01), and a copy may be obtained from Sandy Farmer,
Information Policy Branch (PM-223Y), U.S. Environmental Protection
Agency, 401 M Street, SW, Washington, DC 20460, or by calling (202)
260-2740.
This collection of information is estimated to have a public
reporting burden averaging 554 hours per respondent for one-time burden
items and 43 hours per respondent annually for recurring burden items.
This includes time for reviewing instructions, searching existing data
sources, gathering and maintaining the data needed, and completing and
reviewing the collection of information.
Send comments regarding the burden estimate or any other aspect of
this collection of information, including suggestions for reducing this
burden to Chief, Information Policy Branch (2136); U.S. Environmental
Protection Agency, 401 M Street, SW, Washington, DC 20460; and to the
Office of Information and Regulatory Affairs, Office of Management and
Budget, Washington, DC 20503, marked ``Attention: Desk Officer for
EPA.''
List of Subjects
40 CFR Part 9
Reporting and recordkeeping requirements.
40 CFR Part 63
Environmental protection, Air pollution control, Hazardous
substances, Hazardous air pollutants, Operating permits, Reporting and
recordkeeping requirements.
40 CFR Part 71
Administrative practice and procedure, Air pollution control,
Reporting and recordkeeping requirements.
Dated: November 8, 1994.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:
PART 9--[AMENDED]
1. The authority citation for part 9 continues to read as follows:
Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003,
2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33
U.S.C. 1251 et seq., 1311, 1313d, 1314, 1321, 1326, 1330, 1344,
1345(d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 1971-1975
Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g, 300g-1,
300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2, 300j-3,
300j-4, 300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 7542, 9601-
9657, 11023, 11048.
2. Section 9.1 is amended by adding in numerical order a new
heading and a new entry under the new heading to read as follows:
9.1 OMB approvals under the Paperwork Reduction Act.
* * * * *
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OMB control
40 CFR citation No.
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*****
Federal Operating Permit Programs
71.24--71.26............................................... 2060-0276
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* * * * *
PART 63--[AMENDED]
1. The authority citation for part 63 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart D--[Amended]
2. Section 63.71 is amended by adding the definition of ``Post-
reduction year'' in alphabetical order to read as follows:
Sec. 63.71 Definitions.
* * * * *
Post-reduction year means the one year period beginning with the
date early reductions have to be achieved to qualify for a compliance
extension under subpart D of this part, unless a source has established
with the permitting authority an earlier one year period as the post-
reduction year. For most sources, the post-reduction year would begin
with the date of proposal of the first section 112(d) standard
applicable to the early reductions source; however, for sources that
have made enforceable commitments, it would be the year from January 1,
1994 through December 31, 1994.
* * * * *
3. In Sec. 63.75, paragraph (g) is added to read as follows:
Sec. 63.75 Enforceable commitments.
* * * * *
(g) The control measure information required under Sec. 63.74(d)(1)
as part of post-reduction emission documentation and submitted in a
permit application according to the provisions of Sec. 63.77 shall
become part of an existing enforceable commitment upon receipt of the
permit application by the permitting authority. An owner or operator
shall notify the permitting authority of any change made to the source
during calendar year 1994 which affects such control measure
information and shall mail the notice within 5 days (postmark date) of
making the change. The notice shall be considered an amendment to the
source's enforceable commitment.
4. Section 63.77 is amended by revising paragraph (e) to read as
follows:
Sec. 63.77 Application procedures.
* * * * *
(e) If the post-reduction year does not end at least one month
before the permit application deadline under paragraph (c) of this
section, the source may file the post-reduction emissions information
required under Sec. 63.74(d)(2), (d)(3), and (d)(5) later as a
supplement to the original permit application. In such cases, this
supplemental information shall be submitted to the permitting authority
no later than one month after the end of the post-reduction year.
* * * * *
5. Part 71 is added to read as follows:
PART 71--FEDERAL OPERATING PERMIT PROGRAMS
Subpart A--[Reserved]
Subpart B--Permits for Early Reductions Sources
Sec.
71.21 Program overview.
71.22 Definitions.
71.23 Applicability.
71.24 Permit applications.
71.25 Permit content.
71.26 Permit issuance, reopenings, and revisions.
71.27 Public participation and appeal.
Authority: 42 U.S.C. 7401, et seq.
Subpart A--[Reserved]
Subpart B--Permits for Early Reductions Sources
Sec. 71.21 Program overview.
(a) The regulations in this subpart provide for a limited, Federal,
title V, permit program to establish alternative emission limitations
for early reductions sources that have demonstrated qualifying
reductions of hazardous air pollutants under section 112(i)(5) of the
Act. A permit issued under this subpart which establishes such an
enforceable alternative emission limitation shall grant all emissions
units in the early reductions source a six-year extension from
otherwise applicable dates of compliance for standards promulgated
under section 112(d) of the Act.
(b) After approval of a State's comprehensive permit program
pursuant to title V of the Act, the Administrator may continue to issue
specialty permits under this subpart only under the following
circumstances:
(1) The early reductions source filed a permit application under
this subpart before the State obtained approval of a comprehensive
title V permit program but the permit had not been finally issued at
the time of State program approval; or
(2) The early reductions source will be required to file an early
reductions permit application under Sec. 71.24(b) before a
comprehensive permit application is required by the State under the
approved program.
(c) When a circumstance described in paragraph (b)(1) or (b)(2) of
this section occurs, the primary consideration in the Administrator's
decision to issue a specialty permit is the degree of delay anticipated
by deferring to the State for permit issuance.
(d) A Permit issued to an early reductions source under this
subpart shall have a term not to exceed five years. Such a specialty
permit shall be incorporated into a comprehensive title V permit
subsequently issued to the facility containing the early reductions
source, without reopening or revision of the specialty permit except as
provided in Sec. 71.26(e).
(e) Issuance of a specialty permit under this subpart does not
relieve a source from an obligation to file a timely and complete
comprehensive permit application as required under an approved
comprehensive title V permit program.
(f) Delegation to other permitting authorities. (1) The
Administrator may delegate to another permitting authority the
responsibility to implement this permit program. Under such a
delegation, the Administrator reserves the right to issue a final
permit to early reductions sources that filed permit applications with
the Administrator prior to the permitting authority obtaining
delegation.
(2) Under any delegation, the Administrator will require that the
permitting authority have enforcement authority substantially
equivalent to that specified in Sec. 70.11 of this chapter.
(3) Upon any delegation, administrative appeals of permit decisions
issuing pursuant to the delegated program shall continue to be subject
to the requirements of Sec. 71.27(l).
Sec. 71.22 Definitions.
All terms used in this subpart not defined in this section are
given the same meaning as in the Act or in subpart D of part 63 of this
chapter.
Act means the Clean Air Act, as amended, 42 U.S.C. 7401, et seq.
Actual emissions means the actual rate of emissions of a pollutant,
but does not include excess emissions from a malfunction, or startups
and shutdowns associated with a malfunction. Actual emissions shall be
calculated using the early reductions source's actual operating rates,
and types of materials processed, stored, or combusted during the
selected time period.
Affected States are all States:
(1) Whose air quality may be affected and that are contiguous to
the State in which a permit, permit modification or permit renewal is
being proposed; or
(2) That are within 50 miles of the permitted source.
Comprehensive title V permit program means a program approved by
the Administrator under part 70 of this chapter or a program
promulgated for EPA permit issuance under title V that encompasses all
applicable requirements of the Clean Air Act.
Draft permit means the version of a permit for which the
Administrator offers public participation under Sec. 71.27.
Early reductions source means a source of hazardous air pollutants
as defined pursuant to Sec. 63.73 of this chapter.
Emissions unit means any part or activity of a stationary source
that emits or has the potential to emit any hazardous air pollutant.
Enforceable commitment means a document drafted pursuant to section
112(i)(5)(B) of the Act and signed by a responsible company official
which commits a company to achieving before January 1, 1994 sufficient
reductions in hazardous air pollutants from a designated early
reductions source to qualify such source for a compliance extension
under section 112(i)(5)(A) of the Act.
EPA or Administrator means the Administrator of the EPA or his or
her designee.
Final permit means the version of a permit issued by the
Administrator under this subpart that has completed all review
procedures required by Sec. 71.27.
Hazardous air pollutant means any air pollutant listed pursuant to
section 112(b) of the Act.
Permit means any permit covering an existing early reductions
source that is issued, amended, or revised pursuant to this subpart.
Permit revision means any permit modification or administrative
permit amendment.
Permitting authority means either of the following:
(1) The Administrator, in the case of EPA-implemented programs; or
(2) The State air pollution control agency, local agency, other
State agency, or other agency authorized by the Administrator to carry
out a permit program under this subpart.
Post-reduction year means the one year period beginning with the
date early reductions have to be achieved to qualify for a compliance
extension under subpart D of part 63 of this chapter, unless a source
has established with the Administrator an earlier one year period as
the post-reduction year. For most sources, the post-reduction year
would begin with the date of proposal of the first section 112(d)
standard applicable to the early reductions source; however, for
sources that have made enforceable commitments, it would be the year
from January 1, 1994 through December 31, 1994.
Responsible official means one of the following:
(1) For a corporation: a president, secretary, treasurer, or vice-
president of the corporation in charge of a principal business
function, or any other person who performs similar policy or decision-
making functions for the corporation, or a duly authorized
representative of such person if the representative is responsible for
the overall operation of one or more manufacturing, production, or
operating facilities applying for or subject to a permit and either:
(i) The facilities employ more than 250 persons or have gross
annual sales or expenditures exceeding $25 million (in second quarter
1980 dollars); or
(ii) The delegation of authority to such representative is approved
in advance by the permitting authority;
(2) For a partnership or sole proprietorship: a general partner or
the proprietor, respectively; or
(3) For a municipality, State, Federal, or other public agency:
Either a principal executive officer or ranking elected official. For
the purposes of this part, a principal executive officer of a Federal
agency includes the chief executive officer having responsibility for
the overall operations of a principal geographic unit of the agency
(e.g., a Regional Administrator of EPA).
Section 112(d) standard means an emission standard issued by the
Administrator under section 112(d) of the Clean Air Act, as amended.
State means any non-Federal permitting authority, including any
local agency, interstate association, or statewide program. The term
``State'' also includes the District of Columbia, the Commonwealth of
Puerto Rico, the Virgin Islands, Guam, American Samoa, and the
Commonwealth of the Northern Mariana Islands. Where such meaning is
clear from the context, ``State'' shall have its conventional meaning.
Sec. 71.23 Applicability.
(a) Sources covered. The provisions of this subpart apply to an
owner or operator of an existing source who is seeking a compliance
extension under section 112(i)(5) of the Act and who, pursuant to part
63, subpart D, of this chapter, is required to file a permit
application for the extension prior to the date a comprehensive title V
permit program is approved for the State in which the existing source
is located.
(b) Covered emissions. All hazardous air pollutant emissions from
the early reductions source shall be included in permit applications
and part 71 permits issued under this subpart.
Sec. 71.24 Permit applications.
(a) Where to file. To apply for a compliance extension and an
alternative emission limitation under this subpart, the owner or
operator of an early reductions source shall file a complete permit
application with the appropriate EPA Regional Office. The owner or
operator shall also send a copy of the application to the appropriate
State agency; to the EPA Emission Standards Division, Mail Drop 13,
Research Triangle Park, North Carolina, 27711 (attention: Early
Reductions Officer); and to the EPA Office of Enforcement, EN-341W, 401
M Street, SW., Washington, DC 20460 (attention: Early Reductions
Officer).
(b) Deadlines. (1) Permit applications under this subpart for early
reductions sources not subject to enforceable commitments shall be
submitted by the later of the following dates:
(i) 120 days after proposal of an otherwise applicable standard
issued under section 112(d) of the Act; or
(ii) March 21, 1995.
(2) Permit applications for early reductions sources subject to
enforceable commitments established pursuant to Sec. 63.75 of this
chapter shall be filed no later than April 30, 1994.
(3) If the post-reduction year does not end at least one month
before the permit application deadline under paragraphs (b)(1) or
(b)(2) of this section, the source may file the post-reduction
emissions information required under paragraph (e)(2) of this section
later as a supplement to the original permit application. In such
cases, this supplemental information shall be submitted to the
Administrator no later than one month after the end of the post-
reduction year.
(4) If a source test will be the supporting basis for establishing
post-reduction emissions for one or more emissions units in the early
reductions source, the test results shall be submitted by the deadline
for submittal of a permit application under this section.
(c) Complete application. To be found complete, an application must
provide all information required pursuant to paragraph (e) of this
section, except for the information on post-reduction emissions
required under paragraph (e)(2) of this section. Applications for
permit revision need supply the information required under paragraph
(e) of this section only if it is related to the proposed change.
Information submitted under paragraph (e) of this section must be
sufficient to allow the Administrator to determine if the early
reductions source meets the applicable requirements of subpart D of
part 63 of this chapter. Unless the Administrator determines that an
application is not complete within 45 days of receipt of the
application, such application shall be deemed to be complete, except as
otherwise provided in Sec. 71.26(a)(3). If, while processing an
application that has been determined or deemed to be complete, the
Administrator determines that additional information is necessary to
evaluate or take final action on that application, the Administrator
may request such information in writing and set a reasonable deadline
for a response.
(d) Duty to supplement or correct application. Any applicant who
fails to submit any relevant facts or who has submitted incorrect
information in a permit application shall, upon becoming aware of such
failure or incorrect submittal, promptly submit such supplementary
facts or corrected information. In addition, an applicant shall provide
additional or revised information as necessary to address any
requirements of subpart D of part 63 of this chapter (Compliance
Extensions for Early Reductions) or of this subpart that become
applicable to the early reductions source after the date it filed a
complete application but prior to release of a draft permit.
(e) Required information. The following elements are required
information for permit applications under this subpart:
(1) Identifying information, including company name, telephone
number, and address (or plant name, telephone number, and address if
different from the company name); owner's name, telephone number, and
agent; and telephone number(s) and name(s) of plant site manager/
contact;
(2) All information required in Sec. 63.74 of this chapter,
including that needed to describe the early reductions source, its base
year and post-reduction emissions, and supporting basis for the
emissions;
(3) A statement of the proposed alternative emission limitation for
hazardous air pollutants from the early reductions source on an annual
basis, reflecting the emission reductions required to qualify the early
reductions source for a compliance extension under subpart D of part 63
of this chapter;
(4) Additional emission limiting requirements, such as work
practice standards or limitations on operation, which are necessary to
assure proper operation of installed control equipment and compliance
with the annual alternative emission limitation for the early
reductions source;
(5) Information necessary to define alternative operating scenarios
for the early reductions source or permit terms and conditions for
trading hazardous air pollutant increases and decreases under
Sec. 71.25(a)(10), including any associated permit terms and conditions
needed to assure compliance with the alternative emission limitation
under the alternative operating scenarios or pollutant trading; and
(6) Statements related to compliance meeting the following
criteria:
(i) A statement of methods proposed to determine compliance by the
early reductions source with the proposed alternative emission
limitation, including a description of monitoring devices and
activities, emission calculation procedures, recordkeeping, and
reporting requirements and test methods; and
(ii) A schedule for submission of compliance certifications during
the permit term, to be submitted no less frequently than annually.
(f) Any application form, report, or compliance certification
submitted pursuant to these regulations shall contain certification by
a responsible official of truth, accuracy, and completeness. This
certification and any other certification required under this part
shall state that, based on information and belief formed after
reasonable inquiry, the statements and information in the document are
true, accurate, and complete.
Sec. 71.25 Permit content.
(a) Standard permit requirements. Each permit issued under this
subpart shall include the following elements:
(1) Alternative emission limitation. An annual alternative emission
limitation for hazardous air pollutants from the early reductions
source reflecting the 90 percent reduction (95 percent for hazardous
air pollutants which are particulate matter) which qualified the early
reductions source for a compliance extension under subpart D of part 63
of this chapter.
(2) Additional limitations. Additional emission limiting
requirements, such as limitations on operation, work practice
standards, and any other emission limiting requirements for the early
reductions source necessary to assure compliance with the alternative
emission limitation.
(3) Monitoring requirements. Each permit shall contain the
following monitoring requirements:
(i) All emissions monitoring and analysis procedures or test
methods necessary to assure compliance with the emission limitations
established under paragraphs (a)(1) and (a)(2) of this section. Such
monitoring or testing shall be consistent with the demonstration made
pursuant to Sec. 63.74 of this chapter and any procedures and methods
promulgated pursuant to sections 114(a)(3) or 504(b) of the Act;
(ii) Periodic monitoring or testing sufficient to yield reliable
data from the relevant time period that are representative of the early
reductions source's compliance with the permit. Such monitoring
requirements shall assure use of terms, test methods, units, averaging
periods, and other statistical conventions consistent with the
demonstration made pursuant to Sec. 63.74 of this chapter.
Recordkeeping provisions may be sufficient to meet the requirements of
this paragraph (a)(3)(ii); and
(iii) As necessary, requirements concerning the use, maintenance,
and, where appropriate, installation of monitoring equipment or
methods.
(4) Recordkeeping requirements. The permit shall contain
recordkeeping requirements including the following, as applicable:
(i) Records of required monitoring information that include the
following:
(A) The date, place as defined in the permit, and time of sampling
or measurements;
(B) The date(s) analyses were performed;
(C) The company or entity that performed the analyses;
(D) The analytical techniques or methods used;
(E) The results of such analyses; and
(F) The operating conditions as existing at the time of sampling or
measurement;
(ii) Retention of records of all required monitoring data and
support information for a period of at least 5 years from the date of
the monitoring sample, measurement, report, or application. Support
information includes all calibration and maintenance records and all
original strip-chart recordings for continuous monitoring
instrumentation, and copies of all reports required by the permit.
(5) Reporting requirements. The permit shall require the following:
(i) Submittal of reports of all required monitoring at least every
6 months. All instances of deviations from permit requirements must be
clearly identified in such reports; and
(ii) Prompt reporting of any deviations from permit requirements,
including those attributable to upset conditions as defined in the
permit. Such reports shall include the probable cause of such
deviations and any corrective actions or preventive measures taken. The
Administrator will define ``prompt'' in the permit for each situation
and will do so in relation to the degree and type of deviation likely
to occur.
(6) A severability clause to ensure the continued validity of the
various permit requirements in the event of a challenge to any portions
of the permit.
(7) Provisions stating the following:
(i) The permittee must comply with all conditions of part 71 permit
issued under this subpart. A violation of an alternative emission
limitation, as well as any other requirement established in a permit
issued under this subpart, is enforceable pursuant to the authority of
section 113 of the Act, notwithstanding any demonstration of continuing
90 percent (95 percent in the case of hazardous air pollutants which
are particulates) emission reduction over the entire early reductions
source. Any permit noncompliance constitutes a violation of the Act and
is grounds for enforcement action or for permit termination, revocation
and reissuance, or modification;
(ii) Need to halt or reduce activity not a defense. It shall not be
a defense for a permittee in an enforcement action that it would have
been necessary to halt or reduce the permitted activity in order to
maintain compliance with the conditions of this permit;
(iii) The permit may be revised, revoked, reopened, and reissued,
or terminated for cause. The filing of a request by the permittee for a
permit revision, revocation and reissuance, or termination, or of a
notification of planned changes or anticipated noncompliance does not
stay any permit condition;
(iv) The permit does not convey any property rights of any sort, or
any exclusive privilege; and
(v) The permittee shall furnish to the Administrator, within a
reasonable time, any information that the Administrator may request in
writing to determine whether cause exists for revising the permit,
revoking and reissuing, or terminating the permit or to determine
compliance with the permit. Upon request, the permittee shall also
furnish to the Administrator copies of records required to be kept by
the permitee.
(8) Terms and conditions for reasonably anticipated operating
scenarios identified by the early reductions source in its application
as approved by the Administrator. Such terms and conditions:
(i) Shall require the early reductions source, contemporaneously
with making a change from one operating scenario to another, to record
in a log at the permitted facility a record of the scenario under which
it is operating. Provided that an emitting unit is monitored in a way
that provides contemporaneous identification that a change to a
particular alternate scenario has occurred, no notice to the
Administrator is required. Otherwise, when such a change is made, the
permittee at the beginning of the following week shall place in regular
mail to the Administrator notice that a change to a particular
alternate operating scenario has occurred; and
(ii) Must ensure that the terms and conditions of each such
alternative scenario meet the alternative emission limitation and the
requirements of this subpart.
(9) Terms and conditions, if the permit applicant requests them,
for the trading of hazardous air pollutant emissions increases and
decreases among emissions units within the early reductions source
without permit revision or case-by-case approval of each emissions
trade, provided that:
(i) Such terms and conditions include all terms required under
paragraphs (a) and (c) of this section to determine compliance;
(ii) The changes in hazardous air pollutant emissions do not exceed
the emissions allowable under the permit;
(iii) The changes in hazardous air pollutant emissions are not
modifications under any provision of title I of the Act;
(iv) The Administrator determines that the emissions are
quantifiable and that replicable procedures or other practical means
exist to enforce the emission trades; and
(v) The early reductions source owner or operator provides the
Administrator written notification at least 7 days in advance of the
proposed changes and includes in the notification a description of the
change in emissions that will occur, when the change will occur, and
how the increases and decreases in emissions will comply with the
alternative emission limitation and other terms and conditions of the
permit.
(b) Federally enforceable requirements. All terms and conditions in
a permit issued under this subpart are enforceable by the Administrator
and citizens under the Act.
(c) Compliance requirements. All permits issued under this subpart
shall contain the following elements with respect to compliance:
(1) Consistent with paragraphs (a)(3), (a)(4), and (a)(5) of this
section, testing, monitoring, recordkeeping, and reporting requirements
sufficient to assure compliance with the terms and conditions of the
permit. Any document (including reports) required to be submitted by a
permit shall contain a certification by a responsible official that
meets the requirements of Sec. 71.24(f).
(2) Inspection and entry provisions that require that, upon
presentation of credentials and other documents as may be required by
law, the permittee shall allow the Administrator or an authorized
representative to perform the following:
(i) Enter upon the permittee's premises where the early reductions
source is located or emissions-related activity is conducted, or where
required records are kept;
(ii) Have access to and copy, at reasonable times, any records that
must be kept under the conditions of the permit;
(iii) Inspect at reasonable times any facilities, equipment
(including monitoring and air pollution control equipment), practices,
or operations regulated or required under the permit; and
(iv) Sample or monitor at reasonable times substances or parameters
for the purpose of determining compliance with the permit.
(3) Requirements for compliance certification with terms and
conditions contained in the permit, including the alternative emission
limitation. Permits shall include each of the following:
(i) The frequency (not less than annually) of submissions of
compliance certifications;
(ii) Consistent with paragraph (a)(3) of this section, a means for
monitoring the compliance of the early reductions source with its
alternative emission limitation;
(iii) A requirement that the compliance certification include the
following:
(A) The identification of each term or condition of the permit that
is the basis of the certification;
(B) The compliance status;
(C) Whether compliance was continuous or intermittent;
(D) The method(s) used for determining the compliance status of the
early reductions source, currently and over the reporting period
consistent with paragraph (a)(3) of this section; and
(E) Such other facts as the Administrator may require to determine
the compliance status of the early reductions source;
(iv) A requirement that all compliance certifications be submitted
to the Administrator or the Administrator's designated agent; and
(v) Such additional requirements as may be specified pursuant to
sections 114(a)(3) and 504(b) of the Act.
(4) Such other provisions as the Administrator may require.
(d) Permit shield. (1) The Administrator will expressly include in
a permit issued pursuant to this subpart a provision stating that
compliance with the conditions of the permit shall be deemed compliance
with part 63, subpart D, of this chapter (the Early Reductions Rule),
as of the date of permit issuance.
(2) A permit shield may be extended to all permit terms and
conditions for alternate operating scenarios pursuant to paragraph
(a)(9) of this section or that allow increases and decreases in
hazardous air pollutant emissions pursuant to paragraph (a)(10) of this
section.
(3) Nothing in this paragraph (d) or in any permit issued pursuant
to this subpart shall alter or affect the following:
(i) The provisions of sections 112(r) and 303 of the Act (emergency
orders);
(ii) The liability of an owner or operator of an early reductions
source for any violation of applicable requirements prior to or at the
time of permit issuance; or
(iii) The ability of the Administrator to obtain information from
an early reductions source pursuant to section 114 of the Act.
(e) Emergency provision.--(1) Definition. An ``emergency'' means
any situation arising from sudden and reasonably unforeseeable events
beyond the control of the early reductions source, including acts of
God, which situation requires immediate corrective action to restore
normal operation, and that causes the early reductions source to exceed
an emission limitation under the permit, due to unavoidable increases
in emissions attributable to the emergency. An emergency shall not
include noncompliance to the extent caused by improperly designed
equipment, lack of preventative maintenance, careless or improper
operation, or operator error.
(2) Effect of an emergency. An emergency constitutes an affirmative
defense to an action brought for noncompliance with such an emission
limitation if the conditions of paragraph (e)(3) of this section are
met.
(3) The affirmative defense of emergency shall be demonstrated
through properly signed, contemporaneous operating logs, or other
relevant evidence that:
(i) An emergency occurred and that the permittee can identify the
cause(s) of the emergency;
(ii) The permitted facility was at the time being properly
operated;
(iii) During the period of the emergency the permittee took all
reasonable steps to minimize levels of emissions that exceeded the
emission limitation, or other requirements in the permit; and
(iv) The permittee submitted notice of the emergency to the
Administrator within 2 working days of the time when emission
limitations were exceeded due to the emergency. This notice fulfills
the requirement of paragraph (a)(5)(ii) of this section. This notice
must contain a description of the emergency, any steps taken to
mitigate emissions, and corrective actions taken.
(4) In any enforcement proceeding, the permittee seeking to
establish the occurrence of an emergency has the burden of proof.
Sec. 71.26 Permit issuance, reopenings, and revisions.
(a) Action on application. (1) A permit or permit revision may be
issued only if all of the following conditions have been met:
(i) The Administrator has received a complete application for a
permit or permit revision;
(ii) The requirements for public participation under Sec. 71.27
have been followed; and
(iii) The conditions of the proposed permit or permit revision meet
all the requirements of Sec. 71.25 and provide for compliance with an
alternative emission limitation reflecting the emissions reduction
which qualified the early reductions source for a compliance extension
under part 63, subpart D, of this chapter.
(2) The Administrator will take final action on each permit
application (including a request for permit revision) within 12 months
after receiving a complete application, except that final action may be
delayed where an applicant fails to provide additional information in a
timely manner as requested by the Administrator under Sec. 71.24(c).
(3) The Administrator will promptly provide notice to the applicant
of whether the application is complete. Unless the Administrator
requests additional information or otherwise notifies the applicant of
incompleteness within 45 days of receipt of an application, the
application shall be deemed complete. For revisions that qualify as
administrative amendments and are processed through the procedures of
paragraph (c) of this section, a completeness determination need not be
made.
(4) If a source submits a timely and complete application for
permit issuance, the source's failure to have a title V permit for
purposes of any requirements under section 112 pertaining to the early
reductions source is not a violation of this part until the
Administrator takes final action on the permit application. This
protection shall cease to apply if, subsequent to the completeness
determination made pursuant to paragraph (a)(3) of this section, and as
required by Sec. 71.24(d), the applicant fails to submit by the
deadline specified in writing by the Administrator any additional
information identified as being needed to process the application.
(b) Permit renewal and expiration. (1) Permits issued under this
subpart shall not be renewed. Permit renewal for expiring permits
issued under this subpart shall be accomplished according to the
requirements of title V of the Act for comprehensive permits for the
facility containing the early reductions source.
(2) Except as specified in paragraph (b)(3) of this section, permit
expiration terminates the early reductions source's right to operate.
(3) If, consistent with the requirements of title V of the Act, a
timely and complete application for a comprehensive title V permit for
the facility containing the early reductions source has been submitted
but the permitting authority has failed to issue or deny the
comprehensive permit prior to expiration of a permit issued under this
subpart, then the existing permit for the early reductions source shall
not expire until the comprehensive title V permit for the facility has
been issued or denied.
(c) Administrative permit amendments. (1) An ``administrative
permit amendment'' is a permit revision that:
(i) Corrects typographical errors;
(ii) Identifies a change in the name, address, or phone number of
any person identified in the permit, or provides a similar minor
administrative change at the source;
(iii) Requires more frequent monitoring or reporting by the
permittee;
(iv) Allows for a change in ownership or operational control of an
early reductions source where the permitting authority determines that
no other change in the permit is necessary, provided that a written
agreement containing a specific date for transfer of permit
responsibility, coverage, and liability between the current and new
permittee has been submitted to the permitting authority; or
(v) Incorporates any other type of change which the Administrator
has determined to be ministerial in nature and, therefore, similar to
those in paragraphs (c)(1)(i) through (c)(1)(iv) of this section.
(2) Administrative permit amendment procedures. Administrative
permit amendments may be made to a permit issued under this subpart
using the following procedures:
(i) The source shall submit to the Administrator an application
containing a proposed addendum to the source's permit. The application
shall demonstrate how the proposed change meets one of the criteria for
administrative amendments set forth in paragraphs (c)(1)(i) through
(c)(1)(iv) of this section, and include certification by the
responsible official consistent with Sec. 71.24(f) that the change is
eligible for administrative amendment procedures. The addendum shall:
(A) Identify the terms of the part 71, subpart B permit the source
proposes to change;
(B) Propose new permit terms consistent with the provisions of this
subpart applicable to the change;
(C) Designate the addendum as having been processed under the
procedures of this paragraph (c); and
(D) Specify that the addendum will be effective 60 days from the
date of the Administrator's receipt, unless the Administrator
disapproves the change within such period.
(ii) The Administrator will allow the source to implement the
requested change immediately upon making all required submittals,
including the proposed addendum.
(iii) The proposed addendum will become effective 60 days after the
Administrator receives the submittal, provided the Administrator has
not disapproved the request in writing before the end of the 60-day
period. The Administrator shall record the change by attaching a copy
of the addendum to the part 71, subpart B permit.
(iv) If the Administrator disapproves the change, he or she shall
notify the source of the reasons for the disapproval in a timely
manner. Upon receiving such notice, the source shall comply with the
terms of the permit that it had proposed to change, and thereafter the
proposed addendum shall not take effect.
(v) The process in this paragraph (c) may also be used for changes
initiated by the Administrator that meet the criteria under paragraphs
(c)(1) (i), (ii), and (iv) of this section. For such changes, the
Administrator will notify the source of the proposed change and its
effective date, and shall attach a copy of the change to the existing
permit. On the effective date of the proposed change, the source shall
comply with the provisions of the proposed change.
(vi) The permit shield under Sec. 71.25(d) may not extend to
administrative amendments processed under this paragraph (c)(2).
(d) Permit revision procedures--(1) Criteria. Permit revision
procedures shall be used for applications requesting permit revisions
that do not qualify as administrative amendments. Nothing in this
paragraph (d) shall be construed to preclude the permittee from making
changes consistent with this subpart that would render existing permit
compliance terms and conditions irrelevant.
(2) Permit revisions shall meet all requirements of this subpart,
including those for applications, public participation, and review by
affected States, as they apply to permit issuance. The Administrator
will complete review on permit revisions within 9 months after receipt
of a complete application.
(e) Reopening for cause. (1) Each issued permit shall include
provisions specifying the conditions under which the permit will be
reopened. A permit shall be reopened and revised under any of the
following circumstances:
(i) The Administrator determines that the permit contains a
material mistake or that inaccurate statements were made in
establishing the emission limits or other terms or conditions of the
permit.
(ii) The Administrator determines that the permit must be revised
to assure compliance with the alternative emission limitation.
(2) Proceedings to reopen and issue a permit shall follow the same
procedures as apply to initial permit issuance and shall affect only
those parts of the permit for which cause to reopen exists.
(3) Reopenings under paragraph (e)(1) of this section shall not be
initiated before a notice of such intent is provided to the early
reductions source by the Administrator. Such notice will be provided at
least 30 days in advance of the date that the permit is to be reopened,
except that the Administrator may provide a shorter time period in the
case of an emergency.
(f) EPA review under State programs for issuing specialty permits.
(1) If the Administrator approves a State program for the
implementation of this subpart, the State program shall require that
the Administrator receive a copy of each permit application (including
any application for permit revision) each proposed permit, and each
final permit issued pursuant to this subpart. The State program may
require that the applicant provide a copy of any permit application
directly to the Administrator.
(2) The Administrator will object to the issuance of any proposed
permit determined by the Administrator not to be in compliance with
requirements under this subpart or part 63 of this chapter. If the
Administrator objects in writing within 45 days of receipt of a
proposed permit and all necessary supporting documentation, the State
shall not issue the permit.
(3) Any EPA objection to a proposed permit will include a statement
of the Administrator's reasons for objection and a description of the
terms and conditions that the permit must include to respond to the
objections. The Administrator will provide the permit applicant a copy
of the objection.
(4) Failure of the State to do any of the following also shall
constitute grounds for an objection:
(i) Comply with paragraph (f)(1) of this section;
(ii) Submit any information necessary to review adequately the
proposed permit; or
(iii) Process the permit under procedures approved to meet
paragraph (f) of this section.
(5) If the State fails, within 90 days after the date of an
objection under paragraph (f)(2) of this section, to revise and submit
a proposed permit in response to the objection, the Administrator will
issue or deny the permit in accordance with the requirements of this
subpart.
(6) Public petitions to the Administrator. Within 60 days after
expiration of the Administrator's 45-day review period, any person may
petition the Administrator in writing to make an objection. Any such
petition shall be based only on objections to the permit that were
raised with reasonable specificity during the public comment period
provided for and consistent with Sec. 71.27, unless the petitioner
demonstrates that it was impracticable to raise such objections within
such period, or unless the grounds for such objection arose after such
period. If the Administrator objects to the permit as a result of a
petition filed under this paragraph, the permitting authority shall not
issue the permit until EPA's objection has been resolved, except that a
petition for review does not stay the effectiveness of a permit or its
requirements if the permit was issued after the end of the 45-day
review period and prior to an objection. If the permitting authority
has issued a permit prior to receipt of an EPA objection under this
paragraph, the Administrator will revise, terminate, or revoke such
permit, and shall do so consistent with the procedures in 40 CFR
70.7(g)(4) or (g)(5)(i) except in unusual circumstances, and the
permitting authority may thereafter issue only a revised permit that
satisfies EPA's objection. In any case, the source will not be in
violation of the requirement to have submitted a timely and complete
application.
Sec. 71.27 Public participation and appeal.
All permit proceedings, including preparation of draft permits,
initial permit issuance, permit revisions, and granted appeals, shall
provide adequate procedures for public participation, including notice,
opportunity for comment, a hearing if requested, and administrative
appeal. Specific procedures shall include the following:
(a) Revision, revocation and reissuance, or termination of permits.
(1) Permits may be revised, revoked and reissued, or terminated either
at the request of any interested person (including the permittee) or
upon the Administrator's initiative. However, permits may only be
revised, revoked and reissued, or terminated for the reasons specified
in Secs. 71.25(a)(7) and 71.26(e). All requests shall be in writing and
shall contain facts or reasons supporting the request.
(2) If the Administrator decides the request is not justified, he
or she shall send the requester a brief written response giving a
reason for the decision. Denials of requests for revision, revocation
and reissuance, or termination are not subject to public notice,
comment, or hearings. Denials by the Administrator may be informally
appealed to the Environmental Appeals Board by a letter briefly setting
forth the relevant facts. The Board may direct the Administrator to
begin revision, revocation and reissuance, or termination proceedings
under paragraph (a)(3) of this section. The appeal shall be considered
denied if the Board takes no action within 60 days after receiving it.
This informal appeal is, under 42 U.S.C. 307, a prerequisite to seeking
judicial review of EPA action in denying a request for revision,
revocation and reissuance, or termination.
(3) (i) Except in the case of administrative amendment of a permit,
if the Administrator tentatively decides to revise or revoke and
reissue a permit under Secs. 71.25(a)(7) and 71.26(e), he or she shall
prepare a draft permit under paragraph (b) of this section
incorporating the proposed changes. The Administrator may request
additional information and, in the case of a revised permit, shall
require the submission of an updated application. In the case of
revoked and reissued permits, the Administrator shall require the
submission of a new application.
(ii) In a permit revision under this subsection, only those
conditions to be revised shall be reopened when a new draft permit is
prepared. All other aspects of the existing permit shall remain in
effect for the duration of the unrevised permit. When a permit is
revoked and reissued under this subsection, the entire permit is
reopened just as if the permit had expired and was being reissued.
During any revocation and reissuance proceeding the permittee shall
comply with all conditions of the existing permit until a new final
permit is reissued.
(4) If the Administrator tentatively decides to terminate a permit
under Secs. 71.25(a)(7) and 71.26(e), he or she shall issue a notice of
intent to terminate. A notice of intent to terminate is a type of draft
permit which follows the same procedures as any draft permit prepared
under paragraph (b) of this section. A notice of intent to terminate
shall not be issued if the Administrator and the permittee agree to
termination in the course of transferring permit responsibility to an
approved State under Sec. 71.21(e).
(5) Any request by the permittee for revision to an existing permit
shall be treated as a permit application and shall be processed in
accordance with all requirements of Sec. 71.24.
(b) Draft permits. (1) Once an application is complete, the
Administrator shall tentatively decide whether to prepare a draft
permit or to deny the application.
(2) If the Administrator tentatively decides to deny the permit
application, he or she shall issue a notice of intent to deny. A notice
of intent to deny the permit application is a type of draft permit
which follows the same procedures as any draft permit prepared under
this subsection. If the Administrator's final decision is that the
tentative decision to deny the permit application was incorrect, he or
she shall withdraw the notice of intent to deny and proceed to prepare
a draft permit under paragraph (b)(4) of this section.
(3) If the Administrator decides to prepare a draft permit, he or
she shall prepare a draft permit that contains the permit conditions
under Sec. 71.25.
(4) All draft permits prepared under this subsection shall be
publicly noticed and made available for public comment. The
Administrator shall give notice of opportunity for a public hearing,
issue a final decision and respond to comments. For all early
reductions permits, an appeal may be taken under paragraph (l) of this
section.
(c) Statement of basis. The Administrator shall prepare a statement
of basis for every draft permit. The statement of basis shall briefly
describe the derivation of the conditions of the draft permit and the
reasons for them or, in the case of notices of intent to deny or
terminate, reasons supporting the tentative decision. The statement of
basis shall be sent to the applicant and, on request, to any other
person.
(d) Public notice of permit actions and public comment period.--(1)
Scope. (i) The Administrator shall give public notice that the
following actions have occurred:
(A) A permit application has been tentatively denied under
paragraph (b)(2) of this section;
(B) A draft permit has been prepared under paragraph (b)(3) of this
section;
(C) A hearing has been scheduled under paragraph (f) of this
section;
(D) An appeal has been granted under paragraph (l)(3) of this
section.
(ii) No public notice is required in the case of administrative
permit amendments, or when a request for permit revision, revocation
and reissuance, or termination has been denied under paragraph (a)(2)
of this section. Written notice of that denial shall be given to the
requester and to the permittee.
(iii) Public notices may describe more than one permit or permit
action.
(2) Timing. (i) Public notice of the preparation of a draft permit
or permit revision (including a notice of intent to deny a permit or
permit revision application) shall allow at least 30 days for public
comment.
(ii) Public notice of a public hearing shall be given at least 30
days before the hearing. (Public notice of the hearing may be given at
the same time as public notice of the draft permit or permit revision
and the two notices may be combined.)
(iii) The Administrator shall provide such notice and opportunity
for participation to Affected States on or before the time that the
Administrator provides this notice to the public.
(3) Methods. Public notice of activities described in paragraph
(d)(1)(i) of this section shall be given by the following methods:
(i) By mailing a copy of a notice to the following persons (any
person otherwise entitled to receive notice under this paragraph (d)
may waive his or her rights to receive notice for any permit):
(A) The applicant;
(B) Any other agency which the Administrator knows has issued or is
required to issue any other permit under the Clean Air Act for the same
facility or activity;
(C) Affected States and Indian Tribes;
(D) Affected State and local air pollution control agencies, the
chief executives of the city and county where the early reductions
source is located, any comprehensive regional land use planning agency
and any State, Federal Land Manager, or Indian Governing Body whose
lands may be affected by emissions from the regulated activity;
(E) Persons on a mailing list developed by:
(1) Including those who request in writing to be on the list;
(2) Soliciting persons for ``area lists'' from participants in past
permit proceedings in that area; and
(3) Notifying the public of the opportunity to be put on the
mailing list through periodic publication in the public press and in
such publications as Regional and State funded newsletters,
environmental bulletins, or State law journals. (The Administrator may
update the mailing list from time to time by requesting written
indication of continued interest from those listed. The Administrator
may delete from the list the name of any person who fails to respond to
such a request.);
(F) Any unit of local government with authority for regulating air
pollution and having jurisdiction over the area where the early
reductions source is located and to each State agency having any
authority for regulating air pollution under State law with respect to
the operation of such source.
(ii) By publication of a notice in a daily or weekly newspaper of
general circulation within the area affected by the early reductions
source.
(iii) By any other method reasonably calculated to give actual
notice of the action in question to the persons potentially affected by
it, including press releases or any other forum or medium to elicit
public participation.
(4) Contents--(i) All public notices. All public notices issued
under this subpart shall contain the following minimum information:
(A) The name and address of the Administrator or the
Administrator's designated agent processing the permit;
(B) The name and address of the permittee or permit applicant and,
if different, of the facility regulated by the permit;
(C) The activity or activities involved in the permit action;
(D) The emissions change involved in any permit revision;
(E) The name, address and telephone number of a person from whom
interested persons may obtain additional information, including copies
of the draft permit, the application, all relevant supporting
materials, and all other materials available to the Administrator that
are relevant to the permit decision;
(F) A brief description of the comment procedures required by
paragraphs (e) and (f) of this section and the time and place of any
hearing that will be held, including a statement of procedures to
request a hearing (unless a hearing has already been scheduled) and
other procedures by which the public may participate in the final
permit decision; and
(G) Any additional information considered necessary or proper.
(ii) Public notices for hearings. In addition to the general public
notice described in paragraph (d)(4)(i) of this section, the public
notice of a hearing under paragraph (f) of this section shall contain
the following information:
(A) Reference to the date of previous public notices relating to
the permit;
(B) Date, time, and place of the hearing; and
(C) A brief description of the nature and purpose of the hearing,
including the applicable rules and procedures.
(5) In addition to the general public notice described in paragraph
(d)(4)(i) of this section, all persons identified in paragraphs
(d)(3)(i)(A), (B), and (C) of this section shall be mailed a copy of
the fact sheet or statement of basis, the permit application (if any),
and the draft permit (if any).
(e) Public comments and requests for public hearings. During the
public comment period provided under paragraph (a) of this section, any
interested person may submit written comments on the draft permit or
permit revision and may request a public hearing, if no hearing has
already been scheduled. A request for a public hearing shall be in
writing and shall state the nature of the issues proposed to be raised
at the hearing. All comments shall be considered in making the final
decision and shall be answered as provided in paragraph (j) of this
section. The Administrator will keep a record of the commenters and of
the issues raised during the public participation process, and such
records shall be available to the public.
(f) Public hearings. (1)(i) The Administrator shall hold a hearing
whenever he or she finds, on the basis of requests, a significant
degree of public interest in a draft permit or permit revision.
(ii) The Administrator may also hold a public hearing at his or her
discretion, whenever, for instance, such a hearing might clarify one or
more issues involved in the permit decision.
(iii) Public notice of the hearing shall be given as specified in
paragraph (d) of this section.
(2) Whenever a public hearing is held, the Administrator shall
designate a Presiding Officer for the hearing who shall be responsible
for its scheduling and orderly conduct.
(3) Any person may submit oral or written statements and data
concerning the draft permit or permit revision. Reasonable limits may
be set upon the time allowed for oral statements, and the submission of
statements in writing may be required. The public comment period under
paragraph (d) of this section shall be automatically extended to the
close of any public hearing under this subsection. The hearing officer
may also extend the comment period by so stating at the hearing.
(4) A tape recording or written transcript of the hearing shall be
made available to the public.
(g) Obligation to raise issues and provide information during the
public comment period. All persons, including applicants, who believe
any condition of a draft permit is inappropriate or that the
Administrator's tentative decision to deny an application, terminate a
permit, or prepare a draft permit is inappropriate, must raise all
reasonably ascertainable issues and submit all reasonably ascertainable
arguments supporting their position by the close of the public comment
period (including any public hearing). Any supporting materials which
are submitted shall be included in full and may not be incorporated by
reference, unless they are already part of the administrative record in
the same proceeding, or consist of State or Federal statutes and
regulations, EPA documents of general applicability, or other generally
available reference materials. Commenters shall make supporting
materials not already included in the administrative record available
to EPA as directed by the Administrator. (A comment period longer than
30 days may be necessary to give commenters a reasonable opportunity to
comply with the requirements of this paragraph (g). Additional time
shall be granted to the extent that a commenter who requests additional
time demonstrates the need for such time.)
(h) Reopening of the public comment period. (1)(i) The
Administrator may order the public comment period reopened if the
procedures of this paragraph (h) could expedite the decisionmaking
process. When the public comment period is reopened under this
paragraph (h), all persons, including applicants, who believe any
condition of a draft permit is inappropriate or that the
Administrator's tentative decision to deny an application, terminate a
permit, or prepare a draft permit is inappropriate, must submit all
reasonably available factual grounds supporting their position,
including all supporting material, by a date, not less than 60 days
after public notice under paragraph (h)(1)(ii) of this section, set by
the Administrator. Thereafter, any person may file a written response
to the material filed by any other person, by a date, not less than 20
days after the date set for filing of the material, set by the
Administrator.
(ii) Public notice of any comment period under this paragraph shall
identify the issues to which the requirements of paragraph (h)(1)(i) of
this section shall apply.
(iii) On his or her own motion or on the request of any person, the
Administrator may direct that the requirements of paragraph (h)(1)(i)
of this section shall apply during the initial comment period where it
reasonably appears that issuance of the permit will be contested and
that applying the requirements of paragraph (h)(1)(i) of this section
will substantially expedite the decisionmaking process. The notice of
the draft permit shall state whenever this has been done.
(iv) A comment period of longer than 60 days will often be
necessary in complicated proceedings to give commenters a reasonable
opportunity to comply with the requirements of this subsection.
Commenters may request longer comment periods and they shall be granted
to the extent they appear necessary.
(2) If any data, information, or arguments submitted during the
public comment period appear to raise substantial new questions
concerning a permit, the Administrator may take one or more of the
following actions:
(i) Prepare a new draft permit, appropriately modified;
(ii) Prepare a revised statement of basis, a fact sheet or revised
fact sheet, and reopen the comment period; or
(iii) Reopen or extend the comment period to give interested
persons an opportunity to comment on the information or arguments
submitted.
(3) Comments filed during the reopened comment period shall be
limited to the substantial new questions that caused its reopening. The
public notice shall define the scope of the reopening.
(4) Public notice of any of the above actions shall be issued under
paragraph (d) of this section.
(i) Issuance and effective date of permit. (1) After the close of
the public comment period on a draft permit, the Administrator shall
issue a final permit decision. The Administrator shall notify the
applicant and each person who has submitted written comments or
requested notice of the final permit decision. This notice shall
include reference to the procedures for appealing a decision on a
permit. For the purposes of this paragraph (i), a final permit decision
means a final decision to issue, deny, revise, revoke and reissue, or
terminate a permit.
(2) A final permit decision shall become effective 30 days after
the service of notice of the decision unless:
(i) A later effective date is specified in the decision; or
(ii) No comments requested a change in the draft permit, in which
case the permit shall become effective immediately upon issuance.
(j) Response to comments. (1) At the time that any final permit
decision is issued, the Administrator shall issue a response to
comments. This response shall:
(i) Specify which provisions, if any, of the draft permit have been
changed in the final permit decision, and the reasons for the change;
and
(ii) Briefly describe and respond to all significant comments on
the draft permit raised during the public comment period, or during any
hearing.
(2) Any documents cited in the response to comments shall be
included in the administrative record for the final permit decision as
defined in paragraph (k) of this section. If new points are raised or
new material supplied during the public comment period, EPA may
document its response to those matters by adding new materials to the
administrative record.
(3) The response to comments shall be available to the public.
(4) The Administrator will notify in writing any Affected State of
any refusal to accept recommendations for the permit that the State
submitted during the public or Affected State review period.
(k) Administrative record for final permit. (1) The Administrator
shall base final permit decisions on the administrative record defined
in this paragraph (k).
(2) The administrative record for any final permit shall consist
of:
(i) All comments received during the public comment period,
including any extension or reopening;
(ii) The tape or transcript of any hearing(s) held;
(iii) Any written material submitted at such a hearing;
(iv) The response to comments required by paragraph (j) of this
section and any new materials placed in the record under paragraph (j)
of this section;
(v) Other documents contained in the supporting file for the
permit;
(vi) The final permit;
(vii) The application and any supporting data furnished by the
applicant;
(viii) The draft permit or notice of intent to deny the application
or to terminate the permit;
(ix) The statement of basis for the draft permit;
(x) All documents cited in the statement of basis; and
(xi) Other documents contained in the supporting file for the draft
permit.
(3) The additional documents required under paragraph (k)(2) of
this section should be added to the record as soon as possible after
their receipt or publication by EPA. The record shall be complete on
the date the final permit is issued.
(4) This section applies to all final permits.
(5) Material readily available at the issuing Regional Office, or
published materials which are generally available and which are
included in the administrative record under the standards of paragraph
(j) of this section (``response to comments''), need not be physically
included in the same file as the rest of the record as long as it is
specifically referred to in the statement of basis or fact sheet or in
the response to comments.
(l) Appeal of permits. (1) Within 30 days after a final permit
decision has been issued, any person who filed comments on the draft
permit or participated in the public hearing may petition the
Environmental Appeals Board to review any condition of the permit
decision. Any person who failed to file comments or failed to
participate in the public hearing on the draft permit may petition for
administrative review only to the extent of the changes from the draft
to the final permit decision. The 30-day period within which a person
may request review under this subsection begins with the service of
notice of the Administrator's action unless a later date is specified
in that notice. The petition shall include a statement of the reasons
supporting that review, including a demonstration that any issues
raised were raised during the public comment period (including any
public hearing) to the extent required by these regulations unless the
petitioner demonstrates that it was impracticable to raise such
objections within such period or unless the grounds for such objection
arose after such period, and, when appropriate, a showing that the
condition in question is based on:
(i) A finding of fact or conclusion of law which is clearly
erroneous; or
(ii) An exercise of discretion or an important policy consideration
which the Environmental Appeals Board should, in its discretion,
review.
(2) The Board may also decide on its initiative to review any
condition of any permit issued under this subpart. The Board must act
under this paragraph within 30 days of the service date of notice of
the Administrator's action.
(3) Within a reasonable time following the filing of the petition
for review, the Board shall issue an order either granting or denying
the petition for review. To the extent review is denied, the conditions
of the final permit decision become final agency action. Public notice
of any grant of review by the Board under paragraph (l) (1) or (2) of
this section shall be given as provided in paragraph (d) of this
section. Public notice shall set forth a briefing schedule for the
appeal and shall state that any interested person may file an amicus
brief. Notice of denial of review shall be sent only to applicant and
to the person(s) requesting review.
(4) A petition to the Board under paragraph (l)(1) of this section
is, under 42 U.S.C. 307(b), a prerequisite to the seeking of judicial
review of the final agency action.
(5) For purposes of judicial review, final agency action occurs
when a final permit is issued or denied by EPA and agency review
procedures are exhausted. A final permit decision shall be issued by
the Administrator:
(i) When the Board issues notice to the parties that review has
been denied;
(ii) When the Board issues a decision on the merits of the appeal
and the decision does not include a remand of the proceedings; or
(iii) Upon the completion of remand proceedings if the proceedings
are remanded, unless the Board's remand order specifically provides
that appeal of the remand decision will be required to exhaust
administrative remedies.
(6) Neither the filing of a petition for review of any condition of
the permit or permit decision nor the granting of an appeal by the
Environmental Appeals Board shall stay the effect of any contested
permit or permit condition.
(m) Computation of time. (1) Any time period scheduled to begin on
the occurrence of an act or event shall begin on the day after the act
or event.
(2) Any time period scheduled to begin before the occurrence of an
act or event shall be computed so that the period ends on the day
before the act or event, except as otherwise provided.
(3) If the final day of any time period falls on a weekend or legal
holiday, the time period shall be extended to the next working day.
(4) Whenever a party or interested person has the right or is
required to act within a prescribed period after the service of notice
or other paper upon him or her by mail, 3 days shall be added to the
prescribed time.
[FR Doc. 94-28292 Filed 11-18-94; 8:45 am]
BILLING CODE 6560-50-P
