[Federal Register Volume 60, Number 81 (Thursday, April 27, 1995)]
[Proposed Rules]
[Pages 20804-20855]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10054]
[[Page 20803]]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Parts 55 and 71
Federal Operating Permits Program; Proposed Rule
Federal Register / Vol. 60, No. 81 / Thursday, April 27, 1995 /
Proposed Rules
[[Page 20804]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 55 and 71
[FRL 5183-1]
RIN 2060-AD68
Federal Operating Permits Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule; notice of opportunity for public hearing.
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SUMMARY: The EPA is proposing a new subpart containing regulations
setting forth the procedures and terms under which the Administrator
will administer programs for issuing operating permits to covered
stationary sources, pursuant to title V of the Clean Air Act as amended
in 1990 (the Act). Although the primary responsibility for issuing
operating permits to such sources rests with State, local, and Tribal
air agencies, EPA will remedy gaps in air quality protection by
administering a Federal operating permits program in areas lacking an
EPA-approved or adequately administered operating permits program.
Federally issued permits will clarify which requirements apply to
sources and will enhance understanding of and compliance with air
quality regulations.
DATES: Comments. Comments on the proposed regulations must be received
by EPA's Air Docket on or before June 26, 1995.
Public Hearing. A public hearing is scheduled for 10:00 a.m., on
May 30, 1995, at the address listed below. Requests to present oral
testimony must be received by May 12, 1995, and the hearing may be
canceled if no speakers have requested time to present their comments
by that date. Written comments in lieu of, or in addition to, testimony
are encouraged.
ADDRESSES: Comments should be mailed (in duplicate if possible) to: EPA
Air Docket (Mail Code 6102), Attn: Docket No. A-93-51, Room M-1500,
Waterside Mall, 401 M Street SW, Washington, DC 20460. The public
hearing will be held in the Waterside Mall auditorium at the U.S.
Environmental Protection Agency, 401 M Street SW, Washington, DC 20460.
Docket. Supporting information used in developing the proposed
rules is contained in Docket No. A-93-51. Supporting information used
in developing 40 CFR part 70 is contained in Dockets No. A-90-33 and
No. A-93-50. These dockets are 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 M-1500, Waterside Mall, 401 M Street SW, Washington,
DC 20460. A reasonable fee may be charged for copying.
FOR FURTHER INFORMATION CONTACT: Candace Carraway (telephone 919/541-
3189) or Kirt Cox (telephone 919/541-5399), U.S. Environmental
Protection Agency, Office of Air Quality Planning and Standards,
Information Transfer and Program Integration Division, Mail Drop 12,
Research Triangle Park, North Carolina 27711. Persons interested in
attending the hearing or wishing to present oral testimony should
contact Ms. Susan Curtis in writing at the U.S. Environmental
Protection Agency, Office of Air Quality Planning and Standards,
Information Transfer and Program Integration Division, Mail Drop 12,
Research Triangle Park, North Carolina 27711.
SUPPLEMENTARY INFORMATION:
Comments
The EPA is unlikely to be able to extend the public comment period.
Two paper copies of each set of comments are requested. If possible,
comments should be sent in both paper and computerized form. Comments
generated on computer should be sent on an IBM-compatible diskette and
clearly labeled. Computer files created with the WordPerfect 5.1
software package should be sent as is. Files created on other software
packages should be saved in an ``unformatted'' mode for easy retrieval
into WordPerfect. Comments should refer to specific page numbers of
today's proposal whenever possible.
Outline
The contents of today's preamble are listed in the following
outline:
I. Background and Purpose
II. Proposal Summary
III. Detailed Discussion of Key Aspects of the Proposed Regulations
A. Section 71.2--Definitions
B. Section 71.3--Sources Subject to Permitting Requirements
C. Section 71.4--Program Implementation
D. Section 71.5--Permit Applications
E. Section 71.6--Permit Content
F. Section 71.7--Permit Review, Issuance, Renewal, Reopenings,
and Revisions
G. Section 71.8--Affected State Review
H. Section 71.9--Permit Fees
I. Section 71.10--Delegation of Part 71 Program
J. Section 71.11--Administrative Record, Public Participation,
and Administrative Review
K. Section 71.12--Prohibited Acts
IV. Administrative Requirements
A. Reference Documents
B. Office of Management and Budget (OMB) Review
C. Regulatory Flexibility Act Compliance
D. Paperwork Reduction Act
I. Background and Purpose
Title V of the Act as amended in 1990 (42 U.S.C. 7661 et seq.)
imposes on States the duty to develop, administer, and enforce
operating permits programs that comply with the requirements of title V
(section 502(d)(1)). The EPA has 1 year to approve or disapprove a
submitted program (section 502(d)(1)). Once EPA has approved a State
program, the covered sources within that program's scope have 1 year to
submit permit applications to the permitting authority (section 503(c))
unless the permitting authority establishes an earlier date. Within the
first 3 years of the program, the permitting authority must act on all
applications submitted in the first year of the program (section
503(c)), and EPA must have an opportunity to object to the proposed
permit if it does not comply with the Act's requirements (section
505(b)). Once the permitting authority issues a source its permit, the
source may not violate any requirement of its permit or operate except
in compliance with it (section 502(a)).
Title V also requires that EPA stand ready to issue Federal
operating permits when States default in their duty to develop and
administer part 70 programs. Section 502(b) of the Act requires that
EPA promulgate regulations setting forth provisions under which States
will develop operating permits programs and submit them to EPA for
approval. Pursuant to this section, EPA promulgated 40 CFR part 70 on
July 21, 1992 (57 FR 32250), which specifies the minimum elements of
State operating permits programs.
The operating permits program's potential consequences for air
pollution control and for sources' ability to meet changing market
demands have made the process of developing and implementing the
program complex and controversial. Indeed, nearly 20 entities,
including State and local governments, environmental groups, and
industry associations, petitioned for judicial review of the part 70
regulations. Subsequently, EPA decided to propose revisions to part 70.
See 59 FR 44460 (Aug. 29, 1994). In light of ongoing discussions with
petitioners, EPA may propose additional revisions to part 70 in the
future that may also necessitate supplementing the part 71 provisions
proposed today.
The EPA intends that proposed part 71 generally follow the approach
taken in 40 CFR part 70, including the [[Page 20805]] recently proposed
revisions to part 70. Differences between part 70 and part 71 are noted
in the discussion of each section of the proposed rule. Where possible
and appropriate, provisions of part 71 are consistent with part 70.
Some of the differences between the provisions of part 71 and part 70
reflect the fact that part 71 programs are expected to be of limited
duration. The EPA expects that States (and many Tribes) will revise
their programs so that they become approvable, and responsibility for
the permits program will be transferred back to the State or Tribe.
The Agency is aware that many parties have already submitted
comments expressing both their concerns about and their support for the
proposed revisions and that these parties are interested in the final
Agency decisions on many of the issues raised in the part 70
rulemaking. This proposal for part 71 is not intended in any way to
prejudge the Agency's decisions in the part 70 rulemaking, but rather
simply parallels the proposed part 70 revisions in order to be
consistent with that proposal.
The primary purpose of the proposed rule is to provide the
mechanism by which EPA can assume responsibility to issue permits in
situations where the State, local, or Tribal agency has not developed,
administered, or enforced an acceptable permits program or has not
issued permits that comply with the applicable requirements of the Act.
Secondarily, the proposed rule provides for delegation of certain
duties that may provide for a smoother program transition when State
programs are approved. For both of these reasons, the proposed rule
should strengthen implementation of the Act and enhance air quality
planning and control.
Additional benefits of the proposed rule are much the same as those
of the part 70 State operating permits rule. For example, permits
issued under part 71 will clarify which requirements apply to a source.
This clarification should enhance compliance with the requirements of
the Act. The part 71 program will enable the sources, EPA, and the
public to better understand the requirements to which the source is
subject and whether the source is meeting those requirements. Part 71
permits also provide the vehicle for implementing air toxics programs
under section 112.
The comment period for the proposed revisions to part 70 will end
prior to the comment period for today's rulemaking proposal. It would
therefore be of limited value for commenters to suggest in response to
today's rulemaking proposal their concerns with those aspects of the
part 70 proposed revisions on which proposed part 71 is based. Rather,
EPA solicits comments on whether there are any provisions in proposed
part 71 for which EPA has inappropriately proposed consistency with
part 70 or its proposed revisions or has inappropriately departed from
part 70 or its proposed revisions.
The rationale for today's proposal and many of the issues addressed
in this proposal are discussed in greater detail in a document entitled
``Supplementary Information for Proposed Federal Operating Permits
Rule'' (Supplementary Information Document) which is contained in the
docket for this proposal (Docket No. A-93-51).
This preamble makes frequent use of the term ``State,'' usually
meaning the State air pollution control agency that would be the
permitting authority for a part 70 permit program. The reader should
assume that use of ``State'' may also include reference to a local air
pollution agency. In some cases, the term ``permitting authority'' is
used and can refer to State, local, and Tribal agencies. The term may
also apply to EPA, where the Agency is the permitting authority of
record.
II. Proposal Summary
Sections 502(d)(3) and 502(i)(4) of the Act require EPA to
promulgate a Federal operating permits program when a State has
defaulted on its obligation to submit an approvable program within the
timeframe set by title V or on its obligation to adequately administer
and enforce an approved program. The rule proposed in this action would
establish a national template for a Federal operating permits program
that EPA may administer and enforce in a State. In addition, the
proposed rule would establish the procedures for issuing Federal
permits to sources for which States do not have jurisdiction (i.e., OCS
sources outside of State jurisdictions and sources located in Tribal
areas). Finally, the proposed rule would establish the procedures used
when EPA must take action on a permit that has been proposed or issued
by a State or local agency or Indian Tribe having an approved part 70
program and that EPA determines is not in compliance with the
applicable requirements of the Act.
Like part 70, part 71 requires: (1) The use of a standard permit
application form; (2) that sources subject to permitting requirements
pay permit fees that assure adequate program resources and funding; and
(3) permit issuance, appeal, and renewal procedures that ensure that
each regulated source can obtain a permit that will assure compliance
with all of its applicable requirements under the Act. Part 71 sources
must obtain an operating permit addressing all applicable pollution
control obligations under the State implementation plan (SIP), Federal
implementation plan (FIP), or Tribal implementation plan (TIP); the
acid rain program; the air toxics program under section 112; and other
applicable provisions of the Act. Sources must also submit periodic
reports to EPA concerning the extent of their compliance with permit
obligations.
When EPA implements a part 71 program, it will cover only the
geographic area that is not covered by an approved State, local, or
Tribal program. For example, if a local agency within a State has an
approved program but the entire State is not covered by an approved
program, EPA's implementation of a part 71 program for the State would
not affect the area subject to the approved local program.
In appropriate circumstances, EPA may delegate to a State, local,
or Tribal permitting authority some or all of its authority to
administer a part 71 program. The responsibilities of EPA and the
delegate agency will be set forth in a Delegation of Authority
Agreement.
The EPA will generally cease implementation of a part 71 program
subsequent to approval of a State operating permits program.
III. Detailed Discussion of Key Aspects of the Proposed Regulations
A. Section 71.2--Definitions
Generally, the proposed definitions in part 71 would follow the
definitions in currently promulgated part 70 and its proposed
revisions, as appropriate. However, some of the definitions used in 40
CFR part 70 would be modified for use in this part. The key part 71
definitions (including some which would be defined differently than in
part 70) are discussed in this section. Others are discussed in the
preamble sections describing the program areas where they are primarily
used. Still others are defined in other titles of the Act and the
regulations promulgated thereunder.
1. Affected State
The definition of ``affected State'' for purposes of proposed
Sec. 71.8 would include lands within the exterior boundaries of an
Indian reservation or other areas over which an Indian Tribe has
jurisdiction (hereafter ``Tribal area''). If EPA administers a part 71
program for such an area, EPA would consider the Indian Tribe to be an
[[Page 20806]] affected State and would provide the Tribe notice of
draft permits, permit renewals, permit reopenings, and permit
revisions. Such notice would also be provided when a part 71 program is
implemented outside of a Tribal area and an applicant source is within
50 miles of the Tribal area, or is in an area that is contiguous to the
Tribal area and may affect the air quality in that area, provided the
Indian Tribe meets the eligibility criteria for being treated in the
same manner as a State for programs under the Act. See 59 FR 43956
(Aug. 25, 1994).
The definition of ``affected State'' for purposes of proposed
Sec. 71.8 would also include the State or Tribal area and the area
within the jurisdiction of the air pollution control agency in which
the part 71 permit, permit revision, or permit renewal is being
proposed. EPA believes this provision is necessary for part 71, while
not for part 70. In some cases under a part 71 program, the title V
permitting authority (EPA) would not be the same as the governmental
body with general jurisdiction over the area (i.e., the State, Tribe,
or local air pollution control agency). When EPA is the permitting
authority, EPA believes it is necessary to notify the States, Tribal
authorities, and local agencies with jurisdiction over the areas in
which EPA's action is proposed. Otherwise, these authorities would be
less apprised of EPA's actions than the neighboring areas that do not
have jurisdiction over these areas and are less likely to be impacted
by EPA's actions. The EPA solicits comment on this expansion of the
term ``affected State,'' and on whether other mechanisms might
adequately serve to apprise ``host'' jurisdictions of EPA part 71
actions.
2. Applicable Requirements
An ``applicable requirement'' is any standard or other requirement
that applies to a source. This includes any relevant requirement in an
approved SIP or preconstruction permit. It also includes any pertinent
standard or other requirement imposed pursuant to any title of the Act,
such as sections 111, 112, 114(a)(3), 129, 183(e), 183(f), 328, 504(b),
504(e), 608, or 609. However, EPA does not believe that the provisions
of sections 604 through 606 and 610 through 612 of title VI of the Act
must be considered as applicable requirements for title V and included
in title V permits. The rationale for this determination can be found
in the preamble to the proposed revision of the part 70 regulations, at
IV.A.1(b). See 59 FR 44460 (Aug. 29, 1994).
For purposes of part 71, EPA today incorporates that rationale by
reference. The EPA also incorporates by reference that notice's
rationale for adding to the list of applicable requirements any
requirements that create offsets or limit emissions for the purpose of
complying with, or avoiding applicable requirements. The proposed
addition to the part 70 list and today's proposal for part 71 would add
as an applicable requirement any emissions-limiting requirement that is
enforceable by citizens or EPA under the Act and that is placed on a
source for purposes of creating an offset credit or avoiding the
applicability of applicable requirements.
3. Tribal Areas
The EPA has published a proposed rule, pursuant to section
301(d)(2), specifying the provisions of the Act for which EPA believes
it is appropriate to treat Indian Tribes in the same manner as States.
See 59 FR 43956 (Aug. 25, 1994) (``Indian Tribes: Air Quality Planning
and Management,'' hereafter ``proposed Tribal rule''). The proposed
Tribal rule also addresses the criteria a Tribe must meet in order to
be eligible for treatment in the same manner as a State for the
specified provisions of the Act.
For a Tribe to be eligible for treatment in the same manner as a
State, it must be Federally recognized (section 302(r)) and must meet
the three criteria set forth in section 301(d)(2)(A)-(C). Briefly,
these criteria consist of the following: (1) The Tribe must have a
governing body carrying out substantial governmental duties and powers;
(2) the functions to be exercised by the Tribe must pertain to the
management and protection of air resources within the exterior
boundaries of the reservation or other areas within the Tribe's
jurisdiction; and (3) the Tribe must be capable of carrying out the
functions to be exercised consistent with the terms and purposes of the
Act and applicable regulations. These criteria and EPA's streamlined
process for determining compliance with these criteria are described in
detail in the Tribal rule (59 FR 43961-43964).
In the Tribal rule, EPA proposes to interpret the Act as granting,
to Tribes approved by EPA to administer programs under the Act in the
same manner as States, authority over all air resources within the
exterior boundaries of an Indian reservation. This would enable Tribal-
approved programs under the Act to address conduct on all lands,
including non-Indian owned fee lands, within the exterior boundaries of
a reservation. The proposed Tribal rule would also authorize an
eligible Tribe to develop and implement programs under the Act for off-
reservation lands that are determined to be within a Tribe's inherent
sovereign authority to regulate. The rationale for this proposed
interpretation of Tribal jurisdiction under programs under the Act is
set out in detail in the proposed Tribal rule, and is incorporated here
by reference. See 59 FR 43958-43961.
EPA's final interpretation of Tribal jurisdiction under this Act
may affect the scope of a part 71 program administered by EPA for
Tribes. When, pursuant to Federal implementation authority, EPA is
acting in the place of a State or Tribe under the Act, all of the
rights and duties that would otherwise fall to the State or Tribe
accrue instead to EPA. See Central Arizona Water Conservation Dist. v.
EPA, 990 F.2d 1531, 1541 (9th Cir. 1993), cert. denied, 114 S.Ct. 94
(1993). Therefore, the scope of Tribal authority under the Act may
inform EPA's authority in administering a part 71 program for Tribes.
More specifically, EPA would have authority to implement a Tribal
part 71 program for any lands within the exterior boundaries of a
reservation and any off-reservation land over which a Tribe has
inherent sovereign authority. Tribes determined eligible to be treated
in the same manner as a State under the Act would be given notice under
proposed Secs. 71.8 and 71.10 of certain permit actions. All land
within the exterior boundaries of a reservation and any other lands
over which a Tribe has demonstrated inherent authority would be
considered in providing notice to a Tribe. Further, the proposed part
71 rules provide that, in all instances, the Tribe for the area in
which a part 71 permit program is being administered will receive
notice.
The EPA's proposed Tribal rule is subject to public comment and may
be modified before it is issued in final form. The EPA may need to make
conforming changes to the part 71 rules proposed today to reflect any
relevant revisions made to the Tribal rule.
4. Major Source
The EPA is proposing to utilize the same approaches to defining
``major source'' as were used for 40 CFR parts 63 and 70, except that
today's proposal, like the recently proposed revisions to part 70,
would change the definition of major source to conform to the
definition in section 112(a) of the Act and to implementing regulations
governing hazardous air pollutants (HAP) sources recently promulgated
in 40 CFR part 63. Section 501(2) of the Act provides, in relevant
part, that the term ``major source'' means ``any stationary source (or
any group of stationary sources located within a
[[Page 20807]] contiguous area and under common control)'' that would
be a major source under section 112 or a major stationary source under
section 302 or part D of title I of the Act. Other conditions and
requirements relevant to the major source definition are:
a. Section 302 and Part D Sources. Except for sources qualifying as
support facilities (see paragraph (c) of this section), stationary
sources can only be aggregated to determine whether they constitute a
major stationary source subject to section 302 or part D of the Act if
they are in the same industrial grouping, as determined by their 2-
digit code. These codes can be found in the Standard Industrial
Classification Manual, 1987.
b. Section 112 Sources. Stationary sources of HAP must be
aggregated for the purpose of determining whether they are major
sources subject to section 112 without regard to their industrial
grouping.
c. Support Facilities. The EPA proposes to include in the
definition of a major source pursuant to section 302 or part D of title
I of the Act, any facility or emission unit used to support the main
activity of the source, regardless of its 2-digit code. A support
facility must be located on the same property as the source it
supports, or on adjacent property, and be under the control of the same
entity. Also, at least 50 percent of the support facility's output must
be dedicated to the source.
d. Emission Requirements. To be major, a stationary source must
have the potential to emit pollutants in amounts at or above the major
source threshold, which is determined by the type of pollutant emitted
and by the attainment status of the area in which the source is
located. Thus, the term ``major source'' encompasses the following:
(1) Air toxics sources with the potential to emit 10 tons per year
(tpy) or more of any HAP listed pursuant to section 112(b); 25 tpy or
more of any combination of HAP listed pursuant to section 112(b); or a
lesser quantity of a given pollutant, if the Administrator so
specifies. And, once the Administrator promulgates a definition of
major source for radionuclides, a source would be major if it emits, or
has the potential to emit, major amounts of radionuclides.
(2) Sources of air pollutants, as defined in section 302 of the Act
with the potential to emit 100 tpy or more of any pollutant.
(3) Except as noted in paragraph (d)(4) of this section, sources
subject to the nonattainment area provisions of title I, part D, with
the potential to emit pollutants in the following, or greater, amounts:
(a) 50 tpy VOC or NOX in serious ozone nonattainment areas;
(b) 25 tpy VOC or NOX in severe ozone nonattainment areas;
(c) 10 tpy VOC or NOX in extreme ozone nonattainment areas;
(d) 50 tpy VOC in ozone transport regions established pursuant to
section 189 of the Act;
(e) 50 tpy carbon monoxide (CO) in serious CO nonattainment areas;
and
(f) 70 tpy particulate matter (PM-10) in serious particulate matter
nonattainment areas.
(4) The NOX thresholds in paragraph (d)(3) of this section do
not apply in nonattainment areas qualifying for an exemption under
section 182(f) of the Act. This exemption applies in the case where
reducing NOX emissions would not reduce ozone formation. In those
areas, a stationary source of NOX is not considered a major source
under part D of title I of the Act unless its potential to emit is 100
tpy or more. In areas not qualifying for this exemption, NOX
sources are subject to the lower thresholds defined in part D and
listed in paragraph (d)(3) of this section. Whatever its location, any
100 tpy source would be considered a major source under section 302 of
the Act. Also, the major source threshold for VOC in ozone transport
regions in paragraph (d)(3) of this section does not apply for
NOX. This threshold was created by section 184(b) of the Act.
Because section 182(f) of the Act (which requires NOX sources to
meet the same thresholds as VOC sources) does not refer to section
184(b) of the Act, the lower threshold for VOC sources in ozone
transport regions does not apply to NOX sources.
e. Fugitive Emissions. The fugitive emissions from a stationary
source shall be considered in making the determination as to whether it
is a major source when:
(1) The source belongs to one of the source categories listed in
the definition of ``major stationary source'' at 40 CFR parts 51 and 52
which includes source categories regulated by a section 111 or section
112 standard as of August 7, 1980. Thus, proposed part 71 would follow
the proposed revisions to part 70 in that sources in categories subject
to standards set after August 7, 1980, if not otherwise listed, would
be exempted from the requirement to include fugitive emissions when
making their major source determination until such time as EPA conducts
section 302(j) rulemaking to require that fugitive emissions from those
sources be included.
(2) The air pollutants emitted are HAP or radionuclides. The EPA
believes the Act requires that fugitive emissions of HAP or
radionuclides, to the extent quantifiable, be counted. Section
112(a)(1) of the Act uses the term ``major source,'' rather than
``major stationary source,'' and legislative history indicates an
intent by Congress to treat this definition differently than the
section 302(j) ``major stationary source'' definition. Moreover,
section 112 of the Act establishes a new program with a relatively
narrow focus; it applies only for specific HAP at source categories to
be determined by EPA. All this suggests that the section 302(j)
rulemaking requirement does not apply in the context of section 112,
and that fugitive emissions must therefore be included for the purpose
of determining whether a source is major under section 112(a)(1).
4. New Source Review
The definitions for major and minor NSR have been included so they
can be used to describe the proposed permit revision procedures. In
some cases, the action to revise a permit will depend on whether the
change was subjected to major or minor NSR before being processed as a
part 71 revision.
5. Potential To Emit
In the proposed definition of ``potential to emit,'' limitations on
a source's potential to emit would be federally enforceable only if
they are enforceable by the Administrator and citizens under the Act.
This differs from the definition currently in part 70 of this chapter,
in that the part 70 definition only requires that the limitations be
enforceable by the Administrator. This proposal would follow the
definition in the proposed revisions to part 70. See 59 FR 44460 (Aug.
29, 1994).
6. Responsible Official
The proposed definition of ``responsible official'' would follow
the definition in the recently proposed revisions to part 70.
7. Title I Modification
The proposed rule would adopt the definition of ``title I
modification'' or ``modification under any provision of title I of the
Act'' that is used in part 70. The proposed definition parallels a
proposed revision to the regulations at part 70 of this chapter, on
which EPA solicited comment, and the rationale for the definition in
the preamble to the proposed revision to part 70 is incorporated herein
by reference. See 59 CFR 44460 (Aug. 29, 1994). [[Page 20808]]
B. Section 71.3--Sources Subject to Permitting Requirements
Section 502(a) of the Act subjects all affected sources (as
provided in title IV), major sources, sources (including area sources)
subject to standards or regulations under sections 111 or 112, sources
required to have permits under parts C or D of title I, and any other
source in a category designated by EPA, to the permitting requirements
of title V. Section 502(a) also provides the Administrator the
discretion to exempt one or more source categories (in whole or in
part) from the requirement to obtain a permit ``if the Administrator
finds that compliance with such requirements is impracticable,
infeasible or unnecessarily burdensome on such categories.'' The Act
specifies that major sources may not be exempted from these
requirements. This requirement applies both to sources that are major
for criteria pollutants and those that are major emitters of the HAP
listed at section 112(b). However, section 112(r)(7)(F) of the Act also
provides that sources that are subject solely to regulations or
requirements under section 112(r) of the Act are not required to obtain
a permit under this part.
1. Temporary Exemptions for Nonmajor Sources
Section 70.3(b)(1) of this chapter deferred the applicability of
part 70 to nonmajor sources (except for affected sources and solid
waste incineration sources) that would otherwise be subject because
they are in a source category that is subject to part 70, such as one
regulated by a section 111 or 112 standard. In the final part 70 rule,
EPA stated its intent to propose rulemaking to resolve the exception
status of these nonmajor sources within 5 years following the first
full or partial approval of a State program with a deferral.
The EPA proposes to follow the same approach to deferrals for
purposes of part 71.
2. Permanently Exempted Source Categories
The EPA proposes to exempt permanently two source categories from
the requirement to obtain a part 71 permit:
(1) All sources that would be required to obtain a permit solely
because they are subject to regulation under the demolition and
renovation provisions of the NESHAP for asbestos (40 CFR 61.145); and
(2) All sources that would be required to obtain a permit solely
because they are subject to regulation under the NSPS for residential
wood heaters (40 CFR 60.530).
These source categories were exempted from permitting requirements
under part 70 because the Administrator determined that permitting such
sources would be impracticable, infeasible, and unnecessarily
burdensome. This exemption is proposed to be continued for part 71. A
more detailed rationale for this exemption is provided in the preamble
to the part 70 regulations at 57 FR 32263-32264 (July 21, 1992), which
EPA today incorporates by reference for purposes of part 71.
3. Major Section 112 (HAP) Sources
Like the proposed revisions to part 70 of this chapter, today's
proposal would ensure that the definition of major source in this part
matches the definition in section 112(a) of the Act and in the
regulations governing HAP sources recently promulgated in 40 CFR part
63. Under 40 CFR Part 63, EPA definition of a major source of HAP is
more inclusive than the definition originally promulgated in part 70.
Unlike part 70, the part 63 definition of major source does not
reference standard industrial classification (SIC) codes. As defined in
part 63, an entire contiguous or adjacent plant site is considered a
single source, rather than being subdivided according to industrial
classification. See 59 FR 12412 (March 16, 1994). This definition does
not limit the sources (or emission units) that can be included in a
stationary source to those having the same 2-digit code. One result of
this more inclusive definition is that there will likely be some HAP
sources that are major under part 63 but are not major under part 70,
as originally promulgated. The EPA believes it is necessary to expand
the major source definition in part 70 and part 71 to include all
sources that are major for part 63. Otherwise, those sources subject to
a section 112 standard or other requirement will not have to apply for
and obtain a part 71 permit until required to do so by a specific
section 112 standard. Today's proposal, and the proposed revisions to
part 70 of this chapter, reflect the more inclusive part 63 definition
and ensure that HAP sources are treated consistently under rules
promulgated pursuant to section 112 and title V of the Act.
4. Section 112(r) Pollutants
Section 70.3(a)(3) of this chapter, as originally promulgated,
requires any source subject to a standard or other requirement under
section 112 of the Act to obtain a part 70 permit unless it would be
subject to part 70 solely because it is subject to regulations or
requirements under section 112(r). Section 112(r)(3) requires EPA to
promulgate a list of regulated substances and thresholds for the
prevention of accidental releases. Section 112(r)(4) establishes
criteria for the development of a list of regulated substances,
focusing on acute effects that result in serious off-site consequences,
rather than chronic effects. As a result, many of the substances listed
in Sec. 68.130 of this chapter pursuant to section 112(r)(3) (59 FR
4478 (January 31, 1994)) are not regulated elsewhere under the Act.
Questions have been raised as to whether Sec. 70.3(a)(1) of this
chapter, which provides that ``any major source'' is subject to the
permit rule, requires that sources that have major source levels of
section 112(r) pollutants must be permitted. Setting aside the issues
of whether and how major source status is to be determined for section
112(r) purposes, section 112(r)(7)(F) exempts from title V permitting
requirements any source that would be subject to title V only as result
of being subject to section 112(r) requirements. That section provides
that ``(n)otwithstanding the provisions of title V or this section, no
stationary source shall be required to apply for, or operate pursuant
to, a permit issued under such title solely because such source is
subject to regulations or requirements under this subsection.'' Thus,
it is clear that even if a source could be considered a ``major
source'' for section 112(r) purposes, it would not be subject to title
V permitting on that basis alone. The EPA's proposed revisions to 40
CFR part 70 would revise Sec. 70.3(a) of this chapter to clarify this
point. Similarly, proposed Sec. 71.3(a) reflects this approach.
C. Section 71.4--Program Implementation
Proposed section 71.4(a) describes the circumstances in which EPA
would establish a full or partial Federal operating permits program for
a State, excluding Tribal areas. Section 502(d)(3) of the Act requires
EPA to promulgate, administer, and enforce a program for a State if an
operating permits program for the State has not been approved in whole
by November 15, 1995. However, the requirement that EPA establish a
Federal program by November 15, 1995 for States lacking a fully
approved program is suspended if a State program is granted interim
approval. The duty to implement a Federal program then reapplies upon
expiration of an interim approval, if the State has not received full
approval by that time.
As provided in proposed Sec. 71.4(a)(3), EPA would have the
authority to [[Page 20809]] establish a partial part 71 program in
limited geographical areas of a State if EPA has approved a part 70
program (or combination of part 70 programs) for the remaining areas of
the State. This should avoid unnecessary disruption of partial programs
that have been approved within a State and avoid intruding into the
State's administration of its air program where only certain
jurisdictions have failed to implement an approvable part 70 program.
The proposed rule also provides for EPA implementation of part 71
programs to ensure coverage of Tribal areas. The proposed Tribal rule
generally describes EPA's authority for implementing programs under the
Act to protect Tribal air quality. 59 FR 43960-43961. That discussion
is incorporated here by reference.
In broad overview, the Act authorizes EPA to protect air quality on
lands over which Indian Tribes have jurisdiction. The overarching
purpose of the Act is ``to protect and enhance the quality of the
Nation's air resources so as to promote the public health and welfare
and the productive capacity of its population.'' section 101(b)(1). The
members of the public residing on lands over which Tribes have
jurisdiction are equally entitled to air quality protection as those
residing elsewhere.
Several provisions of the Act evince Congressional intent to
authorize EPA to directly implement programs under the Act where there
are voids in program coverage (e.g., sections 110(c)(1), 301 (d)(4) and
502 (d)(3), (i)(4)). Federal implementation of Clean Air Act programs
on Indian lands is particularly appropriate where Federal action will
prevent a ``vacuum of authority'' in air quality protection. See
Phillips Petroleum Co. v. EPA, 803 F.2d 545, 555-56 (10 Cir. 1986)
(affirming EPA's authority to directly implement Safe Drinking Water
Act Underground Injection Control program on Indian lands where
concluding otherwise would contradict the meaning and purpose of the
Act by creating ``a vacuum of authority over underground injections on
Indian lands, leaving vast areas of the nation devoid of protection
from groundwater contamination''). Based on the proposed interpretation
of Tribal jurisdiction under the Act in EPA's Tribal rule, discussed
previously, EPA would have authority under today's proposed rules to
implement part 71 programs for all areas within the exterior boundaries
of an Indian reservation and other areas over which an Indian Tribe has
jurisdiction.
If finalized as proposed, the Tribal rule will authorize Tribes to
develop and submit title V operating permit programs to EPA for
approval. The EPA's principal objective would be to assist Tribes in
developing and administering their own title V operating permit
programs, similar to the manner in which EPA has assisted States. The
EPA recognizes that ultimately Tribes are best situated to provide
primary protection of Tribal air resources. To these ends, EPA's
proposed Tribal rule provides the following:
It is EPA's policy to assist Tribes in developing comprehensive
and effective air quality management programs to insure that Tribal
air quality management programs will be implemented to the extent
necessary on Indian reservations. EPA will do this by, among other
things, providing technical advice and assistance to Indian Tribes
on air quality issues. EPA intends to consult with Tribes to
identify their particular needs for air program development
assistance and to provide on-going assistance as necessary.
59 FR 43961.
However, EPA also intends to be prepared to implement title V
programs in the event Tribes do not. To avoid gaps in title V permits
program coverage, the rules proposed today authorize EPA to implement a
title V operating permits program for Tribes that do not develop their
own programs.
The more difficult issue is when EPA should implement title V
programs for Tribes. EPA believes it is reasonable to give Tribes some
opportunity to develop their own title V programs, assuming EPA's final
Tribal rule authorizes them to do so, before EPA directly implements
title V programs.
The part 71 rules propose to authorize EPA to implement the title V
permit program for Tribes if a Tribal program has not been fully
approved by November 15, 1997. Within the first two years of the
program, the permitting authority would be required to take action on
all applications submitted in the first year of the program. Nothing in
today's proposal would prevent EPA from implementing a part 71 program
for a Tribal area subsequent to November 15, 1995 but prior to November
15, 1997. It may be appropriate, particularly where the absence of an
operating permits program would create a gap in coverage, for EPA to
implement part 71 programs in advance of the effective date set by the
rule. The EPA would discuss early implementation with the affected
Tribe before adopting an earlier effective date. In such a case, the
program would become effective when the Administrator provides written
notice to the Tribal chairperson or analogous Tribal leader.
The EPA considered several factors in addressing this issue
including: The opportunity for the development of Tribal programs that
would render Federal implementation unnecessary; the importance of
title V coverage, whether Tribal or Federal, in protecting Tribal air
quality; and, the need to treat the potentially affected regulated
community fairly and to facilitate certainty in business planning. The
EPA solicits comments on whether the EPA's proposed approach to the
effective date of the program is appropriate and whether the two-year
deadline for taking action on permit applications is appropriate and
feasible.
The proposed Tribal rule describes an administrative procedure by
which EPA would resolve jurisdictional issues affecting Tribes. See 59
FR 43962-43963 (Aug. 25, 1994). That discussion is incorporated here by
reference. Generally, EPA expects these issues to involve the precise
boundary of the reservation in question and, less frequently, competing
claims of jurisdiction over land which is outside of the exterior
boundaries of a reservation.
Briefly summarized, the proposed Tribal rule would require EPA to
notify the appropriate governmental entities regarding the Tribe's
assertion of jurisdiction.1 Those entities would have fifteen days
following receipt of EPA's notification to provide formal comments to
EPA regarding any dispute they might have with the Tribe's assertion of
jurisdiction. Where the dispute concerns jurisdiction over off-
reservation lands, appropriate governmental entities may request a one-
time fifteen-day extension to the comment period. In all cases,
comments from appropriate governmental entities would have to be
offered in a timely manner and be limited to the Tribe's jurisdictional
assertion. Where no timely comments are presented, EPA would conclude
there is no objection to the Tribe's assertion. To raise a competing or
conflicting claim, a commenter would be required to clearly explain the
substance, basis, and extent of its objections. Finally, where EPA
receives timely notification of a dispute, it could obtain such
additional information and documentation as it believes appropriate
and, at its option, consult with the Department of the Interior.
\1\For purposes of this rule, EPA is proposing to adopt the same
definition of ``governmental entities'' as the Agency did in its
December 1991 Water Quality Standards regulation. See 56 FR 64876 at
64884 (Dec. 12, 1991).
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For purposes of identifying the Tribal area for which a part 71
program is [[Page 20810]] implemented, EPA proposes to follow the
approach to resolving jurisdictional issues taken in the Tribal air
rule. If the Tribal rule is finalized as proposed, EPA would notify
appropriate governmental entities of the boundary of the Tribal area
for a part 71 program at least 90 days prior to the effective date of
the program. Those entities would then have an opportunity to provide
formal comments prior to the program's effective date, as discussed
above. Where no timely comments are presented, EPA would make a
determination that the boundary for the part 71 program would be as
proposed in the notice. Subsequently, EPA would publish a notice in the
Federal Register which describes the precise boundaries of the part 71
program.
Where EPA identifies a jurisdictional dispute, it may obtain
additional information and documentation and consult with the
Department of the Interior prior to making a determination. The EPA
would subsequently publish a notice in the Federal Register which
describes the precise boundaries of the part 71 program. If the dispute
cannot be resolved promptly, EPA would retain the option of
implementing the part 71 program in the areas that are clearly shown to
be part of the reservation (or are otherwise within the Tribe's
jurisdiction). This will allow EPA to implement a part 71 program that
covers all undisputed areas, while withholding action on the portion
that addresses areas where a jurisdictional issue has not been
satisfactorily resolved.
As proposed in Sec. 71.4(c), EPA would promulgate a part 71 program
for a permitting authority (including an eligible Tribe) if EPA
determines that an approved program is not adequately administered or
enforced and the permitting authority fails to correct the deficiencies
that precipitated EPA's finding.2 Where the acid rain portion of
an operating permits program is not adequately administered, EPA could
withdraw either the entire program or just the acid rain portion of the
program. If EPA finds that the nonacid rain portion of the operating
permits program is being adequately administered, EPA would generally
withdraw only the acid rain portion. In such a case, EPA would issue
the acid rain portion of the source's permit using the procedures set
forth in 40 CFR part 72, and the State would continue to issue the
remaining portion of the operating permits and would issue all permits
to sources other than acid rain sources.
\2\Although this preamble section addresses withdrawing approval
of State operating permit programs, note that eligible Tribes would
be treated in the same manner as States for purposes of withdrawal
of program approval, assuming the Tribal rule is finalized as
proposed. In that case, the provisions of 40 CFR 70.10(b)(1), which
address State failure to administer or enforce an approved part 70
program, and 40 CFR 70.10(c), which addresses criteria for
withdrawal of State programs, would apply equally to Tribal
programs.
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When EPA determines that a State is not adequately administering
its program, EPA would provide notice to the State as required by 40
CFR 70.10(b)(1). The State would then have 90 days in which to take
significant action to assure adequate administration and enforcement of
the program. Where EPA determines that the State has not taken such
significant action within the specified time, EPA could begin
implementing a Federal program immediately. Otherwise, if the State had
not fully corrected the deficiency that prompted EPA's determination of
failure to administer or enforce within 18 months of the determination,
EPA would begin implementing a Federal program 2 years after the date
of the determination. This framework is identical to that which EPA
promulgated in part 70 at 40 CFR 70.10(b) (2) and (4).
The EPA acknowledges that its intent to retain the option of
withdrawing only the acid rain portion of a program in appropriate
situations is a change of position from EPA's statement in the preamble
to the final part 70 rule (see 57 FR 32260) that should a State fail to
adequately administer phase II of the acid rain program, EPA will take
back the entire operating permits program. There, EPA stated that in
such a situation EPA would implement part 71, as supplemented by
Federal acid rain permit issuance procedures, and would issue permits
to acid rain sources within the State. The EPA notes that this
discussion was not reflected in regulatory language in the finally
promulgated part 70 rule, which instead provided EPA discretion to
withdraw program approval in whole or in part. See 40 CFR 70.10(c)(1).
Moreover, EPA explained in a May 21, 1993 guidance document entitled
``Title IV-Title V Interface Guidance for States,'' that if EPA finds
that a part 70 program is not being properly administered or enforced
for title IV purposes, EPA will publish a notice in the Federal
Register making this announcement and noting where permit applications
are to be delivered. When publishing such a Federal Register notice,
EPA may elect to withdraw approval for an entire part 70 program
submittal or only the acid rain portion of it and may apply appropriate
sanctions under section 179(b) of the Act.
Under part 71, EPA would retain the option of withdrawing only the
acid rain portion of the program and issuing a phase II acid rain
permit, rather than withdrawing the entire part 70 program and issuing
a comprehensive part 71 operating permit. The EPA believes that it is
reasonable and appropriate to depart from the policy stated in the
preamble to the final part 70 rule regarding withdrawal of phase II
acid rain authority because EPA believes that deficiencies with respect
to the acid rain portion of a State program would generally not
adversely affect the remaining portions of the State program. By
withdrawing approval of just the acid rain portion, EPA would minimize
disruption of otherwise adequate State air programs. It should be noted
that the acid rain portion of a source's operating permit contains
discreet requirements that are not intertwined with the remaining
provisions of the permit. For example, phase II acid rain permits
generally contain a requirement that a source hold sufficient
allowances to cover emissions, specify requirements for NOX
emissions and provide for continuous emissions monitoring in accordance
with 40 CFR part 75. Amendments and revisions to such provisions are
subject to a different set of procedures as specified in 40 CFR part
72. Thus, separate Federal administration of the acid rain permitting
program in a State that fails to adequately administer the acid rain
portion of its operating permits program would be a logical step where
the remainder of the part 70 program was being adequately administered
by the State.
The EPA solicits comment on this approach, and on whether this
approach is consistent with the requirements of title V. The EPA
stresses that section 502(i)(1) of the Act allows EPA to determine that
only a portion of an approved State program is not being adequately
administered and enforced. While section 502(i)(1) does not explicitly
provide that where a State fails to correct an identified deficiency in
a finding under section 502(i)(4), EPA may promulgate, administer, and
enforce only the relevant portion of the program, EPA believes that
Congress could not have intended for EPA to be compelled to withdraw
and take over entire part 70 programs where only discrete portions of
the program are deficient. Such a result would be unnecessarily
disruptive of State air programs and would require much greater Federal
intrusion into the State's air program than may be necessary to correct
the faulty portion. [[Page 20811]]
Section 71.4(d) addresses the circumstances in which EPA proposes
to issue permits to OCS sources (sources located in offshore waters of
the United States) pursuant to the requirements of section 328(a) of
the Act. Section 328 of the Act transferred from the Department of the
Interior to EPA the authority to regulate air pollution from sources
located on the OCS off of the Atlantic, Arctic, and Pacific coasts and
in the Gulf of Mexico east of 87.5 degrees longitude. In today's
notice, which proposes revisions to 40 CFR part 55 in addition to the
proposed Federal operating permit rules, EPA is proposing to require an
OCS source to comply with the requirements of part 71 if the source is
located beyond 25 miles of States' seaward boundaries or if the source
is located within 25 miles of a State's seaward boundary and the
requirements of part 71 are in effect in the corresponding onshore area
(COA). Section 328 requires that EPA establish requirements for sources
located within 25 miles of a State's seaward boundary that are the same
as would be applicable if the source were located in the COA.
Part 71 permits would be issued to OCS sources by the Administrator
or a State or local agency that has been delegated the OCS program in
accordance with part 55 of this chapter. As OCS sources beyond 25 miles
of States' seaward boundaries would become subject to part 71
immediately upon the effective date of part 71, they would be required
to submit part 71 permit applications within 1 year of becoming subject
to this part.
Proposed Sec. 71.4(e) describes how EPA would take action on
objectionable permits that have already been proposed or issued by a
permitting authority. Section 505(b) of the Act and 40 CFR 70.8 (c) and
(d) require EPA to object to the issuance of any permit that EPA
determines is not in compliance with the applicable requirements of the
Act. If the permitting authority does not take appropriate action in
response to EPA's objection, EPA shall revise, terminate, or revoke the
permit if it has been issued and shall correct and issue the permit if
it has not been issued.
As provided in 40 CFR 70.7(g) (Sec. 70.7(j) in the proposed
revisions to part 70), if EPA finds that a State-issued permit must be
reopened to correct an error or add newly applicable requirements, EPA
will notify the permitting authority. If the permitting authority does
not take appropriate action, EPA will revise and reissue the permit
under part 71.
As provided at 40 CFR 70.8(c)(1), EPA will object to the issuance
of any proposed permit that EPA determines is not in compliance with
the applicable requirements of the Act or the requirements of part 70.
If EPA objects within 45 days of receipt of a copy of the proposed
permit, the permitting authority may not issue the proposed permit to
the source. The EPA's objection, as required by 40 CFR 70.8(c)(2),
shall include a statement of EPA's reasons for objecting and a
description of the permit terms that the permit must include to respond
to the objection. Moreover, under 40 CFR 70.8(c)(3), failure of the
permitting authority to: (1) Comply with requirements in 40 CFR 70.8
(a) and (b) to notify EPA and affected States, (2) submit to EPA any
information necessary to adequately review the proposed permit, or (3)
process the permit under procedures approved to meet the public
participation requirements of part 70 would also constitute grounds for
EPA objection to a proposed permit.
Under 40 CFR 70.8(c)(4), if the permitting authority fails within
90 days after EPA's objection to revise and submit to EPA a new
proposed permit responding to the objection, EPA will issue or deny the
permit. Proposed Sec. 71.4(e)(1) would establish the authority for
EPA's permit issuance or denial in these situations.
Likewise, proposed Sec. 71.4(e)(1) would establish the authority
for EPA to revise, terminate, or revoke a permit in response to a
citizen petition filed under 40 CFR 70.8(d). The EPA's action to
revise, terminate or revoke a permit would then occur consistent with
40 CFR 70.7(g)(4) or (5)(i) and (ii) (Secs. 70.7(j)(4) or (5)(i) and
(ii) of the proposed revisions to part 70), except in unusual
circumstances, such as where there is a substantial and imminent threat
to the public health and safety resulting from the deficiencies in the
permit. Usually, the permitting authority would have 90 days from
receipt of EPA's objection in response to a citizen petition to resolve
the objection and terminate, revise, or revoke and reissue the permit
in accordance with EPA's objection. See 40 CFR 70.7(g)(4),
Sec. 70.7(j)(4) of the proposed revisions to part 70. If the permitting
authority failed to resolve the objection, EPA would terminate, revise,
or revoke and reissue the permit, after providing at least 30 days
notice to the permittee in writing of the reasons for such action
(which may be given at any time during the time period after EPA
objects to the permit) and providing the permittee an opportunity for
comment on EPA's proposed actions and an opportunity for a hearing. See
40 CFR 70.7(g)(5)(i) and (ii) and Secs. 70.7(j)(5)(i) and (ii) of the
proposed revisions to part 70. Proposed Sec. 71.4(e)(2) would provide
the authority for EPA to take such action.
Section 71.4(f) of the proposed rule would authorize EPA to use
part 71 in its entirety or any portion of the regulations, as needed.
For example, EPA could use the provisions for permitting OCS sources
without permitting any other types of sources. Similarly, EPA could use
only portions of the regulations to correct and issue a State permit
without, for example, requiring an entirely new application. Proposed
Sec. 71.4(f) would also authorize EPA to exercise its discretion in
designing a part 71 program. The EPA would be able to, through
rulemaking, modify the national template by adopting appropriate
portions of a State's program as part of the Federal program for that
State, provided the resulting program is consistent with the
requirements of title V.
The EPA believes it is reasonable and appropriate to provide this
flexibility in implementing a part 71 program. First, such flexibility
would enable EPA to intervene in the administration and enforcement of
an operating permits program only to the extent necessary to correct
deficiencies. Second, it would provide EPA, after notice and comment
rulemaking, the ability to appropriately tailor part 71 to the State in
which it would be implemented, thus resulting in less disruption of the
State air program and the daily operations of covered sources than
might otherwise occur. While EPA believes that part 71 as proposed
today should not result in unnecessary disruption, the Agency
recognizes that further State-specific tailoring may be appropriate.
Proposed Sec. 71.4(g) clarifies that EPA would publish a notice of
the effective dates of part 71 programs. The EPA would publish such
notice in the Federal Register and would, to the extent practicable,
publish notice in a newspaper of general circulation in the area
affected by the part 71 program. The EPA would also publish such notice
for delegations of part 71 programs. Finally, in addition to notices in
the Federal Register and newspapers of general circulation, EPA would
send a letter to the Governor (or his or her designee) or the Tribal
governing body for the affected area informing him or her of when the
part 71 program or its delegation would become effective.
Section 71.4(h) proposes that EPA would be authorized to promulgate
and administer a part 71 program in its entirety even if only limited
deficiencies exist in a State or Tribal program. The EPA believes that
such authority is [[Page 20812]] necessary because limited deficiencies
could have wide-ranging impacts within a program. For example, if a
State program failed to provide adequate opportunities for public or
affected State participation in permitting actions, the integrity of
permit content could become suspect, the public and affected States
would be excluded from administrative and judicial review of permit
actions, and EPA oversight of such actions could suffer, as a result of
citizens not having standing to petition EPA to object to permits.
Section 71.4(i) of the proposed rule describes how EPA would take
action on the initial part 71 permits in the event that a full or
partial part 71 program becomes effective in a State or Tribal area
prior to the permitting authority issuing part 70 permits to all
subject sources. The EPA proposes to utilize a 3-year transition plan
similar to that required of States under Sec. 70.4(b)(11)(ii) of this
chapter. Under proposed Sec. 71.4(i)(1), any remaining sources that had
not yet received part 70 permits from the permitting authority would be
required to submit applications to EPA for part 71 permits within 1
year of becoming subject to the part 71 program. The sources that had
already received part 70 permits, if any, would continue to operate
under those permits, unless EPA had withdrawn part 70 approval due to
the inadequacy of the part 70 permits, in which case those sources
would be required to obtain part 71 permits. After receiving part 71
permit applications, EPA would act on one-third of those applications
each year for the first 3 years of the part 71 program. As previously
issued part 70 permits needed to be revised or renewed, sources would
apply to EPA for such revisions or renewals under part 71.
As provided in proposed Sec. 71.4(j), EPA would have the discretion
to delegate some or all of its authority to administer a part 71
program to a State or eligible Tribe. The delegation process is
described further in the discussion of proposed Sec. 71.10.
Section 71.(4)(k) of the proposed rule would authorize EPA to
administer and enforce part 70 permits issued by a permitting authority
under a previously-approved part 70 program after EPA has withdrawn
approval of such program until they are replaced by part 71 permits
issued by EPA.
Proposed Sec. 71.4(l) describes what would happen after EPA
approves a part 70 program for an area in which a part 71 program has
been effective and how the Administrator, or the new part 70 permitting
authority, will administer and enforce the part 71 permits until they
are replaced by part 70 permits. For a State that submits a late part
70 submittal to EPA such that EPA has not approved or disapproved the
submittal by November 15, 1995, part 71 becomes automatically effective
until the State's part 70 program is approved by EPA. However, sources
are not obligated to submit applications to EPA until 12 months after
they have become subject to an effective part 71 program (unless an
earlier submittal date is set by EPA). Therefore, if the State's part
70 program is approved shortly after part 71 is effective, it is highly
likely that sources will submit applications to the permitting
authority rather than to EPA. Upon approval of the part 70 program, EPA
will suspend further action on applications for part 71 permits. Where
appropriate, applications received by EPA prior to approval of the part
70 program will be forwarded to the permitting authority after approval
of the part 70 program.
Finally, proposed Sec. 71.4(m) provides how EPA would implement the
provision of section 325 of the Act if the Governor of Guam, American
Samoa, the Virgin Islands, or the Commonwealth of the Northern Mariana
Islands petitions the Administrator to exempt any source or class of
sources from the requirements of title V of the Act.
D. Section 71.5--Permit Applications
Much of proposed Sec. 71.5 is modeled on the provisions currently
promulgated at 40 CFR 70.5, and on the proposed revisions to that
section. See 59 FR 44460 (Aug. 29, 1994). In this notice, EPA
incorporates by reference the rationale provided for these provisions,
to the extent such rationale apply to a Federal operating permit
program as well as to State permit programs. Copies of the part 70 rule
as promulgated in July 1992 and of the notice proposing revisions to
part 70 have been included in the docket for this rulemaking. The
Supplementary Information Document contains a general discussion and
explanation of the proposed rule's application requirements. Where
proposed part 71 differs from promulgated part 70 or the proposed
revisions to part 70 the discussion goes into greater detail describing
the part 71 proposal. Where proposed part 71 follows part 70 precedent,
shorter general descriptions of the part 71 proposal are supplied. It
should be noted that the formatting of proposed Sec. 71.5 does not
correspond to that of 40 CFR 70.5. In developing proposed part 71, EPA
determined that the formatting of 40 CFR 70.5 could be improved so that
it is easier to follow. The EPA requests comment on this proposed
formatting difference.
1. Insignificant Activities and Emission Levels
Proposed Sec. 71.5(g) would allow insignificant activities or
emission levels to be exempt from the application content requirements
of proposed Sec. 71.5(f). These exemptions would reduce the
administrative burden on sources by eliminating the requirement that a
source include in its application an extensive analysis of
insignificant activities (or emissions units) and quantities of
emissions. This proposal is based on the part 70 provisions regarding
insignificant activities and emissions levels, and is supported by the
Alabama Power decision, where the court found that emissions from
certain small modifications and emissions of certain pollutants at new
sources could be exempted from some or all PSD review requirements on
the grounds that such emissions would be de minimis. See Alabama Power
v. Costle, 636 F.2d 323, 360 (D.C. Cir., 1979). In other words, EPA may
determine levels below which there is no practical value in conducting
an extensive review. In general, an agency can create this exemption
where the application of a regulation across all classes will yield a
gain of trivial or no value. A determination of when a matter can be
classified as de minimis turns on the assessment of particular
circumstances of the individual case. For EPA to establish that an
emissions threshold is trivial and of no consequence, EPA must consider
the size of the particular emissions threshold relative to the major
source threshold applicable in the various areas where a regulation
will be in effect.
In the rulemaking establishing requirements for State operating
permits programs under part 70, many commenters suggested that EPA
create a de minimis exemption level for regulated air pollutants, and
that emissions information not be required for pollutants below this de
minimis level. In the final part 70 rule, EPA gave States discretion to
develop lists of insignificant activities and to set insignificant
emission levels if certain criteria were met and subject to EPA review
and approval. In the proposed part 71 rule, EPA has fashioned
provisions for insignificant activities or emission levels that meet
the minimum requirements for States under the part 70 rulemaking, while
taking a unique Federal approach, based on the Agency's experience in
reviewing State provisions for insignificant activities and emission
levels in the course of part [[Page 20813]] 70 operating permits
program reviews. The EPA notes, however, that the part 70 provisions on
insignificant activities and emissions levels are the subject of
ongoing litigation settlement discussions, and that a possible result
of these discussions could be a modification of the part 70 provisions
on this issue. To the extent any future proposed revisions to the part
70 insignificant activities and emissions level criteria are more
stringent than the provisions proposed for part 71, EPA may have to
supplement this proposal to make the two rules consistent.
In this rulemaking, EPA proposes to exempt all information required
by proposed Sec. 71.5(f) concerning insignificant activities inclusion
in the permit application, while for insignificant emission levels,
application information completeness requirements would vary from
proposed Sec. 71.5(f). To ensure that all significant information is
included in the permit application, the proposed rule includes a
provision stating that no activities or emission levels shall be exempt
from proposed Sec. 71.5(g) if the information omitted from the
application is needed to determine or impose any applicable
requirement, to determine whether a source is major, to determine
whether a source is subject to the requirement to obtain a part 71
permit, or to calculate the fee amount required under the fee schedule
established pursuant to proposed Sec. 71.9. The proposed prohibition
against omitting information from the application that is relevant to
the determination or imposition of applicable requirements means that
an activity (or emissions unit) that has applicable requirements could
not be considered as an insignificant activity or to have insignificant
emission levels. Applicable requirements in this context include any
standard or requirement as defined in proposed Sec. 71.2. The proposed
provision that the exemption not interfere with the requirement to
obtain a part 71 permit is necessary to insure that all the
requirements of the Act are met, because the requirements of title V of
the Act are not included in the proposed definition of applicable
requirements. An activity or emission level could not be insignificant
if it constitutes a major source. An activity or emission level could
not be insignificant if omitting the emissions from the application
would prevent the aggregate source emissions from exceeding the major
source threshold or a threshold that would trigger an applicable
requirement, such as a modification under section 112(g). This proposal
would further prohibit these exemptions from being used by applicants
when information needed to calculate the fee amount required under the
fee schedule would be omitted from the application. Although the fee
schedule provided in proposed Sec. 71.9(c)(1) would exclude
insignificant emissions from being counted for fee purposes, this
provision would be retained for instances where the Administrator
promulgates a different fee schedule for a particular state pursuant to
proposed Sec. 71.9(c)(7). Under such a fee schedule, information
concerning insignificant activities or emissions may be needed to
calculate the fee amount.
a. Insignificant Activities. To meet the requirements of part 70,
States submitted rules incorporating a wide variety of approaches for
implementing these provisions. Many State part 70 program submittals
included extensive lists of insignificant activities. Some of the
listed activities were so broadly defined that it was difficult to
determine if they would interfere with the determination or imposition
of applicable requirements or affect major source status, seemingly
inviting the omission of significant information. Some were so narrowly
defined that industry would be invited to propose an endless number of
additional listings for inclusion in the rules in future years,
creating an administrative burden on the States. In the course of EPA's
review of part 70 permit program submittals, it was also clear that
there were very few insignificant activities that are common among the
States. The EPA proposes to include a short list of broadly-defined
insignificant activities that are frequently included in State part 70
program submittals. These activities commonly occur in residential
settings, are not subject to applicable requirements (with the possible
exception of certain SIP-based requirements for residential heating
sources that are not commonly adopted on a nation-wide basis), and
normally have small quantities of emissions. Emission units at a source
that are on the list of insignificant activities in proposed
Sec. 71.5(g)(1) could not be treated as insignificant (1) when the
activities are subject to an applicable requirement, including an
applicable requirement of a Federal or Tribal implementation plan, (2)
if information concerning the activities would interfere with any
applicability determination, (3) if the insignificant activities
constitute a major source, (4) if not counting the emissions from
insignificant activities in the total source emissions would prevent
the source from being determined to be a major source, or (5) if any
information that would otherwise be left off of the permit application
would be needed to calculate the fee amount required under the fee
schedule established under proposed Sec. 71.9.
b. Insignificant Emission Levels. The proposal would further allow
emission units or activities with small emissions to be included in the
application in a streamlined manner, as long as the application did not
exclude information needed to (1) determine or impose applicable
requirements, (2) determine the requirement to obtain a permit, (3)
determine whether the source is a major source, or (4) calculate the
fee amount, and provided the emissions caps of proposed Sec. 71.5(g)(2)
were not exceeded. The EPA believes that this would ensure that enough
information will be provided that the permitting authority can make a
quick assessment of whether the emissions are insignificant.
Nevertheless, to ensure that the rule is being applied properly by the
applicant, the permitting authority could request additional
information if needed. Note that to qualify as insignificant emissions,
the emissions could not count toward or trigger a unit-based de minimis
permit revision under proposed Sec. 71.7(f). The only emissions units
that would have emissions levels qualifying as insignificant under
proposed Sec. 71.5(g) would be units that would not be included in the
part 71 permit anyway because they could not be subject to applicable
requirements, contribute to the triggering of an applicable
requirement, or affect a major status determination. Therefore, for
existing units with insignificant emissions there would not be any
permit terms or conditions to revise and for new units with
insignificant emissions there would not be any permit terms or
conditions to add to the part 71 permit.
The emissions caps of proposed Sec. 71.5(g)(2) are expressed in
terms of potential to emit, not actual emissions. The use of potential
to emit is consistent with how major source thresholds (which were used
in developing the proposed caps) are defined. Furthermore, EPA believes
that basing the caps on potential to emit provides greater assurance
that only truly insignificant levels of emissions would be eligible for
streamlined treatment on the permit application form.
In commenting on the necessity of de minimis levels to be
established in the part 70 rulemaking, one commenter suggested the
level be set at 5 tpy or 20 percent of the applicable major source
threshold. An examination of these [[Page 20814]] levels in terms of
major source thresholds is necessary to determine if they are trivial.
For example, a 5-ton emission is 20 percent of the major source
threshold for serious and severe ozone nonattainment areas, but 50
percent of the major source threshold in extreme ozone nonattainment
areas. A level set at 20 percent of the applicable threshold would
equal 2 tons in extreme ozone nonattainment areas, but would be 20 tons
in moderate nonattainment areas. It is not clear that emissions of this
size could be characterized as trivial in all areas for all air
pollutants, especially because emissions at these levels may trigger
State major new source review (NSR), thus triggering applicable
requirements.
Therefore, EPA is proposing and soliciting comment on setting the
threshold for insignificant emission levels at 1 tpy for regulated air
pollutants, except HAP, in all areas except extreme ozone nonattainment
areas, where the threshold is proposed to be 1,000 pounds (lb) per
year. These levels would be 1 percent of the major source threshold in
moderate nonattainment areas, 2 percent in serious ozone nonattainment
areas, 4 percent in severe ozone nonattainment areas, and 5 percent of
the threshold in extreme ozone nonattainment areas. The EPA believes
that these levels are trivial and would not prevent EPA from collecting
any information of a consequential or significant nature. The lower
threshold for extreme ozone nonattainment areas is necessary due to the
increased concern that permitting authorities would have in such areas.
Permitting authorities in these areas have collected information
pertaining to permitted sources with relatively small emissions. This
level of concern has been necessary in order to achieve emission
reductions sufficient to make progress towards meeting the NAAQS.
The EPA proposes and solicits comment on setting the exemption
threshold for HAP for any single emissions unit to be the lesser of
1,000 lb per year or the de minimis levels established under section
112(g) of the Act. In the part 70 rulemaking, EPA recommended that the
emissions levels for HAP established for the purpose of setting
insignificant emission levels not be less stringent than the levels
established for modifications under section 112(g) of the Act. Although
this was only a recommendation, many States structured their emissions
levels for HAP using these levels as upper bounds. Note that the
provisions of proposed Sec. 71.5(g) would prevent a part 71 emissions
unit from having insignificant emissions levels if the unit was subject
to applicable requirements of section 112(g). The EPA also proposes
that the level for HAP should never be higher than 1,000 pounds per
year. This is necessary because the major source threshold is 10 tpy
for a single HAP, thus ensuring that insignificant emissions of HAP
will never exceed 5 percent of the major source threshold. The EPA
believes that these levels are trivial and would not prevent EPA from
collecting any information of a consequential or significant nature.
The EPA proposes and solicits comment on setting the threshold for
insignificant emissions for the aggregate emissions of any regulated
air pollutant, excluding HAP, from all emission units located at a
facility to not exceed a potential to emit of 10 tpy, except in extreme
ozone nonattainment areas, where potential to emit may not exceed 5
tpy. The EPA further proposes and solicits comment on setting the
threshold for insignificant emissions levels for the aggregate
emissions of all HAP from all emission units located at a facility to
not exceed a potential to emit of 5 tpy or the section 112(g) de
minimis levels, whichever is less. These provisions would provide more
certainty to the permitting authority because no emissions values in
terms of potential or actual emissions would be required to be included
in the application for emissions qualifying as insignificant, and it is
conceivable that large quantities of emissions could be hidden from
scrutiny without such aggregate emission thresholds. In addition, these
provisions would clarify for applicants that large numbers of similar
sources, such as valves or flanges, that might be exempt on an
individual basis, would have to be described in detail in the
application if the aggregate emissions from all the units are relevant
to the applicability of the Act's requirements or the determination of
major source status.
Minimal information concerning emissions units with insignificant
emissions would have to be provided in a list in the application. This
list would have to describe the emission units in sufficient detail to
identify the source of emissions and demonstrate that the exemption
applies. For example, the description ``space heaters'' on a list may
not provide sufficient information because there could be an unlimited
number of units with potentially significant emissions, but the
description, ``two propane-fired space heaters,'' places a limit on any
estimate of emissions and would provide enough information.
Descriptions may need to specify not only the number of units meeting
the description, when more than one unit is included under a single
description, but in many cases capacity, throughput, material being
processed, combusted, or stored, or other pertinent information may
need to be provided. For example, ``storage tank'' would be
insufficient, but ``250-gallon underground storage tank storing
unleaded gasoline, annual throughput less than 2,000 gallons,'' would
be sufficient for quick assessment, because this level of information
is sufficient to demonstrate whether any applicable requirements apply
and that the 1 tpy emissions cap would most likely not be exceeded.
Emissions units (or activities) with insignificant emissions that
might be logically grouped together on the list that would be required
by proposed Sec. 71.5(g)(2) but that have dissimilar descriptions,
including dissimilar capacities or sizes, would be required to be
listed separately in the application. This is necessary to prevent
large numbers of emissions units from being grouped together on the
list in such a way that the description would be too broad to provide
sufficient information to identify the emissions units and provide an
indication of whether or not the exemption applies. On the other hand,
in certain cases, large numbers of certain activities could be grouped
together on the list. For example, a complex facility may have hundreds
of valves and flanges where the aggregate potential to emit of all the
valves and flanges does not exceed the aggregate emissions cap and
there are no applicable requirements that apply to the valves and
flanges. In this case, it would most likely be appropriate to list all
the valves and flanges together as one listed item, including the
number of units meeting the exemption.
The EPA solicits comment on the approach regarding insignificant
activities and emission levels proposed in this notice, particularly on
whether this approach provides greater clarity than that discussed in
promulgated part 70, and whether the approach proposed in this notice
would be compatible with the approaches developed by States to date.
The EPA also solicits comment regarding whether the approach proposed
today provides adequate safeguards to insure that part 71 permit
applications do not exclude significant information, especially all
information necessary to determine applicability of Act requirements
and major source status.
2. Cross Referencing Information in the Application
The permitting authority could allow the application to cross-
reference [[Page 20815]] relevant materials where they are current and
clear with respect to information required in the permit application.
Such might be the case where a source is seeking to update its title V
permit based on the same information used to obtain a NSR permit or
where a source is seeking renewal of its title V permit and no change
in source operation or in the applicable requirements has occurred. Any
cross-referenced documents would have to be included in the title V
application that is sent to the permitting authority and that is made
available as part of the public docket on the permit action.
3. Application Completeness Determinations
As provided by proposed Sec. 71.5(c), a complete application would
be one that the permitting authority has determined contains all the
information needed to begin processing. The preamble to the proposed
revisions to part 70 discusses two options for providing flexibility
when determining application completeness. The first option addresses
applications for sources with future-effective compliance dates, and
the second option addresses the submittal of less detailed applications
for sources that are scheduled to be permitted in the second and third
years of the initial phase-in of a part 70 program. See 59 FR 44460
(Aug. 29, 1994).
Although the regulatory language concerning completeness
determinations in the part 71 proposal is consistent with the
regulatory language in the proposed part 70 revisions, EPA is not
anticipating revising the proposed part 71 regulatory language to
specifically implement either of the flexibility options discussed in
the preamble to the proposed revisions to part 70. As EPA is not as
familiar with sources as State and local permitting authorities, EPA is
not in a position to adequately quality assure applications that apply
such flexibility options. Thus, the use of such flexibility options in
determining application completeness could increase the risk of
inappropriate completeness determinations by EPA, as well as increase
EPA's administrative burden. As a result of this concern, EPA is not
proposing to provide for the flexibility options described in the
preamble to the revisions to part 70, but solicited comment on this
position in the part 71 proposal.
E. Section 71.6--Permit Content
Many of the proposed provisions of Sec. 71.6 follow the provisions
of 40 CFR 70.6, which were described and discussed at length in the
proposed and final preambles to 40 CFR part 70, and in the recently
proposed revisions to part 70. This notice incorporates the rationale
provided in the part 70 notices by reference, as appropriate. This
discussion focuses on those provisions that are affected by the legal
challenges to the part 70 rule and those issues for which the approach
proposed to be taken in part 71 differs from that taken in part 70 or
the proposed revisions thereto.
The provisions of proposed Sec. 71.6 have been formatted
differently than those in 40 CFR 70.6 to consolidate the provisions
related to compliance and to make the section easier to follow. The EPA
solicits comment on the proposed formatting change.
1. Prompt Reporting of Deviations
Like part 70, proposed part 71 would require that each permit
contain provisions for prompt notification of deviations. In both
cases, the definition of ``deviation'' is consistent with the
definition of deviation in the proposed enhanced monitoring rule.
However, part 71 proposes to define ``promptly'' for purposes of
reporting deviations from federally-issued permits.
Under this proposal and the proposed enhanced monitoring rule,
deviation means any of the following conditions: Where emissions exceed
an emission limitation or standard; where process or control device
parameter values demonstrate that an emission limitation or standard
has not been met; or where observations or data collected demonstrates
noncompliance with an emission limitation or standard or any work
practice or operating condition required by the permit. These
conditions (except in cases where provisions that exempt such
conditions from being federally enforceable violations have been
promulgated or approved by the Administrator) would be deemed
deviations from part 71 permit requirements and would require prompt
reporting to the permitting authority.
Part 71 sources would be required to promptly notify the permitting
authority of any deviations. Under part 71, promptly has more than one
meaning. This follows the model established in part 70. Where the
underlying applicable requirement contains a definition of prompt or
otherwise specifies a time frame for reporting deviations, that
definition or time frame shall govern. Where the underlying applicable
requirement fails to address the time frame for reporting deviations,
prompt is defined differently depending on the type of pollutant
emitted. For deviations concerning a HAP or toxic air pollutant that
exceed a permit requirement for at least a one hour duration, prompt
reporting would be defined as within 24 hours. Sources emitting other
regulated air pollutants at levels that exceed permit requirements for
at least two hours would be required to report the deviation within 48
hours.
The EPA recognizes that there are other notification requirements
that have been established under other statutes that require sources to
provide immediate notification of releases of specific chemicals in
reportable quantities to agencies other than EPA and State permitting
authorities. Generally these notifications apply to a potential
emergency situation such as those requirements in CERCLA and SARA title
III. In addition, pursuant to section 112(r), the Chemical Safety and
Hazards Investigation Board has the authority to develop regulations
for reporting accidental releases of section 112(r) substances. If a
reporting regulation is established, it would become an applicable
requirement on the source. The EPA stresses that sources must comply
with such notice requirements even if they have provided notice to the
permitting authority pursuant to proposed Sec. 71.6(f)(3). Failure to
provide notices required by these other statutes and their implementing
regulations may result in enforcement actions and penalties.
Because the emissions from sources could cover a very large
spectrum with a wide range of health effects, the permitting authority
may also define in the permit the concentration and time duration of a
deviation that must be reported promptly and the schedule for such
reporting.
Sources may notify the permitting authority of a deviation by
telephone or facsimile within their required time schedule, and must
then submit certified written notice within ten working days. All
deviations would still have to be included in monitoring reports which
would be required to be submitted at least every 6 months or more
frequently if required by another applicable requirement (e.g., NSPS or
enhanced monitoring).
2. General Permits
Proposed Sec. 71.6(l) would implement section 504(d), which
authorizes the permitting authority to issue a ``general permit
covering numerous similar sources.'' The approach proposed for part 71
would follow that of part 70 and the recently proposed revisions
thereto.
In response to the concerns raised in the legal challenges to the
part 70 rule, EPA has reevaluated its approach to
[[Page 20816]] providing for public participation for general permits.
In the most recent part 70 proposal, the following items concerning
general permits were proposed: (1) authorization to operate under a
general permit is a final action subject to judicial review; and (2)
the permitting authority is required to notify the public of sources
who have been authorized to operate under a general permit. The latter
action could be done as a monthly summary. Proposed Sec. 71.6 follows
the approach of the recent part 70 proposal for general permits.
3. Emergency Defense
As provided in proposed Sec. 71.6(o), part 71 permits could contain
permit terms that provide that a source can establish an affirmative
defense to an enforcement action based on noncompliance due to an
emergency. The affirmative defense would not apply to permit terms
other than technology-based emission limitations (e.g., MACT standards)
and would not apply unless the source provides appropriate
documentation as specified in proposed Sec. 71.6(o)(3). The emergency
defense would be independent of any emergency or upset provision
contained in an applicable requirement.
Although part 71 permits could contain provisions for an emergency
defense, EPA notes that sources that produce, process, handle or store
a listed substance under section 112(r) or any other extremely
hazardous substance nonetheless have a general duty in the same manner
and to the same extent as section 654, title 29 of the United States
Code, to identify hazards assessment techniques, to design and maintain
a safe facility, and to minimize the consequences of accidental
releases.
The EPA is reevaluating the provisions in parts 70 and 71 relating
to the emergency defense in light of concerns identified in legal
challenges to the part 70 rule. The EPA may propose revisions to the
part 70 and part 71 sections providing for the emergency defense before
EPA would include such defense in any part 71 permits. In the interim,
to ensure consistency with currently promulgated part 70, EPA would
include in part 71 provisions allowing permit terms to establish an
emergency defense.
4. Operational Flexibility
Section 502(b)(10) of the Act requires that the minimum elements of
an approvable permit program include provisions to allow changes within
a permitted facility without requiring a permit revision. In the
current part 70 rule, EPA included three different methods for
implementing this mandate. However, in response to concerns raised by
petitioners and State permitting authorities charged with implementing
part 70, EPA recently proposed to revise part 70 to eliminate one of
those methods and clarify the operation of the others. Today's part 71
proposal adopts the same approach to operational flexibility as
discussed in the proposed revision to part 70. The rationale for EPA's
position on operational flexibility is set out in the proposed
revisions to part 70 (59 FR 44460 (Aug. 29, 1994)), which today's
notice incorporates by reference.
5. Referencing of Requirements
Petitioners in the part 70 litigation have asked EPA for
clarification on the subject of data that may be referenced but not
included in the permit.
In the recently proposed revisions to part 70, EPA has indicated
that some referencing might be appropriate, and has requested comment
on whether referencing should be allowed for: (1) test methods, (2)
definitions, (3) startup, shutdown, or malfunction requirements or
plans, and (4) detailed emission calculation protocols. The EPA
solicits comments on referencing for part 71 permits.
F. Section 71.7--Permit Review, Issuance, Renewal, Reopenings, and
Revisions
This section of the preamble describes EPA's proposed regulations
governing permit issuance, renewal, reopening, and revision procedures
under part 71. Generally, under a part 71 program such procedures would
follow the procedures in the currently promulgated part 70 rule, as
recently proposed to be revised. See 40 CFR 70.7 and 59 FR 44460 (Aug.
29, 1994). To the extent part 71 would follow the procedures in
existing part 70 and the proposed revisions thereto, this notice
incorporates the rationale for those procedures by reference. Where
possible, EPA believes it is appropriate to model part 71 procedures on
those required by part 70, in order to promote national consistency
between the title V permit programs that will be administered
throughout the country. National consistency will ensure that sources
are not faced with substantially different programs when EPA, as
opposed to State agencies, is the permitting authority. Moreover, as
most part 71 programs are likely to be of limited duration, consistency
with part 70 will enable smooth transition between Federal and State
programs, encourage States to take delegation of administration of part
71 programs, help States that have been unable to obtain part 70
approval to phase into the title V program, promote uniformity in
public and affected State participation, and provide a level playing
field for sources.
In certain respects, the procedures under proposed part 71 would
vary from the procedures in part 70. This is usually due to the fact
that EPA, as a Federal permitting authority, will not be implementing
State air programs in general when it assumes title V responsibilities.
Consequently, certain opportunities under part 70, such as new source
review merged with title V permit revision procedures, would not be
available where EPA is the permitting authority. However, where a State
takes delegation of the administration of a part 71 program, some of
these opportunities would be available. These variations are discussed
in the relevant sections of the discussion below. In other cases, where
part 70 and the proposed revisions thereto provide States with
flexibility to decide among alternative approaches or define specific
elements of permit program procedures in developing their State
programs, part 71 would decide these issues in the regulation itself,
rather than rely upon further program development. Moreover, in today's
notice EPA proposes detailed procedures for permitting actions, similar
to those found at 40 CFR part 124 governing other permit programs
administered by EPA.
1. Permit Issuance and Renewal
Part 71 would generally follow the currently promulgated part 70,
as proposed to be revised in the August 29, 1994, Federal Register
notice, in establishing procedures for permit issuance and renewal.
These procedures are set forth in proposed Sec. 71.7(a)-(c) and are
discussed in greater detail in section 3-F-1 of the Supplementary
Information Document.
In certain respects, part 71 would differ from part 70 and the
proposed revisions thereto. For example, part 71 permitting authorities
would be required to provide EPA with statements describing the legal
and factual basis for draft permit terms only where the part 71 program
has been delegated to a State or Tribal agency for administration.
Also, only in cases where EPA has delegated part 71 administration to a
State or Tribal agency would EPA would reserve the right to terminate
or revoke and reissue a permit when the delegate permitting authority
is not taking appropriate action to expeditiously process a permit
renewal application. [[Page 20817]]
2. Permit Revisions
Proposed Secs. 71.7(d)-(h) would govern how permits are revised
under part 71 programs. These procedures would generally follow the 4-
track system contained in the recently proposed revisions to part 70.
However, certain aspects of the 4-track system would not be available
unless EPA had delegated administration of a part 71 program to a State
or eligible Tribal agency. Moreover, where the proposed revisions to
part 70 would leave it to State discretion to decide certain issues on
a program-by-program basis, part 71 would contain specific provisions.
Where the permit revision procedures under part 71 would differ from
those under proposed part 70, the rationale for those differences is
provided in detail. Where the procedures under part 71 would be the
same as those under the proposed part 70 4-track system, this notice
incorporates by reference the rationale for those provisions contained
in the notice for the proposed revisions to part 70. See 59 FR 44460
(Aug. 29, 1994). The part 71 permit revision procedures are discussed
in greater detail in section 3-F-2 of the Supplementary Information
Document.
The EPA wishes to stress that in first describing this permit
revision structure in the proposed revisions to part 70, the Agency
solicited comments on ways to simplify what is admittedly a complex
system. In light of the extensive comments received concerning the
complexity of the proposal, EPA will publish a supplemental proposal
covering part 70 permit revision procedures that differs from the
August 29, 1994 proposal. The supplemental proposal is expected to be
published within a few months of the publication of today's part 71
proposal and has not been developed in time to be incorporated into
today's proposal. After the new part 70 procedures are proposed, EPA
will most likely need to publish a supplemental proposal for part 71
pertaining to permit revision procedures. If so, EPA would finalize
other portions of the rule first in order to be able to administer part
71 programs by November 15, 1995. The EPA expects to promulgate the
part 70 permit revisions procedure in time to adjust corresponding
sections of proposed part 71, as appropriate, before EPA would receive
any applications for permit revisions under a part 71 program.
a. Administrative Amendments. The provisions governing
administrative amendments to part 71 permits would be located at
proposed Sec. 71.7(e). Today's proposal would follow existing part 70
in allowing changes that are generally clerical in nature to be made
pursuant to administrative amendment procedures. Also, like the
proposed revisions to part 70, part 71 would allow increases in the
frequency of required testing, monitoring, recordkeeping and reporting
to be incorporated through the administrative amendment process. While
part 70 provides a subsequent opportunity for identifying other changes
similar to those just described for processing as administrative
amendments in the program approval stage, part 71 would not, simply
because after promulgation of this rule there would be no further stage
of part 71 program development.
Where EPA has delegated administration of a part 71 program to a
State or eligible Tribe, part 71 would follow the recent proposed
revisions to part 70 by allowing changes that undergo ``merged'' part
71/NSR or part 71/section 112(g) process to be incorporated into the
part 71 permit as administrative amendments. For purposes of part 71,
this opportunity to follow proposed part 70 would exist only where
States or eligible Tribes take delegation of the part 71 program. When
administering a part 71 program for a State, EPA would not also be
implementing the State's preconstruction program, so EPA would not be
able to upgrade the State's preconstruction program to part 71 process.
While this eliminates a significant opportunity for streamlined permit
revision where EPA is acting as the permitting authority, EPA believes
that it is infeasible for EPA to merge preconstruction review and part
71 review unless the same permitting authority processes both actions.
Moreover, to the extent States take delegation of part 71 programs,
this opportunity for flexibility will be present. The EPA solicits
comment on the proposed limited availability of merged processing under
part 71 and suggestions for ways in which this merged processing could
be more feasibly provided.
In delegation agreements, EPA and delegate agencies could agree
that delegate agencies could conduct merged processing on a case-by-
case basis. That is, delegate agencies could be authorized to provide
merged process for all or some of their preconstruction determinations
or to allow sources to elect merged process for only individual
changes. Delegate agencies that provided merged process on only a case-
specific basis would have to state when they are doing so in the
initial notification of the permit action sent to EPA. A delegate
agency that wished to provide for merged NSR changes would have to set
out the eligibility criteria and process for merged NSR changes in its
application for delegation to EPA. Depending on existing State
statutory or regulatory provisions, no changes would be required to
existing NSR programs.
While under the proposed revisions to part 70 EPA would require
States to submit eligibility criteria for merged processing in their
part 70 programs that EPA would review in the context of program
approval, EPA believes that the process in part 71 for applying for
delegation and entering into delegation agreements provides an adequate
forum for evaluating a delegate agency's ability to provide merged
processing. Similarly, EPA believes that delegation agreements are
adequate vehicles for establishing a delegate agency's authority to
merge preconstruction and part 71 actions on a case-by-case basis. The
delegation process requires the State to submit evidence of adequate
statutory and regulatory authority to carry out part 71
responsibilities, and EPA would publish delegation agreements in the
Federal Register, giving notice of the delegate agency's authorization
to provide for merged processing.
Consistent with the proposed revisions to part 70, part 71 would
allow administrative amendment procedures to be used to incorporate
standards promulgated after permit issuance pursuant to section 112 of
the Act.
For all changes that qualify as administrative amendments, the part
71 permitting authority would use specific procedures to incorporate
those changes into the permit. Generally, these procedures would follow
those contained in the August 29, 1994, proposed revisions to part 70,
but would differ in certain respects. For example, the part 71
permitting authority would be required to provide EPA with a copy of
the effective permit addendum reflecting the change only where EPA has
delegated a part 71 program to a State or eligible Tribe.
b. De Minimis Permit Revisions. Following the proposed revisions to
part 70, EPA is proposing at Sec. 71.7(f) a de minimis permit revision
track in part 71 for changes that do not undergo merged program
administrative amendment procedures but that have only a small
emissions impact. Under this track, a source would be able to operate
the change as early as the day it submits its permit revision
application. Public and affected State review of the change would then
follow. See the more detailed discussion in section 3-F-2-b of the
Supplementary Information Document, as well as the Agency's preamble
for the proposed revisions to [[Page 20818]] part 70 (59 FR 44460, Aug.
29, 1994) regarding the types of changes that would be eligible for
this process, the details of the process itself, and the rationale for
the creation of this revision track.
In certain respects, the de minimis track in part 71 would differ
from that in proposed part 70. For example, a person who was
unsuccessful in persuading the part 71 permitting authority to
disapprove a source's requested de minimis change could not petition
EPA to object to the permit. This is because both when EPA is the
permitting authority and when EPA has delegated that responsibility,
citizens will already have the opportunity to directly appeal the final
de minimis permit revision to the Environmental Appeals Board. Thus,
requiring an intermediate step of requesting EPA to object to its own
permitting action would both be redundant and delay citizen access to
administrative, and ultimately judicial, review of the change. The
Agency solicits comment on this approach. While the proposed revisions
to part 70 would leave States discretion in developing their part 70
programs in determining whether the source, versus the State permitting
authority, would have the responsibility to provide public notice of de
minimis changes, under part 71, sources would have that duty. This
specificity is due to the fact that EPA, unlike States, will not be
conducting further program development for part 71 programs beyond
promulgating part 71, so it is necessary for EPA to establish in this
rule whether the public notification duty will fall on sources or the
permitting authority. The EPA proposes to place the public notice
responsibility on sources because the Agency believes that sources will
be in a better position to provide timely notice of their de minimis
changes than EPA regional offices would be and will have more ready
access to area newspapers for providing such notice. Consequently,
requiring sources to provide notice should ensure that de minimis
changes are expeditiously processed. Moreover, EPA believes that under
the proposed revisions to part 70, revised State programs could
commonly require sources to provide such notice, and consistency in
implementation of de minimis permit revision procedures will aid
program transition when States obtain part 70 approval or when EPA
assumes permitting responsibilities.
As under the proposed revisions to part 70, the scope of de minimis
changes would be defined in two ways. Any change at a small emissions
unit (``unit-based'' de minimis) would qualify, as would a small change
at a large unit (``increment-based'' de minimis), provided certain
conditions designed to ensure the enforceability of the resulting
permit limit were met. Unlike the proposed revisions to part 70, for
part 71 EPA is not proposing that permitting authorities, whether they
are EPA or delegate States or eligible Tribes, could establish
alternative de minimis emissions thresholds based on a demonstration
submitted subsequent to final promulgation of part 71. This is because,
again, after promulgation of part 71, EPA will not be further
developing part 71 programs, so there will not be an opportunity to
consider alternative de minimis thresholds. Moreover, EPA does not
believe that EPA delegation of part 71 administration to States or
eligible Tribes provides an adequate forum for evaluating alternative
thresholds developed by States or eligible Tribes, since there will be
no formal approval action in those delegations and the public will not
have an opportunity to comment upon them before they are effective.
Procedurally, part 71 would also provide more specificity than
would the proposed revisions to part 70. For example, the source could
operate the requested de minimis change 7 days after the permitting
authority received the application or, with the permitting authority's
permission, as early as the day its application is submitted. The
proposed revisions to part 70 provide that States in developing their
part 70 programs would have discretion to allow changes to be made 7
days following receipt of the application, and such authorization would
be included in their program submittals for EPA approval; as discussed
above, since promulgation of part 71 will represent the final stage of
part 71 program development, proposed part 71 specifies that sources
could make de minimis implement changes after 7 days.
Also, under part 71, sources would be required to provide public
notice of de minimis changes on a monthly, batched basis, publishing
one notice listing all changes at the source for which applications for
de minimis permit revisions had been sent to the permitting authority
in the preceding month. The EPA solicits comment on this approach,
particularly regarding the extent to which States intend to impose the
public notification duty on sources under the proposed revisions to
part 70. While the proposed revisions to part 70 specified neither who
has the responsibility for providing public notice nor the manner in
which public notice should be given, part 71 would be specific on these
points, for the reasons discussed above. The EPA solicits comment,
however, on the method or methods sources could use to provide such
notice. For example, sources could be required to publish notice of de
minimis changes in a newspaper of general circulation within the area
where the source is located or in State or local governmental
publications, to send actual notice to interested persons on a list
developed by the source or the permitting authority, or both. At
minimum, the final rule will provide a mechanism to ensure that public
notice reaches all interested citizens.
c. Minor Permit Revisions. Under today's proposal, most changes
ineligible for administrative amendment or de minimis permit revision
procedures would be eligible for the minor permit revision process.
Taking the current part 70 rule's minor permit modification process as
a starting point and following the proposed revisions to part 70,
proposed part 71 would add expedited procedures for providing public
notice and a 21-day comment period, allow the source to operate the
requested change at the end of the 21-day comment period when no
objections are received, and provide for permitting authority final
action to be taken on applications within 60 days of their receipt. The
description of and the rationale for EPA's proposed minor permit
revision process for part 70 is contained in the preamble to the
proposed revisions to part 70 (see 59 FR 44460, Aug. 29, 1994). To the
extent applicable to part 71, EPA incorporates that rationale for this
notice. However, where elements of the minor permit revision track
differ in proposed part 71 from those in part 70, this notice describes
those differences. A more detailed discussion of the part 71 minor
permit revision process is contained in section 3-F-2-c of the
Supplementary Information Document.
For part 71 minor permit revisions, as for de minimis changes and
merged program administrative amendments, notice to EPA, and EPA's 45-
day review period and opportunity to veto would occur only where EPA
had delegated its role as the permitting authority to a State or
eligible Tribe. While this is a departure from the proposed revisions
to part 70, as discussed previously, EPA does not believe there is any
utility, when EPA is the permitting authority, in requiring EPA review
of EPA permitting action, since sources, affected States and public
citizens that object to EPA permitting actions will be able to directly
appeal those decisions to the Environmental Appeals Board.
[[Page 20819]] Consequently, providing for an additional step of EPA
review and opportunity to object would unnecessarily slow down this
expedited revision track and would also delay access of interested
parties to administrative and judicial review.
Moreover, in cases of objections to minor permit modifications
filed by affected States, only where EPA had delegated part 71
administration to a State or eligible Tribe would the part 71
permitting authority have to forward to EPA a written response to any
of these objections that were not accepted.
Another difference under the part 71 program would be that if the
permitting authority failed to act on a public objection, the commenter
could file suit in Federal court, rather than State court, to force the
permitting authority to take action on the written comment. In
addition, commenters would be able to bring suit in Federal court to
seek an injunction against the source implementing or continuing to
implement requested changes before they are approved. Injunctive relief
would be available in accordance with applicable standards for
obtaining such relief under Federal law.
Also, only where EPA had delegated a part 71 program to a State or
eligible Tribe, would the part 71 permitting authority be required to
wait until the date after EPA's 45-day review period had expired,
provided EPA had not objected, before issuing the final minor permit
revision. The delegate agency would be required to take final action by
day 60, or 15 days after the close of EPA's review period, whichever is
later. In addition, under part 71 programs, commenters may not petition
EPA to object to minor permit revisions for the reasons discussed above
with respect to de minimis permit revisions.
d. Significant Permit Revisions. Following the proposed revisions
to part 70, under proposed part 71 the significant permit revision
process would essentially follow that of the significant permit
modification track in existing part 70. See the description of this
process in the Agency's proposed revisions to part 70 (59 FR 44460,
Aug. 29, 1994) for the rationale for this approach, which EPA
incorporates by reference for purposes of part 71. See also the more
detailed description of the part 71 significant permit revision process
contained in section 3-F-2d of the Supplementary Information Document.
Proposed part 71 would require the permitting authority to take
final action on applications for significant permit revisions within 18
months of receipt of the application. However, because prompt action on
permit revisions is of critical importance to industry, the EPA intends
to complete such revisions within 12 months and expects that only the
most complex revisions would require more than a year to complete.
e. Alternative Option for Monitoring Changes. Following the
proposed revisions to part 70, EPA also proposes as an option in part
71 alternative provisions governing changes involving monitoring
requirements. While this option essentially adheres to the 4-track
system discussed above, certain provisions of the system would need to
be modified to incorporate the alternative option for monitoring
changes. The rationale for this alternative option is discussed in
detail in the preamble to the proposed revisions to part 70 (see 59 FR
44460, Aug. 29, 1994), and this notice incorporates that rationale by
reference, to the extent it is applicable to part 71. As appropriate,
EPA intends to match in the final part 71 rule the final part 70
provisions regarding this option. For a more detailed discussion of
this option under part 71, see section 3-F-2-e of the Supplementary
Information Document.
Under part 71, the source, rather than the permitting authority,
would have the responsibility to provide monthly batch public notice of
monitoring changes processed under this option's de minimis permit
revision track. Moreover, for monitoring changes processed under this
option's significant permit revision track, part 71 permitting
authorities would be required to send demonstrations and their
evaluations to EPA only where EPA has delegated part 71 program
administration. Again, EPA believes that expeditious process of de
minimis permit revisions is better served by sources providing notice,
and that the non-permitting authority EPA review and veto role adds
value to the permitting process only where there is a separate entity
such as a delegated State functioning as the part 71 permitting
authority.
3. Incorporation of New Standards
The process by which EPA proposes to incorporate into permits new
MACT standards promulgated under section 112 would follow that
contained and discussed in detail in the proposed revisions to part 70
(see 59 FR 44460, Aug. 29, 1994). This notice incorporates by reference
the rationale for this process contained in the preamble to the
proposed revisions to part 70. To the extent appropriate, EPA intends
the final part 71 rule to be consistent with the part 70 rule as it is
finally promulgated. For a more detailed discussion of this process for
purposes of part 71, see section 3-F-3 of the Supplementary Information
Document.
Note that under a delegated part 71 program, if EPA receives the
initial notification because the MACT standard has not yet been
delegated to the State, local or Tribal agency, EPA will send this
notice to the delegate part 71 permitting authority, and upon receipt
of this notice the permitting authority could begin processing the
administrative amendment. Also, under delegated part 71 programs, where
the NSR programs have been enhanced to meet part 71 requirements, minor
and major NSR actions would be acceptable for addressing and
establishing part 71 permit conditions needed to assure compliance with
MACT standards. Thus, the merged preconstruction review process
applying to NSR permits could also be used to revise the part 71 permit
to incorporate the MACT requirements applicable to the source. If the
NSR action were not merged (as would be the case if EPA had not
delegated part 71 administration to a State or eligible Tribe), the
part 71 revision would be eligible under the minor permit revision
track, or, if it met the criteria, the de minimis permit revision
track.
4. Permit Reopenings
Under proposed Sec. 71.7(i), part 71 would follow the currently
promulgated part 70 in providing when and how permits would be
reopened. For a more detailed discussion of the part 71 permit
reopening procedures, see section 3-F-4 of the Supplementary
Information Document. Where EPA has delegated a part 71 program to a
State or eligible Tribe, special provisions for EPA notification to the
delegate agency that cause exists to reopen would apply. These
procedures follow those in existing part 70 for notification to
approved part 70 permitting authorities. Briefly, if EPA finds that
cause exists to reopen a permit, it would notify the delegate agency
and the source. The delegate agency would have 90 days after receipt of
this notice to forward to EPA a proposed determination of termination,
revision, or revocation and reissuance of the permit. The EPA could
extend the 90-day period for an additional 90 days if a new application
or additional information is necessary. The EPA could then review the
proposed determination for 90 days. If the delegate agency fails to
submit a determination or if EPA objects to the determination, EPA may
terminate, revise, or revoke and reissue the permit after providing the
source at least 30 days written notice and an opportunity
[[Page 20820]] for comment and a hearing on EPA's proposed action.
G. Section 71.8--Affected State Review
Following the proposed revisions to part 70, proposed Sec. 71.8
would implement section 505(a)(2) of the Act and require that the
permitting authority provide notice to all affected States (as defined
in proposed Sec. 71.2) of each draft permit and addenda to permits that
incorporate de minimis permit revisions. Under the proposed procedures
for minor permit revisions, sources, rather than permitting
authorities, would have the responsibility to provide notice to
affected States for such changes. Affected States are those States
whose air quality may be affected, and that are contiguous to, the
State in which a part 71 permit, permit revision, or permit renewal is
being proposed, or those within 50 miles of the source. Tribal areas or
areas under the jurisdiction of a local air pollution control area may
be considered affected States in some cases.
Affected States that receive notice pursuant to proposed Sec. 71.8
could submit written recommendations and comments to the permitting
authority. If the permitting authority refuses to accept the
recommendations, the reasons for the refusal would have to be provided
in writing to the affected State(s) that provided the recommendations
or comments during the public or affected State review period.
H. Section 71.9--Permit Fees
1. Authority to Impose Fees
The EPA believes that title V provides EPA the authority to charge
sources fees whenever EPA is required to administer a part 71 program.
Section 502(b)(3)(C)(i) of the Act provides that if EPA determines that
the fee provisions of a State's part 70 program do not meet the
requirements of title V, or if EPA determines that a permitting
authority is not adequately administering or enforcing its approved fee
program, EPA may, in addition to taking any other action authorized
under title V, collect reasonable fees from the sources that should be
paying adequate fees pursuant to an approved part 70 fee program. Thus,
EPA has the discretion to charge fees whenever a State fails to
establish an approvable fee program or fails to implement its approved
fee program, even if there are no other deficiencies in the State's
operating permits program. Section 502(b)(3)(C)(i) also provides that
fees charged by EPA shall be designed solely to cover EPA's costs of
administering the provisions of the permits program promulgated by EPA.
2. Fee Calculation and Assessment
The fee schedule proposed in Sec. 71.9 would establish a dollar per
ton charge on actual emissions of each regulated pollutant (for fee
calculation) that is emitted from a source.
Under the fee schedule in this proposal, the date of the initial
fee submittal would be contingent upon several factors. If EPA
withdraws approval of a part 70 program, initial part 71 fees would be
due in accordance with a schedule based upon a source's primary SIC
Code, as provided in proposed Sec. 71.9(f)(1).
If EPA implements a part 71 program in an area that did not have a
part 70 program in place, initial fee calculation work sheets and fees
would be due at the same time the initial permit application is due, in
accordance with the requirements of proposed Sec. 71.5(b)(1).
Regardless of whether a part 70 program preceded a part 71 program,
sources that become subject to the part 71 program after the part 71
program's effective date would be required to submit initial fee
calculation work sheets and fees at the same time the initial permit
application would be due, in accordance with the requirements of
proposed Sec. 71.5(b)(1).
Sources would be allowed to pay their initial annual fee in two
installments. The first payment equalling one-third of the annual fee
would have to be submitted along with the initial fee calculation
worksheet. The balance would be due four months later, but in no event
later than a year after the program's effective date.
As provided in proposed Sec. 71.9(g), for sources that receive a
part 71 permit as a result of an EPA veto of the State's proposed part
70 permit (as provided in proposed Sec. 71.4(e)), the initial fee
calculation work sheet and fees would be due 3 months after the date
the part 71 permit is issued. Delaying the source's fee payment in this
manner would provide the State an opportunity to issue a permit that
satisfies EPA's objection, thereby relieving sources of the burden of
paying both State and Federal permit fees. However, such sources would
not be permitted to pay fees in installments because their obligation
to pay fees arises after EPA has completed the permit issuance process.
For sources that commenced operation during the calendar year
preceding the date on which a source's initial application is due, the
initial fee calculation would be based on an estimate of the current
calendar year's actual emissions. This estimated fee would be adjusted
in the first annual emission report. In addition, sources that would be
required to submit initial fee calculation work sheets and fees between
January 1 and March 31, as required by either proposed Sec. 71.9(f)(1)
or Sec. 71.9(g), would have the option of basing their initial fee
calculation on an estimate of the preceding calendar year's actual
emissions. This provision would provide sources with a means for
meeting the initial fee submittal requirements if their initial fee
submittal date does not provide for sufficient time to calculate the
previous calendar year's actual emissions. This estimation would also
have to be reconciled in the first annual emission report.
For purposes of subsequent annual emissions reporting and fee
assessments, the date (month and day) on which the initial part 71 fee
calculation work sheet and fees were due would be considered the
``anniversary date'' for that source. Each source would be required to
submit an annual report of its actual emissions for the preceding
calendar year by its anniversary date. However, to allow sources with
anniversary dates between January 1 and March 31 the time needed to
analyze the preceding calendar year's emissions data, the anniversary
date for these sources would be April 1. The annual report would have
to include a fee calculation work sheet and full payment.
As discussed above, sources that commenced operation during the
preceding calendar year would base their initial fee calculation on an
estimate of the current calendar year's actual emissions. When the
permitting authority receives the first annual emissions report, the
permitting authority would compare the estimate to the emissions report
and would adjust the initial fee to reflect the annual emissions listed
in the report. If an additional fee is required, payment would be due
with the submittal of the annual emissions report. If the source has
overpaid, the permitting authority would credit the source's account.
Regardless of this adjustment procedure, the source would be required
to pay its current emissions fee based on the actual emissions listed
in the first annual emissions report.
Sources subject to proposed Sec. 71.9(f)(1) or Sec. 71.9(g) that
have initial application and fee calculation work sheets due between
January 1 and March 31 could opt to base their initial fee on an
estimate of the past year's [[Page 20821]] actual emissions. The first
annual emissions report for such sources would have to reconcile the
emissions fee from the initial fee calculation. In addition to
calculating the current emissions fee, the report would be required to
include actual emissions data from the estimated year, and the source's
account would have to be revised accordingly.
Section 502(b)(3)(C)(ii) requires that sources that fail to pay
fees in a timely fashion shall be assessed interest at a rate equal to
the sum of the Federal short-term rate determined by the Secretary of
the Treasury in accordance with section 6621(a)(2) of the Internal
Revenue Code of 1986, plus 3 percentage points and shall pay a penalty
charge of 50 percent of the fee amount. Proposed Sec. 71.9(l) would
implement section 502(b)(3)(C)(ii) by providing that the penalty charge
shall be due if the fee is not paid within 30 days of the payment due
date or if sources that compute fees based on estimated annual
emissions substantially underestimate these emissions.
Fee payments would be required to be in United States currency in
the form of a money order, bank draft, certified check, corporate
check, or electronic funds transfer payable to the order of the U. S.
Environmental Protection Agency. The EPA intends to develop additional
guidance regarding remittance procedures as the Federal operating
permits program is implemented.
3. Principles for Developing Fee Structure
The following principles were used to develop the proposed fee
requirements:
a. Fees Based on Average Annual Costs. By means of the fee
structure proposed in this rule, EPA intends to recover both direct and
indirect costs for the various activities conducted to administer part
71 programs. Direct costs would include personnel benefits and
salaries, travel, equipment costs, and contractor expenses. Indirect
costs would be those resources, outside of direct program costs, used
to manage, oversee and provide counsel to program offices. These would
include costs such as those incurred by EPA's management,
administrative, and policy staff. Indirect costs would also include
overhead costs, such as utilities and rents.
The methodology proposed to be used for setting fees is to estimate
the cost of implementing the part 71 program nationwide and to divide
that cost by the estimated emissions that would be subject to the fee.
The result is a fee expressed in dollars per ton/yr of pollutants
emitted. A detailed discussion of the assumptions and calculations
involved in determining fees is found in ``Federal Operating Permits
Program Costs and Fee Analysis'' (Fee Analysis), which is contained in
the docket for this rulemaking.
The cost estimates presented in the Fee Analysis are based on
operating a part 71 program for two years. The EPA believes this is a
reasonable average program duration, given the expected transitory
nature of the program.
For purposes of the cost analysis, the hourly personnel costs were
assumed to be the same for EPA and for delegate agencies. Therefore,
the total personnel costs for an EPA administered program and one which
is delegated in whole or in part would be identical except for the cost
of additional EPA oversight (which would be covered by a $3 per ton/yr
surcharge discussed below).
Because part 71 programs will generally be transitional programs,
EPA may in some cases decide to staff the program primarily through
contractor assistance. The emissions fee for a particular part 71
program would vary depending on the extent to which EPA relies on
contractor support and the cost of contractor assistance. If the
program is administered by EPA without contractor assistance, the
proposed fee would be $45 per ton/yr. If the program were staffed
through contractor assistance (except for those functions for which the
use of contractors is not appropriate such as final permit issuance
determinations), EPA would establish a fee based on the contractor
costs for a particular program.
As provided in proposed Sec. 71.9(c)(3), the fee for a contractor
assisted program is the sum of the permitting authority's costs
associated with activities that it undertakes, the cost of paying a
contractor to undertake other activities, and a surcharge that covers
EPA's oversight costs. The formula for determining the cost of
contractor assistance is as follows:
C=[B+T+N] divided by 12,300,000
Where B represents the base cost (contractor costs), where T represents
travel costs, and where N represents non-personnel data management and
tracking costs.
B, T and N, when summed, are divided by the total tonnage of
national emissions that would be subject to fees (12.3 million tons) to
convert the cost into a per ton fee rate.
The Fee Analysis discusses the methodology used in computing the
base cost of the part 71 program, travel costs and non-personnel data
management and tracking costs. Travel costs and non-personnel data
management and tracking costs would be the costs ($14,488,000 and
$13,400,000 respectively) indicated in Table A-3 of that document.
As indicated above, the base cost would vary depending on the
hourly rate paid for contractor assistance. Table A-3 presents the base
cost for a program in which contractor assistance (costing $62 per
hour) was used to the maximum extent possible. This $62 figure reflects
the average hourly cost of several large contracts awarded by EPA for
projects relating to air quality control. Using that hourly rate, the
resulting per ton fee would be $77. The base cost was computed by
summing the costs of contractor assistance for years 1 and 2 for the
activities listed in Table A-1 of the Fee Analysis (except those
activities which EPA should undertake, i.e., presiding over hearings,
transition planning, guidance, contract management, and training) and
then computing an annualized cost. To determine the fee for a
particular part 71 program, EPA would substitute a different hourly
rate (based on the actual rate charged by the contractor) into the
computation.
Each time a part 71 program is implemented, EPA would determine the
percentage of personnel time allocated to contractors by considering
who could best perform each type of permitting activity (e.g.,
technical review and processing of permit applications and compliance
plans, preparation for public hearings, compliance inspections). This
flexibility would allow EPA to develop a staffing pattern that meets
the unique needs of the part 71 program being administered. By using
the formula specified in proposed Sec. 71.9(c)(3), EPA would arrive at
the basic emissions fee. If the program is delegated or staffed largely
by contractors, there would be additional costs due to the oversight
that EPA must provide to the program. These additional costs of EPA's
review of permit applications, compliance plans, draft permits, permit
revisions and reopenings would increase the emissions fee by $3 per
ton/yr.
The EPA currently uses contractors for permits related work
pursuant to competitively bid contracts which compensate contractors on
a level of effort basis, using set hourly fees. These contracts, which
provide for a certain number of hours of services at a fixed hourly
rate, were used in projecting the costs of using contractors to
implement part 71 programs and could be used by EPA for part 71
programs when contractor assistance is needed. It has been suggested
that for part 71 programs [[Page 20822]] it may be more cost effective
if contracts for part 71 programs were independently bid. Therefore,
EPA solicits comments on whether fees for part 71 programs should be
based on contractor costs established by a new competitive bid process.
While not wanting to dismiss this alternative, the EPA is concerned
about the costs involved with preparing the documentation required for
the competitive bid process and that the length of time required to
undertake this process (usually 12-18 months) would make this
alternative impractical in light of the program's effective date. In
particular, EPA solicits comments on whether this approach would result
in cost savings.
The EPA considered several other options for setting fees. For
example, EPA considered the possibility of basing fees for each part 71
program on the fee structure submitted by a State or local government
as part of its part 70 submittal. This approach, however, has limited
utility in that it is not appropriate where the submittal contains an
inadequate fee program or where no submittal is made. Furthermore, the
administrative burden (and the delay in program implementation)
involved with completing individual rulemakings for each part 71
program made this option infeasible.
Given that it is not practical to craft a fee schedule that fits
each State, and given that EPA is unable to foresee with certainty when
and where it may be necessary to implement part 71 programs, EPA
proposes to base its fees on the average cost of implementing a part 71
program.
The EPA considered whether the average cost of the part 71 program
would be recovered by charging a fee of $25 per ton/yr (1989 baseline
with CPI adjustments), which is the amount of fee revenue that EPA
would presume is adequate for purposes of funding State operating
permits programs under part 70. For fiscal year 1995, this fee would
equal $30.18. However, EPA believes that there would be some
differences in costs between the Federal program and State programs
which made use of the presumptive fee inappropriate.
Using the approach outlined above, EPA has developed a proposed fee
structure that will reflect the cost of the Federal operating permits
program, though not necessarily the cost of implementing the program in
any particular State. The proposed fee is expected to be adequate for
nearly all part 71 programs and should, on average, collect sufficient
revenue to fund permitting under this part. However, if EPA determines
that the fee structure provided in proposed Sec. 71.9(c)(1)-(4) does
not adequately reflect the program costs for a particular area, such as
a Tribal area, then EPA may by separate rulemaking establish a
different fee for a part 71 program.
b. Minimizing Administrative Burdens. Although EPA could design a
fee system that imposes different fees based on such factors as source
categories, the particular pollutants emitted, or the type of
permitting action requested, EPA proposes a straight forward emissions-
based fee system. For sources, the fee computation would be simple.
Similarly, EPA's administrative burden related to assessing fees and
monitoring compliance with fee requirements would be minimized.
c. Fees Calculated Based on Existing Information. The EPA would
provide sources with fee calculation work sheets. Using these work
sheets, sources would compute their actual emissions of the appropriate
pollutants and multiply by the appropriate per ton/yr rate. Sources
would submit fees within the first 12 months of the effective date of
the program, and annually thereafter. Many sources are already subject
to annual emissions reporting requirements. Thus, except for new
sources, there would generally be no requirement that sources develop
any information for the work sheets that would not already be required
on the application form or as an emission reporting requirement.
d. Fees Imposed in Advance of EPA's Rendering Services. Under the
proposal, all part 71 sources would remit fees within 12 months of the
effective date of the permit program, even if the source is not issued
a part 71 permit within that time. Those fees will provide a stable
source of revenue from which to fund the initial start-up costs of the
program, the costs of issuing permits within the first year of the
program, as well as cover ongoing activities such as inspections,
reviewing monitoring reports, and other compliance and enforcement
activities.
This procedure would comply with Federal policy for user fees
established in OMB Circular A-25 (July 8, 1993), which provides that
fees are to be collected before services are administered or goods
provided to ensure that fees are actually paid for the services
provided, that the Treasury receives funds in a timely manner, and that
additional administrative burdens and costs for collecting fees are
avoided.
4. Revision of Fee Structure
To reflect changes in operating costs, fees would be adjusted
automatically every year (after 1997) by the same percentage as the
percent change in the CPI. Also, the fee schedule would be revisited
every two years as required by section 902(a)(8) of the Chief Financial
Officer's Act of 1990. (31 U.S.C. 501 et seq.)
I. Section 71.10--Delegation of Part 71 Program
1. Delegation Process
Section 301(a)(1) of the Act provides that the Administrator is
authorized to prescribe such regulations as are necessary to carry out
his or her functions under the Act. Pursuant to this authority,
proposed Sec. 71.10 provides that a part 71 program may be delegated in
whole or in part, with or without signature authority (i.e., the
authority to issue permits) to any State or local agency or eligible
Tribe that is found to have the requisite legal authority to administer
such a program. For purposes of the rule, an eligible Indian Tribe
would be a Tribe that EPA has determined meets the criteria for being
treated in the same manner as a State, pursuant to regulations
implementing section 301(d)(2) of the Act.
The EPA recognizes that in some cases States could fail to receive
part 70 program approval due to program flaws that are not related to
the permitting authority's practicable ability to implement a title V
program. For example, the submitted part 70 program may contain
elements in it enabling legislation or its regulations that prevent EPA
from granting program approval, even though EPA may be confident that
the State permitting authority could adequately administer and enforce
a title V program that meets the requirements of the Act. While title V
requires EPA to promulgate Federal title V programs for States that
fail to receive part 70 program approval, EPA believes that in
situations where State permitting authorities appear capable of
implementing programs that meet the requirements of title V, it would
be consistent with the general policies of the Act to involve States in
implementing required Federal permits programs, rather than exclude
State permitting authorities.
The Act has long provided that air pollution control is the primary
responsibility of States and local governments. (See, e.g., section
101(a)(3) of the Act, 42 U.S.C. 7401(a)(3).) Moreover, while title V
requires States to submit permit programs for approval by EPA, the Act
does not provide that program approval is the sole mechanism available
for State air pollution control [[Page 20823]] agencies to become
permitting authorities under title V. Section 501(4) of the Act defines
``permitting authority'' to mean both the Administrator or the air
pollution control agency ``authorized'' by the Administrator to carry
out a permit program under title V. Section 302(b) of the Act defines
``air pollution control agency'' to include State and local government
agencies. The EPA believes the word ``authorized'' as used in section
501(4) may reasonably be interpreted to apply not only to instances in
which EPA approves a submitted part 70 program, but also to instances
in which EPA determines that a State or local air pollution control
agency demonstrates that it is capable of carrying out a title V permit
program even where the State has not submitted a part 70 program that
has received EPA approval.
The EPA could exercise its discretion to delegate authority to
administer some portion or all of a part 71 program where, for example,
it makes sense to take advantage of existing expertise of the delegate
agency or where it seems probable that the delegate agency's submitted
part 70 program will be approved within a short time by EPA, provided
in both cases that the delegate agency has the authority to administer
the portion of the program that would be delegated.
Any agency that seeks to obtain delegation of a part 71 program
would be required to submit a formal request for delegation, in
accordance with the provisions of proposed Sec. 71.10, and such other
documentation as is necessary for review and consideration by the
Administrator to make a determination that the agency or eligible Tribe
has adequate legal authority and procedures to administer and enforce a
part 71 program.
The EPA would adopt a flexible approach in evaluating delegation
requests. The EPA would not demand that each delegate agency administer
a part 71 program in precisely the same way because each delegate
agency would have to comply with its own procedures, administrative
codes, regulations, and laws as well as the requirements of this part.
The Governor or designee for a State, a local agency, or the Tribal
governing body for an eligible Tribe, would be required to submit to
EPA a written request for delegation of authority on behalf of the
State or local agency or eligible Tribe pursuant to proposed
Sec. 71.10. The request would have to include a legal opinion that
certifies that the State or local agency or eligible Tribe has the
requisite legal authority to implement and administer the program. The
request would also have to identify the officers or agencies
responsible for carrying out the State, local, or Tribal procedures,
regulations, and laws.
The EPA would respond in writing to each delegation request and
shall state to what extent the request has been accepted or rejected.
If the request is accepted in whole or in part, the Administrator would
delegate to the Governor or designee, the local agency, or Tribal
governing body, the authority to carry out the accepted portions of the
delegation. If the request is rejected in whole or in part, the
notification shall specify the reasons for such rejection.
The terms and conditions of the delegation would be set forth in a
``delegation of authority agreement'' that specifies the effective date
for the agreement. The delegation of authority agreement would be
published in the Federal Register by EPA and would identify the
delegate State, local, or Tribal procedures to be used for implementing
and administering the program by reference to the request and to any
additional submission by the Governor or designee, or Tribal governing
body supplementing or modifying the State, local or Tribal procedures.
2. Full and Partial Delegation
Although EPA encourages delegate agencies to accept full delegation
of all aspects of the administration of part 71 programs, there are
situations where a delegate agency may be unable or unwilling to assume
all responsibility for administering these programs. Where appropriate,
EPA could choose to grant partial delegations as follows:
(1) Delegation of authority may be granted for only a portion of
the State or regulatory area;
(2) Delegation of authority may be restricted to certain source
categories or parts thereof; or
(3) Authority may be delegated for selected parts of the procedural
responsibility in implementing a part 71 program with EPA acting as a
partner in completing the remaining actions (e.g., delegation of
authority may be granted with regard to the administrative and/or
technical portion of implementing the part 71 program, with EPA
providing enforcement should such action become necessary);
(4) Authority may be delegated for only the acid rain portion of a
title V program, or for other parts of the title V program, not
including the acid rain portion.
3. Procedural Requirements for Delegation
The delegate agency would be required to provide notice to the
Administrator of all applications for any permit, permit renewal, or
permit revision, including any compliance plan, or any portion thereof
that the Administrator determines to be necessary to review the
application and permit effectively, each proposed permit, and each
final permit as provided in proposed Sec. 71.10(d). The delegate agency
would also have to provide notice of each draft permit to affected
States on or before the time that the delegate agency provides this
notice to the public under proposed Secs. 71.7 (e)(4), (h), or (i) or
Sec. 71.11(d) and would be required to provide any affected State a
copy of the addendum for a de minimis permit revision within 7 days of
the date on which the addendum takes effect.
Affected States that receive notice pursuant to proposed
Sec. 71.8(a) could submit written recommendations and comments on the
permit to the delegate agency. If the delegate agency refuses to accept
the recommendations, the reasons for the refusal would have to be
provided in writing to the State(s) providing the recommendations.
The EPA could waive its own and affected States' review of permits
for any category of sources, except major sources, by nationwide
regulation for a category of sources. The EPA could also waive its own
right to review, but maintain the requirement for a delegate agency to
notify affected States. During Phase II of the acid rain program, the
Agency does not intend to waive its own right to review permits for
affected sources under the acid rain program.
When a part 71 program has been delegated with signature authority
in accordance with the provisions of this section, the Administrator
could object, in writing, to a part 71 permit if the delegate agency
fails to properly submit, process, or provide notice as would be
required by this part or if the part 71 permit does not assure
compliance with applicable requirements of the Act. If the delegate
agency fails to revise the proposed permit in response to the
objection, the Administrator could deny the permit or issue a permit in
accordance with the part 71 program.
4. Delegation of Authority Agreement
A delegation of authority agreement would specify the terms and
conditions of the delegation and would be required to include, but not
be limited to:
(1) A provision that the delegation is made in accordance with
proposed Sec. 71.10; [[Page 20824]]
(2) A provision that describes the source categories, geographic
areas, and the administrative and enforcement activities governed by
the delegation;
(3) A provision that requires the delegate agency to comply with
the public notice requirements of proposed Secs. 71.7 and 71.11;
(4) A provision that requires the delegate agency to provide a
copy, through the appropriate Regional Office, of each permit
application, proposed permit, and final permit to the Administrator as
required in proposed Sec. 71.10(d);
(5) A provision that any permit issued by a delegate agency contain
a statement identifying the permit as a title V, part 71 permit;
(6) A provision that requires EPA's concurrence on any
applicability determination or policy statement regarding title V or
parts 70 or 71 not covered by determinations or guidance provided to
the delegate agency;
(7) A provision that requires immediate notification to be provided
to EPA if the delegate agency is unable or unwilling to administer or
enforce a provision of the delegated part 71 program with respect to
any source; and
(8) A provision that the delegate agency may not grant any waiver
to a permit requirement or issue any order that violates an effective
provision or requirement of part 71 or the Act.
J. Section 71.11--Administrative Record, Public Participation, and
Administrative Review
Section 71.11 of the proposal establishes procedures by which the
part 71 permitting authority would act on permit applications, issue
draft permits, provide opportunities for public comment, and issue
final permits. The emphasis in proposed Secs. 71.11(a)-(j) is on a
description of the notice and public participation procedures for
initial permit issuance, permit renewals, permit reopenings, and
significant permit revisions. The notice and public participation
procedures for administrative amendments, de minimis permit revisions,
and minor permit revisions are described in proposed Sec. 71.7.
Proposed Secs. 71.11(k)-(m) describe the administrative record for
permits, the procedure for appeal of permits, and the determination of
the beginning and ending days for any scheduled time period. Unlike
proposed Secs. 71.11(a)-(j), provisions in proposed Secs. 71.11(k)-(m)
would apply to all permit actions, including administrative amendments,
de minimis permit revisions, minor permit revisions and significant
permit revisions.
The EPA considered two alternative methods of establishing the
public participation and administrative review procedural requirements.
The first alternative would be to amend the existing procedures in 40
CFR part 124, which establishes specific decision making procedures for
RCRA, Underground Injection Control (UIC), PSD, and NPDES permits, so
that the procedures would be compatible with the part 71 program. The
EPA would then incorporate those provisions by reference into the part
71 permit rule. The second alternative was to establish public
participation and administrative appeal procedures as a separate
section of this rule. This alternative has the advantage of allowing
these procedures to focus specifically on the needs of the part 71
program as well as appear in close proximity to the permit program
requirements in the Code of Federal Regulations.
Today's proposal follows the second alternative. The proposed
public participation and administrative appeals procedures are set out
at Sec. 71.11 and are based closely on selected provisions of part 124,
subpart A. The EPA does not believe the choice of one format over the
other will have a substantial impact on the implementation of this
rule.
Once a permit application is complete, including an application to
revise an existing permit, the permitting authority would tentatively
decide whether to prepare a draft permit. Such draft permits would
contain permit conditions specified in proposed Sec. 71.6, public
notice of the draft permit would be issued and the draft would be made
available for comment. Administrative amendments of permits would not
be subject to draft permit or public notice requirements. Public notice
of de minimis permit revisions would be on a post hoc basis, and draft
permits for minor permit revisions would be publicly noticed by the
applicant source. All draft permits issued by the permitting authority
would be accompanied by a statement that briefly describes the
derivation of the conditions of the draft permit and the reasons for
them.
Proposed Sec. 71.11(d) would establish public notice and comment
procedures for part 71 permit actions not addressed elsewhere in the
proposal, including application denials, draft permit preparation,
scheduling of public hearings, reopening of the public comment period,
and granting of appeals. Where other provisions of this proposal
establish permitting procedures for specific types of actions, such as
in the provisions on administrative amendments, de minimis permit
revisions, and minor permit revisions, those provisions would govern.
Notice of draft permits under proposed Sec. 71.11(d) (including permit
revisions) would provide at least 30 days for public comment, and
notices of hearings would be issued at least 30 days before hearings
are held. Notice would be provided by mail to interested persons, by
publication, or by other reasonable means and would include information
on the permittee, contact persons, and general procedures on submitting
comments and requesting to speak at hearings. In addition, notices of
hearings would provide information on dates, times, and places of
hearings, as well as applicable rules and procedures. The permitting
authority could hold hearings either upon the basis of requests or on
its own initiative.
Proposed Sec. 71.11(e) would establish requirements for
consideration of comments on a draft permit. It would require that a
request for a public hearing be in writing and include a statement of
the nature of the issues proposed to be raised at the hearing. It would
also stipulate that all comments be considered in making the final
decision on the draft permit, and that a publicly available record be
kept of commenters and issues raised.
Proposed Sec. 71.11(f) on public hearings would require that a
public hearing be held if there was a significant degree of interest in
a draft permit. The permitting authority would designate a Presiding
Officer who would be responsible for conducting the hearing. This
proposed procedure would allow statements from any person, with
reasonable limits on time allowed for oral statements. A tape recording
or written transcript would be required to be made available to the
public.
Proposed Sec. 71.11(g) would require that all reasonably
ascertainable issues and all reasonably ascertainable arguments be
raised or submitted by the close of the public comment period. It would
require that supporting materials be submitted in full, rather than
incorporated by reference. In order to comply with this proposed
requirement, the comment period could be longer than 30 days, at the
discretion of the permitting authority.
Proposed Sec. 71.11(h) would allow the permitting authority to
reopen the public comment period if any person believed that a
condition of the draft permit is inappropriate, or that the permitting
authority's decision to deny an application, terminate a permit, or
prepare a draft permit is inappropriate. If information submitted
during the public comment period appeared to raise substantial new
questions, the [[Page 20825]] permitting authority would have the
flexibility to prepare a new draft permit, or prepare a revised
statement of basis and reopen or extend the comment period.
Proposed Sec. 71.11(i) would require the permitting authority to
issue a final permit decision once the public comment period had
closed. The final decision, which becomes effective immediately upon
issuance of the decision or a later date specified in the decision,
would be a decision to issue, deny, revise, revoke and reissue, renew,
or terminate a permit.
Proposed Sec. 71.11(j) would require the permitting authority to
issue a response to comments. The response would specify what
provisions, if any, of the draft permit were changed in the final
permit decision, and why. It would also require a description and
response to all significant comments, and require inclusion of any
cited documents in the administrative record. If an affected State
recommended changes to the draft permit that were not accepted by the
permitting authority, proposed Sec. 71.11(j) would require written
notification to the affected State.
Final permit decisions would be based on the administrative record
defined in proposed Sec. 71.11(k), including comments received, hearing
transcripts, the response to comments, the final permit, the permit
application, and the draft permit and its statement of basis.
Proposed Sec. 71.11(l) grants a right of appeal of all final permit
decisions, including those taken under provisions establishing
procedures for administrative amendments, de minimis permit revisions,
and minor permit revisions, and establishes procedures for such
appeals. Within 30 days of a final permit decision, interested persons
could petition the Environmental Appeals Board to review the final
permit decision. Petitions for review would be required to include a
statement of the reasons supporting review and could address only
issues raised during the public comment period, unless it was
impracticable to raise the relevant objections during such period or
the grounds for objection arose after the period closed. An example of
a situation in which it is impracticable to raise an objection during
the comment period would be when a significant change is made from a
draft to final permit without providing an opportunity for public
comment. Moreover, while persons who participated in the comment or
hearing processes could petition the Board to review any condition of
the final permit decision, persons who failed to file comments or
participate in hearings could petition the Board only with respect to
changes from the draft to final permit decision. When a part 71 permit
is appealed, it would nevertheless remain fully effective and
enforceable against the permitted source.
The EPA seeks comment on its method of establishing procedures for
public participation and administrative review, and on the
appropriateness of the specific procedures proposed. The EPA
particularly seeks comment on the issues of the statement of basis
accompanying draft permits, the proposed public notice and comment
requirements, and appeals of permits.
Pursuant to sections 114 and 503(e) of the Act, EPA, by this
proposed rule solicits comments on the appropriateness of, and the
means for, making available to the public information that a source
would be required by this rule to collect. Such information might
include, for example, the data resulting from use of required
monitoring methods. Specifically, EPA is requesting comment on what
types and amount of information required under this rule should be made
available to the public, what limits, if any, to place on a requirement
to make available such information, and appropriate methods for making
such information publicly available (e.g., electronic reporting to a
publicly accessible data base, direct access by the public to
information held by sources, or reliance on EPA and/or delegated States
to assist the public in obtaining the information). The EPA also
solicits comment on appropriate language for a rule or policy guidance
document to effectuate public availability of information required
under this rule and solicits comments on whether a rule or a policy
guidance document is more appropriate.
Under both delegated and nondelegated part 71 programs, interested
persons (including permitees) would be authorized to petition the
Administrator to reopen an already issued permit for cause as provided
in proposed Sec. 71.11(n). Petitions would be required to be in writing
and to contain facts or reasons supporting the request. If the
Administrator determined that cause exists to reopen the permit, he or
she would revise, revoke and reissue, or terminate the permit
consistent with the requirements and procedures in proposed Sec. 71.7.
Under part 70, citizens can petition EPA to object to State issued
permits and can appeal EPA's failure to object to a proposed permit.
However, for both delegated and nondelegated part 71 programs, the EPA
feels this type of petition process is unnecessary because the final
permit can be appealed directly to the Environmental Appeals Board
(EAB) and because citizens can use the petition process provided by
proposed Sec. 71.11(n) in cases where the deadline for appeal to the
EAB has passed. The EPA believes that this approach provides an
adequate opportunity for EPA oversight of part 71 programs, and that
consequently there is little value in providing the opportunity for
citizens to petition the Administrator to object to a proposed permit,
which could result in two separate and simultaneous routes to appeal
EPA's permitting actions. Moreover, the approach proposed today would
be more consistent with that taken in the Agency's recently promulgated
rule (to be codified at 40 CFR 71.21 et seq), which governs how title V
specialty permits would be issued to sources seeking alternative
hazardous air pollution emissions limits under section 112(i)(5) of the
Act. See 59 FR 59921 (Nov. 21, 1994) (``Federal Operating Permit
Programs; Permits for Early Reductions Sources''). The Agency solicits
comment on this approach.
K. Section 71.12--Prohibited Acts
It is important to note that it is unnecessary to include an
enforcement authority section in the part 71 Federal program
regulations that specifically corresponds to the enforcement authority
section in the part 70 State program regulations. Rather, because the
program under part 71 is a Federal program, it will be enforced through
the full Federal enforcement authorities in the Act.
Examples of the Federal enforcement authorities available under the
Act for violations of title V and the regulations thereunder include,
but are not limited to, the authority to: (1) Restrain or enjoin
immediately and effectively any person by order or by suit in court
from engaging in any activity in violation of the Act that is
presenting an imminent and substantial endangerment to the public
health or welfare, or the environment; (2) seek injunctive relief in
court to enjoin any violation of the Act; (3) issue an administrative
order against any person assessing a civil administrative penalty of up
to $25,000 per day for each violation of the Act; and (4) assess and
recover a civil penalty of not more than $25,000 per day for each
violation of the Act. Another example of enforcement authority
available under the Act is the authority to assess criminal fines
pursuant to title 18 of the United States Code or imprisonment for not
to exceed 5 years, or both, against any person who knowingly violates
title V and the [[Page 20826]] regulations thereunder. The above list
is not an exhaustive description of the Federal enforcement authority
available under the Act for violations of title V and the regulations
thereunder. Accordingly, nothing in this discussion shall be construed
to limit the Federal enforcement authorities available under the Act
for violations of title V and the regulations thereunder.
The Federal enforcement authority available under the Act for
violations of title V and the regulations thereunder provides broader
enforcement authority than the States are required to have under the
part 70 regulations. For example, 40 CFR 70.11 requires that States
have authority to recover civil penalties for a maximum amount of not
less than $10,000 per day per violation. The Federal enforcement
authority imposes a maximum penalty of up to $25,000 per day per
violation.
VI. Administrative Requirements
A. Reference Documents
All the documents referenced in this preamble fall into one of two
categories. They are either reference materials that are considered to
be generally available to the public, or they are memoranda and reports
prepared specifically for this rulemaking. Both types of documents can
be found in Docket No. A-93-51.
B. Office of Management and Budget (OMB) Review
Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the
Agency must determine whether the regulatory action is ``significant''
and therefore, subject to 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,
adversely and materially affecting 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 program or the rights and obligations 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.
Pursuant to the terms of Executive Order 12866, it has been
determined that this rule is a ``significant'' regulatory action. As
such, this action was submitted to OMB for review. Changes made in
response to OMB suggestions or recommendations will be documented in
the public record.
The estimated annualized cost of implementing the part 71 program
is $137.5 million to the Federal government and $79.8 million to
respondents, for a total of $217.3 million which reflects industry's
total expected costs of complying with the program. Since any costs
incurred by the Agency in administering a program would be recaptured
through fees imposed on sources, the true cost to the Federal
government is zero. The requirements for the costs result from section
502(d) of title V which mandates that EPA develop a Federal operating
permits program. The proposed program is designed to improve air
quality by: indirectly improving the quality of State-administered
operating permits programs; encouraging the adoption of lower cost
control strategies based on economic incentive approaches; improving
the effectiveness of enforcement and oversight of source compliance;
facilitating the implementation of other titles of the Act, such as
title I; and improving the quality of emissions data and other source-
related data.
C. Regulatory Flexibility Act Compliance
Under the Regulatory Flexibility Act, whenever an Agency publishes
any proposed or final rule in the Federal Register, it must prepare a
Regulatory Flexibility Analysis (RFA) that describes the impact of the
rule on small entities (i.e., small businesses, organizations, and
governmental jurisdictions). The EPA has established guidelines which
require an RFA if the proposed rule will have any economic impact,
however small, on any small entities that are subject to the rule, even
though the Agency may not be legally required to develop such an
analysis.
The original part 70 rule and the recently proposed revisions to
part 70 were determined to not have a significant and disproportionate
adverse impact on small entities. Similarly, a regulatory flexibility
screening analysis of the impacts of the proposed part 71 rule revealed
that the proposed rule would not have a significant and
disproportionate adverse impact on small entities; few small entities
would be subject to part 71 permitting requirements because the
proposed rule defers permitting requirements for nonmajor sources.
Consequently, the Administrator certifies that the proposed part 71
regulations will not have a significant and disproportionate impact on
small entities. The EPA, however, solicits any information or data
which might affect this proposed certification. The EPA will reexamine
this issue and perform any subsequent analysis deemed necessary. Any
subsequent analysis will be available in the docket and taken into
account before promulgation.
D. Paperwork Reduction Act
The information collection requirements in this proposed rule have
been submitted for approval to OMB under the Paperwork Reduction Act,
44 U.S.C. 3501 et seq. An Information Collection Request document has
been prepared by EPA and a copy may be obtained from Sandy Farmer,
Information Policy Branch (2136), U.S. Environmental Protection Agency,
401 M St., Washington, D.C. 20460, (202) 382-2706.
As compared to the burden imposed by 40 CFR part 70, the average
additional annual burden on sources for the collection of information
is approximately 3.3 million hours, or on average approximately 96
hours per respondent and none for State and local agencies. The total
annualized cost for collection is estimated to be approximately $79.8
million for sources. There is no burden for State and local agencies.
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 (PM-223) U.S. Environmental
Agency, 401 M St. SW, Washington, D.C. 20460; and to the Office of
Information and Regulatory Affairs, Office of Management and Budget,
Washington, D.C. 20503, marked, ``Attention: Desk Officer for EPA.''
The final rule will respond to any OMB or public comments on the
information collection requirements contained in this proposal.
E. Unfunded Mandates Reform Act
As shown in the Information Collection Request Document (ICR),
today's action imposes no costs on State, local and tribal governments.
The EPA estimates that the direct cost to the private sector would be
no more than $96.6 million in any one year. and above costs industry
would have incurred by complying with State permits programs mandated
by the Act, for which part 71 programs are substitutes. For EPA's
estimates of the cost to industry and permitting agencies for State
permits programs, see 57 FR 32293 (July 21, 1992) and 59 FR 44525
(August 29, 1994). As shown in the ICR for proposed part 71, the part
71 [[Page 20827]] program would impose on industry a marginal cost
(i.e., a cost above what industry would incur to comply with State
requirements) of $31.9 million for collecting information (e.g.,
completing permit applications). Additionally, EPA has calculated the
marginal cost to industry of the part 71 fee structure to be $64.7
million. As shown in the ICR, part 71 programs would generate $137.5
million in fees, using an average fee of nearly $60 per ton of certain
regulated pollutants. On the other hand, most States are expected to
charge approximately $31 per ton (or $25 per ton as adjusted for
inflation using a baseline year of 1989) which is the fee amount which
title V of the Act suggests would be adequate to fund a State permit
program. The difference between fees generated under part 71 and under
the otherwise applicable State fee requirements (based on $31 per ton)
would be $64.7 million. In addition, it is important to note that the
estimates used in these projections (and the ICR) are based on the
assumption that EPA would administer 10 part 71 programs for a full
year. The EPA believes that it is very unlikely that it would
administer that many programs for such an extended time period. For
these reasons, EPA believes that the total marginal costs to industry
under today's proposal would not exceed $100 million in any one year.
Therefore, the Agency concludes that it is not required by Section 202
of the Unfunded Mandates Reform Act of 1995 to provide a written
statement to accompany this proposed regulatory action because
promulgation of the rule would not result in the expenditure by State,
local, and tribal governments, in the aggregate or by the private
sector, of $100,000,000 or more in any one year.
List of Subjects
40 CFR Part 55
Air pollution control, Outer Continental Shelf, operating permits.
40 CFR Part 71
Air pollution control, Prevention of significant deterioration, New
source review, Fugitive emissions, Particulate matter, Volatile organic
compounds, Nitrogen dioxide, Carbon monoxide, Hydrocarbons, Lead,
Operating permits, Indian Tribes, Air pollution control--Tribal
authority.
Dated: March 28, 1995.
Carol Browner,
Administrator.
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is proposed to be amended as set forth
below.
(Note: Material enclosed by brackets and designated as
``Option'' set forth an alternative proposal regarding revision of
permit terms that prescribe monitoring or recordkeeping procedures.
Material enclosed by brackets and designated as ``alternatives'' set
for an alternative proposal regarding processing changes under the
administrative amendment procedures and de minimis permit revision
procedures.)
PART 55--[AMENDED]
1. The authority citation for part 55 continues to read as follows:
Authority: Section 328 of the Clean Air Act (42 U.S.C. 7401, et
seq.) as amended by Public Law 101-549.
2. Section 55.6 is proposed to be amended by adding paragraph
(c)(3) to read as follows:
Sec. 55.6 Permit requirements.
* * * * *
(c) * * *
(3) If the COA does not have an operating permits program approved
pursuant to 40 CFR part 70 or if EPA has determined that the COA is not
adequately implementing an approved program, the applicable
requirements of 40 CFR part 71, the Federal operating permits program,
shall apply to the OCS sources. The applicable requirements of 40 CFR
part 71 will be implemented and enforced by the Administrator. The
Administrator may delegate the authority to implement and enforce all
or part of a Federal operating permits program to a State pursuant to
Sec. 55.11.
* * * * *
3. Section 55.10 is proposed to be amended by revising paragraph
(a)(1) and by adding paragraph (b) to read as follows:
Sec. 55.10 Fees.
(a) * * *
(1) EPA will calculate and collect operating permit fees from OCS
sources in accordance with the requirements of 40 CFR part 71.
* * * * *
(b) OCS sources located beyond 25 miles of States' seaward
boundaries. EPA will calculate and collect operating permit fees from
OCS sources in accordance with the requirements of 40 CFR part 71.
4. Section 55.13 is proposed to be amended by adding paragraph (f)
to read as follows:
Sec. 55.13 Federal requirements that apply to OCS sources.
* * * * *
(f) 40 CFR part 71 shall apply to OCS sources:
(1) Located within 25 miles of States' seaward boundaries if the
requirements of 40 CFR part 71 are in effect in the COA.
(2) Located beyond 25 miles of States' seaward boundaries.
(3) When an operating permits program approved pursuant to 40 CFR
part 70 is in effect in the COA and a Federal operating permit is
issued to satisfy an EPA objection pursuant to 40 CFR 71.4(e).
* * * * *
PART 71--[AMENDED]
5. The authority citation for part 71 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
6. Part 71 is proposed to be amended by adding subpart A to read as
follows:
Subpart A--Operating Permits
Sec.
71.1 Program overview.
71.2 Definitions.
71.3 Sources subject to permitting requirements.
71.4 Program implementation.
71.5 Permit applications.
71.6 Permit content.
71.7 Permit review, issuance, renewal, reopenings, and revisions.
71.8 Affected State review.
71.9 Permit fees.
71.10 Delegation of part 71 program.
71.11 Administrative record, public participation, and
administrative review.
71.12 Prohibited acts.
Subpart A--Operating Permits
Sec. 71.1 Program overview.
(a) This part sets forth the comprehensive Federal air quality
operating permits permitting program consistent with the requirements
of title V of the Clean Air Act (Act) (42 U.S.C. 7401 et seq.) and
defines the requirements and the corresponding standards and procedures
by which the Administrator will issue operating permits. This
permitting program is designed to promote timely and efficient
implementation of goals and requirements of the Act.
(b) All sources subject to the operating permit requirements of
title V of the Act and this part shall have a permit to operate that
assures compliance by the source with all applicable requirements.
(c) The requirements of this part, including provisions regarding
schedules for submission and approval or disapproval of permit
applications, shall apply to the permitting of affected sources under
the acid rain program, except as provided herein or as modified by
title IV of the Act and 40 CFR parts 72 through 78.
(d) Issuance of permits under this part may be coordinated with
issuance of permits under the Resource [[Page 20828]] Conservation and
Recovery Act (42 U.S.C. 6901 et seq.) and under the Clean Water Act (33
U.S.C. 1251 et seq.), whether issued by the State, the U.S.
Environmental Protection Agency (EPA), or the U.S. Army Corps of
Engineers.
(e) Nothing in this part shall prevent a State from administering
an operating permits program and establishing more stringent
requirements not inconsistent with the Act.
Sec. 71.2 Definitions.
The following definitions apply to part 71. Except as specifically
provided in this section, terms used in this part retain the meaning
accorded them under the applicable requirements of the Act.
Act means the Clean Air Act, as amended, 42 U.S.C. 7401 et seq.
Administrator or EPA means the Administrator of the U.S.
Environmental Protection Agency (EPA) or his or her designee.
Affected source shall have the meaning given to it in 40 CFR 72.2.
Affected States are:
(1) All States and Tribal areas whose air quality may be affected
and that are contiguous to the State or Tribal area in which the
permit, permit revision or permit renewal is being proposed; or that
are within 50 miles of the permitted source. A Tribe and any associated
Tribal area shall be treated as a State under this paragraph (1) only
if EPA has determined that the Tribe is eligible to be treated in the
same manner as a State.
(2) The State or Tribal area in which a part 71 permit, permit
revision, or permit renewal is being proposed.
(3) Those areas within the jurisdiction of the air pollution
control agency for the area in which a part 71 permit, permit revision,
or permit renewal is being proposed.
(4) Except as provided in paragraph (3) of this definition, the
term ``affected State'' does not include any local agency, district, or
interstate program.
Affected unit shall have the meaning given to it in 40 CFR 72.2.
Applicable requirement means all of the following as they apply to
emissions units in a part 71 source (including requirements that have
been promulgated or approved by EPA through rulemaking at the time of
issuance but have future compliance dates):
(1) Any standard or other requirement provided for in the
applicable implementation plan approved or promulgated by EPA through
rulemaking under title I of the Act that implements the relevant
requirements of the Act, including any revisions to that plan
promulgated in part 52 of this chapter;
(2) Any requirement enforceable by the Administrator and by
citizens under the Act that limits emissions for the purposes of
creating offset credits or for complying with or avoiding the
applicability of applicable requirements;
(3) Any term or condition of any preconstruction permits issued
pursuant to regulations approved or promulgated through rulemaking
under title I, including parts C or D, of the Act;
(4) Any standard or other requirement under section 111 of the Act,
including section 111(d);
(5) Any standard or other requirement under section 112 of the Act,
including any requirement concerning accident prevention under section
112(r)(7) of the Act;
(6) Any standard or other requirement of the acid rain program
under title IV of the Act or 40 CFR parts 72 through 78;
(7) Any requirements established pursuant to section 114(a)(3) or
504(b) of the Act;
(8) Any standard or other requirement governing solid waste
incineration, under section 129 of the Act;
(9) Any standard or other requirement for consumer and commercial
products, under section 183(e) of the Act;
(10) Any standard or other requirement for tank vessels, under
section 183(f) of the Act;
(11) Any standard or other requirement of the program to control
air pollution from outer continental shelf sources, under section 328
of the Act;
(12) Any standard or other requirement of the regulations
promulgated at 40 CFR part 82, subpart B and subpart F to protect
stratospheric ozone under sections 608 or 609 of title VI of the Act,
unless the Administrator has determined that such requirements need not
be contained in a permit issued under title V of the Act, and any
standard or other requirement under any other section(s) of title VI of
the Act that the Administrator determines should be contained in a
permit issued under title V of the Act; and
(13) Any national ambient air quality standard or increment or
visibility requirement under part C of title I of the Act, but only as
it would apply to temporary sources permitted pursuant to section
504(e) of the Act.
Delegate agency means the State air pollution control agency, local
agency, other State agency, Tribal agency, or other agency authorized
by the Administrator pursuant to Sec. 71.10 to carry out all or part of
a permit program under part 71.
Designated representative shall have the meaning given to it in 40
CFR 72.2.
Draft permit means the version of a permit for which the permitting
authority offers public participation under Sec. 71.7 or Sec. 71.11 and
affected State review under Sec. 71.8.
Eligible Indian tribe or Eligible tribe means a tribe that has been
determined by EPA to meet the criteria for being treated in the same
manner as a State, pursuant to the regulations implementing section
301(d)(2) of the Act.1
\1\Proposed rule entitled ``Indian Tribes: Air Quality Planning
and Management'', 59 FR 43956 (August 25, 1994).
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Emissions allowable under the permit means a federally enforceable
permit term or condition determined at issuance to be required by an
applicable requirement that establishes an emissions limit (including a
work practice standard) or a federally enforceable emissions cap that
the source has assumed to avoid an applicable requirement to which the
source would otherwise be subject.
Emissions unit means any part or activity of a stationary source
that emits or has the potential to emit any regulated air pollutant or
any pollutant listed under section 112(b) of the Act. This term is not
meant to alter or affect the definition of the term ``unit'' for
purposes of title IV of the Act.
Federal Indian reservation, Indian reservation or reservation means
all land within the limits of any Indian reservation under the
jurisdiction of the United States Government, notwithstanding the
issuance of any patent, and including rights-of-way running through the
reservation.
Final action or final permit action means the issuance or denial of
a part 71 permit, permit renewal, or permit revision by the permitting
authority, which has completed all review procedures required by
Secs. 71.7, 71.8, and 71.11, and is subject to administrative appeal
and judicial review.
Fugitive emissions are those emissions which could not reasonably
pass through a stack, chimney, vent, or other functionally-equivalent
opening.
General permit means a part 71 permit that meets the requirements
of Sec. 71.6(d).
Indian tribe or tribe means any Indian tribe, band, nation, or
other organized group or community, including any Alaskan native
village, which is federally recognized as eligible for the special
programs and services provided by the United States to Indians because
of their status as Indians.
Insignificant activity or emissions means those activities,
operations, and [[Page 20829]] emissions levels which meet the criteria
listed in Sec. 71.5(g) for exemption from the documentation and
reporting requirements of Sec. 71.5(f).
Major new source review (major NSR) means a title I program
contained in an EPA-approved or promulgated implementation plan for the
preconstruction review of changes which are subject to review as new
major stationary sources or major modifications under EPA regulations
implementing parts C or D of title I of the Act. (40 CFR 51.165 through
51.166, 40 CFR part 51, subpart P, 40 CFR 52.21 through 52.29).
Major source means any stationary source or group of stationary
sources as described in paragraph (1), (2), or (3) of this definition.
For purposes of paragraphs (2) and (3) of this definition, major
stationary source includes any group of stationary sources that are
located on one or more contiguous or adjacent properties, and are under
common control of the same person (or persons under common control)
belonging to a single major industrial grouping. For the purposes of
defining ``major source'' in paragraph (2) or (3) of this definition, a
stationary source or group of stationary sources shall be considered
part of a single industrial grouping if all of the pollutant emitting
activities at such source or group of sources on contiguous or adjacent
properties belong to the same Major Group (i.e., all have the same two-
digit code) as described in the Standard Industrial Classification
Manual, 1987. In addition, for purposes of paragraphs (2) and (3) of
this definition, any facility that supports a source, where both are
under the control of the same person (or persons under common control)
and on contiguous or adjacent properties, shall be considered a support
facility and part of the same source, regardless of the 2-digit code of
that facility. A stationary source (or group of stationary sources) is
considered a support facility to a source if at least 50 percent of the
output of the support facility is dedicated to the source.
(1) A major source under section 112 of the Act, which is defined
as:
(i) For pollutants other than radionuclides, any stationary source
or group of stationary sources located within a contiguous area and
under common control that emits or has the potential to emit, in the
aggregate, 10 tons per year (tpy) or more of any hazardous air
pollutant (HAP) (including any fugitive emissions of such pollutant)
which has been listed pursuant to section 112(b) of the Act, 25 tpy or
more of any combination of such HAP (including any fugitive emissions
of such pollutants), or such lesser quantity as the Administrator may
establish by rule. Notwithstanding the preceding sentence, emissions
from any oil or gas exploration or production well (with its associated
equipment) and emissions from any pipeline compressor or pump station
shall not be aggregated with emissions from other similar units,
whether or not such units are in a contiguous area or under common
control, to determine whether such units or stations are major sources;
or
(ii) For radionuclides, ``major source'' shall have the meaning
specified by the Administrator by rule.
(2) A major stationary source of air pollutants or any group of
stationary sources as defined in section 302 of the Act, that directly
emits, or has the potential to emit, 100 tpy or more of any air
pollutant (including any fugitive emissions of any such pollutant, as
determined by rule by the Administrator). The fugitive emissions of a
stationary source shall not be considered in determining whether it is
a major stationary source for the purposes of section 302(j) of the Act
or for the purposes of paragraph (3) of this definition, unless the
source belongs to one of the following categories of stationary source:
(i) Coal cleaning plants (with thermal dryers);
(ii) Kraft pulp mills;
(iii) Portland cement plants;
(iv) Primary zinc smelters;
(v) Iron and steel mills;
(vi) Primary aluminum ore reduction plants;
(vii) Primary copper smelters;
(viii) Municipal incinerators capable of charging more than 250
tons of refuse per day;
(ix) Hydrofluoric, sulfuric, or nitric acid plants;
(x) Petroleum refineries;
(xi) Lime plants;
(xii) Phosphate rock processing plants;
(xiii) Coke oven batteries;
(xiv) Sulfur recovery plants;
(xv) Carbon black plants (furnace process);
(xvi) Primary lead smelters;
(xvii) Fuel conversion plants;
(xviii) Sintering plants;
(xix) Secondary metal production plants;
(xx) Chemical process plants;
(xxi) Fossil-fuel boilers (or combination thereof) totaling more
than 250 million British thermal units per hour heat input;
(xxii) Petroleum storage and transfer units with a total storage
capacity exceeding 300,000 barrels;
(xxiii) Taconite ore processing plants;
(xxiv) Glass fiber processing plants;
(xxv) Charcoal production plants;
(xxvi) Fossil-fuel-fired steam electric plants of more than 250
million British thermal units per hour heat input; or
(xxvii) All other stationary source categories regulated by a
standard promulgated as of August 7, 1980, under section 111 or 112 of
the Act, but only with respect to those air pollutants that have been
regulated for that category;
(3) A major stationary source as defined in part D of title I of
the Act, including:
(i) For ozone nonattainment areas, sources with the potential to
emit 100 tpy or more of volatile organic compounds or oxides of
nitrogen in areas classified as ``marginal'' or ``moderate,'' 50 tpy or
more in areas classified as ``serious,'' 25 tpy or more in areas
classified as ``severe,'' and 10 tpy or more in areas classified as
``extreme;'' except that the references in this paragraph (3)(i) to
100, 50, 25, and 10 tpy of nitrogen oxides shall not apply with respect
to any source for which the Administrator has made a finding, under
section 182 (f)(1) or (f)(2) of the Act, that requirements under
section 182(f) of the Act do not apply;
(ii) For ozone transport regions established pursuant to section
184 of the Act, sources with the potential to emit 50 tpy or more of
volatile organic compounds;
(iii) For carbon monoxide nonattainment areas: That are classified
as ``serious,'' and in which stationary sources contribute
significantly to carbon monoxide levels as determined under rules
issued by the Administrator, sources with the potential to emit 50 tpy
or more of carbon monoxide; and
(iv) For particulate matter (PM-10) nonattainment areas classified
as ``serious,'' sources with the potential to emit 70 tpy or more of
PM-10 or, where applicable, a PM-10 precursor.
Minor new source review (minor NSR) means a title I program
approved by EPA into a State's implementation plan under EPA
regulations implementing section 110(a)(2) of title I of the Act for
the preconstruction review of changes which are subject to review as
new or modified sources (40 CFR 51.160 through 51.164) and which do not
qualify as new major stationary sources or major modifications under
EPA regulations implementing part C or D of title I of the Act (40 CFR
51.165 through 51.166, 40 CFR part 51, subpart P, 40 CFR 52.21 through
52.29).
Part 70 permit means any permit or group of permits covering a part
70 source that has been issued, renewed, amended or revised pursuant to
40 CFR part 70. [[Page 20830]]
Part 70 program or State program means an operating permits program
approved by the Administrator under 40 CFR part 70.
Part 70 source means any source subject to the permitting
requirements of 40 CFR part 70.
Part 71 permit or permit (unless the context suggests otherwise)
means any permit or group of permits covering a part 71 source that has
been issued, renewed, amended or revised pursuant to this part.
Part 71 program means a Federal operating permits program under
this part.
Part 71 source means any source subject to the permitting
requirements of this part, as provided in Sec. 71.3(a) and
Sec. 71.3(b).
Permit program costs means all reasonable (direct and indirect)
costs required to administer an operating permits program, as set forth
in Sec. 71.9(b) of this part.
Permit revision means any administrative permit amendment, de
minimis permit revision, minor permit revision, or significant permit
revision.
Permitting authority means one of the following:
(1) The Administrator, in the case of EPA-implemented programs;
(2) A delegate agency authorized by the Administrator to carry out
a Federal permit program under this part; or
(3) The State air pollution control agency, local agency, other
State agency, Indian Tribe, or other agency with a part 70 program.
Potential to emit means the maximum capacity of a stationary source
to emit any air pollutant under its physical and operational design.
Any physical or operational limitation on the capacity of a source to
emit an air pollutant, including air pollution control equipment and
restrictions on hours of operation or on the type or amount of material
combusted, stored, or processed, shall be treated as part of its design
if the limitation is enforceable by the Administrator and by citizens
under the Act. This term does not alter or affect the use of this term
for any other purposes under the Act, or the term ``capacity factor''
as used in title IV of the Act or 40 CFR parts 72 through 78.
Proposed permit means the version of a permit that the delegate
agency proposes to issue and forwards to the Administrator for review
in compliance with Sec. 71.10(d).
Regulated air pollutant means the following:
(1) Nitrogen oxides or any volatile organic compounds;
(2) Any pollutant for which a national ambient air quality standard
has been promulgated;
(3) Any pollutant that is subject to any standard promulgated under
section 111 of the Act;
(4) Any Class I or II substance subject to a standard promulgated
under or established by title VI of the Act; or
(5) Any pollutant subject to a standard promulgated under section
112 of the Act or other requirements established under section 112 of
the Act, including sections 112 (g), (j), and (r) of the Act, including
the following:
(i) Any pollutant subject to requirements under section 112(j) of
the Act. If the Administrator fails to promulgate a standard by the
date established pursuant to section 112(e) of the Act, any pollutant
for which a subject source would be major shall be considered to be
regulated on the date 18 months after the applicable date established
pursuant to section 112(e) of the Act; and
(ii) Any pollutant for which the requirements of section 112(g)(2)
of the Act have been met, but only with respect to the individual
source subject to section 112(g)(2) requirement.
Regulated pollutant (for fee calculation), which is used only for
purposes of Sec. 71.9(c), means any regulated air pollutant except the
following:
(1) Carbon monoxide;
(2) Any pollutant that is a regulated air pollutant solely because
it is a Class I or II substance subject to a standard promulgated under
or established by title VI of the Act; or
(3) Any pollutant that is a regulated air pollutant solely because
it is subject to a standard or regulation under section 112(r) of the
Act.
Renewal means the process by which a permit is reissued at the end
of its term.
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;
(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); or
(4) For affected sources:
(i) The designated representative for all actions, standards,
requirements, or prohibitions under title IV of the Act or 40 CFR parts
72 through 78; or
(ii) The designated representative or a person meeting the
provisions of paragraph (1), (2), or (3) of this definition for any
other purposes under part 71.
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 Marianas Islands. Where such meaning is
clear from the context, ``State'' shall have its conventional meaning.
For purposes of the acid rain program, the term ``State'' shall be
limited to authorities within the 48 contiguous States and the District
of Columbia as provided in section 402(14) of the Act.
Stationary source means any building, structure, facility, or
installation that emits or may emit any regulated air pollutant or any
pollutant listed under section 112(b) of the Act.
Title I modification or modification under any provision of title I
of the Act means any modification under part C or part D of title I or
sections 110(a)(2), 111(a)(4), 112(a)(5), or 112(g) of the Act; under
regulations codified in this chapter to implement sections 112(a)(5)
and 112(g) of the Act or in 40 CFR 51.160 through 51.164, 40 CFR part
60, or in 40 CFR 61.07; or under State regulations approved by EPA to
meet such requirements.
Tribal area means, for the purposes of the regulations under this
part, those lands over which an Indian Tribe has authority under the
Clean Air Act to regulate air quality. These lands include all areas
within the exterior boundaries of an Indian reservation and any other
areas outside reservation boundaries that EPA determines to be within a
Tribe's inherent authority. [[Page 20831]]
Sec. 71.3 Sources subject to permitting requirements.
(a) Part 71 sources. The following sources are subject to the
permitting requirements under this part:
(1) Any major source, except that a source is not required to
obtain a permit if it would be classified as a major source solely
because it has the potential to emit major amounts of a pollutant
listed pursuant to section 112(r)(3) of the Act and is not otherwise
required to obtain a permit under this part;
(2) Any source, including an area source (i.e., a nonmajor source),
subject to a standard, limitation, or other requirement under section
111 of the Act;
(3) Any source, including an area source (i.e., a nonmajor source),
subject to a standard or other requirement under section 112 of the
Act, except that a source is not required to obtain a permit solely
because it is subject to regulations or requirements under section
112(r) of the Act;
(4) Any source required to have a permit under part C or D of title
I of the Act;
(5) Any affected source; and
(6) Any source in a source category designated by the Administrator
pursuant to this section.
(b) Source category exemptions.
(1) All sources listed in paragraph (a) of this section that are
not major sources, affected sources, or solid waste incineration units
required to obtain a permit pursuant to section 129(e) of the Act are
exempted from the obligation to obtain a part 71 permit until such time
as the Administrator completes a rulemaking to determine how the
program should be structured for nonmajor sources and the
appropriateness of any permanent exemptions in addition to those
provided for in paragraph (b)(4) of this section.
(2) Nonmajor sources subject to a standard or other requirement
under either section 111 or 112 of the Act after July 21, 1992 shall be
exempted from the obligation to obtain a part 71 permit if the
Administrator exempts such sources from the requirement to obtain a
part 70 or part 71 permit at the time that the new standard is
promulgated.
(3) Any source listed in paragraph (a) of this section that is
exempt from the requirement to obtain a permit under this section may
opt to apply for a permit under a part 71 program.
(4) The following source categories are exempted from the
obligation to obtain a part 71 permit:
(i) All sources and source categories that would be required to
obtain a permit solely because they are subject to 40 CFR part 60,
Subpart AAA--Standards of Performance for New Residential Wood Heaters;
and
(ii) All sources and source categories that would be required to
obtain a permit solely because they are subject to 40 CFR part 61,
Subpart M--National Emission Standard for Hazardous Air Pollutants for
Asbestos, Sec. 61.145, Standard for Demolition and Renovation.
Sec. 71.4 Program implementation.
(a) Part 71 programs for States. The Administrator will administer
and enforce a full or partial operating permits program for a State
(excluding Tribal areas) in the following situations:
(1) A program for a State meeting the requirements of part 70 of
this chapter has not been granted full approval under Sec. 70.4 of this
chapter by the Administrator by November 15, 1995, and the State's part
70 program has not been granted interim approval under Sec. 70.4(d) of
this chapter for a period extending beyond November 15, 1995. The
effective date of such a part 71 program is November 15, 1995.
(2) An operating permits program for a State which was granted
interim approval under Sec. 70.4(d) of this chapter has not been
granted full approval by the Administrator by the expiration of the
interim approval period or November 15, 1995, whichever is later. Such
a part 71 program shall be effective upon expiration of the interim
approval or November 15, 1995, whichever is later.
(3) Any partial part 71 program will be effective only in those
portions of a State that are not covered by a partial part 70 program
that has been granted full or interim approval by the Administrator
pursuant to Sec. 70.4(c) of this chapter.
(b) Part 71 programs for Tribal areas. The Administrator may
administer and enforce an operating permits program for a Tribal area,
as defined in Sec. 71.2, when an operating permits program for the area
which meets the requirements of part 70 of this chapter has not been
granted full or interim approval by the Administrator by November 15,
1995.
(1) Determining the boundaries of a Tribal area. At least 90 days
prior to the effective date of a part 71 program for a Tribal area, the
Administrator shall notify all appropriate governmental entities of the
proposed geographic boundaries of the program.
(i) For programs solely addressing air resources within the
exterior boundaries of the Reservation, EPA's notification of other
governmental entities shall specify the geographic boundaries of the
Reservation. For programs also addressing off-reservation areas, EPA's
notification of other governmental entities shall include the substance
and bases of the Tribe's assertions of jurisdiction over such off-
reservation area(s), including:
(A) A map or legal description of the off-reservation area(s) over
which the Tribe asserts jurisdiction.
(B) A statement by the Tribe's legal counsel (or equivalent
official) which describes the basis for the Tribe's assertion of
jurisdiction which may include a copy of documents such as Tribal
constitutions, by-laws, charters, executive orders, codes, ordinances,
and/or resolutions which support the Tribe's assertion of jurisdiction
over the off-reservation area(s).
(ii) The appropriate governmental entities shall have 15 days to
provide written comments to the Administrator regarding any dispute
concerning the boundary of the Reservation. Where a Tribe has asserted
jurisdiction over off-reservation areas, appropriate governmental
entities may request a single 15-day extension to the general 15-day
comment period.
(iii) In all cases, comments must be timely, limited to the scope
of the Tribe's jurisdictional assertion, and clearly explain the
substance, bases and extent of any objections. If a Tribe's assertion
is subject to a conflicting claim, the EPA may request additional
information and may consult with the Department of the Interior.
(iv) The Administrator shall promptly decide the scope of the
Tribe's jurisdiction. If a conflicting claim cannot be promptly
resolved, the Administrator shall implement a part 71 program
encompassing all undisputed areas.
(v) The part 71 program will extend to all areas within the
exterior boundaries of the Tribe's reservation, as determined by the
Administrator, and any other areas the Administrator has determined to
be within the Tribe's jurisdiction.
(vi) The Administrator's determination of the scope of the Tribe's
jurisdiction shall be published in the Federal Register at least 30
days prior to the effective date of the part 71 program.
(2) The effective date of a part 71 program for a Tribal area shall
be November 15, 1997.
(3) Notwithstanding paragraph (b)(2) of this section, the
Administrator, in consultation with the governing body of the Tribal
area, may adopt an earlier effective date.
(4) Notwithstanding paragraph (i)(2) of this section, within two
years of the [[Page 20832]] effective date of the part 71 program for
the Tribal area, the Administrator shall take final action on permit
applications from part 71 sources that are submitted within the first
full year after the effective date of the part 71 program.
(c) Part 71 programs imposed due to inadequate implementation.
(1) The Administrator will administer and enforce an operating
permits program for a permitting authority if the Administrator has
notified the permitting authority, in accordance with Sec. 70.10(b)(1)
of this chapter, of the Administrator's determination that a permitting
authority is not adequately administering or enforcing its approved
operating permits program, or any portion thereof, and the permitting
authority fails to do either of the following:
(i) Correct the deficiencies within 18 months after the
Administrator issues the notice; or
(ii) Take significant action to assure adequate administration and
enforcement of the program within 90 days of the Administrator's
notice.
(2) The effective date of a part 71 program promulgated in
accordance with this paragraph (c) shall be:
(i) Two years after the Administrator's notice if the permitting
authority has not corrected the deficiency within 18 months after the
date of the Administrator's notice; or
(ii) Such earlier time as the Administrator determines appropriate
if the permitting authority fails, within 90 days of the
Administrator's notice, to take significant action to assure adequate
administration and enforcement of the program.
(d) Part 71 programs for OCS sources.
(1) Using the procedures of this part, the Administrator will issue
permits to any source which is an outer continental shelf (OCS) source,
as defined under Sec. 55.2 of this chapter, is subject to the
requirements of part 55 of this chapter and section 328(a) of the Act,
is subject to the requirement to obtain a permit under title V of the
Act, and is either:
(i) Located beyond 25 miles of States' seaward boundaries; or
(ii) Located within 25 miles of States' seaward boundaries and a
part 71 program is being administered and enforced by the Administrator
for the corresponding onshore area, as defined in Sec. 55.2 of this
chapter, for that source.
(2) The requirements of Sec. 71.4(d)(1)(i) shall apply on
[Effective date of the final regulations].
(3) The requirements of Sec. 71.4(d)(1)(ii) apply upon the
effective date of a part 71 program for the corresponding onshore area.
(e) Part 71 program for permits issued to satisfy an EPA objection.
Using the procedures of this part and 40 CFR 70.8 (c) or (d), or 40 CFR
70.7(g) (4) or (5) (i) and (ii), as appropriate, the Administrator will
deny, terminate, revise, revoke or reissue a permit which has been
proposed or issued by a permitting authority or will issue a part 71
permit when:
(1) A permitting authority with an approved part 70 operating
permits program fails to respond to a timely objection to the issuance
of a permit made by the Administrator pursuant to section 505(b) of the
Act and Sec. 70.8 (c) and (d) of this chapter;
(2) The Administrator, under Sec. 70.7(g) of this chapter, finds
that cause exists to reopen a permit and the permitting authority fails
to either:
(i) Submit to the Administrator a proposed determination of
termination, modification, or revocation and reissuance, as
appropriate; or
(ii) Resolve any objection EPA makes to the permit which the
permitting authority proposes to issue in response to EPA's finding of
cause to reopen, and to terminate, revise, or revoke and reissue the
permit in accordance with that objection.
(3) The requirements of this paragraph (e) shall apply on
[Effective date of the final regulations].
(f) Use of selected provisions of this part. The Administrator may
utilize any or all of the provisions of this part to administer the
permitting process for individual sources or take action on individual
permits, or may adopt through rulemaking portions of a State or Tribal
program in combination with provisions of this part to administer a
Federal program for the State or Tribal area in substitution of or
addition to the Federal program otherwise required by this part.
(g) Public notice of part 71 programs. In taking action to
administer and enforce an operating permits program under this part,
the Administrator will publish a notice in the Federal Register
informing the public of such action and the effective date of any part
71 program as set forth in Sec. 71.4 (a), (b), (c), or (d)(1)(ii). The
promulgation of this part serves as the notice for the part 71 permit
programs described in Sec. 71.4(d)(1) (i) and (e). The EPA will also
publish a notice in the Federal Register of any delegation of a portion
of the part 71 program to a State, eligible Tribe, or local agency
pursuant to the provisions of Sec. 71.10. In addition to notices
published in the Federal Register under this paragraph (g), the
Administrator will, to the extent practicable, publish notice in a
newspaper of general circulation within the area subject to the part 71
program effectiveness or delegation, and will send a letter to the
Tribal governing body for an Indian Tribe or the Governor (or his or
her designee) of the affected area to provide notice of such
effectiveness or delegation.
(h) Effect of limited deficiencies in State or Tribal programs. The
Administrator may administer and enforce a part 71 program in a State
or Tribal area even if only limited deficiencies exist either in the
initial program submittal for a State or eligible Tribe under part 70
of this chapter or in an existing State or Tribal program that has been
approved under part 70 of this chapter.
(i) Transition plan for initial permit issuance. If a full or
partial part 71 program becomes effective in a State or Tribal area
prior to the issuance of part 70 permits to all part 70 sources under
an existing program that has been approved under part 70 of this
chapter, the Administrator shall take final action on initial permit
applications for all part 71 sources in accordance with the following
transition plan.
(1) All part 71 sources that have not received part 70 permits
shall submit permit applications under this part within 1 year after
the effective date of the part 71 program.
(2) Final action shall be taken on at least one-third of such
applications annually over a period not to exceed 3 years after such
effective date.
(3) Any complete permit application containing an early reduction
demonstration under section 112(i)(5) of the Act shall be acted on
within 12 months of receipt of the complete application.
(4) Submittal of permit applications and the permitting of affected
sources shall occur in accordance with the deadlines in title IV of the
Act and 40 CFR parts 72 through 78.
(j) Delegation of part 71 programs. The Administrator may
promulgate a part 71 program in a State or Tribal area and delegate
part of the responsibility for administering the part 71 program to the
State or eligible Tribe in accordance with the provisions of
Sec. 71.10; however, delegation of a part of a program will not
constitute any type of approval of a State or Tribal operating permits
program under part 70 of this chapter. Where only selected portions of
a part 71 program are administered by the Administrator and the State
or eligible Tribe is delegated the remaining portions of the program,
the notice referred to in paragraph (g) of this section will define the
respective roles of the State or eligible Tribe and the
[[Page 20833]] Administrator in administering and enforcing the part 71
operating permits program.
(k) EPA administration and enforcement of part 70 permits. When the
Administrator administers and enforces a part 71 program after a
determination and notice under Sec. 70.10(b)(1) of this chapter that a
State or Tribe is not adequately administering and enforcing an
operating permits program approved under part 70 of this chapter, the
Administrator will administer and enforce permits issued under the part
70 program until part 71 permits are issued using the procedures of
part 71. Until such time as part 70 permits are replaced by part 71
permits, the Administrator will revise, reopen, revise, terminate, or
revoke and reissue part 70 permits using the procedures of part 71 and
will assess and collect fees in accordance with the provisions of
Sec. 71.9.
(l) Transition to approved part 70 program. The Administrator will
suspend the issuance of part 71 permits promptly upon publication of
notice of approval of a State or Tribal operating permits program that
fully meets the requirements of part 70 of this chapter. The
Administrator may retain jurisdiction over the part 71 permits for
which the administrative or judicial review process is not complete and
will address this issue in the notice of State program approval. After
approval of a State or Tribal program and the suspension of issuance of
part 71 permits by the Administrator:
(1) The Administrator, or the permitting authority acting as the
Administrator's delegated agent, will continue to administer and
enforce part 71 permits until they are replaced by permits issued under
the approved part 70 program. Until such time as part 71 permits are
replaced by part 70 permits, the Administrator will revise, reopen,
revise, terminate, or revoke and reissue part 71 permits using the
procedures of the part 71 program. However, if the Administrator has
delegated authority to administer part 71 permits to a delegate agency,
the delegate agency will revise, reopen, terminate, or revoke and
reissue part 71 permits using the procedures of the approved part 70
program. If a part 71 permit expires prior to the issuance of a part 70
permit, all terms and conditions of the part 71 permit, including any
permit shield that may be granted pursuant to Sec. 71.6(n), shall
remain in effect until the part 70 permit is issued or denied, provided
that a timely and complete application for a permit renewal was
submitted to the permitting authority in accordance with the
requirements of the approved part 70 program.
(2) A State or local agency or Indian Tribe with an approved part
70 operating permits program may issue part 70 permits for all sources
with part 71 permits in accordance with a permit issuance schedule
approved as part of the approved part 70 program or may issue part 70
permits to such sources at the expiration of the part 71 permits.
(3) The Administrator shall rescind the part 71 permit for a source
when it is replaced by a part 70 permit issued under the approved part
70 program.
(m) Exemption for certain territories. Upon petition by the
Governor of Guam, American Samoa, the Virgin Islands, or the
Commonwealth of the Northern Marianas Islands, the Administrator may
exempt any source or class of sources in such territory from the
requirement to have a part 71 permit under this chapter. Such an
exemption does not exempt such source or class of sources from any
requirement of section 112 of the Act, including the requirements of
section 112(g) or (j).
(1) Such exemption may be granted if the Administrator finds that
compliance with part 71 is not feasible or is unreasonable due to
unique geographical, meteorological, or economic factors of such
territory, or such other local factors as the Administrator deems
significant. Any such petition shall be considered in accordance with
section 307(d) of the Act, and any exemption granted under this
paragraph (m) shall be considered final action by the Administrator for
the purposes of section 307(b) of the Act.
(2) The Administrator shall promptly notify the Committees on
Energy and Commerce and on Interior and Insular Affairs of the House of
Representatives and the Committees on Environment and Public Works and
on Energy and Natural Resources of the Senate upon receipt of any
petition under this paragraph (m) and of the approval or rejection of
such petition and the basis for such action.
(n) Retention of records. The records for each draft, proposed, and
final permit application, renewal, or modification shall be kept by the
Administrator for a period of 5 years.
Sec. 71.5 Permit applications.
(a) Duty to apply. The owner or operator of a source required to
obtain a permit under Sec. 71.3 shall submit a timely and complete
permit application in accordance with this section.
(b) Timely application.
(1) A timely application for a source which does not have an
existing operating permit issued by a State under the State's approved
part 70 program and is applying for a part 71 permit for the first time
is one that is submitted within 12 months or an earlier date after the
source becomes subject to the part 71 program. Sources required to
submit applications earlier than 12 months will be notified in advance
by the permitting authority of this paragraph (b)(1) and given a
reasonable time to submit their applications. In no case will this
notice be given less than 120 days in advance of the submittal date.
(2) For purposes of changes eligible under Sec. 71.6(q), a timely
application is one that is submitted not later than 6 months after the
notice required under Sec. 71.6(q)(3).
(3) For purposes of permit revisions other than changes eligible
under Sec. 71.6(g), a timely application is one that is submitted by
the relevant deadlines set forth in Sec. 71.7(e), (f), (g), or (h).
(4) For purposes of permit renewal, a timely application is one
that is submitted at least 6 months but no longer than 18 months prior
to the date of the part 70 or part 71 permit expiration.
(5) Applications for initial phase II acid rain permits shall be
submitted to the permitting authority by January 1, 1996 for sulfur
dioxide, and by January 1, 1998 for nitrogen oxides or by such other
deadlines established under title IV of the Act and 40 CFR parts 72
through 78.
(c) Complete application. To be found complete, an application must
provide all information required pursuant to paragraph (f) of this
section sufficient to allow the permitting authority to begin
processing the application, except that an application for a permit
revision need supply such information only if it is related to the
proposed change. Additionally, an initial applicant must remit payment
of any fees owed pursuant to Sec. 71.9 in order for the application to
be found complete. The information supplied by the applicant pursuant
to paragraph (f) of this section must be sufficient to evaluate the
subject source and its application and to determine all applicable
requirements. A responsible official shall certify the submitted
information consistent with paragraph (i) of this section. Unless the
permitting authority determines that an application is not complete
within 60 days of receipt of the application, such application shall be
deemed to be complete, except as otherwise provided in Sec. 71.7(a)(3).
If, while processing an application that has been determined or deemed
to be complete, the permitting authority determines that additional
information is necessary to evaluate or take final action on that
application, the [[Page 20834]] permitting authority may request such
information in writing and set a reasonable deadline for a response.
The source's ability to operate without a permit, as set forth in
Sec. 71.7(b), shall be in effect from the date the application is
determined or deemed to be complete until the final permit is issued,
provided that the applicant submits any requested additional
information by the deadline specified by the permitting authority.
(d) Confidential information. In a case where a source submits
information to the permitting authority under a business
confidentiality claim, the permitting authority will follow procedures
found at 40 CFR part 2. Pursuant to Sec. 2.301(e) of this chapter,
information contained in the permit application regarding emissions
data or a standard or limitation is not entitled to confidential
treatment.
(e) 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 information as necessary to address any requirements that
become applicable to the source after the date it filed a complete
application but prior to release of a draft permit.
(f) Standard application form. Part 71 sources shall submit the
following information using application forms provided by the
permitting authority (or if provided by the permitting authority, an
electronic reporting method). Information as described in this
paragraph (f) for each emissions unit at a part 71 source shall be
included in the application. A complete part 71 permit application
shall include the following elements:
(1) Identifying information, including company name and address (or
plant name and address if different from the company name), owner's
name and agent, and telephone numbers and names of plant site managers/
contacts.
(2) A description of the source's processes and products (by
Standard Industrial Classification Code) including any associated with
each alternate scenario identified by the source.
(3) The following emissions-related information:
(i) All emissions of pollutants for which the source is major, and
all emissions of regulated air pollutants. A permit application shall
describe all emissions of regulated air pollutants emitted from any
emissions unit, except where such units are exempted under paragraph
(g) of this section. Fugitive emissions shall be included in the permit
application in the same manner as stack emissions for each emissions
unit, regardless of whether the source category in question is included
in the list of sources contained in the definition of major source.
Moreover, information related to the emissions of air pollutants
sufficient to verify which requirements are applicable to the source,
and other information necessary to collect any permit fees owed under
the fee schedule established pursuant to Sec. 71.9 must be provided.
(ii) Identification and description of all points of emissions
described in paragraph (f)(3)(i) of this section in sufficient detail
to establish the basis for fees and applicability of requirements of
the Act.
(iii) Emissions rates in tpy and in such additional terms as are
necessary to establish compliance consistent with the applicable
standard reference test method.
(iv) The following information to the extent it is needed to
determine or regulate emissions: fuels, fuel use, raw materials,
production rates, and operating schedules.
(v) Identification and description of air pollution control
equipment and compliance monitoring devices or activities, including
brief descriptions of any appropriate operation and maintenance
procedures and quality assurance procedures.
(vi) Limitations on source operation affecting emissions or any
work practice standards, where applicable, for all regulated air
pollutants at the part 71 source.
(vii) Other information required by any applicable requirement
(including, but not limited to, stack height limitations developed
pursuant to section 123 of the Act).
(viii) Calculations on which the information in paragraphs
(f)(3)(i) through (vii) of this section is based.
(4) The following air pollution control requirements:
(i) Citation and description of all applicable requirements, and
(ii) Description of or reference to any applicable test method for
determining compliance with each applicable requirement.
(5) Other specific information that may be necessary to implement
and enforce other applicable requirements of the Act or of this part or
to determine the applicability of such requirements.
(6) An explanation of any proposed exemptions from otherwise
applicable requirements.
(7) Additional information as determined to be necessary by the
permitting authority to define alternative operating scenarios
identified by the source pursuant to Sec. 71.6(a)(8) or to define
permit terms and conditions implementing Sec. 71.6(a)(9) or
Sec. 71.6(p).
(8) Identification of those emissions units eligible for emissions
trading under Sec. 71.6(a)(9) and those emissions units at which
changes may be processed under de minimis permit revision procedures
contained in Sec. 71.7(f).
(9) A compliance plan for all part 71 sources that contains all the
following:
(i) A description of the compliance status of the source with
respect to all applicable requirements.
(ii) A description as follows:
(A) For applicable requirements with which the source is in
compliance, a statement that the source will continue to comply with
such requirements.
(B) For applicable requirements that will become effective during
the permit term, a statement that the source will meet such
requirements on a timely basis.
(C) For requirements for which the source is not in compliance at
the time of permit issuance, a narrative description of how the source
will achieve compliance with such requirements.
(iii) A compliance schedule as follows:
(A) For applicable requirements with which the source is in
compliance, a statement that the source will continue to comply with
such requirements.
(B) For applicable requirements that will become effective during
the permit term, a statement that the source will meet such
requirements on a timely basis. A statement that the source will meet
in a timely manner applicable requirements that become effective during
the permit term shall satisfy this provision, unless a more detailed
schedule is expressly required by the applicable requirement.
(C) A schedule of compliance for sources that are not in compliance
with all applicable requirements at the time of permit issuance. Such a
schedule shall include a schedule of remedial measures, including an
enforceable sequence of actions with milestones, leading to compliance
with any applicable requirements for which the source will be in
noncompliance at the time of permit issuance. This compliance schedule
shall resemble and be at least as stringent as that contained in any
judicial consent decree or administrative order to which the source is
subject. Any such schedule of compliance shall be supplemental to, and
shall not sanction noncompliance [[Page 20835]] with, the applicable
requirements on which it is based.
(iv) A schedule for submission of certified progress reports every
6 months for sources required to have a schedule of compliance to
remedy a violation, unless more frequent submittals are required in the
applicable requirement or by the permitting authority.
(v) For affected sources applying for part 71 permits, the
compliance plan content requirements specified in this paragraph (f)(9)
must be met for all applicable requirements, including the applicable
requirements of title IV of the Act. For permit applications required
under the acid rain program, the compliance plan content requirements
of 40 CFR part 72, subpart D must be met.
(10) Requirements for compliance certification, including the
following:
(i) A certification of compliance with all applicable requirements
by a responsible official consistent with paragraph (i) of this section
and section 114(a)(3) of the Act;
(ii) A statement of methods used for determining compliance,
including a description of monitoring, recordkeeping, and reporting
requirements and test methods;
(iii) A schedule for annual submissions of compliance
certifications during the permit term, or for more frequent submissions
if specified by the underlying applicable requirement or by the
permitting authority; and
(iv) A statement indicating the source's compliance status with any
applicable enhanced monitoring and compliance certification
requirements of the Act.
(11) The use of nationally-standardized forms for acid rain
portions of permit applications and compliance plans, as required by 40
CFR part 72.
(12) Temporary sources requesting a single permit for multiple
sites must also provide in the permit application ambient air quality
standard and increment and visibility analyses as required under part C
of title I of the Act.
(g) Insignificant activities and emissions levels. The following
types of insignificant activities and emissions levels are exempt from
the requirements of paragraph (f) of this section. Notwithstanding the
preceding sentence, no activity or emission levels shall be exempt from
the requirements of paragraph (f) of this section if the information
omitted from the application is needed to determine the applicability
of or to impose any applicable requirement, to determine whether a
source is major, to determine whether a source is subject to the
requirement to obtain a part 71 permit, or to calculate the fee amount
required under the schedule established pursuant to Sec. 71.9.
(1) Insignificant activities. Information concerning the following
activities need not be provided in the application:
(i) Mobile sources;
(ii) Air-conditioning units used for human comfort that do not use
a class I or class II ozone depleting substance and do not exhaust air
pollutants into the ambient air from any manufacturing or other
industrial process;
(iii) Ventilating units used for human comfort that do not exhaust
air pollutants into the ambient air from any manufacturing or other
industrial process;
(iv) Heating units used for human comfort that do not provide heat
for any manufacturing or other industrial process;
(v) Noncommercial food preparation;
(vi) Consumer use of office equipment and products;
(vii) Janitorial services and consumer use of janitorial products;
and
(viii) Internal combustion engines used for landscaping purposes.
(2) Insignificant emissions levels. Emissions meeting the criteria
in paragraph (g)(2)(i) or (g)(2)(ii) of this section need not be
included in the application consistent with paragraph (f) of this
section, but must be listed with sufficient detail to identify the
emission unit and indicate that the exemption applies. Similar emission
units, including similar capacities or sizes, may be listed under a
single description, provided the number of emission units is included
in the description. No additional information is required at time of
application, but the permitting authority may request additional
information during application processing.
(i) Emission criteria for regulated air pollutants, excluding
hazardous air pollutants (HAP). Potential to emit of regulated air
pollutants, excluding HAP, for any single emissions unit shall not
exceed 1 tpy, except in extreme ozone nonattainment areas, where
potential to emit may not exceed 1,000 pounds (lb) per year. Aggregate
emissions of any regulated air pollutant, excluding HAP, from all
emission units shall not exceed potential to emit of 10 tpy, except in
extreme ozone nonattainment areas, where potential to emit may not
exceed 5 tpy.
(ii) Emission criteria for HAP. Potential to emit of any HAP from
any single emissions unit shall not exceed 1,000 lb per year or the de
minimis level established under section 112(g) of the Act, whichever is
less. Aggregate emissions of all HAP from all emission units shall not
exceed potential to emit of 5 tpy or the de minimis levels established
under section 112(g) of the Act, whichever is less.
(h) Application for coverage under a general permit. Part 71
sources that qualify for a general permit must apply to the permitting
authority for coverage under the terms of the general permit or must
apply for a part 71 permit consistent with this section. The permitting
authority may provide for applications for general permits which
deviate from the requirements of this section, provided that such
applications meet the requirements of Title V of the Act, and include
all information necessary to determine qualification for, and assure
compliance with, the general permit.
(i) Certification by a responsible official. 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. 71.6 Permit content.
(a) Standard permit requirements. Each permit issued under this
part shall include the following elements:
(1) Emission limitations and standards, including those operational
requirements and limitations that assure compliance with all applicable
requirements at the time of permit issuance.
(i) The permit shall specify and reference the origin of and
authority for each term or condition, and identify any difference in
form as compared to the applicable requirement upon which the term or
condition is based.
(ii) The permit shall state that where an applicable requirement of
the Act is more stringent than an applicable requirement of 40 CFR
parts 72 through 79, both provisions shall be incorporated into the
permit and shall be enforceable by the Administrator.
(iii) If an applicable implementation plan allows a determination
of an alternative emission limit at a part 71 source, equivalent to
that contained in the plan, to be made in the permit issuance, renewal,
or significant permit revision process, and the permitting authority
elects to use such process, any [[Page 20836]] permit containing such
equivalency determination shall contain provisions to ensure that any
resulting emissions limit has been demonstrated to be quantifiable,
accountable, enforceable, and based on replicable procedures.
(iv) Emission units and part 71 sources.
(A) For major sources, the permitting authority shall include in
the permit all applicable requirements for all relevant emissions units
in the major source.
(B) For any nonmajor source subject to the part 71 program, the
permitting authority shall include in the permit all applicable
requirements applicable to emissions units that caused the source to be
subject to the part 71 program.
(2) Permit duration. The permitting authority shall issue permits
for a fixed term of 5 years in the case of affected sources, and for a
term not to exceed 5 years in the case of all other sources.
Notwithstanding this requirement, the permitting authority shall issue
permits for solid waste incineration units combusting municipal waste
subject to standards under section 129(e) of the Act for a period not
to exceed 12 years and shall review such permits at least every 5
years. The permit shall state when the source's application for renewal
must be submitted to the permitting authority consistent with
Sec. 71.5.
(3) For affected sources, a permit condition prohibiting any
affected unit from emitting sulfur dioxide in excess of any allowances
that the affected unit lawfully holds under title IV of the Act or 40
CFR parts 72 through 78.
(i) No permit revision shall be required for increases in emissions
that are authorized by allowances acquired pursuant to the acid rain
program, provided that such increases do not require a permit revision
under any other applicable requirement.
(ii) No limit shall be placed on the number of allowances held by
the unit. The unit may not, however, use allowances as a defense to
noncompliance with any other applicable requirement.
(iii) Any such allowance shall be accounted for according to the
procedures established in regulations 40 CFR parts 72 through 78.
(4) A severability clause to ensure the continued validity of the
various permit requirements in the event of a challenge to any portion
of the permit.
(5) Provisions stating the following:
(i) The source must comply with all conditions of the part 71
permit. Any permit noncompliance constitutes a violation of the Act and
is grounds for enforcement action; for permit termination, revocation
and reissuance, or modification; or for denial of a permit renewal
application.
(ii) Need to halt or reduce activity not a defense. It shall not be
a defense for a source 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 modified, revoked, reopened and reissued,
or terminated for cause. The filing of a request by the source 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.
(v) The permittee shall furnish to the permitting authority, within
a reasonable time, any information that the permitting authority may
request in writing to determine whether cause exists for revising,
revoking and reissuing, or terminating the permit or to determine
compliance with the permit, including copies of records required to be
kept by the permit. The source may assert a claim of confidentiality
consistent with section 114(c) of the Act and 40 CFR part 2 with
respect to any such requested information.
(vi) A schedule of compliance does not sanction noncompliance with
the applicable requirement on which it is based.
(6) A provision to ensure that a part 71 source pays fees to the
permitting authority consistent with the fee schedule in Sec. 71.9.
(7) Emissions trading. A provision stating that no permit revision
shall be required under any economic incentives, marketable permits,
emissions trading or other similar programs or processes approved in an
implementation plan or other applicable requirement authorizing such
changes to be provided for in the permit and where the permit provides
for such changes.
(8) Terms and conditions for reasonably anticipated operating
scenarios identified by the source in its application as approved by
the permitting authority. Such terms and conditions:
(i) Shall require the 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 each of the alternative scenarios available
for a particular unit is monitored in a way that yields objective,
contemporaneous measurement and recordation of relevant emissions or
parameters and that the means of measurement are sufficiently different
for each of the scenarios that the contemporaneous record reveals the
scenario under which the source was operating when the record was made,
no further notice to the permitting authority is required. Otherwise,
the permit shall require that when any change is made between
alternative scenarios, the permittee at the beginning of the following
week shall place in regular mail to the permitting authority notice of
such change(s) between scenarios, which could consist of a copy of the
relevant portion of the on-site log indicating the scenario(s) under
which the source operated during the previous week;
(ii) May extend the permit shield described in paragraph (f) of
this section to all terms and conditions under each such operating
scenario; and
(iii) Must ensure that the terms and conditions of each such
alternative scenario meet all applicable requirements and the
requirements of this part.
(9) Terms and conditions, if the permit applicant requests them,
for the trading of emissions increases and decreases in the permitted
facility, to the extent that the applicable requirements provide for
trading such increases and decreases without a case-by-case approval of
any emissions trade. Such terms and conditions:
(i) Shall include all terms required under paragraphs (a) and (c)
of this section to ensure compliance;
(ii) May extend the permit shield described in paragraph (f) of
this section to all terms and conditions that allow such increases and
decreases in emissions; and
(iii) Must meet all applicable requirements and the requirements of
this part.
(b) Federally-enforceable requirements. All terms and conditions in
a part 71 permit, including any provisions designed to limit a source's
potential to emit, shall be enforceable by the Administrator and
citizens under the Act.
(c) Compliance requirements. All part 71 permits shall contain
testing, monitoring, reporting, recordkeeping and compliance
certification requirements sufficient to assure compliance with the
terms and conditions of the permit consistent with the following
provisions of this section. Any document (including reports) required
to be submitted by a part 71 permit shall contain a certification by a
[[Page 20837]] responsible official that meets the requirements of
Sec. 71.5(i).
(d) Monitoring requirements. Each permit shall contain the
following requirements with respect to monitoring:
(1) All emissions monitoring and analysis procedures or test
methods required under the applicable requirements, including any
procedures and methods promulgated pursuant to sections 114(a)(3) or
504(b) of the Act;
(2) Where the applicable requirement does not require periodic
testing or instrumental or noninstrumental monitoring (which may
consist of recordkeeping designed to serve as monitoring), periodic
monitoring sufficient to yield reliable data from the relevant time
period that are representative of the source's compliance with the
permit, as reported pursuant to paragraph (f) of this section. Such
monitoring requirements shall assure use of terms, test methods, units,
averaging periods, and other statistical conventions consistent with
the applicable requirement. Recordkeeping provisions may be sufficient
to meet the requirements of this paragraph (d)(2); and
(3) As necessary, requirements concerning the use, maintenance,
and, where appropriate, installation of monitoring equipment or
methods.
(e) Recordkeeping requirements. Each permit shall contain the
following requirements with respect to recordkeeping:
(1) All applicable recordkeeping requirements;
(2) Where applicable, a requirement to maintain records of required
monitoring information that include the following:
(i) The date, place as defined in the permit, and time of sampling
or measurements;
(ii) The date(s) analyses were performed;
(iii) The company or entity that performed the analyses;
(iv) The analytical techniques or methods used;
(v) The results of such analyses; and
(vi) The operating conditions as existing at the time of sampling
or measurement; and
(3) 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.
(f) Reporting and notification requirements. Each permit shall
contain the following requirements with respect to reporting and
notification:
(1) All applicable reporting requirements.
(2) Submittal of reports of any required monitoring at least every
6 months or more frequently if required by the applicable requirement
or by the permitting authority. All instance of deviations from permit
requirements must be clearly identified in such reports. All required
reports must be certified by a responsible official consistent with
Sec. 71.5(i).
(3) Prompt reporting of deviations from permit requirements,
including those attributable to upset conditions as defined in the
permit, the probable cause of such deviations, and any corrective
actions or preventive measures taken. Where the underlying applicable
requirement contains a definition of prompt or otherwise specifies a
time frame for reporting deviations, that definition or time frame
shall govern. Where the underlying applicable requirement fails to
address the time frame for reporting deviations, reports of deviations
shall be submitted to the permitting authority based on the following
schedule:
(i) For emissions of a hazardous air pollutant or a toxic air
pollutant (as identified in an applicable regulation) that continue for
more than an hour in excess of permit requirements, the report must be
made with 24 hours of the occurrence.
(ii) For emissions of any regulated air pollutant, excluding those
listed in paragraph (f)(3)(i) of this section, that continue for more
than two hours in excess of permit requirements, the report must be
made within 48 hours.
(iii) A permit may contain a more stringent reporting requirement
than required by paragraphs (f)(3)(i) and (ii) of this section.
(A) If any of the above conditions are met, the source must notify
the permitting authority by telephone or facsimile based on the
timetable listed in paragraphs (f)(3)(i) through (iii) of this section.
A written notice, certified consistent with Sec. 71.5(i), must be
submitted within 10 working days of the occurrence.
(B) All deviations reported under paragraph (f)(3) of this section
must also be identified in the 6 month report required under paragraph
(f)(2) of this section.
(4) For purposes of paragraph (f)(3) of this section, deviation
means any condition determined by observation, data from an enhanced
monitoring protocol, any other monitoring protocol, or any other
monitoring which is required by the permit that can be used to
determine compliance, that identifies that an emission unit subject to
a part 71 permit term or condition has failed to meet an applicable
emission limitation or standard or that a work practice was not
complied with or completed. For a condition lasting more than 24 hours
which constitutes a deviation, each 24 hour period is considered a
separate deviation. Included in the meaning of deviation are any of the
following:
(i) A condition where emissions exceed an emission limitation or
standard;
(ii) A condition where process or control device parameter values
demonstrate that an emission limitation or standard has not been met;
(iii) Any other condition in which observations or data collected
demonstrates noncompliance with an emission limitation or standard or
any work practice or operating condition required by the permit.
(g) Compliance certification requirements. Each permit shall
contain the following requirements with respect to compliance
certifications with the terms and conditions contained in the permit,
including emission limitations, standards, or work practices:
(1) The frequency (not less than annually or more frequently if
specified in the applicable requirement or by the permitting authority)
of submissions of compliance certifications;
(2) In accordance with paragraph (d) of this section, a means for
monitoring the compliance of the source with its emissions limitations,
standards, and work practices;
(3) A requirement that the compliance certification includes the
following:
(i) The identification of each term or condition of the permit that
is the basis of the certification;
(ii) The compliance status;
(iii) Whether compliance was continuous or intermittent;
(iv) The method(s) used for determining the compliance status of
the source, currently and over the reporting period consistent with
paragraph (d) of this section;
(v) Such other facts as the permitting authority may require to
determine the compliance status of the source; and
(vi) A requirement that all compliance certifications be submitted
to the permitting authority.
(4) Such additional requirements as may be specified pursuant to
sections 114(a)(3) and 504(b) of the Act.
(h) Inspection and entry requirements. Each permit shall contain
inspection and entry requirements that require that,
[[Page 20838]] upon presentation of credentials and other documents as
may be required by law, the permittee shall allow the permitting
authority or an authorized representative to perform the following:
(1) Enter upon the permittee's premises where a part 71 source is
located or emissions-related activity is conducted, or where records
must be kept under the conditions of the permit;
(2) Have access to and copy, at reasonable times, any records that
must be kept under the conditions of the permit;
(3) Inspect at reasonable times any facilities, equipment
(including monitoring and air pollution control equipment), practices,
or operations regulated or required under the permit; and
(4) As authorized by the Act, sample or monitor at reasonable times
substances or parameters for the purpose of assuring compliance with
the permit or applicable requirements.
(i) Compliance schedule. Each permit shall contain a schedule of
compliance consistent with Sec. 71.5(f)(9).
(j) Progress reports. Each permit shall contain a requirement that
the permittee submit progress reports consistent with an applicable
schedule of compliance and Sec. 71.5(f)(9) to be submitted at least
semiannually, or more frequently if required by the applicable
requirement or by the permitting authority. Such progress reports shall
contain the following:
(1) Dates for achieving the activities, milestones, or compliance
required in the schedule of compliance, and dates when such activities,
milestones or compliance were achieved; and
(2) An explanation of why any dates in the schedule of compliance
were not or will not be met, and any preventive or corrective measures
adopted.
(k) Other provisions. Each permit shall contain such other
provisions as the permitting authority may require.
(l) General permits.
(1) The permitting authority may, after notice and opportunity for
public participation provided under Sec. 71.11, issue a general permit
covering numerous similar sources. Any general permit shall comply with
all requirements applicable to other part 71 permits and shall identify
criteria by which sources may qualify for the general permit. To
sources that qualify, the permitting authority shall grant the terms
and conditions of the general permit. Notwithstanding the shield
provisions of paragraph (n) of this section, the source shall be
subject to enforcement action for operation without a part 71 permit if
the source is later determined not to qualify for the conditions and
terms of the general permit. General permits shall not be authorized
for affected sources under the acid rain program unless otherwise
provided in regulations promulgated under title IV of the Act (40 CFR
part 72).
(2) Without repeating the public participation procedures required
under Sec. 71.11, the permitting authority may grant a source's request
for authorization to operate under a general permit, and such a grant
shall be a final permit action for purposes of judicial review.
(3) The permitting authority shall provide timely notice to the
public of any authorization given to a source to operate under the
terms of a general permit. Such notice may be made on a monthly,
summarized basis covering all sources receiving authorization since the
time of the last notice.
(m) Temporary sources. The permitting authority may issue a single
permit authorizing emissions from similar operations by the same source
owner or operator at multiple temporary locations. The operation must
be temporary and involve at least one change of location during the
term of the permit. No affected source shall be permitted as a
temporary source. Permits for temporary sources shall contain all of
the terms and conditions required by this section as well as the
following terms and conditions:
(1) Conditions that will assure compliance with all applicable
requirements at all authorized locations;
(2) Requirements that the owner or operator notify the permitting
authority at least 10 days in advance of each change in location; and
(3) Conditions that assure compliance with all other provisions of
this section.
(n) Permit shield.
(1) Except as provided in this part, the permitting authority may
expressly include in a part 71 permit a provision stating that
compliance with the terms and conditions of the permit shall be deemed
compliance with any applicable requirements as of the date of permit
issuance, provided that:
(i) Such applicable requirements are included and are specifically
identified in the permit; or
(ii) The permitting authority, in acting on the permit application
or revision, determines in writing that other requirements specifically
identified are not applicable to the source, and the permit includes
the determination or a concise summary thereof.
(2) A part 71 permit that does not expressly state that a permit
shield exists shall be presumed not to provide such a shield.
(3) Nothing in this paragraph (n) or in any part 71 permit shall
alter or affect the following:
(i) The provisions of sections 112(r)(9) and 303 of the Act
(emergency orders), including the authority of the Administrator under
those sections;
(ii) The liability of an owner or operator of a source for any
violation of applicable requirements prior to or at the time of permit
issuance;
(iii) The applicable requirements of the acid rain program,
consistent with section 408(a) of the Act; or
(iv) The ability of EPA to obtain information from a source
pursuant to section 114 of the Act.
(o) Emergency provision.
(1) Definition. An ``emergency'' means any situation arising from
sudden and reasonably unforeseeable events beyond the control of the
source, including acts of God, which situation requires immediate
corrective action to restore normal operation, and that causes the
source to exceed a technology-based 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 technology-
based emission limitations if the conditions of paragraph (o)(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 standards, or other requirements in the permit; and
(iv) The permittee submitted notice of the emergency to the
permitting authority within 2 working days of the time when emission
limitations were exceeded due to the emergency. This notice fulfills
the requirement of paragraph (f)(3) 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 [[Page 20839]] occurrence of an emergency has the burden
of proof.
(5) This provision is in addition to any emergency or upset
provision contained in any applicable requirement.
(p) Operational flexibility. A permitted facility may make changes
without requiring a permit revision, if the changes are not
modifications under any provision of title I of the Act and the changes
do not exceed the emissions allowable under the permit (whether
expressed therein as a rate of emissions or in terms of total
emissions), provided that the facility provides the permitting
authority with written notification as required below in advance of the
proposed changes, which shall be a minimum of 7 days. The source and
the permitting authority shall attach each such notice to their copy of
the relevant permit.
(1) Trading under permitted emissions cap. The permitting authority
shall include in a permit an emissions cap, pursuant to a request
submitted by the applicant, consistent with any specific emission
limits or restrictions otherwise required in the permit by any
applicable requirements, and permit terms and conditions for emissions
trading solely for the purposes of complying with that cap, provided
that the permitting authority finds that the request contains adequate
terms and conditions, including all terms required under Sec. 71.6, to
determine compliance with the cap and with any emissions trading
provisions. The permit shall also contain terms and conditions to
assure compliance with all applicable requirements. The permit
applicant shall include in its application proposed replicable
procedures and permit terms that ensure the emissions cap is
enforceable and trades pursuant to it are quantifiable and enforceable.
Any permit terms and conditions establishing such a cap or allowing
such trading may be established or changed only in a full permit
issuance, renewal, or significant permit revision procedures. The
permitting authority shall not be required to include in the cap or
emissions trading provisions any emissions unit where the permitting
authority determines that the emissions are not quantifiable or where
it determines that there are no replicable procedures or practical
means to enforce the emissions trades.
(i) Under this paragraph (p)(1) of this section, the written
notification required above shall state when the change will occur and
shall describe the changes in emissions that will result and how these
increases and decreases in emissions will comply with the terms and
conditions of the permit.
(ii) The permit shield described in Sec. 71.6(n) may extend to
terms and conditions that allow such increases and decreases in
emissions.
(2) Trading under the implementation plan. Permitted sources may
trade increases and decreases in emissions in the permitted facility,
where the applicable implementation plan provides for such emissions
trades without requiring a permit revision and based on the 7-day
notice prescribed in paragraph (p) of this section. This provision is
available in those cases where the permit does not already provide for
such emissions trading provided the permit identifies which permit
terms may be replaced with the emission trading provisions in the
implementation plan.
(i) Under paragraph (p)(2) of this section, the written
notification required above shall include such information as may be
required by the provision in the applicable implementation plan
authorizing the emissions trade, including at a minimum, when the
proposed change will occur, a description of each such change, any
change in emissions, the permit requirements with which the source will
comply using the emissions trading provisions of the applicable
implementation plan, and the pollutants emitted subject to the
emissions trade. The notice shall also refer to the provisions with
which the source will comply in the applicable implementation plan and
that provide for the emissions trade.
(ii) The permit shield described in Sec. 71.6(n) shall not extend
to any change made under paragraph (p) of this section. Compliance with
the permit terms that the source will meet using the emissions trade
shall be determined according to requirements of the applicable
implementation plan authorizing the emissions trade.
(q) The permitting authority may allow permittees, without first
applying for a permit revision, to make changes that do not result in
the source being in violation of any permit term or condition but
render the source subject to an applicable requirement to which the
source was not previously subject, provided the requirements of
paragraphs (q)(1) through (8) of this section are met.
(1) Each change shall:
(i) Meet all applicable requirements and shall not violate or
result in the violation of any existing permit term or condition; and
(ii) Not result in a net increase in the allowable emissions of any
regulated pollutant at the source.
(2) The change may not be subject to the requirements of title IV
of the Act.
(3) Sources must provide contemporaneous written notice to the
permitting authority of each such change. Such written notice shall
describe each such change, the date of the change, any change in
emissions, pollutants emitted, and the applicable requirement to which
the source becomes subject as a result of the change.
(4) The change shall not be eligible for the permit shield under
Sec. 71.6(n) until such time as a permit shield may be granted in a
subsequent permit revision consistent with the provisions of
Secs. 71.7(g) or 71.11.
(5) The permittee shall keep a record describing changes made under
this paragraph (q).
(6) The permittee shall apply for a permit revision by the deadline
set forth in Sec. 71.5(b)(2), except that if the deadline would occur
after the date on which a renewal application is due, the permitting
authority may allow the permittee to incorporate the permit revision
request in its renewal application.
(7) The permit shall be revised under the relevant procedures of
Sec. 71.7(e), (f), (g), or Sec. 71.11 for which the change is eligible,
except that, notwithstanding provisions in those sections, if the
change is subsequently processed under minor permit revision or
significant permit revision procedures, and the permitting authority or
EPA (in the case of a program delegated pursuant to Sec. 71.10)
determines that the change was ineligible under this paragraph (q),
then the source shall be liable from the date the change was made for
failure to have applied for a permit revision before the change was
made as required under Sec. 71.7.
(8) If eligible for the minor permit revision procedures of
Sec. 71.7(g), the following provisions shall apply to changes made
under this paragraph (q):
(i) The public notice required under Sec. 71.7(g)(3)(ii) shall
state that if no germane and non-frivolous objection is received within
21 days of application, the permitting authority may consider that the
change was eligible for processing under this paragraph (q) without
further opportunity for public objection. In addition to the provisions
of Sec. 71.7(g)(3)(ii) a germane objection is one that objects to the
change on the grounds that the source was ineligible under this
paragraph (q). [[Page 20840]]
(ii) The provisions of Secs. 71.7(g)(5)(i) and (ii) prohibiting the
source from making the change do not apply.
(iii) Notwithstanding the provisions of Sec. 71.7(g)(7), the source
must comply with all applicable requirements from the date the change
was made.
Sec. 71.7 Permit review, issuance, renewal, reopenings, and
revisions.
(a) Action on application.
(1) A permit, permit revision, or renewal may be issued only if all
of the following conditions have been met:
(i) The permitting authority has received a complete application
for a permit, permit revision, or permit renewal, except that a
complete application need not be received before issuance of a general
permit under Sec. 71.6(l);
(ii) The permitting authority has complied with the applicable
requirements for public participation under this section or Sec. 71.11,
if applicable;
(iii) The permitting authority has complied with the requirements
for notifying and responding to affected States under Sec. 71.8(a);
(iv) Except as provided in paragraph (a)(6) of this section, the
conditions of the permit provide for compliance with all applicable
requirements and the requirements of this part; and
(v) In the case of a program delegated pursuant to Sec. 71.10,
except for revisions qualifying for de minimis permit revision
procedures under paragraph (f) of this section or for administrative
amendment procedures under paragraphs (e)(1)(i) through (iv) of this
section, the Administrator has received a copy of the proposed permit
and any notice required under Sec. 71.10(d) and has not objected to the
issuance of the permit under Sec. 71.10(g) within the time period
specified therein.
(2) Except as provided under the initial transition plan provided
under Sec. 71.4(i) or under 40 CFR part 72 or title V of the Act for
the permitting of affected sources under the acid rain program, the
permitting authority shall take final action on each permit application
(including a request for permit revision or renewal) within 18 months
after receiving a complete application. Notwithstanding the preceding
sentence, the permitting authority shall take final action within 12
months after receipt of a complete application containing an early
reduction demonstration under section 112(i)(5) of the Act and
regulations promulgated thereunder, and within the time period
specified under paragraph (g)(5)(v) of this section for a minor permit
revision. Final action may be delayed where an applicant fails to
provide additional information in a timely manner as requested by the
permitting authority under Sec. 71.5(c) .
(3) The permitting authority shall promptly provide notice to the
applicant of whether the application is complete. Unless the permitting
authority requests additional information or otherwise notifies the
applicant of incompleteness within 60 days of receipt of an
application, the application shall be deemed complete. Notwithstanding
the above, for revisions that qualify for and are processed through the
procedures of paragraph (e), (f), or (g) of this section, the
permitting authority need not undertake a completeness determination
before commencing revision procedures.
(4) The permitting authority shall provide a statement that sets
forth the legal and factual basis for the draft permit conditions
(including references to the applicable statutory or regulatory
provisions). The permitting authority shall send this statement to any
person who requests it, and to EPA, in the case of a program delegated
pursuant to Sec. 71.10.
(5) The submittal of a complete application shall not affect the
requirement that any source have a preconstruction permit under title I
of the Act.
(6) Any new applicable requirement approved or promulgated by EPA
that becomes applicable to a source prior to issuance of a draft permit
(whether during issuance or renewal) shall be included in the draft
permit. If any new applicable requirement becomes applicable after
issuance of a draft permit, and the requirement is not reflected in the
draft permit, the permit may be issued without incorporating the new
applicable requirement, provided that the permitting authority
institutes proceedings no later than the date of permit issuance to
reopen the permit consistent with paragraph (i) of this section to
incorporate the new applicable requirement and that the permit contains
a statement that it is being reopened for this purpose.
(b) Requirement to apply for a permit. Except as provided in this
paragraph and paragraphs (e), (f), and (g) of this section, no part 70
or part 71 source may operate after the time that it is required to
submit a timely and complete application under an approved permit
program or this part, except in compliance with a permit issued under a
part 70 program or this part. If a part 70 or part 71 source submits a
timely and complete application for permit issuance (including for
renewal), the source's failure to have a part 71 permit is not a
violation of this part until the permitting authority takes final
action on the permit application, except as noted in this section. 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. 71.5(c), the applicant fails to submit by the deadline
specified in writing by the permitting authority any additional
information identified as being needed to process the application.
(c) Permit renewal and expiration.
(1) Permits being renewed are subject to the same procedural
requirements that apply to initial permit issuance, including those for
public participation, affected State review, and EPA review, in the
case of a program delegated pursuant to Sec. 71.10.
(2) Permit expiration terminates the source's right to operate
unless a timely and complete renewal application has been submitted
consistent with paragraph (b) of this section and Secs. 71.5(b) and
71.5(c).
(3) If a timely and complete application for a permit renewal is
submitted by the permittee consistent with Secs. 71.5(b) and 71.5(c),
but the permitting authority has failed to issue or deny the renewal
permit before the end of the term of the previous part 70 or part 71
permit, then all the terms and conditions of the permit, including any
permit shield, shall remain in effect until the permitting authority
issues or denies the renewal permit. In the case of a program delegated
pursuant to Sec. 71.10, EPA may invoke its authority under section
505(e) of the Act to terminate or revoke and reissue the permit.
(d) Permit revisions. Changes requiring revision of a part 70 or
part 71 permit are those that could not be operated without violating
an existing permit term or rendering the source subject to an
applicable requirement to which the source has not been previously
subject. A permit revision for purposes of the acid rain portion of the
permit shall be governed by 40 CFR part 72.
(e) 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;
(iii) Requires more frequent testing, monitoring, recordkeeping, or
reporting;
(iv) Allows for a change in ownership or operational control of a
source where [[Page 20841]] 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;
(v) In the case of a program delegated pursuant to Sec. 71.10,
incorporates the requirements of a minor new source review (NSR) or
major NSR preconstruction permit or decision or a determination under
section 112(g) of the Act, provided that such permit or determination
was issued in accordance with the procedural requirements of paragraph
(e)(4) of this section and contains compliance requirements
substantially equivalent to those required under Sec. 71.6.
(vi) Notwithstanding the provisions of paragraph (e)(1)(v) of this
section, incorporates a standard promulgated after permit issuance
pursuant to section 112 of the Act.
(2) Administrative permit amendments for purposes of the acid rain
portion of the permit shall be governed by 40 CFR part 72.
(3) Administrative permit amendment procedures for changes meeting
the criteria under Sec. 71.7(e)(1)(i) through (iv). Changes meeting the
criteria set forth in paragraphs (e)(1)(i) through (iv) of this section
may be made to a permit using the following procedures:
(i) The source shall submit to the permitting authority an
application containing a proposed addendum to the source's part 70 or
part 71 permit. The application shall demonstrate how the proposed
change meets one of the criteria for administrative amendments set
forth in paragraphs (e)(1)(i) through (iv) of this section, and include
certification by the responsible official consistent with Sec. 71.5(i)
that the change is eligible for administrative amendment procedures.
The addendum shall:
(A) Identify the terms of the existing part 70 or part 71 permit
that it proposes to change;
(B) Propose new permit terms consistent with the provisions of this
part applicable to the change;
(C) Designate the addendum as having been processed under the
procedures of this paragraph (e)(3); and
(D) Specify that the addendum will be effective 60 days from the
date of permitting authority receipt unless the permitting authority
disapproves the change within such period.
(ii) The permitting authority may 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
permitting authority receives the submittal, provided the permitting
authority has not disapproved the request in writing before the end of
the 60-day period. The permitting authority shall record the change by
attaching a copy of the addendum to the existing part 70 or part 71
permit and, in the case of a program delegated pursuant to Sec. 71.10,
shall provide the Administrator with a copy of the addendum.
(iv) If the permitting authority disapproves the change, it shall
notify the source of its reasons for disapproving the change 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. The permitting authority
may approve a permit addendum for an administrative permit amendment
that varies from the source's application without rendering the source
liable for violating its existing permit if the permitting authority's
revisions are not necessary to make the request eligible for
administrative amendment procedures and do not change the applicant's
proposed determination of which applicable requirements of the Act
apply to the source as a result of the requested change and if the
source demonstrates to the satisfaction of the permitting authority its
compliance with the applicable requirement to which it is subject as a
result of the change. However, the source would remain liable for any
violations of the requirements which are applicable as a result of the
change and the source's proposed permit revision.
(v) The process in paragraph (e)(3) of this section may also be
used for changes initiated by the permitting authority that meet the
criteria under paragraphs (e)(1)(i), (ii), and (iv) of this section.
For such changes, the permitting authority shall 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. 71.6(n) may not extend to
administrative amendments processed under paragraph (e)(3) of this
section.
(4) Administrative amendment procedures for changes meeting the
criteria under Sec. 71.7(e)(1)(v). In the case of a program delegated
pursuant to Sec. 71.10, a change meeting the criteria of paragraph
(e)(1)(v) of this section may be made to a permit using the procedures
in the following paragraphs (e)(4) (i) through (iv) of this section.
(i) An applicant shall submit prior to construction (including
modification), a permit application to the permitting authority meeting
the requirements for applications of minor NSR, major NSR,
determinations under section 112(g) of the Act, and paragraph (e)(3)(i)
of this section. The application must:
(A) Specify draft permit terms governing construction of any
proposed new or modified emissions unit or combination thereof,
including all applicable requirements;
(B) Inform the permitting authority that the source is requesting
to revise the part 70 or part 71 permit using the process under this
paragraph (e)(4);
(C) Include a proposed addendum to the part 70 or part 71 permit
that identifies the terms of the existing part 70 or part 71 permit
that will change and the draft terms and conditions which will govern
operation of the new or modified unit consistent with part 71
(including compliance requirements consistent with Sec. 71.6 ) and any
notice requirements contained in paragraph (e)(4)(ii) of this section,
and that incorporates relevant terms and conditions from the proposed
minor NSR or major NSR or action under section 112(g) of the Act; and
(D) Include an affidavit signed by a responsible official stating
that the source accepts all liability of making the requested change
prior to final permitting authority action to revise the source's
permit.
(ii) For any minor NSR or major NSR or action under section 112(g)
of the Act and part 71 permit addendum proposed for approval under
paragraph (e)(4) of this section, the permitting authority shall:
(A) Provide a comment period for the public and affected States
prior to construction of the change of at least 30 days or, in the case
of minor NSR, as many days as required by the applicable implementation
plan approved as of November 15, 1993, but not less than 15 days. Where
a minor NSR action includes a netting transaction involving either a
single emissions increase above applicable title I modification
significance levels or a sum of increases above applicable major source
thresholds, a public comment period of at least 30 days must be
provided for a change to qualify for processing under this paragraph
(e)(4);
(B) Provide notice and a copy of the application filed pursuant to
paragraph (e)(4)(i) of this section to EPA by the beginning of the
public comment period; [[Page 20842]]
(C) Issue a minor NSR or major NSR permit or determination or issue
a determination under section 112(g) of the Act and an addendum to the
part 70 or part 71 permit for the operation of the change if it
determines the requirements of the applicable minor NSR, major NSR, or
review program under section 112(g) of the Act and part 71 have been
met; and
(D) Provide an opportunity for EPA objection consistent with the
provisions of Sec. 71.10(g), starting either upon receipt of the notice
described under paragraph (e)(4)(ii)(D)(1) or (2) of this section as
applicable or from the date the permitting authority made its final
minor NSR, major NSR, or determination under section 112(g) of the Act,
whichever is later.
(1) For changes approved by the permitting authority under major
NSR or review under section 112(g) of the Act, the source shall provide
a notice to EPA and the permitting authority which must be postmarked
at least 21 days before the anticipated date of initial startup of the
new or modified source. For such changes, the source may commence
operation at the end of the 21-day period unless EPA objects in writing
to the proposed change within the 21-day period. Upon notification of
such objection, the source may not operate such a change and must
comply with the terms and conditions of the permit that it sought to
change.
(2) For changes approved by the permitting authority under minor
NSR, the source shall notify EPA and the permitting authority of the
anticipated date for startup of the change. The source may commence
operation of such a change upon postmark of such notice.
(iii) The proposed part 71 permit addendum may become effective 45
days after EPA receives notice under paragraph (e)(4)(ii)(D) of this
section or 45 days from the date the permitting authority makes its
final preconstruction determination, whichever is later, provided that
by the end of such period EPA has not objected to the change.
(iv) If EPA objects to the change, EPA shall notify the permitting
authority and the source of its reasons for objecting to the change.
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. If, subsequent to source implementation
of the requested change, EPA objects to the change, the source shall be
liable for having operated in violation of its existing permit from the
time it implemented the change. Notwithstanding the preceding sentence,
the permitting authority may revise a proposed addendum making an
administrative permit amendment in response to an EPA objection without
rendering the source liable for violating its existing permit if the
permitting authority's revisions are not necessary to make the change
eligible for administrative amendment procedures and do not change the
applicant's proposed determination of which applicable requirements
apply to the source as a result of the requested change and if the
source demonstrates to the satisfaction of the permitting authority its
compliance with the applicable requirement to which it is subject as a
result of the change and the source's proposed permit revision.
However, the source would remain liable for any violations of the
requirements which are applicable as a result of the change and the
source's proposed permit revision.
(v) The permitting authority may provide a permit shield consistent
with the provisions of Sec. 71.6(n) .
(5) Administrative permit amendment procedures for changes meeting
the criteria under Sec. 71.7(e)(1)(vi). Changes meeting the criteria
set forth in paragraph (e)(1)(vi) of this section may be made to a
permit using the following procedures:
(i) After receipt of the initial notification required under the
standard under section 112 of the Act, the permitting authority shall
prepare a proposed addendum to the source's part 70 or part 71 permit.
The addendum shall contain the following:
(A) A statement that the standard under section 112 of the Act is
an applicable requirement for the permitted source;
(B) A schedule of compliance, consistent with Sec. 71.5;
(C) A requirement to submit any implementation plan or report
required under the standard;
(D) A requirement to apply for a minor permit revision by the
deadline for the compliance statement, unless the source is exempted
from this requirement by the rulemaking promulgating the applicable
standard under section 112 of the Act. If the source is utilizing an
alternative requiring case-by-case approval, such as emissions
averaging, the source shall apply for a significant permit revision in
lieu of the minor permit revision required in the preceding sentence.
If the compliance statement deadline is within 6 months of the end of
the permit term, the source may incorporate its application for the
revisions into its application for permit renewal, in lieu of applying
for revisions by the compliance statement deadline;
(E) Any other provisions required to be incorporated into the
permit by the applicable standard under section 112 of the Act.
(ii) The permitting authority shall make available for public
review and comment for at least 30 days a list of sources whose permits
are reopened under this paragraph (e)(5). Notice of the availability of
the list shall be given by such time as to assure that any additional
administrative amendments for sources subject to the standard and not
on the list take effect within 18 months after publication of the
standard under section 112 of the Act. If after considering public
comment, the permitting authority determines that permits for other
sources must be reopened to incorporate standards under section 112(g)
of the Act, it shall notify such sources of its intent to do so at
least 30 days before reopening the permit, and may use the provisions
of this paragraph (e)(5).
(iii) The proposed addendum shall become effective not later than
18 months after publication of the standard under section 112 of the
Act. The permitting authority shall attach a copy of the addendum to
the existing part 70 or part 71 permit and shall, in the case of a
program delegated pursuant to Sec. 71.10, provide the Administrator
with a copy.
(iv) The permitting authority shall, as soon as practicable, place
all information required to be submitted by the permit with respect to
the standard under section 112 of the Act in a docket accessible to the
public.
(v) The permit shield under Sec. 71.6(n) may not extend to
administrative amendments processed under paragraph (e)(5) of this
section.
(f) De minimis permit revisions.
(1) A de minimis permit revision may be made by the permitting
authority to a part 70 or part 71 permit provided that the permit
contains a term or condition authorizing the source to make use of de
minimis permit revision procedures for qualifying changes at the
applicable unit and such term or condition was established during
permit issuance or renewal, or under permit revision procedures
contained in Sec. 71.11, and provided the action taken meets the
criteria and procedures specified in paragraph (f) of this section.
(2) Criteria. For the change to be considered de minimis and
eligible for de minimis permit revision procedures, the conditions in
paragraph (f)(2)(i) of this section and the applicable conditions and
limits in paragraphs (f)(2) (ii) and (iii) of this section must be
[[Page 20843]] met. The limits in paragraphs (f)(2) (ii) and (iii) of
this section are on a single pollutant basis except where a combination
of hazardous air pollutants is indicated.
(i) Conditions limiting de minimis changes.
(A) The source must not be in violation of the part 70 or part 71
permit terms and conditions it seeks to change.
(B) In the case of existing units, the need for a permit revision
must result from a physical or operational change. [OPTION: ADD TO END
OF SENTENCE: unless the permit revision solely involves monitoring or
recordkeeping requirements.]
(C) [OPTION: ADD TO BEGINNING OF SENTENCE: Except for permit
revisions solely involving monitoring or recordkeeping requirements,]
The change may not involve a permit term or condition established to
limit emissions which is federally enforceable only as a part 70 or
part 71 permit term or condition.
(D) De minimis emission threshold levels cannot be met by
offsetting emission increases with emission decreases at the same
source.
[OPTION: ADD NEW PARAGRAPHS (f)(2)(i) (E) and (F):
(E) The change may not involve a change to monitoring or
recordkeeping requirements unless, prior to the source's submission of
a de minimis permit revision application, the permitting authority
affirmatively determines that the monitoring or recordkeeping change
has been demonstrated by the source:
(1) To not affect the capability of the method to measure emission
results as precisely, accurately, and timely as is provided by the
existing monitoring or recordkeeping method;
(2) To only affect a single source or facility; and
(3) To not constitute a new or alternative monitoring method or
represent a new operating level of the method.
(F) The criteria for all demonstrations required under paragraph
(f)(2)(i)(E) of this section shall include, in addition to the
requirements of paragraph (f)(3)(C) of this section, an analysis
conducted in accordance with 40 CFR 64.4(b)(5) and 64.4(c) utilizing
appendices A, B, C, and D of 40 CFR part 64. [END OF OPTION]
(ii) Unit-based change limits. For a change at any emissions unit
to qualify as a unit-based de minimis permit revision, the total
emissions of an entirely new unit and the total emissions at an
existing unit after the change (i.e., the sum of the existing emissions
before the change plus the emissions increase that results from the
change) may not exceed:
[ALTERNATIVE 1 FOR paragraph (f)(2)(ii)(A):]
(A) For criteria pollutants, the following emissions over the life
of the permit:
(1) 4 tons of CO;
(2) 1 ton of NOX;
(3) 1.6 tons of SO2;
(4) 0.6 ton of PM-10;
(5) 1 ton of VOC.
[ALTERNATIVE 2 to paragraph (f)(2)(ii)(A):]
(A) For criteria pollutants, 20 percent of the applicable major
source threshold, or 5 tpy of VOC or NOX, whichever is greater,
but in no event more than 15 tpy PM-10 or 0.6 tpy lead.
[ALTERNATIVE 3 to paragraph (f)(2)(ii)(A):]
(A) For criteria pollutants, 5 tpy.
[ALTERNATIVE 4 to paragraph (f)(2)(ii)(A):]
(A) For criteria pollutants, 30 percent of the applicable major
source threshold or 5 tpy, whichever is greater. [END OF ALTERNATIVES
to paragraph (f)(2)(ii)(A)]
[ALTERNATIVE 1 to paragraph (f)(2)(ii)(B):]
(B) For HAP's, 0 tpy.
[ALTERNATIVE 2 to paragraph (f)(2)(ii)(B):]
(B) For HAP's, 20 percent of the major source thresholds
established under section 112 of the Act or 50 percent of the de
minimis levels established under section 112(g) of the Act, whichever
is less.
[ALTERNATIVE 3 to paragraph (f)(2)(ii)(B):]
(B) For HAP's, 75 percent of de minimis levels established under
section 112(g) of the Act. [END OF ALTERNATIVES to paragraph
(f)(2)(ii)(B)]
(C) For other pollutants regulated only under section 111 of the
Act, the significance levels in Sec. 52.21(b)(23)(i).
(iii) Increment-based change limits. A change at any emissions unit
not qualifying for a unit-based change may still qualify as a de
minimis permit revision if the following criteria are met:
(A) Additional conditions:
(1) Any resulting emissions limit must be expressed in the same
form and units of measure as the previous emissions limit;
(2) Any associated recalibration of continuous emissions monitors
(CEM) or operational parameters must be undertaken in accordance with
emission rates-to-CEM or operational parameter ratios established in
the operating permit program, in the source's permit, or through permit
issuance procedures providing at least as much permitting authority,
EPA (in the case of a program delegated pursuant to Sec. 71.10 ), and
affected State review and public participation as minor permit revision
procedures; [OPTION: DELETE PREVIOUS PARAGRAPH (f)(2)(iii)(A)(2).]
(B) Size restrictions on individual change. No emissions increase
at any unit may exceed:
[ALTERNATIVE 1 to paragraph (f)(2)(iii)(B)(1):]
(1) For criteria pollutants, the following emissions over the life
of the permit:
(i) 4 tons of CO;
(ii) 1 ton of NOX;
(iii) 1.6 tons of SO2;
(iv) 0.6 ton of PM-10;
(v) 1 ton of VOC.
[ALTERNATIVE 2 to paragraph (f)(2)(iii)(B)(1):]
(1) For criteria pollutants, 20 percent of the applicable major
source threshold, 10 percent of the limit applicable to the unit
undergoing the change, or 15 tpy VOC or NOX, whichever is less but
in no event less than [2-5] tpy VOC or NOX or greater than 15 tpy
PM-10 or 0.6 tpy lead.
[ALTERNATIVE 3 to paragraph (f)(2)(iii)(B)(1):]
(1) For criteria pollutants, 30 percent of applicable major source
thresholds, or 15 percent of the limit applicable to the unit
undergoing the change, whichever is less, but in no event less than 5
tpy for VOC or NOX. [END OF ALTERNATIVES FOR paragraph
(f)(2)(iii)(B)(1)]
[ALTERNATIVE 1 to paragraph (f)(2)(iii)(B)(2):]
(2) For HAP's, 0 tpy.
[ALTERNATIVE 2 to paragraph (f)(2)(iii)(B)(2):]
(2) For HAP's, 20 percent of the major source thresholds
established under section 112 of the Act, 50 percent of the de minimis
levels set pursuant to section 112(g) of the Act, or 10 percent of the
limit applicable to the unit undergoing change, whichever is less.
[ALTERNATIVE 3 to paragraph (f)(2)(iii)(B)(2):]
(2) For HAP's, 75 percent of de minimis levels established under
section 112(g) of the Act. [END OF ALTERNATIVES FOR paragraph
(f)(2)(iii)(B)(2)]
(3) For other pollutants regulated only under section 111 of the
Act, the significance levels in Sec. 52.21(b)(23)(i) of this chapter.
(3) De minimis permit revision procedures.
(i) Application. A source may submit an application to the
permitting authority requesting the use of de minimis permit revision
procedures [[Page 20844]] provided that the permit contains a term or
condition that authorizes the source to make use of the de minimis
permit revision procedures for qualifying changes, the application
meets the requirements of Sec. 71.5(f), and the permit application
includes the following:
(A) A description of the change, the emissions resulting from the
change, and any new applicable requirements that will apply if the
change occurs;
(B) An addendum containing the terms and conditions of the source's
suggested draft permit revision;
(C) A demonstration that the proposed change meets the criteria for
a de minimis permit revision; and
(D) Certification by a responsible official consistent with
Sec. 71.5(i) that:
(1) The source is in compliance with any permit terms or conditions
it seeks to revise;
(2) The proposed revision meets the criteria for use of de minimis
permit revision procedures; and
(3) The source accepts all liability of making the requested change
prior to final permitting authority action to revise the source's
permit.
[OPTION: ADD NEW PARAGRAPH:
(E) A summary of any required demonstration performed in accordance
with paragraphs (f)(2)(i)(E) and (F) of this section, and verification
of such demonstration's affirmative approval by the permitting
authority.]
(ii) The permitting authority may allow the source to implement the
requested change 7 days after the permitting authority's receipt of the
source's de minimis permit revision application. At its discretion, the
permitting authority may grant a request by the source to implement the
change after less than 7 days.
(iii) Public notification. Public notice shall be provided by the
source of de minimis permit revision applications received by the
permitting authority on a monthly, batched basis. At a minimum, the
notice shall include: the name and address of the source where the
proposed change would occur, a description of the change, the effective
date of the permit revision, the emissions resulting from the change,
and any new applicable requirements that will apply if the change
occurs; reference to the pertinent administrative record/public docket;
and the name, address and phone number of a person from whom interested
persons may obtain additional information, including the permit
application and supporting documentation as described in paragraph
(f)(3)(i) of this section. [OPTION: ADD TO END OF PARAGRAPH: In
addition, for permit revisions involving changes to monitoring or
recordkeeping requirements, the permitting authority shall also submit
to the publicly available docket the complete demonstration required by
paragraphs (f)(2)(i) (E) and (F) of this section, a summary of the
demonstration, and an affirmative statement of the demonstration's
adequacy.]
(iv) Permit amendment. The permit is revised by attaching the
proposed addendum to the permit with the addendum specifying when the
permit revision takes effect consistent with the following provisions.
(A) Where the preconstruction permitting agency affirmatively
approved the change pursuant to a preconstruction review process that
included at least a 21-day public comment period and the
preconstruction permitting agency authorized the change to be made
under the de minimis permit revision process, the addendum shall take
effect upon submission to the part 71 permitting authority of a
complete de minimis permit revision application.
(B) Where the preconstruction permitting agency did not
affirmatively approve the change pursuant to a preconstruction review
that provided for at least a 21-day public comment period, the addendum
shall take effect [30-90] days after the date public notice is given
under paragraph (f)(3)(iii) of this section if the part 71 permitting
authority does not disapprove the request within that time period. The
part 71 permitting authority shall retain the authority to disapprove
such a change made through the de minimis permit revision process for a
period of [30-90] days following the date public notice is given under
paragraph (f)(3)(iii) of this section.
(v) EPA and affected State notification.
(A) In the case of a program delegated pursuant to Sec. 71.10, the
permitting authority shall send a copy of the addendum to the permit to
EPA within 7 days of the date the addendum takes effect.
(B) In all cases, the permitting authority shall send a copy of the
addendum to any affected State within 7 days of the date the addendum
takes effect.
(vi) Public request for disapproval.
(A) Within [15-45] days of the date public notification is given,
any person may request that the permitting authority disapprove the
change if the permitting authority retained authority to disapprove the
de minimis permit revision as described under paragraph (f)(3)(iv)(B)
of this section.
(B) Where the permitting authority was not required to retain
authority to disapprove the de minimis permit revision, the public may
petition the permitting authority to revoke the permit revision
allowing the change.
(4) Source liability. If, after a source makes the requested
change, the permitting authority disapproves the change or EPA objects
to the change (in the case of a program delegated pursuant to
Sec. 71.10), the source shall be liable for having operated in
violation of its existing permit from the time at which the source made
the change. Notwithstanding the preceding sentence, the permitting
authority may issue a permit revision that varies from the source's
proposed addendum without rendering the source liable for violating its
existing permit if the proposed addendum includes enforcement terms
sufficient to support an enforcement action and the permitting
authority's revisions are not necessary to make the change eligible for
de minimis permit revision procedures and do not change the applicant's
determination of which requirements of the Act apply to the source as a
result of the requested change. The source would remain liable for any
violations of the requirements which are applicable as a result of the
change and the source's proposed permit revision.
(5) The permit shield under Sec. 71.6(n) may not extend to de
minimis permit revisions.
(g) Minor permit revision procedures.
(1) Criteria.
(i) Minor permit revision procedures may be used only for those
permit revisions that:
(A) Do not affect permit terms or conditions that the source is
violating;
(B) Do not involve changes to existing monitoring, reporting, or
recordkeeping requirements in the permit, unless such changes are
necessary to implement other changes that qualify for minor permit
revision procedures [OPTION: REPLACE PARAGRAPH (g)(1)(i)(B) WITH THE
FOLLOWING:
(B) Involve changes to monitoring or recordkeeping requirements
that are:
(1) Changes in the enforceable operating level of the method that,
prior to the source's submission of a minor permit revision
application, the permitting authority has affirmatively determined the
source has demonstrated to be correlated to the source's existing or
proposed compliance emissions rate, but such changes may not involve a
switch to a new or alternative monitoring or recordkeeping operating
parameter; [[Page 20845]]
(2) Changes to a monitoring or recordkeeping method that affect the
measurement sensitivity of the method and representativeness of the
data (e.g., precision, accuracy, measurement location, or averaging
time) such that there may be a measurable effect in relation to the
relevant source compliance emissions rate; changes that affect the
scope and intent of the existing monitoring method (e.g., modified
sample conditioning system, upgraded detector, upgraded data management
system); or changes that may be generally applicable to similar
monitoring methods in the same or other source categories (e.g.,
equipment modification for interference avoidance). Such changes may
not involve a switch to new or alternative monitoring methods. Prior to
the source's submission of a minor permit revision application, the
permitting authority shall have affirmatively determined that the
monitoring or recordkeeping change has been demonstrated by the source
to have a known relationship and ability to determine compliance with
the applicable source compliance emissions rate; or
(3) In the case of a program delegated pursuant to Sec. 71.10,
changes to monitoring or recordkeeping methods that have been approved
pursuant to major or minor NSR and that are demonstrated therein to
have a known relationship and ability to determine compliance with the
applicable source compliance emissions rate. The application for the
minor permit revision must include supporting documentation from the
major or minor NSR permit approval, information regarding the
demonstration and approval of the requested monitoring or recordkeeping
method, and information in accordance with Sec. 71.7(g)(2) as related
to the monitoring change. END OF OPTION];
(C) Do not involve or depend on netting transactions undertaken to
avoid being subject to preconstruction review under part C or D of
title I of the Act unless such emissions reductions:
(1) Have been approved pursuant to a minor NSR process for which a
30-day public comment period was provided; or
(2) Do not involve any single emissions increase that exceeds the
applicable threshold for being a major modification under part C or D
of title I of the Act, and the sum of all the contemporaneous increases
does not exceed the applicable threshold for determining whether a
source is major;
(D) Do not involve offsets or modifications under section 112(g) of
the Act, unless the change has been approved pursuant to a review
process under section 112(g) of the Act;
(E) Are not modifications subject to part C or D of title I of the
Act, unless the change has been approved pursuant to major NSR and
would incorporate all applicable requirements determined therein into
the part 70 or part 71 permit;
(F) [OPTION: ADD TO BEGINNING OF SENTENCE: Except for permit
revisions solely involving monitoring or recordkeeping requirements,]
Do not seek to establish or change a permit term or condition
established to limit emissions which is federally enforceable only as a
part 70 or part 71 permit term or condition. Such terms and conditions
include:
(1) A federally-enforceable emissions cap assumed in the part 70 or
part 71 permit to avoid classification as a modification under any
provision of title I of the Act;
(2) An alternative emission limit established under the provisions
of Sec. 71.6(a)(1)(iii) equivalent to a requirement contained in an
applicable implementation plan;
(3) An alternative emissions limit established in the part 70 or
part 71 permit pursuant to regulations promulgated under section
112(i)(5) of the Act;
(4) An emissions limit established in the part 70 or part 71 permit
pursuant to regulations promulgated under section 112(j) of the Act;
and
(5) Any other term or condition for which there is no corresponding
underlying applicable requirement and the establishment of which allows
the source to avoid an applicable requirement to which the source would
otherwise be subject.
(ii) Notwithstanding paragraph (g)(1)(i) of this section, minor
permit revision procedures may be used for permit revisions involving
the use of economic incentives, marketable permits, emissions trading,
and other similar approaches, to the extent that such minor permit
revision procedures are explicitly provided for in an applicable
implementation plan or in applicable requirements promulgated by EPA.
[OPTION: ADD NEW PARAGRAPH:
(iii) Any demonstration required by paragraph (g)(1)(i)(B) of this
section shall include an analysis conducted in accordance with 40 CFR
64.4(b)(5) and 64.4(c) utilizing appendices A, B, C, and D of 40 CFR
part 64.]
(2) Application. An application requesting the use of minor permit
revision procedures shall meet the requirements of Sec. 71.5(f) and
shall include the following:
(i) A description of the change, the emissions resulting from the
change, and any new applicable requirements that will apply if the
change occurs;
(ii) An addendum containing the terms and conditions of the
source's suggested draft permit revision;
(iii) A demonstration that the proposed change is eligible to be
processed as a minor permit revision;
(iv) Certification by a responsible official, consistent with
Sec. 71.5(i), that:
(A) The proposed change meets the criteria for use of minor permit
revision procedures;
(B) The source is in compliance with the permit terms or conditions
it seeks to revise;
(C) Public notice of the proposed revision has been provided
pursuant to paragraph (g)(3) of this section; and
(D) Notice to the Administrator (in the case of a program delegated
pursuant to Sec. 71.10), and affected States of the proposed revision
has been provided pursuant to paragraph (g)(4) of this section; and
(v) An affidavit signed by a responsible official stating that the
source accepts all legal risks of making the requested change prior to
final permitting authority action to revise the source's permit.
[OPTION: ADD NEW PARAGRAPH:
(vi) For a change involving changes to monitoring or recordkeeping
requirements, a summary of any demonstration required by paragraph
(g)(1)(i)(B) of this section and performed in accordance with paragraph
(g)(1)(iii) of this section and verification of its approval by the
permitting authority. If in approving the demonstration the permitting
authority determines that subsequent verification testing of the change
is necessary, the permitting authority may establish a compliance
schedule for performing verification testing to further demonstrate,
consistent with paragraph (g)(1)(iii) of this section, the adequacy of
the change. Such compliance schedule, after approval by the permitting
authority, shall be attached to the addendum described in paragraph
(g)(2)(ii) of this section and be processed as a permit term and shall
not allow the source to begin verification testing in advance of the
time when the source would be allowed to implement the minor permit
revision requested change. The approved compliance schedule shall
include a commitment by the source to provide the results of the
verification testing to the permitting authority within 90 days of
submittal of the minor permit revision application. Upon
[[Page 20846]] receipt of the verification testing results, the
permitting authority shall determine whether the results demonstrate
the adequacy of the change consistent with paragraph (g)(1)(iii) of
this section. The permitting authority shall promptly notify the source
in writing of its determination, and place a copy of such notice in the
public docket. The permit shield under Sec. 71.6(n) may extend to minor
permit revisions involving monitoring and recordkeeping changes only
after any required further verification testing of the change has been
completed.]
(3) Public notification.
(i) Immediately upon filing an application for a minor permit
revision, the source shall provide notice to the public of the
requested minor permit revision by:
(A) Publication of a notice in a newspaper of general circulation
in the area where the source is located or in a State publication
designed to give the general public notice; and
(B) Sending a letter to persons on a mailing list developed by the
permitting authority, including those who previously participated in
any public comment process provided for the source's permit and those
who request to be placed on a list to receive notification of permit
issuance, revision, reopening, or renewal requests.
(ii) In addition to the elements required under Sec. 71.11(d)(4),
the public notice shall describe the requested change and state that if
no germane and non-frivolous objection to the requested change is
received by the permitting authority within 21 days of publication of
the notice, the source may implement the change without the permitting
authority providing further opportunity for public participation. For
purposes of this paragraph (g)(3)(ii), a germane objection is one that
objects to the use of minor permit revision procedures for the
requested change on the grounds that the source has failed to comply
with the procedural and notification requirements of paragraphs (g)(3)
and (4) of this section or that the requested change is ineligible for
the use of minor permit revision procedures under paragraph (g)(1)(i)
of this section. For purposes of this paragraph (g)(3)(ii), a non-
frivolous objection must specify the basis for its objection and
present factual or other relevant information in support of its
objection.
(iii) The permitting authority shall place a copy of the minor
permit revision request in a public docket. [OPTION: ADD A NEW
SENTENCE: The permitting authority shall also place in the docket any
complete demonstration required by Sec. 71.7(g)(1)(i)(B), a summary of
the demonstration, the permitting authority's analysis of the
demonstration, and an affirmative statement of the demonstration's
adequacy.]
(4) EPA and affected State notification.
(i) In the case of a program delegated pursuant to Sec. 71.10,
immediately upon filing an application for a minor permit revision, the
source shall notify the Administrator of the requested permit revision
in the same manner and subject to the same conditions required of
permitting authorities under Sec. 71.10(d). Such notification shall
relieve the permitting authority of the requirement to provide notice
to the Administrator of the requested minor permit revision under
Sec. 71.10(d), but shall not relieve the permitting authority of the
requirement to promptly send to the Administrator any notice under
Sec. 71.8(b).
(ii) In all cases, immediately upon filing an application for a
minor permit revision, the source shall notify affected States of the
requested permit revision in the same manner and subject to the same
conditions required of the permitting authority under Sec. 71.8(a).
Such notification shall relieve the permitting authority of the
requirement to provide notice to affected States of the requested minor
permit revision under Sec. 71.8(a), but shall not relieve the
permitting authority of the requirement to send any affected State any
notice under Sec. 71.8(b).
(5) Timetable for issuance. Upon receipt of an application for a
minor permit revision, the permitting authority shall provide at least
21 days for public comment on the requested change, and shall keep a
record of the commenters and the issues raised during the public
comment period. Such records shall be made available to the public. The
minor permit revision shall occur according to the following
procedures:
(i) If the permitting authority receives no public objection to the
requested change within 21 days of publication of the public notice,
the source may implement the requested change on the 22nd day after
publication of the public notice, provided that:
(A) The permitting authority has neither denied the minor permit
revision nor determined that the requested revision does not meet the
minor permit revision criteria and should be reviewed under significant
permit revision procedures; and
(B) In the case of a program delegated pursuant to Sec. 71.10, the
Administrator has not objected to the proposed minor permit revision.
(ii) If the permitting authority receives a public objection to the
requested change within 21 days after publication of the public notice,
the permitting authority must determine within 28 days of publication
of the public notice whether the objection is germane and non-
frivolous, and proceed according to the following procedures:
(A) If the permitting authority within 28 days of public
notification finds the public objection to be either frivolous or not
germane, the permitting authority may respond to the public objection
in the course of processing the minor permit revision request as a
minor permit revision, and the source may implement the requested
change on the 29th day after publication of the public notice or upon
notification from the permitting authority that the permitting
authority has determined the public objection to be frivolous or not
germane, whichever is first, provided that:
(1) The permitting authority has neither denied the minor permit
revision application nor determined that the request fails to meet the
minor permit revision criteria and should be reviewed under significant
permit revision procedures; and
(2) In the case of a program delegated pursuant to Sec. 71.10, the
Administrator has not objected to the proposed minor permit revision.
(B) If the permitting authority fails to determine within 28 days
after publication of the public notice of the request for a minor
permit revision whether a public objection submitted within 21 days of
such notice is germane and nonfrivolous, the source may implement the
requested change on the 29th day after publication of the public
notice, provided that:
(1) The permitting authority has neither denied the minor permit
revision application nor determined that the request fails to meet the
minor permit revision criteria and should be reviewed under significant
permit revision procedures; and
(2) In the case of a program delegated pursuant to Sec. 71.10, the
Administrator has not objected to the proposed minor permit revision.
(C) If the permitting authority finds the public objection to be
germane and nonfrivolous, the permitting authority shall not issue a
final minor permit revision for the change, and shall either deny the
minor permit revision application or determine that the requested
change does not meet the minor permit revision criteria and should be
reviewed under significant permit revision procedures. If the
permitting authority continues to process the requested change under
[[Page 20847]] significant permit revision procedures, public notice of
the proposed change must be provided in the manner required for
significant permit revisions under Sec. 71.11. Such notice shall
provide at least 30 days for public comment on the requested change,
shall identify the time and place of any hearing that may be held, and
shall include a statement of procedures to request a hearing if a
hearing has not already been scheduled. For purposes of this paragraph,
such a hearing may be held as soon as 14 days after publication of a
notice that the requested change is being processed as a significant
permit revision. The source shall not implement the requested change
unless and until the permitting authority approves it as a significant
permit revision.
(iii) Any person who filed a public objection pursuant to this
paragraph which the permitting authority within 28 days of public
notification does not determine to be germane and nonfrivolous may
bring suit in Federal court to compel action by the permitting
authority and, in accordance with applicable standards for obtaining
such relief under Federal law, seek an injunction in Federal court
prohibiting the source from implementing the requested change.
(iv) In the case of a program delegated pursuant to Sec. 71.10,
where the minor permit revision has not been denied or required to be
reviewed under significant permit revision procedures, the permitting
authority may issue a final minor permit revision after EPA's 45-day
review period has elapsed provided the Administrator has not objected
to the requested change, or after EPA has notified the permitting
authority after the close of the public comment period that EPA will
not object to issuance of the minor permit revision, whichever is
first, provided that the final minor permit revision does not differ
from the draft permit except to the extent any changes to the draft
permit qualify for administrative permit amendment procedures under
paragraph (e) of this section.
(v) Within 60 days after the permitting authority's receipt of an
application for a minor permit revision, or 15 days after the
expiration of EPA's 45-day review period (in the case of a program
delegated pursuant to Sec. 71.10), whichever is later, the permitting
authority shall:
(A) Issue the minor permit revision as proposed;
(B) Deny the minor permit revision application;
(C) Determine that the requested revision does not meet the minor
permit revision criteria and should be reviewed under significant
permit revision procedures; or
(D) Revise the draft minor permit revision and, in the case of a
program delegated pursuant to Sec. 71.10, if such revision includes any
changes that do not qualify for processing as administrative permit
amendments under paragraph (e) of this section, transmit to the
Administrator the new proposed permit revision as required by
Sec. 71.10(d).
(vi) Any person who objected to a minor permit revision request
during the public comment period shall be notified by the permitting
authority upon final approval of the request. The permitting authority
shall also place a copy of its final approval decision in the public
docket in which it places minor permit revision requests when received
or provide a substantially equivalent means of public access to its
final decision.
(6) Reopening of the public comment period. If any data,
information, or arguments submitted during the public comment period
appear to raise substantial new questions concerning a permit, the
permitting authority may reopen or extend the comment period to give
interested persons an opportunity to comment on the information or
arguments submitted. 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.
(7) Issuance and effective date of permit.
(i) After the close of the public comment period on a draft permit,
the permitting authority shall issue a final permit decision. The
permitting authority 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.
(ii) A final permit decision shall become effective immediately
upon issuance of the decision unless a later effective date is
specified in the decision.
(8) Source's ability to make change. The source may make the change
proposed in its minor permit revision application in accordance with
paragraph (g)(5) of this section. After the source makes the change
allowed by the preceding sentence, and until the permitting authority
takes any of the actions specified in paragraphs (g)(5)(v) (A) through
(D) of this section, the source must comply with both the applicable
requirements governing the change and the proposed permit terms and
conditions. During this time period, the source need not comply with
the existing permit terms and conditions it seeks to revise. However,
if the source fails to comply with its proposed permit terms and
conditions during this time period, the existing permit terms and
conditions it seeks to revise may be enforced against it.
(9) Source liability. If, after a source makes the requested change
but prior to a permitting authority's final action to approve the
change and revise the permit, the Administrator objects to the proposed
minor permit revision (in the case of a program delegated pursuant to
Sec. 71.10), or the permitting authority either denies the minor permit
revision or determines that the requested revision does not meet the
minor permit revision criteria and should be reviewed under significant
permit revision procedures, the source shall be liable for having
operated in violation of its existing permit from the time at which it
implemented the requested change. Notwithstanding the preceding
sentence, the permitting authority may issue a permit revision that
varies from the source's application without rendering the source
liable for violating its existing permit if the permitting authority's
revisions are not necessary to make the change eligible for minor
permit revision procedures and do not change the applicant's proposed
determination of which requirements of the Act apply to the source as a
result of the requested change and if the source demonstrates to the
satisfaction of the permitting authority its compliance with the
applicable requirement to which it is subject as a result of the change
and the source's proposed permit revision. However, the source would
remain liable for any violations of the requirements of the Act
applicable as a result of the change and the source's proposed permit
revision. [OPTION: ADD NEW SENTENCE: If, after the permitting
authority's final action to revise the permit, any verification testing
of the new operating level or revised monitoring approach as required
by paragraph (g)(2)(vi) of this section demonstrates that the new
operating level or revised monitoring approach fails to demonstrate
compliance, the source then shall comply with the monitoring and
recordkeeping permit terms and conditions that applied to the source
before the minor permit revision, the minor permit revision shall be
null and void and cease to have effect, and the source shall be liable
for operating in violation of its permit from the time it implemented
the change.] [[Page 20848]]
(10) Permit shield. The permit shield under Sec. 71.6(n) may extend
to minor permit revisions, provided that the permitting authority has
taken final action to issue the minor permit revision as a permit
revision.
(h) Significant permit revision procedures.
(1) Criteria. Significant permit revision procedures shall be used
for applications requesting permit revisions that do not qualify as
administrative amendments, de minimis permit revisions, or minor permit
revisions. At a minimum, every significant change in existing
monitoring permit terms or conditions and every relaxation of reporting
or recordkeeping permit terms or conditions shall be considered a
significant change. [OPTION: DELETE PRECEDING SENTENCE] Nothing herein
shall be construed to preclude the permittee from making changes
consistent with this part that would render existing permit compliance
terms and conditions irrelevant.
(2) Significant permit revisions shall meet all requirements,
including those for applications, public participation, review by
affected States, and in the case of a program delegated pursuant to
Sec. 71.10, review by EPA, as they apply to permit issuance and permit
renewal. The permitting authority shall implement this review process
to complete review on the majority of significant permit revisions
within 9 months after receipt of a complete application.
[OPTION: ADD NEW PARAGRAPH (h)(3):
(3) Changes involving new or alternative monitoring methods that
have not been approved pursuant to major or minor NSR under criteria
equivalent to those contained in this paragraph (h)(3) shall be
processed as significant permit revisions. Permitting authorities may
approve such changes only where the new or alternative monitoring or
recordkeeping method is demonstrated to have a known relationship and
ability to determine compliance with the applicable standard. Such
demonstration shall include an analysis conducted in accordance with 40
CFR 64.4(b)(5) and 64.4(e) utilizing appendices A, B, C, and D of 40
CFR part 64. The permitting authority shall include the demonstration
and written evidence of the permitting authority's evaluation of the
demonstration in the proposed permit it sends to EPA (in the case of a
program delegated pursuant to Sec. 71.10) for review as required by
Sec. 71.10.]
(i) Reopening for cause.
(1) Each issued permit shall include provisions specifying the
conditions under which the permit will be reopened prior to the
expiration of the permit. A permit shall be reopened and revised under
any of the following circumstances:
(i) Additional applicable requirements under the Act become
applicable to a major part 70 or part 71 source with a remaining permit
term of 3 or more years. Such a reopening shall be completed not later
than 18 months after promulgation of the applicable requirement. No
such reopening is required if the effective date of the requirement is
later than the date on which the permit is due to expire, unless the
original permit or any of its terms and conditions have been extended
pursuant to Sec. 71.6 or paragraph (c)(3) of this section.
(ii) Additional requirements (including excess emissions
requirements) become applicable to an affected source under the acid
rain program. Upon approval by the Administrator, excess emissions
offset plans shall be deemed to be incorporated into the permit.
(iii) The permitting authority or EPA (in the case of a program
delegated pursuant to Sec. 71.10 ) determines that the permit contains
a material mistake or that inaccurate statements were made in
establishing the emissions standards or other terms or conditions of
the permit.
(iv) The permitting authority or EPA (in the case of a program
delegated pursuant to Sec. 71.10 ) determines that the permit must be
revised or revoked to assure compliance with the applicable
requirements.
(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, and shall
be made as expeditiously as practicable. Notwithstanding the preceding
sentence, proceedings to reopen for standards under section 112 of the
Act may use the following procedures:
(i) Where the standard under section 112 of the Act is published
after permit issuance, administrative amendment procedures under
paragraph (e)(5) of this section may be used.
(ii) Where the standard under section 112 of the Act is published
before permit issuance and a compliance statement required under the
standard under section 112 of the Act is due after permit issuance, the
source shall apply for a minor permit revision by the compliance
statement deadline to incorporate requirements necessary to assure
compliance with the standard, unless the source is exempted from this
requirement under paragraph (i)(2)(iii) of this section or under the
rulemaking promulgating the standard under section 112 of the Act. If
the source is utilizing alternatives requiring case-by-case approval,
such as emissions averaging, or if required under the rulemaking
promulgating the standard under section 112 of the Act, the source
shall apply for a significant permit revision by the compliance
statement deadline, in lieu of the requirement in the preceding
sentence to apply for a minor permit revision.
(iii) Sources subject to the following standards under section 112
of the Act published as of [DATE OF PUBLICATION OF FINAL RULE] are
exempt from the requirements in paragraph (i)(2)(ii) of this section to
apply for a minor permit revision: NESHAP for Industrial Process
Cooling Towers, at 40 CFR part 63, subpart Q.
(3) Reopenings under paragraph (i)(1) of this section shall not be
initiated before a notice of such intent is provided to the part 70 or
part 71 source by the permitting authority at least 30 days in advance
of the date that the permit is to be reopened, except that the
permitting authority may provide a shorter time period in the case of
an emergency. Where reopening for standards under section 112 of the
Act requiring initial notification by the source, and where the source
has provided such notification to the permitting authority by the
applicable date, the permitting authority need not provide the notice
required by the preceding sentence.
(j) Reopenings for cause by EPA for delegated programs.
(1) In the case of a program delegated pursuant to Sec. 71.10 , if
the Administrator finds that cause exists to terminate, revise, or
revoke and reissue a permit pursuant to paragraph (i) of this section,
the Administrator will notify the permitting authority and the
permittee of such finding in writing.
(2) The permitting authority shall, within 90 days after receipt of
such notification, forward to EPA a proposed determination of
termination, revision, or revocation and reissuance, as appropriate.
The Administrator may extend this 90-day period for an additional 90
days if he or she finds that a new or revised permit application is
necessary or that the permitting authority must require the permittee
to submit additional information.
(3) The Administrator will review the proposed determination from
the permitting authority within 90 days of receipt.
(4) The permitting authority shall have 90 days from receipt of an
EPA objection to resolve any objection that [[Page 20849]] EPA makes
and to terminate, revise, or revoke and reissue the permit in
accordance with the Administrator's objection.
(5) If the permitting authority fails to submit a proposed
determination pursuant to paragraph (j)(2) of this section or fails to
resolve any objection pursuant to paragraph (j)(4) of this section, the
Administrator will terminate, revise, or revoke and reissue the permit
after taking the following actions:
(i) Providing at least 30 days notice to the permittee in writing
of the reasons for any such action. This notice may be given during the
procedures in paragraphs (j)(1) through (j)(4) of this section.
(ii) Providing the permittee an opportunity for comment on the
Administrator's proposed action and an opportunity for a hearing.
Sec. 71.8 Affected State Review.
(a) Notice of draft permits. When a part 71 operating permits
program becomes effective in a State or Tribal area, the permitting
authority shall provide notice of each draft permit to any affected
State, as defined in Sec. 71.2, on or before the time that the
permitting authority provides this notice to the public pursuant to
Secs. 71.7(e)(4), 71.7(h), 71.7(i) or 71.11(d) and shall provide any
affected State a copy of the addendum for a de minimis permit revision
within 7 days of the date on which the addendum takes effect.
(b) Notice of refusal to accept recommendations. Prior to issuance
of the final permit, the permitting authority shall notify any affected
State (and the Administrator, in the case of a program delegated
pursuant to Sec. 71.10) in writing of any refusal by the permitting
authority to accept all recommendations for the proposed permit that
the affected State submitted during the public or affected State review
period. The notice shall include the permitting authority's reasons for
not accepting any such recommendation. The permitting authority is not
required to accept recommendations that are not based on applicable
requirements or the requirements of this part.
(c) Waiver of notice requirements. The Administrator may waive the
requirements of paragraph (a) of this section for any category of
sources (including any class, type, or size within such category) other
than major sources by regulation for a category of sources nationwide.
Sec. 71.9 Permit Fees.
(a) Fee requirement. The owners or operators of part 71 sources
shall pay annual fees, or the equivalent over some other period, that
are sufficient to cover the permit program costs, in accordance with
the procedures described in this section.
(b) Permit program costs. These costs include, but are not limited
to, the costs of the following activities as they relate to a part 71
program:
(1) Preparing generally applicable guidance regarding the permit
program or its implementation or enforcement;
(2) Reviewing and acting on any application for a permit, permit
revision, or permit renewal, including the development of an applicable
requirement as part of the processing of a permit, or permit revision
or renewal;
(3) Processing permit reopenings;
(4) General administrative costs of the permit program, including
transition planning, interagency coordination, contract management,
training, informational services and outreach activities, assessing and
collecting fees, the tracking of permit applications, compliance
certifications, and related data entry;
(5) Implementing and enforcing the terms of any part 71 permit (not
including any court costs or other costs associated with an enforcement
action), including adequate resources to determine which sources are
subject to the program;
(6) Emissions and ambient monitoring, modeling, analyses,
demonstrations, preparation of inventories, and tracking emissions,
provided these activities are needed in order to issue and implement
part 71 permits; and
(7) Providing direct and indirect support to small business
stationary sources in determining applicable requirements and in
receiving permits under this part (to the extent that these services
are not provided by a State Small Business Stationary Source Technical
and Environmental Compliance Assistance Program).
(c) Establishment of fee schedule.
(1) For part 71 programs that are administered by EPA, each part 71
source shall pay an annual fee in the amount of $45 dollars per ton (as
adjusted pursuant to the criteria set forth in paragraph (n)(1) of this
section) times the total tons of the actual emissions of each regulated
pollutant (for fee calculation) emitted from the source, including
fugitive emissions.
(2) For part 71 programs that are delegated pursuant to Sec. 71.10,
the annual fee for each part 71 source shall be the amount specified in
paragraph (c)(1) of this section plus a surcharge of $3 per ton per
year. The surcharge will be used to defray the Agency's cost of
administering program delegation.
(3) For part 71 programs that are administered by EPA with
contractor assistance, the per ton fee will vary depending on the
extent of contractor involvement and the cost to EPA of contractor
assistance. The EPA shall establish a per ton fee that is based on the
contractor costs for the specific part 71 program that is being
administered, using the following formula:
Cost per ton=(E x $45)+[(1-E) x $C]+$3 surcharge
Where E represents EPA's proportion of total effort (expressed as a
percentage of total effort) needed to administer the part 71 program,
1-E represents the contractor's effort, and C represents the contractor
assistance cost on a per ton basis. The $3 surcharge covers EPA's cost
for administering contractor permit program activities. C shall be
computed by using the following formula:
C=[B+T+N] divided by 12,300,000
Where B represents the base cost (contractor costs), where T represents
travel costs, and where N represents non-personnel data management and
tracking costs.
(4) For programs that are delegated in part and that also use
contractor assistance, the fee shall be computed using the formula in
paragraph (c)(3) of this section, provided that E represents the
proportion of total effort (expressed as a percentage) expended by EPA
and the delegate agency.
(5) The following emissions shall be excluded from the calculation
of fees under paragraph (c)(1) of this section:
(i) The amount of a part 71 source's actual emissions of each
regulated pollutant (for fee calculation) that the source emits in
excess of four thousand (4,000) tpy;
(ii) A part 71 source's actual emissions of any regulated pollutant
(for fee calculation) already included in the fee calculation; and
(iii) The insignificant quantities of actual emissions not required
to be listed or calculated in a permit application pursuant to
Sec. 71.5(g).
(6) ``Actual emissions'' means the actual rate of emissions in tpy
of any regulated pollutant (for fee calculation) emitted from a part 71
source over the preceding calendar year. Actual emissions shall be
calculated using each emissions unit's actual operating hours,
production rates, in-place control equipment, and types of materials
processed, stored, or combusted during the preceding calendar year.
[[Page 20850]]
(7) Notwithstanding the above, if the Administrator determines that
the fee structures provided in paragraphs (c)(1) through (c)(4) of this
section do not reflect the costs of administering a part 71 program,
then the Administrator shall by rule set a fee which adequately
reflects permit program costs for that program.
(d) Prohibition on fees with respect to emissions from affected
units. Notwithstanding any other provision of this section, during the
years 1995 through 1999 inclusive, no fee for purposes of title V of
the Act shall be required to be paid with respect to emissions from any
affected unit under section 404 of the Act.
(e) Submission of initial fee calculation work sheets and fees.
(1) Each part 71 source shall complete and submit an initial fee
calculation work sheet as provided in paragraphs (e)(2), (f), and (g)
of this section and shall complete and submit fee calculation work
sheets thereafter as provided in paragraph (h) of this section.
Calculations of actual or estimated emissions and calculation of the
fees owed by a source shall be computed by the source on fee
calculation work sheets provided by EPA. Fee payment in an amount that
equals one-third of the annual fees owed must accompany each initial
fee calculation work sheet. The balance of the annual fees owed must be
paid within four months of the due date of the initial fee or within
one year of the effective date of the part 71 program, whichever is
earlier.
(2) The fee calculation work sheet shall require the source to
submit a report of its actual emissions for the preceding calendar year
and to compute fees owed based on those emissions. For sources that
have been issued part 70 or part 71 permits, actual emissions shall be
computed using compliance methods required by the most recent permit.
If actual emissions cannot be determined using the compliance methods
in the permit, the actual emissions should be determined using
federally recognized procedures. If a source commenced operation during
the preceding calendar year, the source shall estimate its actual
emissions for the current calendar year. In such a case, fees for the
source shall be based on the total emissions estimated.
(f) Deadlines for submission.
(1) When EPA withdraws approval of a part 70 program and implements
a part 71 program, part 71 sources shall submit initial fee calculation
work sheets and fees in accordance with the following schedule:
(i) Sources having SIC codes between 0100 and 2499 inclusive shall
complete and submit fee calculation work sheets and fees within 4
months of the effective date of the part 71 program;
(ii) Sources having SIC codes between 2500 and 2999 inclusive shall
complete and submit fee calculation work sheets and fees within 5
months of the effective date of the part 71 program;
(iii) Sources having SIC codes between 3000 and 3999 inclusive
shall complete and submit fee calculation work sheets and fees within 6
months of the effective date of the part 71 program;
(iv) Sources having SIC codes higher than 3999 shall complete and
submit fee calculation work sheets and fees within 7 months of the
effective date of the part 71 program.
(2) Sources that are required under either paragraph (f)(1) or (g)
of this section to submit fee calculation work sheets and fees between
January 1 and March 31 may estimate their emissions for the preceding
calendar year in lieu of submitting actual emissions data. If the
source's initial fee calculation work sheet was based on estimated
emissions for the source's preceding calendar year, then the source
shall reconcile the fees owed when it submits its annual emissions
report, as provided in paragraph (h)(3) of this section.
(3) When EPA implements a part 71 program that does not replace an
approved part 70 program, part 71 sources shall submit initial fee
calculation work sheets and initial fees when submitting their permit
applications in accordance with the requirements of Sec. 71.5(b)(1).
(4) Notwithstanding the above, sources that become subject to the
part 71 program after the program's effective date shall submit an
initial fee calculation work sheet and initial fees when submitting
their permit applications in accordance with the requirements of
Sec. 71.5(b)(1) .
(g) Fees for sources that are issued part 71 permits following an
EPA objection pursuant to Sec. 71.4(e). Fees for such sources shall be
determined as provided in paragraph (c) of this section. However,
initial fee calculation work sheets for such sources and full payment
of annual fees shall be due three months after the date on which the
source's part 71 permit is issued.
(h) Annual emissions reports.
(1) Deadlines for submission. Each part 71 source shall submit an
annual report of its actual emissions for the preceding calendar year,
a fee calculation work sheet (based on the report), and full payment of
the annual fee each year on the anniversary date of its initial fee
calculation work sheet, except that sources that were required to
submit initial fee calculation work sheets between January 1 and March
31 inclusive shall submit subsequent annual emissions reports and fee
calculation work sheets on April 1.
(2) For sources that have been issued part 70 or part 71 permits,
actual emissions shall be computed using methods required by the most
current permit for determining compliance.
(3) If the source's initial fee calculation work sheet was based on
estimated emissions for the source's current or preceding calendar
year, then the source shall reconcile the fees owed when it submits its
annual emissions report. The source shall compare the estimated
emissions from the initial work sheet and the actual emissions from the
report and shall enter such information on the fee calculation work
sheet that accompanies the annual report. The source shall recompute
the initial fee accordingly and shall remit any underpayment with the
report and work sheet. The EPA shall credit any overpayment to the
source's account.
(i) Recordkeeping requirements. Part 71 sources will retain, in
accordance with the provisions of Sec. 71.6(e), all work sheets and
other materials used to determine fee payments. Records shall be
retained for 5 years following the year in which the emissions data is
submitted.
(j) Fee assessment errors.
(1) If EPA determines than a source has completed the fee
calculation work sheet incorrectly, the permitting authority shall bill
the applicant for the corrected fee or credit overpayments to the
source's account.
(2) Each source notified by the permitting authority of additional
amounts due shall remit full payment within 30 days of receipt of an
invoice from the permitting authority.
(3) An owner or operator of a part 71 source who thinks that the
assessed fee is in error shall provide a written explanation of the
alleged error to the permitting authority along with the assessed fee.
The permitting authority shall, within 90 days of receipt of the
correspondence, review the data to determine whether the assessed fee
was in error. If an error was made, the overpayment shall be credited
to the account of the part 71 source.
(k) Remittance procedure.
(1) Each remittance under this section shall be in United States
currency and shall be paid by money order, bank draft, certified check,
corporate check, or electronic funds transfer payable to the order of
the U.S. Environmental Protection Agency. [[Page 20851]]
(2) Each remittance shall be sent to the Environmental Protection
Agency to the address designated on the fee calculation work sheet or
the invoice.
(l) Penalty and interest assessment.
(1) The permitting authority shall assess interest on payments
which are received later than the date due. The interest rate shall be
the sum of the Federal short-term rate determined by the Secretary of
the Treasury in accordance with section 6621(a)(2) of the Internal
Revenue Code of 1986, plus 3 percentage points.
(2) The permitting authority shall assess a penalty charge of 50
percent of the fee amount if the fee is not paid within 30 days of the
payment due date.
(3) Part 71 sources shall be assessed a penalty of 50 percent on
underpayments computed under paragraph (h)(3) of this section when the
underpayment is in excess of 20 percent of the initial estimated fee
amount and interest as computed under paragraph (l)(1) of this section
on that portion of the underpayment in excess of 20 percent of the
initial fee amount.
(m) Failure to remit fees. The permitting authority shall not issue
a final permit or permit revision until all fees, interest and
penalties assessed against a source under this section are paid. The
initial application of a source shall not be found complete unless the
source has paid all fees owed.
(n) Adjustments of fee schedules.
(1) The fee schedules provided in paragraphs (c)(1) through (c)(4)
of this section shall remain in effect until December 31, 1996.
Thereafter, the fee schedules shall be changed annually by the
percentage, if any, of any annual increase in the Consumer Price Index.
(2) Part 71 permit program costs and fees will be reviewed by the
Administrator at least every two years, and changes will be made to the
fee schedule as necessary to reflect permit program costs.
(3) When changes to a fee schedule are made based on periodic
reviews by the Administrator, the changes will be published in the
Federal Register as a rule.
(o) Use of revenue. All fees, penalties, and interest collected
under this part shall be deposited in a special fund in the U.S.
Treasury, which thereafter shall be available for appropriation, to
remain available until expended, subject to appropriation, to carry out
the activities required by this part.
Sec. 71.10 Delegation of part 71 program.
(a) Delegation of part 71 program. The Administrator may delegate,
in whole or in part, with or without signature authority, the authority
to administer a part 71 operating permits program to a State, eligible
Tribe, local, or other non-State agency in accordance with the
provisions of this section. In order to be delegated authority to
administer a part 71 program, the delegate agency must submit a legal
opinion from the Attorney General from the State, or the attorney for
the State, local, interstate, or eligible Tribal agency that has
independent legal counsel, stating that the laws of the State,
locality, interstate compact or Indian Tribe provide adequate authority
to carry out all aspects of the delegated program. A Delegation of
Authority Agreement (Agreement) shall set forth the terms and
conditions of the delegation, shall specify the provisions that the
delegate agency shall be authorized to implement, and shall be entered
into by the Administrator and the delegate agency. The Agreement shall
become effective upon the date that both the Administrator and the
delegate agency have signed the Agreement. Once delegation becomes
effective, the delegate agency will be responsible, to the extent
specified in the Agreement, for administering the part 71 program for
the area subject to the Agreement.
(b) Publication of Delegation of Authority Agreement. The Agreement
shall be published in the Federal Register.
(c) Revision or revocation of Delegation of Authority Agreement. An
Agreement may be modified, amended, or revoked, in part or in whole, by
the Administrator after consultation with the delegate agency.
(d) Transmission of information to the Administrator.
(1) When a part 71 program has been delegated in accordance with
the provisions of this section, except as provided by
Sec. 71.7(a)(1)(v), the delegate agency shall provide to the
Administrator a copy of each application for a permit, permit renewal,
or permit revision (including any compliance plan, or any portion the
Administrator determines to be necessary to review the application and
permit effectively), each proposed permit, and each final part 71
permit.
(2) The applicant may be required by the delegate agency to provide
a copy of the permit application (including the compliance plan)
directly to the Administrator.
(3) Upon agreement with the Administrator, the delegate agency may
submit to the Administrator a permit application summary form and any
relevant portion of the permit application and compliance plan, in
place of the complete permit application and compliance plan. To the
extent practicable, the preceding information shall be provided in
computer-readable format compatible with EPA's national database
management system.
(e) Retention of records. The records for each draft, proposed, and
final permit, and application for permit renewal or revision shall be
kept for a period of 5 years by the delegate agency. The delegate
agency shall also submit to the Administrator such information as the
Administrator may reasonably require to ascertain whether the delegate
agency is implementing, administering, and enforcing the delegated part
71 program in compliance with the requirements of the Act and of this
part.
(f) Prohibition of default issuance.
(1) For the purposes of Federal law and title V of the Act, when a
part 71 program has been delegated in accordance with the provisions of
this section, no part 71 permit (including a permit renewal or
revision) will be issued until affected States have had an opportunity
to review the draft permit as required pursuant to Sec. 71.8(a) and EPA
has had an opportunity to review the proposed permit.
(2) To receive delegation of signature authority, the legal opinion
submitted by the delegate agency pursuant to paragraph (a) of this
section shall certify that no applicable provision of State, local or
Tribal law requires that a part 71 permit or renewal be issued after a
certain time if the delegate agency has failed to take action on the
application (or includes any other similar provision providing for
default issuance of a permit), unless EPA has waived such review for
EPA and affected States. Notwithstanding this prohibition on default
permit issuance, permits may be revised on a default basis pursuant to
the procedures in Sec. 71.7 (e) and (f).
(g) EPA objection.
(1) No permit for which an application must be transmitted to the
Administrator under paragraph (d)(1) of this section shall be issued if
the Administrator objects to its issuance in writing within 45 days of
receipt of the proposed permit and all necessary supporting
information. When a part 71 program has been delegated in accordance
with the provisions of this section, failure of the delegate agency to
do any of the following shall constitute grounds for an objection by
the Administrator:
(i) Comply with paragraph (d) of this section;
(ii) Submit any information necessary to review adequately the
proposed permit;
(iii) Process the permit under the procedures required by
Secs. 71.7 and 71.11; [[Page 20852]]
(iv) Propose or issue a part 71 permit that complies with
applicable requirements of the Act or the requirements under this part,
except as provided in Sec. 71.7(a)(6); or
(v) Comply with the requirements of Sec. 71.8(a).
(2) Any EPA objection under paragraph (g)(1) of this section shall
include a statement of the Administrator's reason(s) for objection and
a description of the terms and conditions that the permit must include
to respond to the objection. The Administrator will provide the permit
applicant a copy of the objection.
(3) If the delegate agency fails, within 90 days after the date of
an objection under paragraph (g)(1) of this section, to revise and
submit to the Administrator the proposed permit in response to the
objection, the proposed permit shall not issue and thereafter the
Administrator shall issue a part 71 permit to the applicant in
accordance with the requirements of this part.
(h) Public petitions. In the case of a delegated program, any
interested person may petition the Administrator to reopen a permit for
cause as provided in Sec. 71.11(n).
(i) Appeal of permits. When a part 71 program has been delegated
with signature authority in accordance with the provisions of this
section, any permit applicant and any person or affected State that
submitted recommendations or comments on the draft permit, or that
participated in the public hearing process may petition the
Environmental Appeals Board in accordance with Sec. 71.11(l)(1).
(j) Non-delegable conditions.
(1) The Administrator's authority to object to the issuance of a
part 71 permit cannot be delegated to an agency not within EPA.
(2) The Administrator's authority to act upon petitions submitted
pursuant to paragraph (h) of this section cannot be delegated to an
agency not within EPA.
Sec. 71.11 Administrative record, public participation, and
administrative review.
The provisions of paragraphs (a) through (j) of this section shall
apply to initial permit issuance, permit renewals, permit reopenings,
and significant permit revisions but not to permit revisions qualifying
for minor permit revision procedures, de minimis permit revision
procedures, or administrative amendments. The provisions of paragraphs
(k), (l), and (m) of this section shall apply to all permit
proceedings.
(a) Draft permits.
(1) The permitting authority shall promptly provide notice to the
applicant of whether the application is complete pursuant to
Sec. 71.7(a)(3).
(2) Once an application for an initial permit, permit revision, or
permit renewal is complete, the permitting authority shall decide
whether to prepare a draft permit or to deny the application.
(3) If the permitting authority initially decides to deny the
permit application, it shall issue a notice of intent to deny. A notice
of intent to deny the permit application is a type of draft permit and
follows the same procedures as any draft permit prepared under this
section. If the permitting authority's final decision is that the
initial decision to deny the permit application was incorrect, it shall
withdraw the notice of intent to deny and proceed to prepare a draft
permit under paragraph (a)(4) of this section.
(4) If the permitting authority decides to prepare a draft permit,
it shall prepare a draft permit that contains the permit conditions
required under Sec. 71.6.
(5) All draft permits prepared under this section shall be publicly
noticed and made available for public comment.
(b) Statement of basis. The permitting authority shall prepare a
statement of basis for every draft permit subject to this section. 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
initial decision. The statement of basis shall be sent to the applicant
and, on request, to any other person.
(c) Administrative record for draft permits.
(1) The provisions of a draft permit shall be based on the
administrative record defined in this section.
(2) For preparing a draft permit, the administrative record shall
consist of:
(i) The application and any supporting data furnished by the
applicant;
(ii) The draft permit or notice of intent to deny the application
or to terminate the permit;
(iii) The statement of basis;
(iv) All documents cited in the statement of basis; and
(v) Other documents contained in the supporting file for the draft
permit.
(3) Material readily available at the permitting authority or
published material that is generally available, and that is included in
the administrative record under paragraphs (b) and (c) of this section
need not be physically included with the rest of the record as long as
it is specifically referred to in the statement of basis.
(d) Public notice of permit actions and public comment period.
(1) Scope.
(i) The permitting authority shall give public notice that the
following actions have occurred:
(A) A permit application has been initially denied under paragraph
(a) of this section;
(B) A draft permit has been prepared under paragraph (a) of this
section;
(C) A hearing has been scheduled under paragraph (f) of this
section;
(D) A public comment period has been reopened under paragraph (h)
of this section;
(E) An appeal has been granted under paragraph (l)(3) of this
section.
(ii) No public notice is required in the case of administrative
permit revisions, 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, (including
a notice of intent to deny a permit application), shall allow at least
30 days for public comment.
(ii) Except as provided under Sec. 71.7(g)(5)(ii)(C), 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 and the two notices may be combined.
(iii) The permitting authority shall provide such notice and
opportunity for participation to affected States on or before the time
that the permitting authority 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 paragraph (d) of this
section may waive his or her rights to receive notice for any permit):
(A) The applicant;
(B) Affected States;
(C) Air pollution control agencies of affected States, Tribal and
local air pollution control agencies which have jurisdiction over the
area in which the source is located, the chief executives of the city
and county where the source is located, any comprehensive regional land
use planning agency and any State [[Page 20853]] or Federal Land
Manager whose lands may be affected by emissions from the source;
(D) Any unit of local government including the local emergency
planning committee, having jurisdiction over the area where the source
is located and to each State agency having any authority under State
law with respect to the operation of such source;
(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,
where deemed appropriate by the permitting authority, in such
publications as regional and State funded newsletters, environmental
bulletins, or State law journals. The permitting authority may update
the mailing list from time to time by requesting written indication of
continued interest from those listed. The permitting authority may
delete from the list the name of any person who fails to respond to
such a request.
(ii) By publication of a notice in a daily or weekly newspaper of
general circulation within the area affected by the 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 permitting authority processing the
permit;
(B) The name and address of the permittee or permit applicant and,
if different, of the facility regulated by the permit, except in the
case of draft general permits;
(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 whom
interested persons may contact for instructions on how to obtain
additional information, such as a copy of the draft permit, the
statement of basis, the application, relevant supporting materials, and
other materials available to the permitting authority that are relevant
to the permitting decision.
(F) A brief description of the comment procedures required by
paragraph (e) of this section, 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;
(G) The location of the administrative record, the times at which
the record will be open for public inspection, and a statement that all
data submitted by the applicant are available as part of the
administrative record; and
(H) Any additional information considered necessary or proper.
(ii) Public notices for hearings. Public notice of a hearing may be
combined with other notices required under paragraph (d)(1) of this
section. Any public notice of a hearing under paragraph (f) of this
section shall contain the following information:
(A) The information described in paragraph (d)(4)(i) of this
section;
(B) Reference to the date of previous public notices relating to
the permit;
(C) The date, time, and place of the hearing; and
(D) A brief description of the nature and purpose of the hearing,
including the applicable rules and the comment procedures.
(5) All persons identified in paragraphs (d)(3)(i) (A), (B), (C),
(D), and (E) of this section shall be mailed a copy of the public
hearing notice described in paragraph (d)(4)(ii) of this section.
(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 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 permitting authority
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) The permitting authority shall hold a hearing whenever it
finds, on the basis of requests, a significant degree of public
interest in a draft permit.
(2) The permitting authority may also hold a public hearing at its
discretion, whenever, for instance, such a hearing might clarify one or
more issues involved in the permit decision.
(3) Public notice of the hearing shall be given as specified in
paragraph (d) of this section.
(4) Whenever a public hearing is held, the permitting authority
shall designate a Presiding Officer for the hearing who shall be
responsible for its scheduling and orderly conduct.
(5) Any person may submit oral or written statements and data
concerning the draft permit. 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 section. The hearing officer may also extend
the comment period by so stating at the hearing.
(6) 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 permitting
authority's initial 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 that
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. In the case of a program delegated
pursuant to Sec. 71.10, if requested by the Administrator, the
permitting authority shall make supporting materials not already
included in the administrative record available to EPA. The permitting
authority may direct commenters to provide such materials directly to
EPA. A comment period longer than 30 days may be necessary to give
commenters a reasonable opportunity to comply with the requirements of
this section. 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) The permitting authority may order the public comment period
reopened if the procedures of paragraph (h) of this section could
expedite the decision making process. When the public comment period is
reopened under paragraph (h) of this section, all
[[Page 20854]] persons, including applicants, who believe any condition
of a draft permit is inappropriate or that the permitting authority's
initial 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 30 days after public notice under
paragraph (h)(2) of this section, set by the permitting authority.
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 permitting authority.
(2) Public notice of any comment period under this paragraph shall
identify the issues to which the requirements of Sec. 71.11 (h)(1)
through (h)(4) shall apply.
(3) On its own motion or on the request of any person, the
permitting authority may direct that the requirements of paragraph
(h)(1) 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) of
this section will substantially expedite the decision making process.
The notice of the draft permit shall state whenever this has been done.
(4) A comment period of longer than 30 days may be necessary in
complicated proceedings to give commenters a reasonable opportunity to
comply with the requirements of this section. Commenters may request
longer comment periods and they may be granted to the extent the
permitting authority finds it necessary.
(5) If any data, information, or arguments submitted during the
public comment period appear to raise substantial new questions
concerning a permit, the permitting authority may take one or more of
the following actions:
(i) Prepare a new draft permit, appropriately modified;
(ii) Prepare a revised statement of basis, 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.
(6) Comments filed during the reopened comment period shall be
limited to the substantial new questions that caused the reopening. The
public notice shall define the scope of the reopening.
(7) 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 permitting authority shall issue a final permit decision. The
permitting authority 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 section, a
final permit decision means a final decision to issue, deny, revise,
revoke and reissue, renew, or terminate a permit.
(2) A final permit decision shall become effective immediately upon
issuance of the decision unless a later effective date is specified in
the decision.
(j) Response to comments.
(1) At the time that any final permit decision is issued, the
permitting authority 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, the permitting
authority 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 permitting authority 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 permits.
(1) The permitting authority shall base final permit decisions on
the administrative record defined in paragraph (k)(2) of this section.
(2) The administrative record for any final permit shall consist
of:
(i) All comments received during any 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 and any new materials placed in the
record;
(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;
(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 the permitting authority. The record
shall be complete on the date the final permit is issued.
(4) Material readily available at the permitting authority, or
published materials which are generally available and which are
included in the administrative record under the standards of paragraph
(j) of this section 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 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. Except for
revisions qualifying for minor permit revision procedures, de minimis
permit revision procedures, or administrative amendments, the 30-day
period within which a person may request review under this section
begins with the service of notice of the permitting authority's action
unless a later date is specified in that notice. For revisions
processed pursuant to minor permit revision procedures, the 30-day
period within which a person may request review under this section
begins on the date after the permitting authority notifies the source
and commenters of the final permit action. For revisions processed
pursuant to de minimis permit revision procedures, the 30-day period
within which a person may request review under this section begins
[[Page 20855]] on the date after the expiration of the permitting
authority's period to disapprove the revision or revoke the revision in
response to a citizen petition, whichever is applicable. For revisions
processed pursuant to administrative amendment procedures, the 30-day
period within which a person may request review under this section
begins on the date following the expiration of the 60-day period after
which the administrative amendment is effective. 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 part. The Board must act
under paragraph (l) of this section within 30 days of the service date
of notice of the permitting authority'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 the permit
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 seeking 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 the permitting authority and
agency review procedures are exhausted. A final permit decision shall
be issued by the permitting authority:
(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.
(n) Public petitions to the Administrator.
(1) Any interested person (including the permittee) may petition
the Administrator to reopen a permit for cause, and the Administrator
may commence a permit reopening on his or her own initiative. However,
the Administrator shall not revise, revoke and reissue, or terminate a
permit except for the reasons specified in Sec. 71.7(i)(1) or
Sec. 71.6(a)(5)(i). 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 (n)(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) If the Administrator decides the request is justified and that
cause exists to revise, revoke and reissue or terminate a permit, he or
she shall initiate proceedings to reopen the permit pursuant to
Sec. 71.7(i) or Sec. 71.7(j).
Sec. 71.12 Prohibited acts.
Violations of any applicable requirement; any permit term or
condition; any fee or filing requirement; any duty to allow or carry
out inspection, entry, or monitoring activities; or any regulation or
order issued by the permitting authority pursuant to this part are
violations of the Act and are subject to full Federal enforcement
authorities available under the Act.
[FR Doc. 95-10054 Filed 4-26-95; 8:45 am]
BILLING CODE 6560-50-P
