[Federal Register Volume 61, Number 127 (Monday, July 1, 1996)]
[Rules and Regulations]
[Pages 34202-34249]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16257]
[[Page 34201]]
_______________________________________________________________________
Part IV
Environmental Protection Agency
_______________________________________________________________________
40 CFR Parts 9, 55 and 71
Federal Operating Permits Program; Final Rule
Federal Register / Vol. 61, No. 127 / Monday, July 1, 1996 / Rules
and Regulations
[[Page 34202]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 9, 55 and 71
[FRL-5526-7]
RIN 2060-AD68
Federal Operating Permits Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: This action promulgates 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 (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.
EFFECTIVE DATE: July 31, 1996.
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.
SUPPLEMENTARY INFORMATION:
Docket
Supporting information used in developing the promulgated 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, D.C.
20460. A reasonable fee may be charged for copying.
Background Information Document
A background information document (BID) for the promulgated rule
may be obtained from the docket. Please refer to ``Federal Operating
Permits Program - Response to Comments.'' The BID contains a summary of
the public comments made on the proposed Federal Operating Permits
Program rule and EPA responses to the comments.
Regulated Entities
Entities potentially regulated by this action are major sources,
affected sources under title IV of the Act (acid rain sources), solid
waste incineration units required to obtain a permit under section 129
of the Act, and those areas sources subject to a standard under section
111 or 112 of the Act which have not been exempted or deferred from
title V permitting requirements. Regulated categories and entities
include:
------------------------------------------------------------------------
Category Examples of regulated entities
------------------------------------------------------------------------
Industry.......................... Major sources under title I or
section 112 of the Act; affected
sources under title IV of the Act
(acid rain sources); solid waste
incineration units required to
obtain a permit under section 129
of the Act; area sources subject to
new source performance standards or
national emission standards for
hazardous air pollutants that are
not exempted or deferred from
permitting requirements under title
V.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine whether
your facility is regulated by this action, you should carefully examine
the applicability criteria in section 71.3(a) of the rule. If you have
questions regarding the applicability of this action to a particular
entity, consult the person listed in the preceding FOR FURTHER
INFORMATION CONTACT section or the EPA Regional Office that is
administering the part 71 permit program for the State or area in which
the relevant source or facility is located.
Outline. The information presented in this preamble is organized as
follows:
I. Background
II. Summary of Promulgated Rule
III. Significant Changes to the Proposed Rule
IV. Administrative Requirements
A. Docket
B. Executive Order 12286
C. Regulatory Flexibility Act
D. Paperwork Reduction Act
E. Unfunded Mandates Reform Act
I. Background
A. Background of EPA's Development of the Proposed Part 71 Rule
Title V of the Act requires that if a permits program meeting the
requirements of title V has not been approved for any State by November
15, 1995, EPA must promulgate, administer, and enforce a Federal title
V program for that State (42 U.S.C. section 7661a(d)(3)). Thus, from
the date of enactment of the 1990 Amendments to the Act, EPA was
subject to a 5-year deadline to establish a Federal program for States
that do not obtain EPA approval of their State programs within that
time. The Act had also placed EPA under a 1-year deadline to promulgate
regulations establishing the minimum elements of approvable State
permit programs (42 U.S.C. section 7661a(b)). The EPA promulgated its
regulations establishing these criteria, codified at 40 CFR part 70
(the part 70 rule), on July 21, 1992 (57 FR 32250). States were then to
submit their title V programs for EPA review by November 15, 1993, and
EPA was to approve or disapprove those submitted programs within 1 year
of receiving them (42 U.S.C. section 7661a(d)(1)). Thus, under the
temporal scheme of title V, EPA was to approve or disapprove timely
submitted State title V programs by November 15, 1994, exactly 1 year
before EPA's duty to establish a Federal program for unapproved States
would ripen.
Almost immediately upon promulgation of part 70, numerous industry,
State and local government, and environmentalist petitioners challenged
EPA's final rule in litigation in the Court of Appeals. See Clean Air
Implementation Project v. EPA, No. 92-1303 (D.C. Cir.). Petitioners
identified dozens of issues to which they objected in the part 70 rule,
and EPA decided to conduct broad-based settlement discussions with all
petitioners concerning these issues. These discussions occurred for
over a year following the commencement of the litigation, and resulted
in EPA, with the consultation of all of the litigants, developing
proposed revisions to many provisions in the part 70 rule. These
provisions mainly concerned the flexibility provisions of part 70,
which governed when permits would need to be revised to reflect changes
in operation at sources, and the procedures by which permits would be
revised. On August 29, 1994, EPA published proposed substantial
revisions to part 70 reflecting the outcome of these discussions (59 FR
44460) (hereafter ``August 1994 proposed revisions to part 70''). That
proposal reflected EPA's
[[Page 34203]]
most current thinking at the time concerning the proper implementation
of title V, and departed in numerous respects from positions taken in
the existing promulgated part 70 rule.
When EPA began developing part 71 in the fall of 1993, settlement
discussions concerning part 70 were still ongoing and were yielding
what appeared to be fruitful results. The Agency believed at the time
that any needed revisions to part 70 would be finalized well in advance
of the deadline for establishing any necessary Federal programs, and so
decided to develop part 71 based on contemplated proposed revisions to
part 70, as EPA wished to model part 71 on its long-term implementation
goals for title V, rather than on provisions of a part 70 rule that EPA
did not believe would remain as promulgated in the current rule.
When EPA published its proposed revisions to part 70 in August
1994, the Agency still believed that the revisions would be finalized
in time for EPA to base its part 71 Federal program rule on the revised
part 70. Consequently, when EPA published its proposed part 71
regulations on April 27, 1995, the proposal was based on the August
1994 proposed revisions to part 70 (60 FR 20804; hereafter, ``part 71
proposal''). The part 71 proposal thus contained provisions concerning
critical definitions under title V, the scope of applicability of the
program to sources, requirements governing applications and permit
content, and, most significantly, operational flexibility and permit
revisions that departed from the current part 70 rule's corresponding
provisions. In the proposal notice, the Agency specifically solicited
comment on whether the Agency had appropriately based part 71 upon the
relevant provision of the existing part 70 rule and the recently
proposed revision to part 70. See 60 FR at 20805.
At the time of proposal of part 71, the Agency was aware of many
adverse comments on the August 1994 proposed revisions to part 70, and
EPA had engaged in discussions with stakeholders to obtain
recommendations for publishing a supplemental proposal to revise the
flexibility provisions of part 70. See 60 FR at 20805, 20817. The part
71 proposal notice indicated that the Agency believed it might not be
possible to promulgate final permit revision procedures for part 71, in
light of the ongoing discussions to develop part 70 permit revision
procedures in time to meet the statutory deadline for establishing
Federal programs in States lacking approved part 70 programs. As a
result, the notice suggested that EPA may have to finalize the part 71
rule in two phases, the first without any provisions for revising
permits, which would be addressed in a later supplemental proposal. Id.
Indeed, EPA's supplemental proposal for both parts 70 and 71, published
on August 31, 1995, described how part 71's future permit revision
procedures would be modelled upon the part 70 procedures for permit
revisions proposed in that notice (60 FR 45530; hereafter, ``August
1995 supplemental proposal'').
B. The Need for Part 71 To Facilitate Transition
In the part 71 proposal notice, EPA stressed the need for
implementation of part 71 to facilitate a smooth transition to State
implementation of title V through approved part 70 programs. See 60 FR
at 20805, 20816. The EPA continues to believe that Congress envisioned
that States would have primary responsibility for implementing title V,
just as they do for implementing much of the rest of the Act. See, for
example, section 101(a)(3) of the Act, in which Congress found that air
pollution prevention and air pollution control at its source is the
primary responsibility of States and local governments (42 U.S.C.
section 7401(a)(3)). Note also that under title V of the Act, Congress
gave States the initial opportunity to develop and administer title V
programs, while directing EPA to function as a backstop if States are
unable to adopt provisions under State law to take on title V
responsibilities, rather than directing EPA to establish the Federal
program first and then allowing States to apply to take over title V
administration, as under prior permitting programs such as the
prevention of significant deterioration (PSD) and the national
pollutant discharge elimination system (NPDES) under the Clean Water
Act.
The EPA believes that granting States primary responsibility to
implement title V makes good policy sense. States are far better
positioned than EPA to administer permitting programs covering their
resident sources for several reasons. First, States are more familiar
with the operational characteristics of resident sources, and with the
applicable requirements to which they are subject. In having had the
lead on developing State implementation plans (SIP's) and implementing
other provisions of the Act that apply to these sources, States have
developed substantial expertise in, among other things, running air
permit programs that govern new construction and changes in emissions
of air pollutants such as the new source review (NSR) and PSD programs.
States have developed enforcement programs based on this structure, and
are able to coordinate their permitting programs with the goals and
needs of their overall air pollution control programs. Finally,
compared to EPA Regional offices, States are simply closer to their
sources, have greater resources, and are better able to respond to the
regulated community and its needs for expeditious permit processing.
In light of this, EPA has repeatedly stated its belief that
federally-implemented part 71 programs would be of short duration,
lasting only until the few remaining States that have not developed
approvable part 70 programs are able to submit title V programs that
meet the requirements of the Act. Rather than viewing part 71 only as a
means of exerting leverage in States that have not yet adopted adequate
part 70 programs, EPA has also viewed part 71 as an opportunity to aid
States in taking up responsibility to implement title V. To this end,
EPA has attempted to structure the rule so that States in which part 71
programs are established will be able to use the program as an aid to
adopting and implementing their own part 70 programs. For example,
today's rule provides that States can take delegation of administration
of the Federal program in their States. If a State that for whatever
reason has not been successful in developing its own statutes and
regulations to implement title V is nevertheless capable of running a
Federal program, EPA sees no reason not to offer the State the
opportunity to more efficiently run the permit program than EPA
believes the Agency could. The EPA also believes that the experience of
running the Federal program may assist States in overcoming any
remaining hurdles that have so far prevented them from adopting
adequate title V programs under State law.
C. Basing Part 71 on the Part 70 Program
In the part 71 proposal notice, EPA stated its view that it is
appropriate to model part 71 procedures on those required by part 70,
in order to promote national consistency between title V programs that
are administered throughout the country. See 60 FR at 20816. Such
national consistency would ensure that sources are not faced with
substantially different programs simply because EPA, as opposed to
State agencies, is the relevant title V permitting authority, would
promote uniformity in affected State and public participation, and
would provide a level playing field for sources. Basing part 71 on part
70 would also encourage States
[[Page 34204]]
that are still developing their title V programs to take delegation of
the part 71 program, as it would be more consistent with the programs
they are preparing to implement under State law. States taking
delegation would in turn ensure smoother transition to State
administration of part 70 programs, as sources would have already
become familiar with the State as the title V permitting authority and
would not need to restart their permit application process anew when
the State program receives EPA approval.
Since at the time the part 71 proposal was being developed it
appeared to EPA that part 70 would soon be revised in many significant
respects, EPA chose to base the proposal upon the recent proposed
revisions to part 70, rather than on the existing promulgated rule.
This was due in part to the fact that the August 1994 proposed
revisions to part 70 addressed a number of basic issues under title V
that necessarily would govern how those issues are addressed in part 71
(such as the definition of major source and the necessary provisions to
implement section 502(b)(10) of the Act), and in part to the Agency's
wish to provide in the Federal rule many of the benefits of the August
1994 proposed revisions to part 70. As noted above, however, EPA
specifically asked commenters to address whether EPA had
inappropriately either followed or departed from the approaches taken
in both the current part 70 rule and its proposed revisions.
Echoing their comments on the August 1994 proposed revisions to
part 70, industry commenters unanimously argued that the permit
revisions procedures contained in the part 71 proposal were too complex
and confusing and would hinder sources' abilities to make rapid changes
in response to market needs. In addition, most industry commenters
presented three general arguments in response to EPA's proposal to
establish a uniform national part 71 rule based on the August 1994
proposed revisions to part 70. The first type of argument was that EPA
should not promulgate a uniform national part 71 rule at all, but
rather should develop part 71 programs case-by-case, taking into
account the specific characteristics of the State's existing air
program, and basing the State's part 71 program as much as possible on
the State's part 70 program that it has developed to date and that EPA
had not found to be inadequate. According to this argument, the best
way to facilitate transition from Federal to State implementation of
title V is to make sure the Federal and State programs are virtually
identical in each relevant State, even if that means the Federal
programs would differ from State to State. It would follow that EPA
should approve whatever adequate elements a State had adopted for its
title V program, and then only fill the remaining gaps with Federal
provisions as necessary. This argument also held that section 502 of
the Act actually requires a case-by-case approach to developing part 71
programs for States, and that the Act does not authorize EPA to
promulgate a nationally uniform rule.
While EPA agrees that in theory the smoothest transition from
Federal to State implementation might occur where the Federal program
is identical to the State's, the Agency does not agree that it is
inappropriate to promulgate a nationally uniform rule for part 71. At
the outset, EPA disagrees with the assertion that the Agency lacks
legal authority to establish a nationally uniform rule for part 71.
While section 502(d)(3) of the Act does require EPA to promulgate,
administer and enforce a title V program ``for'' any State that does
not obtain part 70 approval, 42 U.S.C. section 7661a(d)(3), that
language does not compel a separate State-by-State approach to
establishing a Federal title V program; nor does it compel a Federal
program that is based on the State's existing but as yet unapproved
State program. Indeed, EPA would be hard-pressed to base a Federal
program on a State program where no State program has ever been adopted
or submitted for EPA evaluation. Even if a State had adopted and
submitted a program, EPA stresses that the Agency can only evaluate the
adequacy of State programs through notice and comment rulemaking, which
might not occur before a Federal program is due. The EPA believes
Congress must have recognized the possibility that EPA would be called
upon to establish a Federal program even where a State has never
adopted any State program of its own or where a program had not been
submitted in time for EPA to find it adequate; in such situations, it
would be impossible for EPA to base the Federal program on the State's.
The EPA also believes that the resource burden of establishing and
implementing different case-by-case programs for States would overwhelm
EPA Regional offices and establishing a generic template for part 71 is
a far more efficient use of Agency resources to get the Federal program
up and running. The EPA has consequently concluded that a nationally
uniform regulation is necessary for purposes of carrying out the
Agency's functions under title V. Section 301(a)(1) of the Act
authorizes EPA to prescribe such regulations as are necessary to carry
out the Administrator's functions under the Act (42 U.S.C. section
7601(a)(1)). Thus, EPA believes it has ample statutory authority to
establish the most efficient and nationally consistent part 71
regulation possible. Finally, EPA notes that EPA's other permitting
programs under its environmental statutes, such as the NPDES program
and the PSD program, are governed by nationally uniform regulations,
implementation of which have been very successful. The EPA sees no
reason to depart from this established approach for purposes of running
Federal title V programs, especially since Congress clearly did
anticipate that EPA would first address title V through establishing
regulations that would govern the minimum elements of title V programs
to be administered by any air pollution control agency. See section
502(b) of the Act, 42 U.S.C. section 7661a(b).
The second type of industry argument in response to basing the part
71 proposal on the proposed revisions to part 70 stressed that EPA
should delay promulgation of any part 71 rule until the revisions to
part 70 are finalized. This argument pointed out that promulgating part
71 based on the August 1994 proposed revisions to part 70 would result
in the part 71 rule being based on an approach that the Agency itself
had begun to revise in developing the supplemental proposed revisions
to part 70 (which were eventually published just 4 months after the
date of the part 71 proposal). The argument noted that since EPA is
envisioning substantial changes to the part 70 rule, the part 71 rule
should not finalize title V issues that will remain in transition until
the part 70 rule is finally revised. This argument also specifically
responded adversely to EPA's statement in the proposal that it may be
necessary to split finalization of part 71 into two phases in which the
operational flexibility and permit revision procedures would remain
reserved until a second phase. In the view of these commenters, such
provisions are critical components of any part 71 rule that is adopted,
and it would not be appropriate to leave them out of part 71 for any
unspecified time. This argument also stated that finalizing part 71 now
based upon the proposed revisions to part 70 would actually impede
transition to approved State part 70 programs, since the Federal
program, and the approved State program based on the current part 70
that replaces it, would take very different approaches to such
fundamental issues as applicability of the program, operational
flexibility
[[Page 34205]]
and permit revision procedures. Finally, this argument offered a theory
that title V actually does not require EPA to adopt part 71 programs
for States until May 15, 1997; under this theory, a commenter argued
that the Act actually gives States until May 15, 1995, rather than
November 15, 1993, to submit initial title V programs, since States
have 18 months following the first ``due date'' to submit any remedies
to deficient programs and avoid sanctions that would fall after that
18-month period. The commenter would interpret the date on which the
18-month period expires as the date referred to in section 502(d)(3)
and argues that EPA is not required to promulgate a Federal program
until 2 years after the expiration of the 18-month period.
First, EPA is not persuaded by the commenter's argument that part
71 programs are not due until May 15, 1997. Section 502(d)(1) of the
Act clearly provides that States are to submit their title V programs
``[n]ot later than 3 years after the date of enactment of the Clean Air
Act Amendments of 1990,'' 42 U.S.C. section 7661a(d)(1), which occurred
on November 15, 1990. Moreover, section 502(d)(3) clearly refers to
``the date required for submission of such a program under paragraph
(1) (of section 502),'' 42 U.S.C. section 7661a(d)(3), as the trigger
for the 2-year period after which EPA must establish Federal programs.
There is no reference to any 18-month grace-period in section
502(d)(3), and EPA disputes the assertion that the date on which a
sanctions clock expires under section 502(d)(2) can be viewed as the
``real'' deadline for submission of State programs in the face of the
plain language of section 502(d)(1) and section 502(d)(3)'s reference
to the deadline in section 502(d)(1). Thus, while EPA is sympathetic to
concerns that finalizing part 71 in advance of the Agency finally
revising part 70 could result in the Agency promulgating provisions
that are essentially moving targets in the Federal rule, EPA does not
believe it has the authority to delay issuance of part 71 beyond the
deadline prescribed by Congress. Moreover, as a policy matter, EPA
believes it is necessary to put part 71 in place to aid States that to
date have unsuccessfully struggled to develop approvable title V
programs, as it is a potential vehicle for State administration of
title V (through delegation of part 71) even where obstacles remain
that block certain States from obtaining part 70 approval. The EPA does
not believe that the environmental benefits of title V should be
delayed simply due to the fact that some States have not been
successful at developing title V programs. Moreover, EPA does not feel
it would be appropriate to attempt to justify delaying promulgation and
implementation of the Federal program because of the continuing
difficulties in revising the part 70 rule. However, EPA is persuaded by
commenters that the part 71 rule should not contain gaps to be filled
in at a second stage for provisions for operational flexibility and
permit revisions, and is sympathetic to concerns that basing these
provisions on the August 1994 proposed revisions to part 70 might even
interfere with transition to State programs approved under the current
part 70 rule. These latter points are discussed in more detail below.
The third general type of industry argument in response to basing
part 71 on the August 1994 proposal was that if EPA must establish a
Federal program now, it should do so based on the existing part 70
rule, and revise the program later when part 70 is revised. This
argument recognized that EPA may simply be unable in certain cases to
base a State-specific part 71 program on an existing State program, but
stressed the fact that any program that the State is still struggling
to adopt would be based on the existing part 70 rule, rather than on
the proposed revisions thereto. The argument pointed out the fact that
under the August 1994 proposed revisions to part 70, EPA planned to
allow States several years following final promulgation before States
would be expected to implement new part 70 programs based on the
revised rule. Thus, commenters observed, States would likely be
developing and implementing part 70 programs based on the July 1992
rule for considerable time. In light of this, it would actually
interfere with smooth transition from Federal to State implementation
to base part 71 on the future part 70 rule, especially in light of the
fact that at this point how part 70 will be ultimately revised is only
speculative; rather, transition could be facilitated only where the
Federal rule resembles the model that the State rule is expected to
follow. States might be less inclined to take delegation of a Federal
rule that does not resemble existing part 70 and the State analogues
that are being developed, and thus sources would be more likely to be
faced with different permitting authorities under part 71 and part 70
programs. Moreover, the relevant guidance that EPA had issued to date
to aid implementation of the current rule, such as the Agency's ``White
Paper for Streamlined Development of Part 70 Permit Applications''
(herein referred to as the ``first white paper'') and the March 5, 1996
guidance document entitled ``White Paper Number 2 for Improved
Implementation of the Part 70 Operating Permits Program, could be less
valuable as an aid in implementing a Federal rule that is not based on
the current part 70, and both sources and part 71 permitting
authorities could be forced to start somewhat from scratch in
implementing the program.
The EPA agrees that the most appropriate course of action is to
promulgate, on an interim basis, part 71 based on the current part 70
rule. In reaching this conclusion, EPA was persuaded by concerns about
impeding transition to part 70 approval under the current rule and by
industry concerns about issuing a rule containing gaps regarding
operational flexibility and permit revisions. Moreover, as many issues
in part 70 are still outstanding following the August 1994 and August
1995 proposals, and as many of those issues concern key definitions and
procedures under title V, it would be premature for EPA to finalize
part 71 based upon the proposed revisions to part 70 until it makes
final decisions on these issues in part 70. Thus, the only way EPA can
fulfill its mandate to step in as the title V permitting authority for
States that have not obtained part 70 approval at this time, and to do
so by establishing a complete part 71 program that provides the
flexibility needed by industry and mandated by title V, is to
promulgate the rule based upon the current part 70 regulation. The EPA
stresses, however, that by finalizing this interim approach in part 71,
the Agency does not preclude itself from revising part 71 in the future
as based on appropriate aspects of either the August 1994, April 1995,
or August 1995 proposals for parts 70 and 71. In fact, EPA intends to
issue a second round of final rulemaking for part 71 (hereafter ``phase
II rulemaking) in the future once the Agency has resolved with relevant
stakeholders the outstanding issues and is prepared to promulgate final
revisions to part 70. As a general matter, EPA stresses that the most
current reflection of the Agency's intended policy regarding many of
these provisions is the August 31, 1995 supplemental proposal.
Consequently, while the provisions adopted today in part 71 that relate
to outstanding issues under the definitions, applicability, permit
application, permit content, permit revisions and reopenings, and
affected State and EPA review sections are consistent with the
corresponding
[[Page 34206]]
provisions in the existing part 70 rule, rather than with provisions in
the proposals mentioned above, it should be expected that EPA will
issue a second final rulemaking, without a second round of proposal, to
conform part 71 to the revised part 70 rule when the Agency is prepared
to issue it.
The EPA believes that this approach is a logical outgrowth of the
part 71 proposal issued in April 1995. While that proposal only
contained regulatory provisions based on the August 1994 proposed
revisions to part 70, EPA explicitly solicited comment on whether the
proposal was in any way inappropriately inconsistent with the current
part 70 rule. Clearly, the commenters noted such inconsistencies, and
the proposal facilitated meaningful comment on what approach the Agency
should take in promulgating part 71 vis-a-vis the outstanding issues in
the part 70 revision process. As discussed above, the proposal enabled
industry commenters to fall into three basic categories in response to
the proposal--in fact, many commenters advanced more than one of the
basic types of arguments in their comments, realizing that the
different arguments might have different force depending upon the
extent to which States had actually developed and submitted their own
programs. The approach adopted today was urged by numerous industry
commenters as the most reasonable in light of the need to issue a part
71 program now, as opposed to leaving gaps to be filled in later at a
second stage of final rulemaking. In addition, today's rule is
consistent with the existing part 70 rule under which States continue
to submit programs, and under which EPA continues to approve those
programs. Thus, EPA does not believe that a second round of proposed
rulemaking is necessary before finalizing part 71 to conform to the
Agency's currently effective regulation implementing title V, part 70.
In the following sections of this notice, the specific provisions
that are being finalized based upon current part 70 rather than upon
the provisions of the part 71 proposal are identified and further
discussed. For each of them, the general governing principle is that
while the Agency has proposed to revise part 70 to modify many of the
provisions corresponding to the part 71 provisions adopted today, EPA
is not yet prepared to adopt final positions on those issues and so, in
the interests of promoting smooth transition from Federal to State
implementation of title V, is choosing to issue, on an interim basis, a
part 71 rule that matches as closely as possible the existing part 70
rule. The EPA's finalization of those provisions today in no way
reflects the Agency's ultimate decision to renounce any of the
positions articulated in the proposed revisions to part 70 or the
corresponding proposals for part 71.
II. Summary of Promulgated Rule
A. Applicability
The Federal operating permits program requires all part 71 sources
to submit permit applications to the permitting authority no later than
within 1 year of the effective date of the program. The operating
permit program applies to the following sources:
1. Major sources, defined as follows:
a. Air toxics sources, as defined in section 112 of the Act, with
the potential to emit 10 tons per year (tpy), or more, of any hazardous
air pollutant (HAP) listed pursuant to 112(b); 25 tpy, or more, of any
combination of HAP listed pursuant to 112(b); or a lesser quantity of a
given pollutant, if the Administrator so specifies (501(2)(A)).
b. Sources of air pollutants, as defined in section 302, with the
potential to emit 100 tpy, or more, of any pollutant (501(2)(B)).
c. Sources subject to the nonattainment area provisions of title I,
part D, with the potential to emit, depending on the nonattainment area
designation 10 or more tpy of volatile organic compound (VOC) or oxides
of nitrogen, 50 or more tpy of carbon monoxide, and seventy or more tpy
of particulate matter (501(2)(B)).
2. Any other sources subject to a standard under section 111 or
112.
3. Sources subject to the acid rain program (501(1)).
4. Any source subject to the PSD program or the NSR program under
title I, part C or D.
5. Any other stationary source in a category EPA designates, in
whole or in part, by regulation, after notice and comment.
For purposes of determining applicability, a source's total
emissions of a pollutant are found by summing the potential emissions
of that pollutant from all emissions units under common control at the
same plant site. If a source is a major source, even if only due to the
total emissions from one pollutant, then a source must submit (with few
exceptions) a permit application that includes all emissions of all
regulated air pollutants from all emissions units located at the plant.
Part 71 follows the approach of part 70 in deferring nonmajor
sources from permitting requirements. The permitting requirements for
nonmajor sources subject to a standard under section 111 or 112 of the
Act prior to July 21, 1992 are deferred for 5 years from the effective
date of the first approved part 70 program that deferred nonmajor
sources. The EPA may determine on a case-by-case basis permitting
requirements for nonmajor sources when they become subject to new
section 111 or 112 standards. Sources subject to the new source
performance standard for new residential wood heaters or the national
emission standards for hazardous air pollutants for asbestos as it
applies to demolition and renovation activities are permanently exempt
from permitting requirements.
B. Program Implementation
The EPA will administer a part 71 program for those portions of a
State that lack EPA approval for its operating permits program or for a
State that fails to adequately administer and enforce an approved
program. However, the requirement that EPA establish a Federal program
for States lacking a fully approved program is suspended if a State
program is granted interim approval. The EPA will also administer part
71 programs in Tribal areas. Should a part 71 program become effective
prior to the issuance of part 70 permits to all sources (under an
approved part 70 program), EPA will require part 71 permit applications
from sources that have not received part 70 permits. Applications shall
be due within a year of the effective date of the part 71 program. The
EPA will take final action on at least one-third of the applications
annually.
Section 71.4 also establishes procedures that would be used for
issuing permits to certain sources located on the Outer Continental
Shelf (OCS) and after EPA objects to a proposed or issued State permit.
The EPA may also delegate the responsibility for administering the
part 71 program to the State or eligible Tribe if the requirements of
section 71.10 have been met. However, delegation will not constitute
approval of a State or Tribal operating permits program under part 70.
The EPA will suspend the issuance of part 71 permits upon
publication of notice of approval of a State or Tribal operating
permits program under part 70. The EPA or the delegate agency will
continue to administer and enforce part 71 permits until they are
replaced by permits issued under the approved part 70 program.
The EPA will publish a notice in the Federal Register informing the
public of the effective dates or delegation of any part 71 programs for
States, Tribal areas,
[[Page 34207]]
and OCS sources. Where practicable, EPA will also publish notice in a
newspaper of general circulation within the area subject to the part 71
program and will notify the affected government.
C. Permit Applications
Each source meeting the applicability criteria of this part is
required to submit timely and complete information on standard
application forms provided by the permitting authority. Streamlined
forms for electronic formats may be provided.
An initial part 71 permit application is required within 12 months
of the later of:
1. The effective date of this part in a State, Tribal area, or OCS
area where a source is located, unless the source has an existing part
70 permit;
2. The expiration of any deferral for a nonmajor source;
3. The date a source commences operation; or
4. The date a source meets any of the applicability criteria of
section 71.3.
Sources with part 70 permits in force at the time part 71 becomes
effective in the area where they are located would not have to apply
for a part 71 permit until their part 70 permit expires. Prior to its
expiration, the part 70 permit may be modified by EPA.
Sources would be notified of the requirement to submit an
application at least 180 days prior to when the application is due.
The permitting authority will perform a completeness determination
within 60 days of receipt of an application, or the application will be
deemed complete by default. A complete application would contain all
the information needed to begin processing the permit application,
including, at a minimum, a completed standard application form (or
forms) and a compliance plan.
The compliance plan describes how the source plans to maintain or
to achieve compliance with all applicable air quality requirements
under the Act. This plan must include a schedule of compliance and a
schedule for the source to submit progress reports to the permitting
authority. Each source must submit a compliance certification report in
which it certifies its status with respect to each requirement, and the
method used to determine the status.
Each operating permit application, report, or compliance
certification submitted pursuant to part 71 must include a
certification signed by a responsible official attesting to the truth,
accuracy, and completeness of the information submitted.
Applicants may be required to update information in the application
after the filing date and prior to the release of the draft permit.
D. Permit Content
Part 71 permits must meet all applicable requirements of the Act
and, among other things, must contain:
1. A 5-year term for acid rain sources, up to a 12-year term for
certain municipal waste combustors, and up to a 5-year term for all
other sources.
2. Limits and conditions to assure compliance with all applicable
requirements under the Act.
3. A schedule of compliance, where applicable.
4. Inspection, entry, monitoring, compliance certification,
recordkeeping, and reporting requirements to assure compliance with the
permit terms and conditions.
5. A provision describing permit reopening conditions.
6. Provisions under which the permit can be revised, terminated,
modified, or reissued for cause.
7. Provisions ensuring operational flexibility so that certain
changes can be made within a permitted facility without a permit
revision.
8. A provision that nothing in the permit or compliance plan
affects allowances under the acid rain program.
All terms and conditions in a part 71 permit, including any
provisions designed to limit a source's potential to emit, are
enforceable by the Administrator and citizens under the Act.
Like part 70, part 71 would allow sources to apply for a permit
shield, i.e., a provision in the permit that states that if the source
complies with terms and conditions of the permit, the source shall be
deemed in compliance with any applicable requirements reflected in the
permit as of the date of permit issuance.
E. Permit Issuance and Review
Regulations concerning the processes for permit issuance, review,
renewal, revision, and reopening are found in sections 71.7 and 71.11.
Briefly, these include:
1. Action on Applications for Permit Issuance and Permit Renewal
Section 71.7(a) describes the conditions that must be satisfied
before EPA or a delegate agency may issue a permit. These include
receipt of a complete application, compliance with public participation
requirements, and notification of affected States, Indian Tribes, and
EPA (if the program has been delegated). Except during the initial
phase-in of the program, the permitting authority is required to act on
permit applications within 18 months after receiving a complete
application.
The timely submittal of a complete application and any additional
required information creates a ``shield'' against enforcement for
failure to have a part 70 or part 71 permit. Permits being renewed are
subject to the same procedural requirements that apply to initial
permit issuance, as provided in section 71.7(c). The administrative
procedures for permit issuance are contained in section 71.11 and are
generally based on analogous provisions governing other EPA permitting
programs at 40 CFR part 124.
2. Permit Revisions
Sections 71.7 (d) and (e) outline the mechanisms for permit
modification and administrative amendments that are needed to revise
part 71 permits to accommodate changes that would otherwise violate
terms and conditions of the permit.
Administrative amendments can be accomplished by the permitting
authority without public or EPA review. These permit revisions include
correction of typographical errors, changes in address or source
ownership, as well as incorporation of requirements established under
State preconstruction review that meet certain procedural and
compliance requirements.
If a change is not prohibited or addressed by the permit, the
permittee may make the change after submitting a notice, and the permit
is revised at renewal.
The regulations establish minor and significant permit modification
procedures for changes that go beyond the activities allowed in the
original permit or that increase the total emissions allowed under the
permit.
Minor permit modifications reflect increases in permitted emissions
that do not amount to modifications under any requirement of title I
and that do not meet certain other requirements. Minor permit
modification procedures require a source to provide advance notice of
the proposed change, but allow a change to take effect prior to the
conclusion of the revision procedures.
A source that makes a change before the minor permit modification
has been issued does so at its own risk. It is not protected from
underlying applicable requirements by any shield. It is only afforded a
temporary exemption from the formal requirement that it operate in
accordance with the permit terms that it seeks to change in its
modification application. Should the proposed permit modification be
rejected, the source would be subject to enforcement
[[Page 34208]]
proceedings for any violation of these requirements.
Significant permit modifications are inherently more complex, and
will require additional time to accomplish. Permitting authorities will
initiate their review of the proposed changes after receipt of an
application.
Sources subject to requirements of the acid rain program must hold
allowances to cover their emissions of sulfur dioxide (SO2).
Allowance transactions registered by the Administrator will be
incorporated into the source's permit as a matter of law, without
following either the permit modification or amendment procedures
described above.
3. Reopening for Cause
The permitting authority may terminate, modify, or revoke and
reissue a permit for cause. Reopening and reissuing procedures follow
the same procedures as apply to initial issuance. Advance notice is
required before permit reopenings may be initiated.
Section 71.7(f) requires that permits issued to major sources with
3 or more years remaining in the permit's term be reopened to
incorporate applicable requirements which are promulgated after the
issuance of the permit. Revisions must be made as expeditiously as
practicable, but no later than 18 months after the promulgation of such
additional requirements.
4. Permit Notification to EPA and Affected States
Consistent with 40 CFR section 70.8(b), EPA or the delegate agency
would be required to provide notice of draft permits to all affected
States and to certain Indian Tribes.
Affected States are those whose air quality may be affected and
that are contiguous to the State in which the source is located, or
that are within 50 miles of the source. The permitting authority must
give affected States an opportunity to submit written recommendations
for the permit and notify any affected State in writing of any refusal
to accept all of its recommendations.
Although Indian Tribes are not considered affected States unless
they establish their compliance with criteria for being treated in the
same manner as States pursuant to section 301(d) of the Act, the Agency
believes federally recognized Tribes should be given notice of draft
permits that may be issued to sources that could affect Tribal air
quality. The regulation requires that the permitting authority send
such notices.
The Act authorizes EPA to object to any permit that would not be in
compliance with the applicable requirements of the Act. In the case of
a delegated program, the permitting authority may not issue a part 71
permit if the Administrator has objected to its issuance in writing
within 45 days of receipt of the proposed permit.
5. Administrative and Judicial Review
After the close of the public comment period on a draft permit, the
permitting authority will issue a final permit decision. Within 30 days
of the final permit decision, anyone who filed comments on the draft
permit or participated in the public hearing may petition the
Environmental Appeals Board (EAB) to review any condition of the
permit. In general, the objections in the petition must have been
raised during the public participation period on the permit. The
petition will stay the effectiveness of the specific terms of the
permit which are the subject of the request for review, pending
conclusion of the appeal proceedings.
The EAB will 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 and are subject to judicial
review in the United States Court of Appeals under section 307(b) of
the Act. The decision of the EAB to issue or deny the permit is also
subject to judicial review.
Interested persons (including permitees) are authorized to petition
the Administrator to reopen an already issued permit for cause.
Petitions would be required to be in writing and to contain facts or
reasons supporting the request.
F. Permit Fees
Section 71.9 establishes the Federal operating permits program fee
requirements for owners or operators of part 71 sources. The fees must
be sufficient to cover the permits program costs, including the
following:
1. Reviewing and acting on any permit, permit revision, or permit
renewal, and processing permit reopenings.
2. Administering the permit program.
3. Implementing and enforcing the terms of any part 71 permit.
4. Monitoring, modeling, manipulating, and tracking emissions.
5. Providing support to small business stationary sources.
Consistent with the two-phased approach to part 71 promulgation
described in this notice, EPA is today implementing a two-phased
approach to part 71 fee requirements. Phase I fee collection will be
sufficient to cover Phase I costs. Since Phase II fee collection is
associated with permit revision procedures, a fee amount for Phase II
cannot be finalized in today's rule. The Phase II fee will add the
costs for the permit revision procedures that are finalized in that
rulemaking.
The dollar per ton fee will vary depending on the implementation
mechanism EPA uses to administer a part 71 program. A program that is
administered completely by EPA would charge $32 per ton per year (ton/
yr). Permit fees for a program for which EPA relies on contractor
assistance to the greatest extent possible would be approximately $57
per ton/yr. Program costs (and fees) would vary among part 71 programs
depending on the hourly rate paid to the contractor for its work on the
particular State's part 71 program. The costs of a program that is
staffed in part by EPA employees and in part by contractors or by the
delegate agency would vary in accordance with the percentage of
personnel time allocated to non-EPA staff and the hourly rate paid to
the contractor for its work on the State's part 71 program.
The EPA may suspend collection of part 71 fees for part 71 programs
which are fully delegated to States and for which EPA incurs no
administrative costs.
The EPA may promulgate a separate fee schedule for a particular
part 71 program if the Administrator determines that the fee schedule
in the rule does not adequately reflect the cost of administering the
program.
Sources are required to submit fee calculation worksheets and fees
at the same time as their initial permit applications are due and
thereafter on an annual basis.
Part 71 program costs and permit fees will be reviewed by the
Administrator at least every 2 years, and changes will be made to the
fee schedule as necessary to reflect permit program costs.
G. Federal Oversight of Delegated Programs
Section 71.10 establishes the procedures EPA would follow when
delegating the authority to administer a part 71 program to a State,
eligible Indian Tribe, or other air pollution control agency. The EPA
will delegate authority to run the program where possible in order 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 program
that would be delegated.
[[Page 34209]]
A delegate agency must submit a formal request for delegation and
other documentation that shows the agency or eligible Tribe has
adequate legal authority and capacity to administer and enforce the
part 71 program. If the request for delegation is accepted, EPA and the
delegate agency will enter into an agreement that sets forth the terms
and conditions of the delegation.
As part of its oversight of delegated programs, EPA would review
copies of applications, compliance plans, proposed permits and final
permits that the delegate agency would be required to send to EPA. The
EPA would have 45 days in which to review proposed permits. If EPA
objects to the issuance of a permit within that time, the delegate
agency would be required to revise and resubmit the proposed permit to
EPA.
Delegation of a part 71 program would not relieve a State of its
obligation to submit an approvable part 70 program, nor from any
sanctions that the Administrator may apply for the State's failure to
have an approved part 70 program.
H. Enforcement
The Federal enforcement authority available under section 113 of
the Act for violations of title V and the regulations thereunder
provides broader enforcement authority than States are required to have
under the part 70 regulations. Examples of the Federal enforcement
authorities available under the Act include, but are not limited to,
the authority to: (1) restrain or enjoin immediately 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
administrative orders that assess civil administrative penalties; (4)
assess and recover civil penalties; and (5) assess criminal fines.
III. Significant Changes to the Proposed Regulations
A. Section 71.2--Definitions
The Agency has adopted definitions in today's rulemaking that are
consistent with and are mainly modelled on corresponding definitions in
the current part 70 rule, rather than on the part 71 proposal.
Consequently, many of the definitions adopted today differ from those
contained in the part 71 proposal which were largely based upon the
August 1994 proposed revisions to corresponding definitions in part 70
which the Agency is not yet prepared to finalize.
Several definitions found in the proposed section 71.2 have been
revised to conform more closely to the definitions used in the current
part 70 rule. These include ``affected State,'' ``applicable
requirements,'' ``final permit,'' ``major source,'' ``permit
revision,'' ``permitting authority,'' and ``responsible official,''
each of which is discussed briefly below. Similarly, EPA adopted
definitions for ``permit modification'' and ``section 502(b)(10)
change'' from the current part 70 rule, because these terms are
integral parts of today's rulemaking, which is based on the existing
part 70 regulations. Also, several definitions in the part 71 proposal
describe terms and concepts that the Agency has concluded are either
not necessary or are not ready to be finalized in today's rulemaking.
The terms for which EPA has not adopted a definition include
``insignificant activity or emissions,'' ``major new source review,''
``minor new source review,'' ``potential to emit,'' ``title I
modification,'' and ``Tribal area.'' To the extent these proposed terms
were based on the August 1994 proposed revisions to part 70, EPA will
finally address them in the Phase II rulemaking.
In addition, the Agency has retained several definitions found in
the part 71 proposal that are not found in the current part 70 rule,
but are needed for part 71. These include definitions for ``delegate
agency,'' ``part 71 permit,'' ``part 71 program,'' and ``part 71
source.'' The Agency has also adopted definitions for ``eligible Indian
Tribe,'' ``Federal Indian reservation,'' and ``Indian Tribe,'' which
were added to clarify which Tribes would be eligible to receive
delegation of the part 71 program and to be considered ``affected
States.''
The part 71 proposal and the August 1995 supplemental proposal
reflect the Agency's position on what definitions would be appropriate
in conjunction with the permit revision procedures, operational
flexibility provisions, and other provisions that have been proposed
for finalization in the Phase II rulemaking. Subsequent to reviewing
all of the comments on both of these proposals, EPA may finalize
definitions that differ from those adopted today.
1. Affected States
a. Indian Tribes. The EPA received numerous comments from Indian
Tribes suggesting that federally recognized Indian Tribes should be
considered to be ``affected States'' if their air quality may be
affected or the Tribal area is contiguous to the State in which the
permittee is located or is within 50 miles of the permittee. They
contended that Tribes should not have to meet any type of eligibility
criteria in order to be considered an ``affected State.'' Contrary to
the view of these commenters, the EPA interprets section 301(d)(2) of
the Act as authorizing the Agency to treat Indian Tribes in the same
manner as a State for purposes of being an ``affected State'' only when
EPA has determined that the Indian Tribe has demonstrated that it has
met the eligibility criteria of section 301(d)(2) of the Act. The
second paragraph of the proposed definition of ``affected State'' was
inconsistent with this interpretation in that it would have treated
Tribes in the same manner as States if the permitting action concerned
a source located in a Tribal area, regardless of the Tribe's
eligibility status. Therefore, EPA has amended this paragraph to
include the same eligibility requirement as the first paragraph. That
is, that the Indian Tribe must have demonstrated that it has met the
eligibility criteria of section 301(d)(2). However, in the interest of
furthering government-to-government relationships with Tribes, EPA has
adopted a provision in section 71.8 that requires the part 71
permitting authority to provide notice of draft permits to any
federally recognized Indian Tribe whose air quality may be affected by
the permitting actions and whose reservation or Tribal area is
contiguous to the jurisdiction in which the part 71 permit is proposed
or is within 50 miles of the permitted source. (See discussion at
section III.G. of this notice.)
b. Local agencies. The proposed definition of ``affected State'' in
the part 71 proposal added language not found in the current part 70
definition of ``affected State'' to the effect that, when a part 71
permit, permit modification, or permit renewal is proposed for a source
located within the jurisdiction of a local agency, that agency would be
considered an affected State. Today's rulemaking retains this approach
because it pertains to a situation which is unique to part 71, i.e.,
when EPA administers a part 71 program in an area where the local
agency would normally be the permitting authority of record under an
approved part 70 program. The proposal also differed from today's
rulemaking in that under the proposal, local agencies would not
otherwise be considered affected States. Since the approach taken to
such jurisdictions is an issue for both parts 70 and 71, it will be
addressed in the Phase II rulemaking. In the interim, the proposed
language has been deleted to comport with the current part 70
definition.
[[Page 34210]]
2. Applicable Requirements
The part 71 proposal expanded the part 70 definition of
``applicable requirement'' to include the provision that any
requirement enforceable by the Administrator and by citizens under the
Act which limits emissions for the purpose of creating offset credits
or avoiding any applicability requirement is itself an applicable
requirement. This addition, while helpful for understanding what
constitutes an applicable requirement, was based on the August 1994
proposed revisions to part 70, which EPA is not yet prepared to finally
promulgate. As such, EPA believes it is not appropriate to finalize
this change for purposes of part 71 at this time, but intends to
address this issue in the Phase II rulemaking. It was therefore deleted
to comport with the current part 70 definition.
The definition of ``applicable requirement'' in the part 71
proposal also differed from the definition in the current part 70 rule
in that it limited the title VI requirements that would have to be
included in a title V permit. This proposed language, while consistent
with the August 1994 proposed revisions to part 70, which, again, EPA
is not yet prepared to finalize, was removed so that the definition
would conform to the definition in the current part 70 regulation.
3. Final Permit
The proposal contained a proposed definition of ``final action or
final permit action.'' The final rule changes this term to ``final
permit'' in order to better harmonize the definition with the term
``final permit'' in the current part 70 regulation promulgated at
section 70.2.
4. Major Source
The proposed part 71 rule contained a definition of ``major
source'' that was based on the proposed change to the term contained in
the August 1994 proposed revisions to part 70. Since publication of the
part 71 proposal, EPA has also proposed additional changes to the term
in the August 1995 supplemental proposal for parts 70 and 71. The EPA
is currently in the process of reviewing, evaluating and developing
positions in response to comments on this very important term and other
issues raised in the August 1995 proposal. Consequently, EPA is not yet
prepared to promulgate part 71 in general, or the major source
definition in particular, as based on the August 1994, April 1995 or
August 1995 proposals. The only exception to this approach is in regard
to source categories for which fugitive emissions are to be counted in
determining whether a source is a major source under section 302 of the
Act.
Consistent with PSD and nonattainment NSR, current part 70 requires
the counting of fugitive emissions from source categories which have
been listed pursuant to section 302(j) in major source applicability
determinations. See the definition of ``major source'' at 40 CFR
section 70.2. The one difference, however, between the list of source
categories under PSD and nonattainment NSR and current part 70 is in
regard to the 27th category of sources that are required to count
fugitive emissions. In parts 51 and 52, the 27th category is stated as
follows:
Any other stationary source category which, as of August 7,
1980, is being regulated under section 111 or 112 of the Act.
In current part 70, the 27th category reads as follows:
All other stationary source categories regulated by a standard
promulgated under section 111 or 112 of the Act, but only with
respect to those air pollutants that have been regulated for that
category;
As can be seen from the above, one of the principal differences
between these two paragraphs is the date of August 7, 1980, which is
specified in the PSD and nonattainment NSR regulations, but is absent
from the current part 70 regulation. The result of this difference is
that part 70 literally requires sources to count fugitives even where
those sources are not required to do so in determining whether they are
major for purposes of PSD or nonattainment NSR. As stated in the
preamble to the August 1994 part 70 proposal, EPA acknowledges that it
did not follow the procedural steps necessary under section 302(j) to
expand the scope of sources in this category for which fugitives must
be counted in part 70 major source determinations. See memorandum of
June 2, 1995, entitled ``EPA Reconsideration of Application of
Collocation Rules to Unlisted Sources of Fugitive Emissions for
Purposes of Title V Permitting,'' from Lydia Wegman, Deputy Director,
Office of Air Quality Planning and Standards, to Regional Air
Directors. Instead of perpetuating this problem by following this
aspect of current part 70, and even though the Agency is not yet ready
to finalize the approach taken in the August 1995 supplemental proposal
for parts 70 and 71, EPA believes that an appropriate interim solution
is to finalize this category similar to how it was proposed in the
April 1995 part 71 proposal and consistent with the provisions in the
PSD and nonattainment NSR regulations. As a result, the 27th category
will read as follows:
Any other stationary source category which, as of August 7,
1980, is being regulated under section 111 or 112 of the Act.
Use of the above language best ensures that, until EPA is prepared to
finalize part 70's proposed revisions, there will be no discrepancy
between the treatment of fugitive emissions under PSD and nonattainment
NSR and the corresponding provision in this phase I part 71 rule. This
language further ensures that sources which are considered major
sources under PSD and nonattainment NSR are also major sources under
part 71. This consistency is compelled by section 501(2) which requires
any stationary source to be considered major under title V if it is a
major source under section 112 or a major stationary source under
section 302 or part D of title I.
It is important to remember that EPA has proposed additional
modifications to the list of source categories, including this 27th
category, in the August 1995 proposal for parts 70 and 71. However, as
EPA is currently in the process of reviewing and evaluating comments
regarding these revisions, EPA cannot at this time finalize any of
these proposed modifications.
The EPA stresses that the definition of major source in today's
rulemaking does not constitute a decision to reject other proposed
changes to the term contained in the recent proposals. Rather, EPA
expects the Phase II part 71 rulemaking to make whatever changes to the
term are necessary in order to maintain harmonization with part 70, if
the part 70 definition of major source is ultimately revised as the
Agency intends. In the meantime, however, in order to avoid delay in
fulfilling the Agency's responsibilities under title V, and in order to
avoid repeating a procedural mistake that occurred in the development
of the first part 70 rule, EPA has concluded, in response to the
commenters, that at this point it is most reasonable to promulgate a
definition that is consistent with the major source definition
contained in the current part 70 rule, except for the 27th category of
sources listed pursuant to section 302(j). As EPA has already told
States that they may receive interim approval of their State programs
even if they do not literally match with current part 70's 27th
category, due to EPA's concession that the Agency did not take the
procedural steps necessary in part 70 to constitute a section 302(j)
rulemaking, EPA believes it is reasonable to take this limited
departure from part 70. The EPA will respond to specific comments on
[[Page 34211]]
the major source definition as proposed in April 1995 and August 1995
in the context of finalizing the Phase II part 71 rule.
5. Permit Modification and Permit Revision
For the purposes of this rulemaking, EPA adopted the definition of
permit modification in the current part 70 regulation and revised the
definition of ``permit revision'' to be consistent with the current
part 70 definition.
6. Permitting Authority
The final rule changes the proposed definition of ``permitting
authority'' to more closely match the definition of the term currently
promulgated at section 70.2.
7. Potential to Emit
Today's rule does not include a final regulatory definition of the
term ``potential to emit.'' The part 71 proposal contained a proposed
definition of potential to emit that was based on the August 1994
proposed revisions to part 70. The current part 70 definition of the
term provides that physical or operational limits on a source's
capacity to emit an air pollutant shall be considered part of the
source's design if the limitation is enforceable by the Administrator.
Under the proposed definition, the phrase ``and by citizens under the
Act'' would have been added. The EPA is still in the process of
evaluating comments on the proposed revisions to part 70 with respect
to this issue, and is not yet prepared to adopt the revision to the
definition into a final rule. Consequently, it is premature to adopt
this change into the final part 71 rule at this time.
In addition, EPA also received substantial adverse comment on the
proposed requirement that limitations on potential to emit be
enforceable by the Administrator (i.e., ``federally enforceable'').
Industry commenters noted that EPA's policy on Federal enforceability
was the subject of several pending lawsuits against the Agency in the
Court of Appeals. These commenters have long held that emissions
limitations enforceable under State law should not have to be federally
enforceable in order to be considered part of a source's physical or
operational design and a valid limit on potential to emit. These
commenters also urged EPA to codify the Agency's January 25, 1995,
memorandum in which EPA stated it would not require certain sources
that otherwise have the potential to emit an air pollutant in major
amounts to obtain permits under state part 70 programs. See, memorandum
of January 25, 1995, entitled ``Options for Limiting the Potential to
Emit (PTE) of a Stationary Source Under Section 112 and Title V of the
Clean Air Act (Act),'' from John Seitz, Director, Office of Air Quality
Planning and Standards, to Regional Air Division Directors (hereafter
``January 25, 1995 memorandum from John Seitz'').
Since the close of the comment period, the U.S. Court of Appeals
for the District of Columbia Circuit has ruled on two occasions that
EPA in two separate regulations had failed to explain why the Agency
had adopted a restrictive interpretation of ``potential to emit.'' See
National Mining Association v. EPA, 59 F.3d 1351 (D.C. Cir. July 21,
1995), and Chemical Manufacturers Association v. EPA, No. 89-1514 (D.C.
Cir. Sept. 15, 1995). In response to these rulings, EPA has begun a
rulemaking effort that would consistently apply to all of its
regulations and programs that base applicability on sources' potential
to emit. This rulemaking will address potential to emit not only in the
regulations that were the subject of the two court rulings (EPA's
``General Provisions'' regulations under section 112 of the Act
promulgated at 40 CFR part 63, and the NSR and PSD regulations at parts
51 and 52), but also to parts 70 and 71.
In the meantime, however, the Agency believes it would not be
appropriate to delay issuance of the part 71 regulation (and
implementation of the Federal operating permit program in States that
have not yet obtained part 70 approval) due to the pendency of the
Agency's general potential to emit rulemaking. At the same time, EPA
does not believe it would be appropriate to merely recodify the part 70
definition of potential to emit in this Phase I part 71 rule, in light
of the recent court decisions concerning the section 112 and NSR and
PSD regulations. Consequently, for this interim part 71 rule, EPA is
not adopting a regulatory definition of potential to emit for purposes
of part 71. This definition will be added to part 71 at a later time,
when the Agency completes its general rulemaking to define potential to
emit for its various stationary source programs under the Act.
Nevertheless, the absence of a regulatory definition of potential
to emit in today's rule should not prevent sources from being able to
determine whether they are subject to the part 71 program because they
are major sources. The EPA stresses that the term ``major source'' is
already defined as a statutory matter in title V at section 501(2) of
the Act to mean a major source as defined in section 112 and a major
stationary source as defined in section 302 or part D of title I of the
Act. Moreover, the definition of major source adopted today also tracks
these statutory provisions, and, as discussed in the recent memorandum
entitled ``Interim Policy on Federal Enforceability Requirement for
Limitations on Potential to Emit,'' from John Seitz, Director, Office
of Air Quality Planning and Standards (hereafter January 22, 1996
memorandum from John Seitz), most current regulatory requirements and
policies regarding potential to emit, including the interim policy
discussed in the January 25, 1995 Seitz memorandum, remain in effect
while EPA conducts expedited rulemaking to address these issues in
detail. Consequently, in determining whether a source is major, the
part 71 permitting authority and source operator should look to the
regulatory definition of major source adopted in today's rule and the
statutory definitions in section 112, section 302, and part D of title
I (as those provisions are implemented by applicable regulations
thereunder) as controlling for purposes of this Phase I part 71 rule.
In National Mining Association v. EPA, 59 F.3d 1351 (D.C. Cir. July
21, 1995), the Court dealt with the potential to emit definition under
the hazardous air pollutant programs promulgated pursuant to section
112. In this decision, the Court agreed with EPA that only
``effective'' State-issued controls should be cognizable in limiting
potential to emit. In addition, the Court did not question the validity
of current federally enforceable mechanisms in limiting potential to
emit. However, the Court found that EPA had not adequately explained
why only federally enforceable measures should be considered in
assessing the effectiveness of State-issued controls. Accordingly, the
Court remanded the section 112 General Provisions regulation to EPA for
further proceedings. Thus, EPA must either provide a better explanation
as to why Federal enforceability promotes the effectiveness of State
controls, or remove the exclusive Federal enforceability requirement.
The Court did not vacate the section 112 regulations, and they remain
in effect pending completion of EPA rulemaking proceedings in response
to the Court's remand.
The EPA reiterates that independent from the decision in National
Mining, current EPA policy already recognizes State-enforceable
potential to emit limits under section 112 and title V in many
circumstances under the
[[Page 34212]]
transition policy discussed in the January 25, 1995 John Seitz
memorandum, as recently revised by the January 22, 1996 John Seitz
memorandum. In recognition of the absence in some States of suitable
federally enforceable mechanisms to limit potential to emit applicable
to sources that might otherwise be subject to section 112 major source
requirements or to title V, EPA's policy provides for the consideration
of State-enforceable limits as a gap-filling measure during a
transition period that extends until January 1997. Under this policy,
restrictions contained in State permits issued to sources that actually
emit more than 50 percent, but less than 100 percent, of a relevant
major source threshold are treated by EPA as acceptable limits on
potential to emit, provided that the permit and the restriction in
particular are enforceable as a practical matter. In addition, sources
with consistently low levels of actual emissions relative to major
source thresholds can avoid section 112 major source requirements even
absent any permit or other enforceable limit on potential to emit.
Specifically, the policy provides that sources which maintain their
emissions at levels that do not exceed 50 percent of any applicable
major source threshold are not treated as major sources and do not need
a permit to limit potential to emit, so long as they maintain adequate
records to demonstrate that the 50 percent level is not exceeded.
Under today's Phase I part 71 rule, sources that are not treated as
major under this policy would also not be treated as major for purposes
of part 71. However, if a source would be treated as major under the
applicable regulations implementing section 112 and this policy, the
source would be required to obtain a part 71 permit. The EPA notes that
this policy is to end in January 1997. In conjunction with the general
rulemaking on potential to emit, EPA will consider whether it is
appropriate to extend the transition period beyond January 1997.
In Chemical Manufacturers Association v. EPA, No. 89-1514 (D.C.
Cir. Sept. 15, 1995), the Court addressed the potential to emit
definition in the PSD and NSR programs. Specifically, this case
challenged the June 1989 rulemaking in which EPA reaffirmed the
requirement for Federal enforceability of potential to emit limits
taken to avoid major source permitting requirements in these programs.
In a briefly worded judgment, the Court, in light of National Mining,
remanded the PSD and NSR regulations to EPA. In addition, in contrast
to its disposition of the section 112 regulations in National Mining,
the Court in Chemical Manufacturers vacated the federal enforceability
requirement of the potential to emit definitions in the PSD and NSR
regulations.
The EPA interprets the Court's decision to vacate the PSD/NSR
Federal enforceability requirement as causing an immediate change in
how EPA regulations should be read, although EPA expects that the
effect of this change will be limited. Specifically, regarding
provisions of the definitions of potential to emit and related
definitions requiring that physical or operational changes or
limitations be ``federally enforceable'' to be taken into account in
determining PSD/NSR applicability, the term ``federally enforceable''
should now be read to mean ``federally enforceable or legally and
practically enforceable by a State or local air pollution control
agency.''
However, the effects of the vacatur will be limited during the
period prior to completion of new EPA rulemaking on this issue. Thus,
during this interim period, Federal enforceability is still required to
create ``synthetic minor'' new and modified sources in most
circumstances pending completion of EPA rulemaking. This is because EPA
interprets the order vacating certain provisions of the PSD/NSR
regulations as not affecting the provisions of any current State or
Federal implementation plan (SIP or FIP), or of any permit issued under
any current SIP or FIP. Thus, previously issued federally enforceable
permits issued under such programs remain in effect.
Moreover, new or modified sources that seek to lawfully avoid
compliance with the major source requirements of PSD or nonattainment
NSR by limiting potential to emit to achieve synthetic minor status
must still obtain a general or ``minor'' NSR preconstruction permit
under section 110(a)(2)(C) of the Act and 40 CFR section 52.23. (This
requirement was not at issue in the Chemical Manufacturers case, and is
unaffected by the Court's ruling.) Every SIP contains a minor NSR
program that applies generally to new or modified sources of air
pollutants, and permits issued under such programs are, like all other
SIP measures, federally enforceable. In sum, the precise impact of the
vacatur on PSD/NSR applicability in any State, and hence the
applicability of part 71 under the section 302 and part D of title I
prongs of the definition of major source adopted in part 71, can be
definitively established only by reviewing the provisions of the
particular SIP or FIP to which the source is subject.
8. Regulated Air Pollutant
In the August 1995 supplemental proposal, EPA proposed a less
inclusive definition than is currently promulgated in part 70 or was
proposed for part 71 in the April 1995 notice. However, for purposes of
today's rulemaking, EPA is retaining the definition in the part 71
proposal, which is consistent with the current part 70 definition. The
EPA intends to take final action on the term as proposed in the
supplemental proposal in the Phase II rulemaking.
9. Responsible Official
Although EPA has proposed, in the August 1994 proposed revisions to
part 70, to clarify that the criteria for selecting the designated
representative is the same at an affected source as at other sources,
the Agency has adopted a definition of this term for purposes of
today's rulemaking that is consistent with the definition in current
part 70. The EPA will take final action in Phase II consistent with the
Agency's final resolution of this issue in response to comments on the
August 1994 notice.
10. Section 502(b)(10) Changes
The part 71 proposal, in omitting the definition of ``section
502(b)(10) changes'' from section 71.2, followed the approach used in
the August 1994 proposed revisions to part 70. The Agency's reasons for
the omission are articulated in that proposal at 59 FR 44467-8. As
indicated in the August 1995 supplemental proposal, this is still the
Agency position. However, EPA will not adopt a final position on
proposed revisions regarding operational flexibility for part 70 or 71
until the Phase II rulemaking. For purposes of today's rulemaking, EPA
has adopted a definition of the section 502(b)(10) changes that
comports with the current part 70 regulation, in order to better
harmonize the Phase I part 71 rule and the current part 70 regulation.
11. Title I Modification
The part 71 proposal, based on the August 1994 proposed revision to
part 70, contained a proposed definition of the phrase ``Title I
modification or modification under any provision of title I of the
Act.'' Subsequently, EPA issued a revised proposed definition in the
August 1995 supplemental proposal for parts 70 and 71. The EPA is in
the process of reviewing and developing a position in response to the
comments on the several proposals with respect to this issue, and is
not yet prepared to define the term in a final rule. The EPA will add a
definition in the Phase II rulemaking that is consistent with how
[[Page 34213]]
EPA ultimately defines the term under part 70.
A detailed discussion of the history of this definition is
contained in the preamble to the August 1995 part 70 proposal (60 FR
45545). At issue is whether the phrase ``modifications under any
provision of title I'' as used in section 502(b)(10) of the Act
includes not only modifications subject to major NSR requirements of
parts C and D of title I but also modifications subject to minor NSR
programs established by the States pursuant to section 110(a)(2)(C).
In August 1994, EPA proposed to interpret the title I modification
language of part 70 to include minor as well as major NSR modifications
(55 FR 44527). The EPA received many comments from industry and States
contesting this interpretation. The commenters argued that EPA had
defined title I modification in the preamble to the May 1991 proposed
part 70 rule to exclude minor NSR (56 FR 21746-47 and footnote 6) and
did not redefine it in the final July 1992 rule. As a result, they
argued that they were relying on the current rule to be interpreted
consistent with the proposed rule preamble and that EPA could not
change its interpretation without undertaking further rulemaking.
Based in part on the arguments raised by commenters, EPA revised
its proposed interpretation of the definition of title I modification
in the August 1995 supplemental notice to exclude modifications subject
to minor NSR. In addition, EPA proposed regulatory language defining
title I modification which excluded the reference to section 110(a)(2)
of the Act.
While EPA is not yet prepared to adopt a final definition for the
term, in implementing the Phase I part 71 program EPA will treat the
issue consistently with the approach the Agency has advised States to
take under the current part 70 regulation. Consequently, it will not
consider title I modifications to include changes subject to State
minor NSR programs.
B. Section 71.3--Sources Subject to Permitting Requirements
The final rule promulgates provisions regarding applicability of
the program at section 71.3. These provisions are based on their
counterparts in the currently promulgated part 70 rule at section 70.3.
Consequently, in several aspects, they differ from section 71.3 as
proposed, which was based on the August 1994 proposed revisions to
section 70.3 which the Agency is not yet prepared to finalize.
Paragraph (a)(1) of the part 71 proposal contained an exemption
from title V for major sources that would be subject to title V only if
they have the potential to accidentally release pollutants listed
pursuant to section 112(r)(3) in major amounts. This exemption has been
deleted, even though it garnered reviewer support, consistent with the
decision to match the part 70 requirements except where unique
circumstances make a change necessary. If EPA ultimately revises part
70 to add the deleted language, the Agency would intend to revise part
71 consistently.
Proposed section 71.3(a)(4) which was modelled upon the August 1994
proposed revisions to part 70 and would have stated that any source
subject to title I parts C or D would be required to obtain a permit
was also deleted from the final regulation to comport with the part 70
regulation. The purpose of this provision was to ensure that all
sources subject to preconstruction permitting as major sources under
parts C or D of the Act are also subject to title V permitting. Again,
if part 70 is ultimately revised to add this provision, EPA would
intend to revise part 71 to add it as well.
Similarly, paragraph (b)(2) has been changed to conform with
section 70.3(b)(2), which addresses applicability for sources subject
to section 111 or 112 standards promulgated after July 21, 1992.
Proposed section 71.3(b)(2) differed from both existing section
70.3(b)(2) and the August 1994 proposed revisions thereto. If section
70.3(b)(2) is ultimately revised, EPA would expect to revise section
71.3(b)(2) to harmonize it with part 70.
Paragraphs (c) and (d) of this section, found in the proposal at
sections 71.6(a)(1)(iv) and 71.5(f)(3)(i), respectively, were moved to
this section for compatibility with the current part 70 provisions at
sections 70.3 (c) and (d).
C. Section 71.4--Program Implementation
The major issues raised by commenters on proposed section 71.4
related to the need to base part 71 on finalized (as opposed to
proposed) provisions of part 70, how the part 71 program should be
customized to fit the unique needs of the State or area for which the
program is administered, and jurisdictional issues with respect to
programs on Tribal lands. The Agency's approach to the first issue is
discussed at length in section II of this document. This section
addresses the second and third issues in addition to several minor
changes to the proposed rule that were adopted today.
1. National Template Approach
With respect to the second issue, EPA received divergent comments.
For example, commenters suggested that a national template should be
flexible, that a national template should be used only to fill in the
gaps of deficient State programs, and that there should be no national
template because title V does not authorize EPA to develop such a rule.
The Agency carefully considered the statutory framework for the
program and interprets title V as authorizing a national template
approach. For a further discussion of this issue, see section II of
this document. The EPA chose a national template approach because EPA
believes the national template is flexible enough to be an effective
program in nearly all areas, and individual rulemakings for each area
that has a part 71 program would be needlessly burdensome on the
Agency. Since the national template will serve the needs of most areas,
it is more efficient to promulgate the program once while allowing for
separate rulemakings, as needed, in some areas. The EPA recognizes the
desirability of providing a flexible approach to administering the
program, as the commenters have suggested, when the national template
does not adequately fit the unique State or Tribal situation. Such
flexibility is already contained in section 71.4. When EPA determines
that the national template rule is not appropriate for a State, EPA may
adopt, through a separate rulemaking, appropriate portions of a State
or Tribal program in combination with provisions of part 71 in order to
craft a suitable part 71 program, as provided in section 71.4(f).
Furthermore, section 71.9(c)(7) provides that when the national fee
structure would not reflect the cost of administering a part 71
program, the Administrator shall through a separate rulemaking set an
appropriate fee. Finally, as provided in section 71.5 and as discussed
in section III.D of this document, EPA has designed part 71 to provide
significant flexibility to accommodate the localized air quality
issues. For example, EPA will use State application forms whenever
possible and will try to match the list of trivial activities which may
be left off application forms to the lists established in the State
operating permit program.
2. Part 71 Programs in Tribal Areas
The EPA is deferring promulgation of regulations that would
describe how the Agency would determine the boundaries of a part 71
program for a
[[Page 34214]]
Tribal area. The EPA has published a proposed rule, pursuant to section
301(d)(2) of the Act, specifying the provisions of the Act for which
EPA believes it is appropriate to treat Indian Tribes in the same
manner as States and outlining the Agency's position on the authority
of Indian Tribes to administer air programs under the Act. See 59 FR
43956 (Aug. 25, 1994)(``Indian Tribes: Air Quality Planning and
Management,'' hereafter ``proposed Tribal rule''). As indicated in the
part 71 proposal, EPA intends to follow the approach of the Tribal rule
with respect to issues of jurisdiction and resolution of jurisdictional
disputes. The EPA agrees that it would be more practical to defer
addressing jurisdictional issues until the promulgation of the Tribal
rule. The Agency will finalize an approach to jurisdiction as well as a
definition of Tribal area in the Phase II rulemaking or in conjunction
with finalizing the Tribal rule. In the interim, the Agency will not be
able to implement part 71 programs in Tribal areas unless it completes
a rulemaking that establishes the boundaries of the part 71 program in
the Tribal area. Rulemakings for the Tribal rule and Phase II will be
completed well in advance of the November 1997 deadline for EPA to
implement part 71 programs on Tribal lands. Therefore, EPA does not
expect that the deferral of jurisdictional issues will delay
implementation of the part 71 program. Although part 71 contains no
definition of ``Tribal area,'' EPA will provide (and will require
delegate agencies to provide) notice of proposed permitting actions
pursuant to section 71.8(d) even prior to the Phase II rulemaking. In
the interim, federally recognized Indian Tribes will receive notice
with respect to permitting actions related to sources whose emissions
may affect Tribal air quality and that are located in contiguous
jurisdictions or are within 50 miles of the exterior boundaries of the
reservation.
3. Expiration of Part 71 Permits
The Agency received comments suggesting that part 71 permits should
be rescinded automatically, without the Agency taking any action, when
they are replaced by a part 70 permit. The EPA agrees that no separate
agency action should be required when a part 71 permit is replaced by a
part 70 permit issued under the approved part 70 program because unless
the rescission happens simultaneously with the issuance of the part 70
permit, a source could be subject to a part 70 and a part 71 permit
which may contain different requirements. Accordingly, EPA has deleted
proposed section 71.4(l)(3) which provided that the Administrator would
rescind part 71 permits when they were replaced with part 70 permits.
Further, the EPA has adopted section 71.6(a)(11) which provides that
part 71 permits shall contain a provision to ensure that a part 71
permit will expire when the source is issued a part 70 permit.
4. Suspension of Issuance of Part 71 Permits
The EPA revised the first paragraph of proposed section 71.4(l) to
clarify, consistent with EPA's original intent, that EPA may suspend
issuance of part 71 permits whenever the Agency has granted full or
interim approval to a State part 70 program. Section 502(e), which
addresses suspension of the issuance of part 71 permits, provides that
the triggering event for suspension is publication of notice of
approval. Thus, there is no statutory requirement that a State program
must ``fully'' meet the requirements of part 70 or be fully approvable
in order for EPA to suspend permit issuance. The Agency believes it is
appropriate to suspend issuance of part 71 permits when a State program
substantially meets the requirements of part 70 and has received
interim approval because it would be confusing and burdensome to have
two title V permit programs operating simultaneously in the same
jurisdiction. Therefore, EPA has deleted the word ``fully'' from the
first paragraph of proposed section 71.4(l).
5. Delegation Agreements
The final rule makes a minor change to proposed section 71.4(j) in
parallel with a change to proposed section 71.10(b) to reflect the fact
that under the final rule, EPA will not publish its delegation
agreement with a delegate agency. Therefore, section 71.4(j) provides
that the roles of the delegate agency and EPA in administering the part
71 program will be defined in a delegation agreement, not in a Federal
Register notice. The EPA will follow the procedures for delegation
agreements established for the PSD program under which EPA does not
publish its delegation agreements. Delegation agreements reflect the
understanding of EPA and the delegate agency as to their respective
responsibilities and are not subject to any notice requirement. This
approach allows EPA and the delegate agency to modify their agreement
as circumstances change, without the burden of publishing a Federal
Register notice.
6. Early Reductions Permits
The Agency retained in section 71.4(i)(3) the requirement that the
permitting authority take action on complete permit applications
containing an early reduction demonstration within 12 months of receipt
of the complete application. Although the current part 70 regulation
sets a 9 month deadline for State action, EPA Regional offices are
allowed 12 months to take action on the permit applications submitted
under the interim permitting rule for early reduction sources that EPA
adopted prior to the approval of any State part 70 programs. See 40 CFR
section 71.26(a)(2). The Agency believes that this time frame is
reasonable given the effort required to process the permits and the
need for sources qualifying for a compliance extension under the Early
Reductions Rule to obtain a permit prior to certain deadlines set by
the rule.
D. Section 71.5--Permit Applications
The part 71 proposal addressed permit applications at proposed
section 71.5 (a) through (i). This proposed section was based upon a
combination of corresponding provisions in the existing part 70 rule
and in the August 1994 proposed revisions to part 70, and was presented
in a slightly different structure from the part 70 rule. In light of
EPA's decision to promulgate part 71 on an interim basis, more
consistently with the existing part 70 rule, the provisions based upon
the August 1994 proposal are not being adopted today. Moreover, in
order to facilitate transition from implementing part 71 to part 70
programs, the final rule is being adopted in a structure that is more
consistent with that of the current part 70 rule.
1. Timely Application
Under section 71.5(b)(1) of the proposal all initial permit
applications would have to be submitted within 12 months or an earlier
date after the source becomes subject to part 71. The proposal would
have required that the permitting authority provide notice of the
earlier date to the source and that this notice would be given at least
120 days in advance of the application submittal date.
Several commenters argued that the 120 days (4 months) minimum
notice would not give sources sufficient time to prepare an
application. They also argued that 4 months was insufficient time for
sources to submit their applications early for purposes of addressing
deficiencies and ensuring they receive the application shield.
In response to these comments, EPA has lengthened the notice period
from 4
[[Page 34215]]
months to 6 months. Section 503(c) of the Act requires the submittal of
all applications within 12 months of the effective date of a permit
program or such earlier date as the permitting authority may establish
and that one-third of these applicants be issued permits in this first
year. In order to issue one-third of the permits in the first year, EPA
must receive at least one-third of the applications prior to 12 months
after the effective date of the program.
The EPA considered and rejected commenters' suggestions for 8 to 12
months' advance notice because they would interfere with EPA's
requirement to issue one-third of the permits in the first year. The
EPA believes that the 6 month alternative will allow EPA enough time to
process and issue permits. The EPA believes that 6 months is sufficient
time for sources to prepare applications for several reasons that had
not been announced at time of proposal. First, on July 10, 1995, EPA
issued the first white paper that examines options for simplifying part
70 permit applications and sets minimum expectations concerning how
much information must be included in order for the application to be
found complete. In today's notice EPA announces its intention to
implement both of the white papers for part 71 program purposes.
Second, EPA has revised the rule to clarify that part 71 permit
application forms may be developed by the delegate agency or the EPA
allowing a part 71 application form to be based on a State form
developed for part 70 purposes, as long as the form meets the minimum
requirements of part 71 (discussed in more detail below). Third,
because the final rule more closely follows the part 70 program upon
which most State operating programs are based, sources will be familiar
with most part 71 permit application requirements.
In addition, proposed sections 71.5(b) (2) and (3) have been
deleted because they referred to off-permit changes and a four-track
permit revision system which the Agency is not finalizing today.
2. Complete Applications
The final rule adopts the language from the current part 70 rule
concerning complete applications. However, EPA believes that several
clarifications will help applicants understand the flexibility
available for submitting simplified permit applications that can be
found complete. The terms ``simplified permit application'' or
``streamlined permit application'' refer to applications that require
less information.
In the part 71 proposal, EPA proposed to adopt language from the
August 29, 1994 part 70 revision notice (59 FR 44518) that would have
clarified that an application would be found complete if it contained
information ``sufficient to begin processing the application.'' As
stated previously, today's rulemaking is based on provisions of current
part 70; therefore, this language does not appear in today's
rulemaking. However, EPA believes, as stated more fully in the first
white paper, that considerable flexibility already exists in the part
70 rule to find simplified permit applications complete. Since the
white papers will be implemented for part 71 purposes, this flexibility
also exists in the part 71 permit program.
Furthermore, the proposed revisions to part 70 (August 29, 1994)
and the part 71 proposal discussed several additional options currently
available to States for developing simplified permit applications and
finding them complete, and did not propose any rule changes necessary
to implement these options. These options were: (1) a two-step
application completeness determination process for simplified
applications and (2) simplified application content requirements for
applicable requirements with future compliance dates. After the
publication of these proposal notices, the first white paper included
these two flexibility options, as well as many additional options, and
reaffirmed EPA's interpretation that implementation of these options
does not depend on making changes to the part 70 rule or State part 70
programs.
The EPA believes this approach will provide flexibility for sources
to prepare simplified permit applications and for permitting
authorities to find them complete. This approach will also promote
consistency between the part 71 and part 70 programs, which in turn,
will provide for a smoother transition between the programs. Guidance
on the implementation of the white papers and other flexibility options
for completeness determinations for a part 71 program implemented in a
particular State may be provided by the EPA or delegate agency soon
after the program takes effect.
Additionally, proposed section 71.5(d), concerning the treatment of
business confidential information, has been revised in the final rule.
The language of the proposal discussed the responsibilities of
permitting authorities to process requests for confidential treatment
and included a general reference to 40 CFR part 2. Considering the
structure of these regulations and this section's position in these
regulations, the Agency believes that the promulgated language
clarifies the procedures that applicants must follow to request
confidential treatment for business information in applications,
provides a more precise cross-reference to those procedures, and does
not add any new requirements regarding the treatment of confidential
information not intended by the proposal.
Note also that certain technical changes are being made to part
71's completeness provisions as a result of the final rule's greater
harmonization with the existing part 70 rule. First, the completeness
criteria are being promulgated at section 71.5(a)(2) while the proposal
addressed completeness at section 71.5(c). In addition, the final rule
references section 71.5(c) as the provision setting out required
information in permit applications, while the proposal referenced
proposed section 71.5(f). Moreover, the final rule cites section
71.5(d) as the provision concerning certification by a responsible
official, while the proposal cited proposed section 71.5(i). Finally,
the citation in the proposal to section 71.7(a)(3) has been changed in
the final rule to section 71.7(c)(4) as a result of the changes to
section 71.7.
3. Standard Application Form and Required Application
Proposed section 71.5(f) would have required part 71 sources to
submit ``applications provided by the permitting authority, or if
provided by the permitting authority, an electronic reporting method''
and did not include any preamble discussion of the interpretation of
this phase. One commenter on the proposal encouraged EPA to use
existing State forms in States where EPA assumes part 71 authority.
Final section 71.5(c) has been revised to more closely follow the
corresponding language of section 70.5(c). The EPA agrees with the
commenter and will provide forms developed by delegate agencies
(States), or the EPA, including electronic application methods, for
purposes of applying for part 71 permits. This approach to application
development is possible because ``permitting authority'' is defined in
section 71.2 as including the EPA or the delegate agency. This approach
to providing part 71 forms will lead to less disruption and a smoother
transition for sources preparing initial part 71 applications because,
in many cases, sources will be familiar with the State form on which
the part 71 form is based. For example, sources may already be
collecting information and drafting an operating permit using the State
form in expectation of part 70 program approval by EPA. In addition,
commenters asked
[[Page 34216]]
that EPA clarify and simplify the requirements for emissions-related
information in part 71 applications consistent with EPA's guidance in
the first white paper. In response to these comments, EPA intends to
implement the white paper guidance with respect to the collection and
reporting of emission-related information and EPA believes that no
changes to part 71 are necessary to do so.
Numerous technical changes have been made to the final rule
regarding information to be required in permit applications to better
match the current part 70 rule. In the proposal, information
requirements were addressed at proposed sections 71.5(f) through (i),
while the final rule follows part 70 by covering these requirements in
sections 71.5(c) and (d). New citations to other provisions of part 71
are also due to the final rule's harmonization with part 70.
4. Insignificant Activities and Emission Levels
Extensive comments were received on the proposed insignificant
activity and emission levels provisions of proposed section 71.5(g).
Commenters argued, in part, that activities subject to applicable
requirements should be eligible for the exemption for insignificant
activities and emission levels, that the requirement that applications
not exclude information needed to determine whether a source is subject
to the requirement to obtain a part 71 permit would be too restrictive,
that the list of insignificant activities in the final rule should be
expanded, that the list of trivial activities in the first white paper
should be codified in part 71, that the exemption for mobile sources as
insignificant activities should be removed, that the single emissions
unit emissions thresholds for insignificant emissions should be raised,
and that the aggregate source-wide emission thresholds for
insignificant emissions should be deleted.
a. Eligibility for Insignificant Treatment and Information Required
in Applications. Section 71.5(c) of the final rule addresses, in part,
information that must not be omitted from permit applications. These
requirements have special relevance for applicants when determining
what information must be included in applications for emission units
that are eligible for insignificant treatment. To be consistent with
current part 70, final section 71.5(c) deletes certain proposed
provisions that do not follow the corresponding language of section
70.5(c) and that were based upon the proposed revisions to part 70
published in August 1994. Accordingly, deleted from final section
71.5(c) is the proposed language that would have not allowed the
application to omit information needed to: (1) Determine whether a
source is major, and (2) determine whether a source is subject to the
requirement to obtain a part 71 permit. Notwithstanding these
deletions, EPA continues to believe that the definition of major source
at section 71.2 controls the determination of which units are counted
for major source applicability purposes and that emissions of units
that qualify for insignificant treatment in the application are not
exempt from these determinations. Consistent with the Agency's approach
in implementing the current part 70 rule, the EPA is reversing its
interpretation, first expressed in the proposed preamble, that would
have excluded the eligibility of activities for treatment as
insignificant when such activities are subject to applicable
requirements. The EPA believes that no change to the final rule is
necessary to implement this new interpretation.
Industry commenters were particularly concerned that EPA's
interpretation that proposed section 71.5(g) would not allow activities
with applicable requirements to be eligible for insignificant treatment
would render the insignificant activity and emissions level provisions
meaningless because few sources would be eligible for streamlined
treatment in the application.
The EPA now believes that it was overly broad in stating that
emission units were precluded from eligibility as ``insignificant'' if
such units would be subject to applicable requirements. As discussed
below, EPA believes there are circumstances in which an emission unit
or activity can be treated as ``insignificant'' under a Federal
operating permits program, even if it is subject to an applicable
requirement. However, a title V application must still contain
information needed to determine the applicability of or to impose any
applicable requirement or any required fee and a permit must still meet
the requirements of section 71.6 for all emission units subject to
applicable requirements, including those eligible for insignificant
treatment.
Both sections 71.5(c) and 71.5(c)(3)(i) require sufficient
information to verify the requirements applicable to the source and to
collect appropriate permit fees.
This means that some of the information required by sections
71.5(c) (3) through (9) may be needed in the permit application for
insignificant activities in order for the permitting authority to draft
an adequate operating permit. As an example, where an insignificant
activity is not in compliance with an applicable requirement at the
time of permit issuance, the permit application would need to contain a
compliance plan, including a compliance schedule, for achieving
compliance with the applicable requirement. As another example, if a
source has some insignificant activities within a category that are
subject to an applicable requirement and some within that same category
that are not subject to that applicable requirement because the
applicability criteria for the applicable requirement are different
from the applicability criteria for insignificant activities, the
permit application would generally be required to include sufficient
information on the insignificant activity for the permitting authority
to determine which units are subject to the applicable requirement and
to include that applicable requirement in the permit for the subject
insignificant activity. The EPA believes that a part 71 permit
application may simply list the applicable requirements that apply to
insignificant activities generally, rather than requiring the permit
application to explicitly identify which insignificant activities are
subject to which applicable requirements. The permitting authority
would then issue a permit imposing the applicable requirements in the
permit, but not specifically identifying which insignificant activities
are subject to those applicable requirements. (For a more detailed
discussion, see the first white paper and the proposed interim approval
and proposed notice of correction for the State of Washington's part 70
program, 60 FR 50166 (September 28, 1995).)
b. Insignificant Activity Lists. Section 70.5(c), in part, allows
States to develop lists of insignificant activities and emission levels
that need not be included in applications and requires activities (or
equipment) exempted due to size or production rate to be listed in the
application. State part 70 program submittals were approved by EPA that
implement this provision in a variety of ways. The structure of the
proposed regulations was based on the structure of these State
implementing regulations, and included a short list of insignificant
activities and provisions setting insignificant emissions levels. The
proposed list of insignificant activities, section 71.5(g)(1), included
a list of specific source categories, activities, or equipment that
could be left off the application. The proposed insignificant
[[Page 34217]]
emissions provisions, section 71.5(g)(ii), allowed sources the
flexibility to treat additional source categories, equipment, or
activities as insignificant, provided certain eligibility criteria were
met, including not exceeding certain emissions levels, and provided
that the activities were listed in the application. The EPA believed
that the proposed insignificant emissions approach was flexible enough
that extensive lists of insignificant activities would not be needed in
the final rule. The EPA reasoned that no list of insignificant
activities would ever be so inclusive as to list every type of activity
potentially eligible for insignificant treatment at industrial sources,
and therefore, additions to the list would require resource-intensive
notice and comment rulemaking on an ongoing basis. The proposal asked
for comment on its approach and asked whether the proposed approach
would be compatible with approaches developed by States.
Numerous industry commenters argued, in general, that the proposed
part 71 list was not extensive enough to provide meaningful relief for
industry from the administrative burdens associated with submitting
detailed information for emission units or activities that pose little
or no environmental risk and that the part 71 list was not as extensive
as lists developed by States for their part 70 programs.
The EPA is finalizing the proposed list of insignificant activities
with one revision. The EPA believes that the commenters' concerns that
there be more opportunities for streamlining the information required
by part 71 permit applications is best addressed by implementing the
white papers for part 71 purposes, and that no changes to the final
rule are necessary to implement this approach. The EPA believes that
the white papers provide for application streamlining that is
comparable and, in many ways, superior to approaches based on omitting
certain emission unit or activities from the application only when
eligibility for insignificant treatment is established in a rule. In
general, the white papers allow sources to provide little or no
detailed source-specific information for emissions units or activities
where the information is not reasonably available and to the extent the
information is not needed to resolve disputed questions of major source
status, applicability of requirements, compliance with applicable
requirements, or needed to calculate fees.
For example, section B.3. Insignificant Activities of the first
white paper allows trivial activities to be completely omitted from
applications. The white paper defines trivial activities as activities
without specific applicable requirements (although they may have
``generic'' applicable requirements, explained below) and with
extremely small emissions and included a list of trivial activities in
Appendix A. Many of the trivial activities identified in the first
white paper are common to State lists of insignificant activities.
Under part 71, sources may rely on this list, and EPA or the delegate
agency may add to it without the need for Federal rulemaking. This
allows EPA to expand the list of trivial activities for a part 71
program in a specific location, consistent with trivial activity lists
established in the State operating permit program, thus tailoring the
program for a specific program implemented in a State.
Also providing considerable streamlining is section B.4 Generic
Grouping of Emission Units and Activities of the first white paper
which allows emissions units or activities with ``generic'' applicable
requirements to be omitted from the application, independent of
eligibility for insignificant treatment. Under this section, sources
may provide little or no detailed source-specific information, even for
units with ``generic'' requirements, provided that the ``generic''
requirements are described in the application such that their scope and
manner of enforcement are clear. ``Generic'' requirements are certain
broadly applicable requirements that apply and are enforced in the same
manner for all subject units or activities and that are often found in
the SIP. Examples of such requirements include requirements that apply
identically to all emissions units at a facility (e.g., source-wide
opacity limits), general housekeeping requirements, and requirements
that apply identical emissions limits to small units (e.g., certain
process weight requirements). Where the applicable requirement is
amenable to this approach, part 71 permitting authorities may follow
this approach regardless of whether subject activities have been listed
as trivial or insignificant. A lengthy list of the types of
requirements suitable for this treatment is not possible here because,
among other reasons, the examples of which EPA is aware are SIP
requirements, and so vary from State to State. The EPA or delegate
agency will decide which SIP requirements can be treated in this
generic fashion for specific locations where part 71 programs are
implemented.
The EPA has determined that the insignificant activity exemption
for air-conditioning units used for human comfort at final section
71.5(c)(11)(i)(B) should be changed to clarify that substances other
than class I or II substances may be regulated under title VI of the
Act. This change is necessary because effective November 15, 1995,
title VI requires recycling or recovery of substitute refrigerants
regardless of whether or not they are ozone depleting substances (Class
I and Class II substances) unless EPA makes a refrigerant-specific
decision that the substitute will not harm human health or the
environment and can, therefore, be vented.
c. Insignificant Emissions Levels. In response to comments, EPA has
revised proposed section 71.5(g)(2)(i), which is section
71.5(c)(11)(ii)(A) of the final rule, to increase the insignificant
emissions threshold for regulated air pollutants other than (HAP) from
a single emissions unit from 1 tpy to 2 tpy and to delete the 1,000
pounds (lb) per year threshold in extreme ozone nonattainment areas.
The EPA believes this decision is appropriate since, as commenters
pointed out, EPA has previously stated in part 70 approval notices that
insignificant emissions thresholds set at 2 tpy would be approvable in
most locations. The EPA believes that due to the similarity between
part 70 and part 71 programs it can logically conclude that this level
is also appropriate for a part 71 program, regardless of where it is
located. This level will provide a measure of additional flexibility
for sources to exempt insignificant activities, thus simplifying the
application, with little additional risk that significant emission
units will be excluded from the application. As further discussed
below, there are several safeguards available in the final rule that
should ensure that significant units are not excluded from applications
due to their eligibility for insignificant treatment. In addition, EPA
is deleting the proposed 1,000 lb per year threshold for extreme ozone
nonattainment areas. This will simplify the rule by setting the same
tpy emission thresholds for attainment and nonattainment pollutants,
while requiring the thresholds in relative terms to be no more than 20
percent of the major source threshold for nitrogen oxides and VOC and 2
percent of the major source threshold for the remaining criteria
pollutants. Two tpy is considered trivial by EPA for all pollutants
other than HAP in relation to major source thresholds in all attainment
or
[[Page 34218]]
nonattainment areas and will not prevent the EPA from collecting
information of a consequential or significant nature. In addition,
these levels are more commonly found in State part 70 programs and
therefore should help to ease the transition from part 71 to part 70
operating permit programs.
In response to comments, EPA has decided to delete the aggregate
source-wide emissions criteria for insignificant emissions of regulated
air pollutants (sections 71.5(c)(11)(ii) (A) and (B) of the final
rule). The EPA proposed these aggregate source-wide emissions criteria
as an additional means to ensure that emissions that might otherwise
trigger the applicability of applicable requirements or major source
status would not be excluded from applications. However, EPA now
believes that the proposed aggregate emissions thresholds would have
significantly limited the value of the insignificant emissions
provisions for most medium to large sources. This deletion should not
impede the permitting authority's ability to write permits which assure
compliance with applicable requirements and the requirements of part
71. The EPA also believes that the utility of aggregate plant-wide
thresholds is negligible because of various other safeguards already
provided in the rule; in particular, section 71.5(c)(11) requires
applications to not exclude information needed to determine the
applicability of, or to impose, any applicable requirement. In
addition, the requirement of section 71.5(c)(11)(ii) that units or
activities with insignificant emissions be listed in the application
provides an opportunity for the permitting authority to review the
source's decision to treat emissions as insignificant, while the
single-unit emissions thresholds of sections 71.5(c)(11)(ii) (A) and
(B) limit the size of emissions to levels that would normally ensure
that the units are not covered by extensive control requirements.
5. Compliance Certification
The part 71 proposal would have required sources to submit
certifications that they were in compliance with all applicable
requirements. Commenters requested further clarification of the
certification requirements and argued that it was not clear exactly
what efforts a source was required to make to determine its compliance
status prior to certifying that it was in compliance with all
applicable requirements, and that it was unclear whether or not a
source was obliged to reconsider past applicability determinations
prior to making such a certification. The EPA does not believe that any
revisions to the rule are necessary to address the commenters' points.
This is true because the white papers for part 70 address these issues
and sources may follow that guidance for purposes of completing part 71
permit applications.
E. Section 71.6--Permit Content
Today's permit content provisions more closely track the provisions
contained in current 70.4 and 70.6 than did those in the proposal.
Thus, the order of the paragraphs in section 71.6 is more similar to
the permit content section of current part 70 than to the part 71
proposal. For example, the provisions dealing with the permitting
authority's duty to address emissions units in the permit has been
moved from section 71.6(a)(iv) to section 71.3(c), consistent with
current part 70. In addition, using current part 70 as the template for
permit content means that the provisions for ``off-permit'' contained
in today's rulemaking mirror those found at section 70.4(b), while the
off-permit provisions of the proposed rule tracked those contained in
the August 1994 proposed revisions to part 70. Similarly, today's
rulemaking adopts the requirements for emissions trading and
operational flexibility that are found in current part 70.
In addition, EPA retains a provision related to the prompt
reporting of deviations from permit conditions from the part 71
proposal. Current part 70 requires States to define ``prompt'' in their
own programs, and today's rulemaking defines the term for the part 71
program and closes this gap in the proposed rule. Today's rulemaking
also establishes a part 71 permit expiration date.
The EPA reiterates that today's rulemaking finalizes provisions for
permit content on an interim basis in order to better facilitate smooth
transition from implementation of part 71 to approved State programs
established pursuant to the current part 70 rule. With respect to
permit content provisions, the April 1995 and August 1995 proposals
contain provisions which reflect the Agency's current best thinking,
and subsequent to reviewing all of the comments on both proposals, EPA
may finalize provisions for permit content that differ from those
adopted today consistent with the approaches EPA eventually takes in
promulgating final revisions to part 70.
1. Off-permit Operations
Under today's rulemaking, sources are allowed to make changes at a
facility that are not addressed or prohibited by the permit terms,
provided they meet the requirements of section 71.6(a)(12). The
provision adopted today is patterned on 70.4(b) (14) and (15), the
analogous provisions in current part 70. Like part 70, part 71 requires
that the source provide the permitting authority with contemporaneous
written notification for these types of changes, that these changes be
incorporated into the permit at renewal, and that the source keep
certain records of these changes. Consistent with current part 70,
section 71.6(a)(12) limits off-permit changes to those that do not
constitute title I modifications, are not subject to any requirements
under title IV of the Act, and meet all applicable requirements of the
Act. In applying this provision, the Agency will use the interpretation
of the term ``title I modification'' that States are allowed to use
under the current part 70 rule. EPA expects that allows a significant
number of minor NSR changes, to the extent that they are not prohibited
by the title V permit, to qualify for off-permit treatment.
Like part 70, part 71 does not allow off-permit changes to alter
the permitted facility's obligation to comply with the compliance
provisions of its title V permit and does not grant the permit shield
to off-permit changes. For a more thorough discussion of the concept of
off-permit changes, see the rationale for part 70's off-permit
provision found at 57 FR 32269.
The part 71 proposal contained a modified off-permit provision at
proposed section 71.6(q) that was designed in light of the four-track
permit revision procedures contained in the proposal and modeled on the
off-permit provision contained in the August 1994 proposed revisions to
part 70. Proposed section 71.6(q) would have allowed certain changes to
remain off-permit but would have required the source to submit an
application to revise its permit to reflect that change within 6 months
of commencing operation of that change. In the August 1995 supplemental
proposal to parts 70 and 71, the Agency indicated that off-permit
provisions may be unnecessary if the streamlined permit revisions
procedures for parts 70 and 71 are adopted as proposed therein. After
reviewing comments on both proposals, EPA will decide whether to retain
an off-permit provision in the Phase II rulemaking, consistent with the
approach EPA takes in finalizing permit revisions procedures. Off-
permit treatment is available in the interim, consistent with that
provided by current part 70, but EPA does not believe that many permits
[[Page 34219]]
will be issued prior to the Phase II rulemaking and that the off-permit
provision therefore will not be greatly utilized.
2. Operational Flexibility
Under the rule adopted today, sources will enjoy the same
operational flexibility as is provided to part 70 sources under current
part 70. 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 at section 70.4(b)(12) (i)-(iii),
and the rule adopted today, there are three different methods for
implementing this mandate. Accordingly, section 71.6(a)(13)(i) provides
for sources to make certain changes within a permitted facility that
contravene specific permit terms without requiring a permit revision,
as long as the source does not exceed the emissions allowable under the
permit and the change is not a title I modification. Under the
interpretation of the term ``title I modification'' that EPA is
allowing States to take under the current part 70 rule, section
502(b)(10) changes may include changes subject to minor NSR, provided
the change does not exceed the emissions allowable under the permit.
Section 71.6(a)(13)(ii) also allows emissions trading at the facility
to meet limits in the applicable implementation plan when the plan
provides for such trading on 7-days notice in cases where trading is
not already provided for in the permit. Additionally, section
71.6(a)(13)(iii) allows emissions trading for the purpose of complying
with a federally-enforceable emissions cap that is established in the
permit independent of otherwise applicable requirements. For a thorough
discussion of the flexibility allowed under the analogous part 70
provisions, see 57 FR 32266.
The part 71 proposal contained an approach to operational
flexibility that was modeled on the August 1994 proposed revisions to
part 70, not current part 70. The August 1995 supplemental proposal
suggested further refinements to the concept. After reviewing comments
on both proposals, EPA may adopt an approach to operational flexibility
that is different from the one found in today's rulemaking, consistent
with the approach EPA takes in finally revising part 70. While the
approach adopted today differs significantly from that of the proposal,
the Agency is adopting it on an interim basis in order to better
facilitate transition to the State part 70 programs that are similarly
based on the provisions governing operational flexibility under the
current part 70 rule.
3. Affirmative Defense
In order to remain consistent with current part 70, EPA is adopting
a provision from the part 71 proposal that would allow sources to
assert an affirmative defense to an enforcement action based on
noncompliance with certain requirements due to an emergency. Such a
defense would be independent of any emergency or upset provision
contained in an applicable requirement. See section 71.6(g). This
provision is consistent with that found in the current part 70 rule at
section 70.6(g).
As a result of concerns identified in legal challenges to part 70,
the Agency, in the August 1995 supplemental proposal, solicited comment
on the need for, scope and terms of an emergency affirmative defense
provision. The Agency is reviewing those comments, but has not yet made
a decision on whether or not to modify or remove this additional
affirmative defense provision from part 70. The Agency will make part
71 consistent with the decision reached for part 70 in the part 71
Phase II promulgation. In the interim, sources may rely on the
affirmative defense offered by section 71.6(g).
4. Definition of Prompt Reporting
The proposal contained provisions concerning prompt reporting of
deviations from permitting requirements at proposed sections 71.6(f)
(3) and (4). The final rule at section 71.6(a)(3)(iii) requires that
each permit contain provisions for prompt notification of deviations.
Two commenters requested that the prompt reporting deadlines in
part 71 be adjusted to reflect other environmental regulation timelines
or to reflect State program guidelines that have been approved by the
Agency for part 70 programs. The Agency disagrees with the request.
Section 503(b)(2) of the Act requires permittees to promptly report any
deviations from permit requirements to the permitting authority. Since
individual permitting authorities are responsible for having programs
to attain and/or maintain air quality within their geographical
boundaries, they are obligated under the operating permits program to
determine, among other things, what constitutes a prompt notification.
Included as factors in determining prompt notification would be
elements such as pollutant concentration, deviation duration, and
authority response time. Because sources and pollutants of concern vary
among permitting authorities, States have adopted differing prompt
reporting schedules. The Agency has reviewed its obligation to protect
air quality on a national level, and has determined that its prompt
reporting deadline is appropriate for this obligation. Therefore the
deadlines contained in part 71 remain unchanged from the proposal.
Two commenters requested that part 71 clarify prompt reporting
requirements for deviations other than those associated with hazardous,
toxic, or regulated air pollutants, as described in sections
71.6(a)(3)(iii)(B)(1) and (2). The Agency believes that the requirement
contained in section 71.6(a)(3)(iii)(A), in which sources are to report
all instances of deviations from permit requirements at least every 6
months, provides the basis for prompt reporting of all other
deviations. However, the Agency is willing to clarify this reporting
requirement and has modified section 71.6(a)(3)(iii)(B) by adding a
statement that directs sources to submit all other deviation reports in
accordance with the timeframe given in section 71.6(a)(3)(iii)(A).
5. Inclusion of Federally Enforceable Applicable Requirements in
Permits
Two commenters requested that EPA include in part 71 the analogue
to section 70.6(b)(2), a provision that requires the permitting
authority to identify in the permit any applicable requirements that
are not federally enforceable. The EPA disagrees with this request
because part 71 permits will not include any non-federally enforceable
applicable requirements; therefore, a requirement for the Agency to
identify such terms as non-federally enforceable would be moot, and a
part 71 analogue to section 70.6(b)(2) is not needed. Part 71 differs
from part 70 in this respect. However, section 71.6(b) is consistent
with the first paragraph of section 70.6(b), which provides that part
70 permit terms and conditions are to otherwise be federally
enforceable.
6. General Permits
The proposal contained provisions at proposed section 71.6(l)
addressing general permits, which were based on the proposed revisions
to the general permits provisions in the August 1994 notice. Under part
70, the EPA afforded other permitting authorities the choice of
utilizing general permits, and the Agency intended to provide this
flexibility to itself. The Agency believes that general permits offer
cost-effective means of issuing permits for certain
[[Page 34220]]
source categories. The Agency has not yet decided on the proper
approach concerning opportunities for public review and judicial review
associated with general permits, and in the interim, has decided to
remain consistent with the current part 70 rule. Therefore, under
today's notice, EPA's authorization to allow a source to operate
pursuant to a general permit may proceed without public notice and does
not constitute final permit action for judicial review purposes.
Today's part 71 general permit provisions are found at section 71.6(d)
and are patterned after the analogous provisions at current section
70.6(d). In the Phase II rulemaking, EPA intends to revise the part 71
general permit provisions if necessary to remain consistent with the
approach the Agency ultimately takes in the final revisions to part 70.
7. Permit Expiration
The proposed rule contained a provision for rescinding part 71
permits at proposed section 71.4(l)(3). Under today's rulemaking at
section 71.6(a)(11), part 71 permits would contain a provision that
automatically cancels the part 71 permit upon expiration of the initial
permit term or upon issuance of a part 70 permit, without the need for
separate action to rescind the permit. The Agency believes that a clear
expiration date is necessary in order to avoid potential confusion over
which title V permit terms and conditions are valid. The majority of
permitting authorities are moving towards final approval of part 70
programs. In those few instances where a particular permitting
authority may not have final part 70 program acceptance by the deadline
for implementation of part 71, the Agency expects that final program
approval will occur well before the 5-year part 71 permit term (12
years for certain municipal waste combustors) has expired. Once the
part 70 program is approved, sources and permitting authorities may
desire to begin implementation as soon as possible. The Agency has no
desire to be a stumbling block in those efforts, nor does the Agency
wish to promote confusion over which permit (part 71 or 70) would be in
effect at a particular time.
One of the purposes of title V was to provide sources with
certainty as to their applicable requirements. Part 71 and part 70
permits will be similar, but not necessarily congruent, e.g., part 71
permits would contain only federally-enforceable requirements,
insignificant activities could differ, and reporting provisions would
differ. In order to prevent the potential confusion stemming from an
unexpired part 71 permit remaining in effect concurrent with a part 70
permit, the Agency has decided to preclude the event from occurring. No
such comparable provisions are needed in part 70 because that program
provides just one title V permit per source. Consequently, section
71.6(a)(11) provides that a part 71 permit automatically expires upon
the earlier of the expiration of its term or the issuance of a part 70
permit to the source.
F. Section 71.7--Permit Review, Issuance, Renewal, Reopenings, and
Revisions
As discussed above, EPA is, on an interim basis, promulgating final
regulations regarding permit issuance, renewal, reopenings, and
revisions for part 71 that are based upon the existing provisions
governing State title V programs at 40 CFR, section 70.7. Consequently,
the provisions adopted today differ from those contained in the part 71
proposal, which were based upon the August 1994 proposed revisions to
part 70. The EPA is still in the process of adopting revisions to part
70, and thus is not able at this time to base part 71's provisions on
the expected future changes to part 70. As a result, EPA has concluded,
in response to comments, that the most reasonable approach is to model
part 71's permit issuance, renewal, reopenings, and revisions
procedures on the corresponding provisions in the existing part 70
rule. These changes from the proposal, in addition to other changes in
response to comments, are identified below.
1. Permitting Authority's Action on Permit Application
First, the organization of the paragraphs has been changed from the
proposal to be consistent with 40 CFR section 70.7(a). In addition, in
section 71.7(a)(1), the word ``modification'' is now used in place of
the word ``revisions,'' which was used in the proposal. This is a
technical change to the rule to make it conform with the language used
in corresponding provisions in the current part 70 rule. Also, section
71.7(a)(1)(ii) has been changed to track section 70.7(a)(1)(ii) by
explicitly providing that changes subject to minor permit modification
procedures need not comply with the public participation requirements
of sections 71.7 and 71.11. This change from the proposal is a result
of the Agency's adoption in today's rule of permit revision procedures
modelled on those contained in the existing part 70 rule. Moreover,
section 71.7(a)(1)(iv) has been adopted without the language providing
that, in some cases, the terms of the permit need not provide for
compliance with all applicable requirements that are in force as of the
date of permit issuance. Again, this change is necessary to make
section 71.7(a)(1)(iv) consistent with the corresponding provision at
section 70.7(a)(1)(iv), which does not contain the proposal's language.
That language was first proposed in the August 1994 proposed revisions
to part 70, and the Agency is not yet prepared to adopt it into a final
title V rule. Likewise, section 71.7(a)(1)(v) is being promulgated
without references to the administrative amendment and de minimis
permit revision procedures contained in the proposal in order to better
match the current part 70 provisions at section 70.7(a)(1)(v).
Section 71.7(a)(2) is being adopted without the language in the
proposal which would have required permitting authorities to take final
action within 12 months after receipt of a complete application for
early reductions permits under section 112(i)(5) of the Act because
regulatory language addressing this requirement was moved to section
71.4(i)(3). Furthermore, this provision is being adopted without the
language in the proposal that would have allowed permitting authorities
to delay final action where an applicant fails to provide additional
information in a timely manner as requested by the permitting
authority, as section 70.7(a)(2) currently does not provide such
authority.
A new section 71.7(a)(3) is being promulgated to require the
permitting authority to ensure that priority is given to taking action
on applications for construction or modification under title I of the
Act. This change is made to make part 71 consistent with the
corresponding provision in current part 70 at section 70.7(a)(3).
Section 71.7(a)(4) (section 71.7(a)(3) in the proposal) deletes the
references in the proposal to the proposed regulatory provisions
addressing administrative amendments, de minimis permit revisions, and
minor permit revisions, and tracks current section 70.7(a)(4) by
providing that permitting authorities need not make completeness
determinations for applications for minor permit modifications. This
change is a result of EPA's basing section 71.7 on the current section
70.7. In addition, sections 71.7(a) (5) and (6) (sections 71.7(a) (4)
and (5) in the proposal) are renumbered in order to track existing
sections 70.7(a) (5) and (6).
[[Page 34221]]
The proposal contained a provision at proposed section 71.7(a)(6)
addressing how draft and final permits may be issued with respect to
applicable requirements that are approved or promulgated by EPA during
the permit process. This provision was proposed in the August 1994
proposed revisions to part 70 and is not contained in the current part
70 rule. For the reasons stated above, EPA is not yet prepared to adopt
it into part 71, and so is deleting the proposed provision from today's
final rule.
2. Requirement To Apply for a Permit
One commenter suggested revising 71.7(b) regarding the application
shield to say that the permitting authority must set a reasonable
deadline for the submission of additional information, and commented
that EPA should not be able to request information that is ``needed to
process the application'' but only that which is ``reasonable and
necessary to issue the permit''. The Agency disagrees that the
regulation should set a specific deadline for the submission of
additional information because the determination of what is a
reasonable time will vary depending on the information requested. Also,
EPA disagrees that there is a distinction between information needed to
process the application and information that is reasonable and
necessary to issue the permit.
One commenter suggested revising section 71.7(b) to allow sources
to operate subsequent to submission of a complete, but late,
application or application for renewal. The Agency believes that
extending an application shield to sources that fail to submit timely
applications is inconsistent with the Act. The proposal for part 70
contained a provision that would have provided a grace period of up to
three months to submit applications after the required submittal date.
The EPA deleted this provision from the final part 70 rule because
extending the application shield to sources that did not submit a
timely application would have been inconsistent with section 503(c) of
the Act. The Agency is promulgating section 71.7(b) to closely track
the corresponding provision at current section 70.7(b). Consequently,
the references in proposed section 71.7(b) to the proposed provisions
addressing administrative amendments, de minimis permit revisions, and
minor permit revisions have been deleted and replaced by references to
provisions addressing section 502(b)(10) changes and minor permit
modifications. In addition, the proposal's reference to section
71.7(a)(3) has been replaced with a reference to section 71.7(a)(4),
due to the restructuring of section 71.7(a).
3. Permit Renewal and Expiration
Section 71.7(c) is being promulgated to more closely match the
corresponding provision under current section 70.7(c) than did the
proposal. The references in proposed section 71.7(c)(2) to proposed
sections 71.5(b) and 71.5(c) have been replaced by a reference to
section 71.5(a)(1)(iii), due to the restructuring of section 71.5.
Moreover, section 71.7(c)(2) (section 71.7(c)(3) in the proposal) is
being promulgated without the language that would have provided that,
where the permitting authority fails to act on a timely renewal
application before the end of the term of title V permit, the permit
shall remain in effect until the permitting authority does take final
action. Instead that language (which is based upon the existing section
70.4(b)(10) of the current part 70 rule) is being promulgated at
section 71.7(c)(3).
4. Permit Revisions
Commenters remarked that the Federal title V permit program as
proposed in April 1995 would establish a new, added layer of permitting
which would add unacceptably to the amount of time needed before a
source could implement process changes. They suggested that even though
the April 1995 permit revision tracks attempt to build on existing
preconstruction programs, they still pose substantial new requirements
(e.g., new criteria for adequate prior review in NSR). These commenters
opined that if EPA believes that insufficient public review is afforded
by existing programs, the Agency should address those shortcomings, not
start a new process. Another commenter suggested that clerical changes
should be handled through notification of the change by an amendment
letter to the permitting authority that would then be attached to the
permit without any EPA review until permit renewal. The commenter
further suggested that all minor source changes which do not violate
any permit term and do not render the source newly subject to an
applicable requirement should be allowed to follow this amendment
procedure. Other commenters opined that the April 1995 proposed four
track permit revision procedures were fundamentally flawed and must be
replaced with simpler procedures. One commenter suggested that EPA
Regions, not just delegated States, should be authorized to conduct
``merged processing'' to add NSR or section 112(g) terms to title V
permits, if such processing is retained in the final rule. Some
suggested that EPA promote consistency between part 70 and part 71
permit programs to reduce confusion for sources that have to make a
transition between different regulatory programs.
In light of these and other comments, EPA proposed in August 1995 a
revised permit revision process, developed with extensive stakeholder
input, which proposes several ways of streamlining permit revisions,
particularly for those changes subject to prior State review (e.g., NSR
changes). In the interim, as discussed earlier in this preamble, rather
than adopting the four-track permit revision system that the Agency
proposed for part 71 on April 25, 1995, the EPA has decided to adopt,
for the first phase of part 71, the permit revision system in the
current (July 1992) part 70 rule. Current part 70 provides three ways
to revise a permit: the administrative amendment process, the minor
permit modification process and the significant permit modification
process. The specific regulatory changes to proposed part 71 taken to
adopt these procedures are described below.
One commenter requested that EPA not follow the approach to ``title
I Modification'' in the August 1994 proposed revisions to part 70 in
defining the term for part 71. In implementing the current part 70
permit revision procedures during the interim period, EPA would apply
the interpretation of ``title I modifications'' that States are allowed
to apply under the current part 70 rule. Under this interpretation,
minor NSR actions may be incorporated into the title V permit using the
minor permit modification procedures of current part 70, or
alternatively, may be made as off-permit changes if they are eligible.
a. Rationale for Providing Interim Permit Revision Procedures. The
proposal indicated that due to the ongoing discussions with
stakeholders regarding permit revision procedures under title V, EPA
was considering finalizing part 71 in the interim without provisions
for permit revision procedures. Several commenters suggested that EPA
not finalize any portion of part 71 until permit revision procedures
are finalized because they will influence how sources design their
initial permit applications. The commenters argued that sources will
need the ability to obtain expeditious revisions to permits, and that
there is thus a need for provisions governing modifications. As
discussed previously, EPA has decided to include the permit revision
procedures of current part 70 in
[[Page 34222]]
this interim part 71 rule, while reserving the right to adopt
procedures based upon future changes to part 70, when part 70 revisions
are promulgated and Phase II of this rule is completed.
The EPA agrees with commenters that including current part 70
revision procedures is most appropriate for several reasons. First, EPA
believes that it is premature to adopt the procedures proposed in April
1995 for part 71, or in August 1995 for part 70, because both of these
proposals involve outstanding issues. Although the August 1995 proposal
contains the latest thinking on streamlined permit revision procedures,
it would be inappropriate to rush to promulgate a proposed system
before the Agency has taken time to consider comments on the August
1995 proposal and arrive at a final position. In the meantime, the
Agency has at its disposal the permit procedures of the current part 70
rule under which the Agency continues to approve State programs.
Second, industry commenters note that a clear understanding of
permit revision procedures is important as sources prepare their part
71 permit applications. The revision procedures of part 70 are more
clearly understood than any proposed procedures, having been
promulgated by EPA and adopted by many State programs. Third, adopting
the existing part 70 permit revision procedures insures a smooth
transition from a Federal operating permits program to a State program
due to the similarity between the two programs.
Finally, the Agency does not believe that many permit revisions
will occur during Phase I of this program. The timing of permit
issuance under part 71 is such that the Agency believes that few part
71 permits will be issued and fewer will need to be revised before
States receive part 70 approval or before Phase II of part 71 is
promulgated. Permit revision procedures in Phase I of the part 71 rule
become more essential the longer part 71 programs are in place without
a Phase II rule, which is possible if the Phase II rulemaking is
delayed.
b. Description of Permit Revision Procedures. The part 71 proposal
addressed permit revisions at proposed sections 71.7(d)-(h) using
proposed provisions from the August 1994 part 70 notice. Proposed
section 71.7(d) would have defined when a permit revision is necessary;
proposed section 71.7(e) would have addressed administrative
amendments; proposed sections 71.7 (f) and (g) would have addressed de
minimis permit revisions and minor permit revisions, respectively; and
proposed section 71.7(h) would have covered significant permit
revisions. All of these provisions have been deleted in today's rule,
and replaced with new provisions at sections 71.7 (d) and (e) that
track the corresponding provisions in the current part 70 rule
governing administrative amendments, minor permit modifications, and
significant permit modifications. The EPA directs interested persons to
the preamble to the final part 70 rule, 57 FR 32250 (July 21, 1992) for
a detailed description of these permit revision procedures.
Under section 71.7(d), changes eligible to be processed as
administrative amendments include administrative changes such as
correction of typographical errors, changes in mailing address,
ownership of the source (or part of the source) unless restricted by
title IV, contact persons, and changes in individuals who have assigned
responsibilities, (including the responsibility to sign permit
applications). Administrative permit amendments can be handled by
direct correspondence from the permitting authority to the facility
after the appropriate information related to the changes has been
supplied by the facility. As under current part 70, administrative
amendments could also be used to address ``enhanced NSR'' changes, to
which the permitting authority could also extend the permit shield.
Sections 71.7(e) (1) and (2), which address minor permit modification
procedures, are designed for small changes at a facility which will not
involve complicated regulatory determinations. A source may make a
change immediately upon filing an application for a minor permit
modification, prior to the time the permitting authority, affected
States, and EPA (in the case of a program delegated pursuant to section
71.10) review the application. Eligible changes could be processed
individually or in groups, but the permit shield may not extend to
these changes. Section 71.7(e)(3) covers significant modifications. In
this track, the public, the permitting authority, affected States, and
EPA (in the case of a program delegated pursuant to section 71.10) will
review the modification in the same manner as review during permit
issuance. The permit shield may extend to changes processed under this
track.
5. Permit Reopenings
The proposal addressed permit reopenings at proposed 71.7 (i) and
(j). These provisions were modeled on the existing provisions at
section 70.7 (f) and (g), as proposed to be revised in the August 1994
notice. One of the features of that approach was a specific provision
for reopening permits to incorporate new maximum achievable control
technology (MACT) standards promulgated under section 112 of the Act.
As part 70 has not yet been finally revised to adopt this approach, it
is premature at this time to adopt it for part 71. Consequently, in
order to more closely track the current part 70 rule and promote
consistency with State programs developed and approved under the
current rule, the part 71 provisions for permit reopenings adopted
today at sections 71.7 (f) and (g) are modeled on the existing
provisions at sections 70.7 (f) and (g), and do not include the
proposed provisions concerning reopening permits to incorporate new
MACT standards.
G. Section 71.8--Affected State Review
The provisions of section 71.8 differ from provisions proposed in
the part 71 proposal in several respects. First, because today's
rulemaking adopts permit revision procedures based on the current part
70 rule, rather than those that were proposed in April, the cross
references to section 71.7 were changed and the reference to de minimis
permit revisions has been deleted. In addition, the final rule
specifically provides, consistent with part 70, that timing of notice
to affected States of major permit modifications is not tied to the
timing of notice to the public.
Second, section 71.8(b) is being adopted to more consistently
follow section 70.8(b)(2) in providing that where EPA delegates
administration of a part 71 program, the permitting authority shall
transmit notice of refusal to accept recommendations of an affected
State as part of the permitting authority's submittal of the proposed
permit to EPA.
Third, as discussed in section III.B of this document, a new
paragraph (d) has been added to section 71.8 that requires that part 71
permitting authorities provide notice of certain permitting actions to
federally recognized Indian Tribes. While this is a departure from what
part 70 currently requires of State permitting authorities, EPA agrees
with commenters who suggested that federally recognized Indian Tribes
should not be required to establish compliance with any eligibility
criteria in order to be entitled to notice of Federal permitting
decisions that may affect Tribal air quality. One commenter suggested
that applying for treatment in the same manner as a State was a time
consuming and burdensome process for Indian Tribes and urged the
elimination of that requirement for Tribes to receive notice of
permitting actions. Consistent
[[Page 34223]]
with the Agency's policy of maintaining government-to-government
relationships with Indian Tribes, EPA (and delegate agencies) will
notify federally recognized Indian Tribes of draft permits that may be
issued to sources that could affect Tribal air quality, including all
draft permits issued by EPA for the Tribal area and all draft permits
for sources that are within 50 miles of the reservation boundary or the
Tribal area. Accordingly, the Agency has added a new paragraph that
provides that the part 71 permitting authority shall send notices of
draft permits to federally recognized Indian Tribes whose air quality
may be affected by the permitting action. The EPA is imposing upon
itself this responsibility in order to further its government-to-
government relationship with Tribes.
H. Section 71.9--Permit Fees
1. Two-Phase Promulgation of Fee Requirements
Consistent with the two-phased approach to part 71 promulgation
described in this notice, EPA is today adopting a two-phased approach
to part 71 fee requirements. Upon Phase I promulgation, collection of
fees should be sufficient to cover the anticipated program costs of
Phase I. On the other hand, because the cost of Phase II is tied to
procedures which will not be finalized until the Phase II rulemaking
(i.e., revised and streamlined permit revision procedures), a fee
amount for Phase II cannot be finalized in today's rule. Thus, the
Phase I fee covers all program costs except those associated with
permit revisions which are excluded because the Phase II rulemaking
will finalize streamlined permit revision procedures that will
ultimately differ substantially from those contained in today's rule.
Instead, the Phase II rulemaking will add to the fee the costs for the
new permit revision procedures when they are finalized. More
information on the determination of specific activities and costs
associated with each phase is contained in the document entitled
``Federal Operating Permits Program Costs and Fee Analysis (Revised),''
which is contained in the docket for this rulemaking.
The two-phased approach to fee requirements will not impact the
ultimate fee amount owed by a source. For the majority of sources, EPA
expects that the part 71 application and associated fee submittal will
occur after the Phase II rulemaking. For these sources, the fee will be
paid all at once. Sources that submit their applications prior to the
Phase II rulemaking will pay a Phase I fee in full at the time of
application. The balance of the fee necessary to cover the costs of the
Phase II provisions will be collected once the Phase II rule is
promulgated. The specific timing and amount of the Phase II fee
collection will be discussed in the Phase II rulemaking.
The EPA fully expects that the Phase II rulemaking finalizing
permit revision procedures will be completed before any part 71 permits
are issued and that no program costs will be incurred in the interim
period as a result of permit revisions. However, EPA recognizes that in
the unlikely event that a part 71 permit is both issued and revised
(under the interim revision procedures in today's rule) fees will not
have yet been collected to cover the cost of the revision and that if
the Phase II fee is finalized based on a streamlined permit revision
process, there may be a shortfall in revenue. However, the alternative
would be to finalize today a Phase I fee based on the interim revision
procedures that potentially overcharges sources and would necessitate,
if and when the permit revision procedures are streamlined as expected,
a refund. The EPA wishes to avoid this unnecessary and burdensome
process.
2. Fee Amount
The part 71 proposal proposed a base fee amount of $45 per ton/year
which was based on a fee analysis which projected EPA's direct and
indirect costs for implementing the part 71 program nationwide and
dividing that by the total emissions subject to the fee. A detailed
discussion of this methodology is found in ``Federal Operating Permits
Program Costs and Fee Analysis,'' which is contained in the docket for
this rulemaking. Using the same basic methodology as the original fee
analysis, EPA has calculated the costs of Phase I and has set the base
Phase I fee amount at $32 per ton/year to cover these costs. The
determination of this amount is contained in the report entitled,
``Federal Operating Permits Program Costs and Fee Analysis (Revised)''
(hereafter ``Revised Fee Analysis''), which is contained in the docket
for this rulemaking. As proposed, the fee will be adjusted based on the
level of contractor support needed for those programs where it is
necessary for EPA to use contractors.
One commenter suggested that the $3 per ton surcharge to cover EPA
oversight of contractor and delegated programs should be eliminated,
noting that EPA does not charge oversight fees for State part 70
programs. The EPA agrees and believes that such a surcharge would be
inconsistent with the approach taken in part 70. A full evaluation of
the April 1995 comments was made after the development of the August
1995 proposal, in which EPA proposed to eliminate the surcharge. This
evaluation of comments confirmed the direction EPA took in the August
1995 proposal. Therefore, today's action both responds to the April
comments and is consistent with the August 1995 proposal. Accordingly,
EPA is today deleting the surcharge provisions from sections 71.9(c)(2)
and (3). The EPA will continue to consider any comments received on the
supplemental proposal, and, if necessary, will take any additional
action on the surcharge in the Phase II rulemaking.
For reasons similar to those described in the preceding paragraphs
on the surcharge, the EPA is deleting ``preparing generally applicable
guidance regarding the permit program or its implementation or
enforcement'' from the list of activities in section 71.9(b) whose
costs are subject to fees. The EPA believes that this category
partially duplicates the fourth category under section 71.9(b), general
administrative costs. To the extent that it is not duplicative, it
refers to guidance that is issued before an individual part 71 program
is in place. The EPA does not require that States charge fees for these
activities for part 70 programs, and the Agency does not believe that
such costs should be included in part 71 fees. This change does not
result in a change in the fee structure because costs of activities
which occur before the effective date of the part 71 program were not
included in the original fee analysis. This change simply adjusts the
list of activities in section 71.9(b) to more accurately reflect the
activities whose costs were included in the fee analysis. Consistent
with the deletion of the surcharge, the EPA is taking this action based
on comments received on the part 71 proposal. If adverse public comment
is received regarding this change as proposed in the August 1995
supplemental proposal, the EPA will take additional action as necessary
in the Phase II rulemaking.
3. Fees for Delegated Programs
As discussed in the part 71 proposal, EPA intends to allow
delegation of part 71 programs to States in many cases. Originally, EPA
envisioned funding these delegated part 71 programs with revenue
generated from part 71 fees. However, EPA is aware that many delegate
agencies have the authority under State or local law to collect fees
adequate to fund delegated part 71 programs. In some cases, these
agencies could continue to collect fees even
[[Page 34224]]
though EPA would be collecting part 71 fees. Several commenters pointed
out that this would result in the undesirable situation of paying fees
to two permitting authorities. On the other hand, one commenter noted
that if a delegate agency, in deference to part 71, rescinds its
authority to collect fees, funding for the Small Business Assistance
Program (SBAP) in that State could be adversely affected.
The EPA believes that the best way to address both of these
situations is to suspend collection of part 71 fees for part 71
programs which are fully delegated to States and for which the State
has adequate authority under State law to fund fully-delegated part 71
activities with fees collected from part 71 sources. This ensures that
State revenue is available to administer the program, including the
SBAP, while addressing the commenters' concerns about double fees.
However, EPA cannot suspend fee collection for partially delegated part
71 programs, since in those situations EPA will still incur substantial
administrative costs. Suspension of EPA fee collection does not
constitute approval of the State's fee structure for part 70 purposes.
Rule language codifying this approach has been added to section
71.9(c)(2).
The suspension of part 71 fees for delegated programs was proposed
in the August 1995 supplemental proposal. While the timing of today's
promulgation has not allowed thorough evaluation of comments on that
proposal, the EPA agrees with the concerns about duplicate fees and the
SBAP which were raised in reference to the part 71 proposal. A full
evaluation of these comments was made after the development of the
August 1995 proposal on this issue. This evaluation confirmed the
direction EPA had taken in the August 1995 proposal. Therefore, today's
action both responds to the April comments and is consistent with the
August proposal. Furthermore, today's action is consistent with EPA's
position that its fees be based on program costs, because EPA will not
incur any program costs after it fully delegates a part 71 program. The
EPA will still evaluate all comments received on the August 1995
proposal and will take any necessary additional regulatory action on
the suspension of part 71 fees for delegated programs in the Phase II
rulemaking.
For part 71 programs that are delegated but for which EPA does not
waive fee collection, EPA's policy will be to continue to collect part
71 fees itself. The proposed fee amount for part 71 programs was based
on the assumption that certain activities would be more costly for EPA
to implement than for States due to increased travel, unfamiliarity
with individual sources, etc. However, commenters pointed out that when
a program is delegated, this assumption is not applicable. The EPA
agrees with this comment, and is today promulgating language
establishing a lower part 71 fee for delegated programs which omits the
increased cost assumption made for EPA-administered part 71 programs.
Where EPA continues to collect part 71 fees for a fully-delegated
program, the Phase I part 71 fee amount will be $24 per ton/year. The
determination of this amount is contained in the Revised Fee Analysis.
Furthermore, for partially delegated programs, the part 71 fee that EPA
collects will be lower than the fee for an EPA-administered program
because the fee will be adjusted to account for the proportion of
effort performed by the delegate agency at a lower cost. For these
programs, the Administrator will determine the fee according to the
formula in section 71.9(c)(4).
4. Timing of Fee Payment
The part 71 proposal provided that sources submitting their
initial fee calculation worksheets must pay one-third of the initial
fee upon submittal, and must pay the balance of the fee within 4
months. However, EPA believes that two changes discussed in today's
preamble make this installment approach to fee payment infeasible.
First, EPA is promulgating a later due date for permit applications,
which would mean that under the proposed installment approach, receipt
of two-thirds of the fee revenues would be delayed until the end of the
first year of the program, which would not provide adequate funding for
initial program activities. Second, EPA is promulgating a two-phased
approach to fee collection. The EPA believes that it would be
unnecessarily complicated and potentially confusing to provide for
installment payment of the fee for one or both phases. For these
reasons, EPA is promulgating language at section 71.9(e)(1) which
clarifies that payment of the full fee amount for the first year is due
upon submittal of the initial fee calculation worksheet.
In addition, because today's rule changes the due date for permit
applications, a change must also be made to the deadlines for the
initial part 71 fee calculation worksheets in the event that EPA
withdraws approval of a part 70 program. The proposal contained a
schedule for submission of the fee calculation worksheet based on SIC
code. The due dates ranged from 4 to 7 months after the effective date
of the part 71 program. Changes to section 71.9(f)(1) adjust the fee
calculation worksheet due dates to range from 6 to 9 months after the
part 71 effective date, depending on SIC code.
5. Computation of Emissions Subject to Fees
A commenter pointed out that the rule language in proposed section
71.9(c)(5)(ii) inadvertently limits the 4000 ton cap on emissions
subject to fees solely to programs administered by EPA, not delegated
or contractor-administered programs. Accordingly, the EPA has amended
this paragraph to clarify that the 4000 ton cap applies to all types of
part 71 programs.
6. Penalties
The part 71 proposal contained a penalty charge of 50 percent of
the fee amount if the fee is not paid within 30 days of the due date.
In addition, the proposal assessed a penalty of 50 percent on
underpayments with the 50 percent penalty assessed on the amount by
which the source underpaid the fee owed. The proposal also provided
relief from the penalty for certain underpayments where the source is
making an initial fee calculation based on estimated rather than actual
emissions. The proposal provided that where the underpayment results
from an underestimate of future emissions and where the underpayment
does not exceed 20 percent of the fee amount (i.e., where the source
pays more than 80 percent of the fee owed), no penalty would be
assessed.
Some industry commenters were concerned that establishing a penalty
for underpayment for a source that underpays by as little as 20 percent
would be too harsh in light of the uncertainty in making emissions
estimates. Although title V requires a penalty to be assessed for
failure to pay any fee lawfully imposed by the Administrator, the EPA
agrees that there is a degree of uncertainty in estimating emissions,
particularly for HAP sources, which are often smaller, and for which
emission factors are not well-defined.
Upon consideration of comments and evaluation of the relative
uncertainty of emission estimates for HAP listed pursuant to section
112(b) of the Act, the EPA is today promulgating in section 71.9(l)(4)
an underpayment penalty which differs slightly from the proposal. For
sources who base their initial fee calculation worksheet on estimated
rather than actual emissions, the EPA will, for HAP emissions, apply
the penalty to an underpayment of 50 percent or more. The penalty will
still apply to an underpayment of 20 percent
[[Page 34225]]
or more for non-HAP emissions. If a source is subject to fees for both
HAP and non-HAP emissions, the underpayment which would trigger a
penalty will be prorated based on what portion of the source's
emissions are HAP versus non-HAP. Thus, to determine whether an
underpayment would incur a penalty, such a source's HAP emissions would
be multiplied by the 50 percent rate, and its non-HAP emissions would
be multiplied by the 20 percent rate. The sum of these emissions rates
determines the level of underpayment which, if exceeded, would incur
the underpayment penalty. The EPA believes that this approach offers
significant relief to sources faced with difficulty in accurately
estimating their emissions, while still ensuring that adequate fee
revenues can be collected in a fair and timely manner.
7. Certification Requirement
The EPA believes that the correct interpretation of the part 71
certification requirement at section 71.5(d) is that it applies to all
fee calculation documents. However, for clarity, EPA is today adding a
requirement to sections 71.9(e) and (h) which requires certification of
the fee calculation worksheets by a responsible official. The added
language in section 71.9 is simply a cross reference to the language in
section 71.5(d).
I. Section 71.10--Delegation of Part 71 Program
1. Delegation of Authority Agreement
With respect to the content of Delegation of Authority Agreements,
EPA wishes to clarify that the adequacy of State permit fees must be
addressed when EPA waives collection of part 71 permit fees. As
described in section III.F.3 of this preamble, when EPA has determined
that a delegate agency has raised adequate fee revenue from sources
subject to title V to administer a fully-delegated part 71 program
absent any financial assistance from EPA, then EPA will waive
collection of part 71 fees. In such a case, the Delegation of Authority
Agreement would specify that the delegate agency has sufficient revenue
and will collect sufficient revenue from sources subject to title V to
administer all of its duties as outlined in the Agreement. The EPA will
not waive fees when the part 71 program is partially delegated or when
the delegate agency lacks sufficient revenue to fund the delegated part
71 program.
2. Appeal of Permits
The Agency has revised proposed section 71.10(i), which addresses
the petition process for permits issued by delegate agencies. In lieu
of restating which persons and parties may submit petitions to the
Environmental Appeal Board pursuant to section 71.11(l)(1), section
71.10(i) provides that the appeals of permits under delegated program
shall follow the procedures of section 71.11(l)(1).
3. Transmission of Information to EPA, Prohibition of Default Issuance,
and EPA Objections
The final rule also makes certain changes to the proposed
provisions addressing transmission of information to the Administrator,
the prohibition of default issuance of permits, and EPA objections to
proposed permits at sections 71.10(d), (f) and (g). Essentially, these
changes are being made today in order to better harmonize the final
rule with corresponding provisions in the currently promulgated part 70
rule at 70.8(a), (c) and (e). Regarding transmission of information to
EPA, the reference in proposed section 71.10(d)(1) to proposed section
71.7(a)(1)(v) has been rewritten, and proposed paragraphs (2) and (3)
have been merged into it in order to more closely track part 70. New
paragraph (2) has been adopted in order to achieve consistency with
section 70.8(a)(2).
The provision on prohibition of default issuance has been changed
to follow the existing provision at section 70.8(e). In proposed
section 71.10(f)(2), EPA had provided that the prohibition would not
apply to permit revisions processed through the proposed de minimis
permit revision track, following the August 1994 proposed revisions to
part 70. As that track is not being adopted in this Phase I rule, the
exception has been deleted.
Finally, section 71.10(g) on EPA objections has been changed from
the proposal in order to follow the test established under the current
part 70 rule for when EPA would object to proposed permits, and to
follow the promulgated part 70 language providing for what shall happen
when a permitting authority refuses to respond adequately to an EPA
objection. This change includes deletion of the proposed reference to
proposed section 71.7(a)(6), which is not being adopted as proposed in
this final rule.
J. Section 71.11--Administrative Record, Public Participation, and
Administrative Review
The Agency has chosen to establish part 71-specific rules in
today's promulgated section 71.11 for administrative procedures in
order to clarify for the public and the regulated community those
requirements associated specifically with Federal operating permits
under title V of the Act. Today's promulgated section 71.11 is based
closely on the provisions of 40 CFR part 124. Part 124 covers a number
of EPA permitting programs, and the process of identifying the separate
and distinct requirements associated with those individual programs can
be complex. The Agency feels that it is advantageous in this case to
describe the administrative procedures for today's promulgated part 71
within the rule itself, since that will avoid potential confusion as to
which provisions of part 124 apply to the part 71 program, and since
interested parties will not be required to refer to separate
regulations in discerning applicable administrative procedures.
Certain aspects of section 71.11 that would correspond to proposed
streamlined part 71 permit revision processes discussed in the preamble
to the supplemental part 70 and 71 proposed rules published on August
31, 1995 (60 FR 45529), are not addressed in today's notice because the
Agency is not yet prepared to conduct final rulemaking for those
processes. In the meantime, EPA is promulgating permit revision
processes based on the current part 70 rule in response to numerous
comments on the proposed part 71.
To accommodate basing part 71's permit revision procedures on the
existing part 70 rule, today's notice makes certain changes to the
regulatory language of section 71.11 as proposed on April 27, 1995 (60
FR 20804) in order to apply administrative procedures to the permit
revision tracks as appropriate. Changes to the regulatory language that
make reference to permit revision procedures were made in the first
paragraph of section 71.11 and in section 71.11(l)(1). These sections
make reference to specific types of permit revisions which in this
promulgated rule are those permit revision procedures found in 40 CFR
part 70, rather than the four-track permit revision procedures in the
April 27, 1995 proposed part 71. Section 71.11(l)(1) describes the 30-
day period within which a person may request review of a final permit
decision. For significant modifications, the 30-day period begins with
the service of notice of the permitting authority's action. This is
unchanged from the proposal. For minor permit modifications and
administrative amendments, the 30-day period begins on the date the
minor permit modification or administrative amendment is effective.
Section 71.11(d)(3)(i)(D) has been modified in response to comments
[[Page 34226]]
received which noted that under the proposal a requirement to notify
any unit of local government having jurisdiction over the area where a
source is located would result in notices to components of government
which have no relationship to air quality and its impacts. Promulgated
section 71.11(d)(3)(i)(D) stipulates that the local emergency planning
committee (not ``any'' unit of local government) and State agencies
having authority under State law with respect to the operation of the
source are among the entities to receive a copy of notices of
activities described in section 71.11(d)(1)(i).
Additional changes to the regulatory language of section 71.11
relate to treatment of a final permit decision as enforceable and
effective where review by the EAB has been requested. In proposed
sections 71.11(i)(2) and 71.11(l)(6), the Agency proposed that a final
permit decision would become effective immediately upon issuance of
that decision unless a later effective date were specified in the
decision. It was pointed out by several commenters that, in other EPA
permitting programs, such as the Resource Conservation and Recovery Act
and PSD programs, an appeal request stays the effectiveness of a final
permit decision. See 40 CFR section 124.15(b)(2). The EPA agrees that
it would be unfair to force permittees to comply with permit terms
during the time that they are subject to appeal, and that the proposal
was inappropriately inconsistent with part 124 on this point. Thus,
sections 71.11(i)(2) and 71.11(l)(6) have been promulgated to conform
to the longstanding Agency approach reflected in 40 CFR section 124.15,
so that permittees are not unfairly required to comply with permit
terms pending their review by the EAB. Under the final rule, those
specific permit terms and conditions that are the subject of an appeal
to EAB would be stayed, while the rest of the permit would become
effective as otherwise provided in section 71.11(i)(2). Moreover,
section 71.11 (i)(2) itself has been changed so that it better tracks
part 124, which makes final permit issuance decisions immediately
effective only where no comments requested a change in the draft
permit; otherwise, permits are effective than sooner than 30 days after
the issuance decision or following the conclusion of appeal
proceedings, as applicable.
In response to comments which expressed concern that applicants
should be able to appeal a final permit decision even in the absence of
having commented on a draft permit, the Agency believes that applicants
can appeal if the final permit differs from the draft permit, even if
the applicant did not submit comments on the draft permit. The Agency
does not believe it would be appropriate to allow applicants to appeal
where the final permit is identical to the draft permit, and the
applicant had not commented on the draft permit. It is a far more
efficient use of resources to resolve permitting issues in the
administrative issuance process, rather than to allow applicants to
raise issues on draft permits for the first time on appeal. To further
clarify the ability of the applicant to appeal a final permit, the
following language has been added to section 71.11(l)(1): ``or other
new grounds that were not reasonably foreseeable during the public
comment period on the draft permit''.
Section 71.11(l)(6) has been added, incorporating language from 40
CFR part 124. Part 124 establishes general procedures clarifying the
rules to which appellants are subject in all permit programs under part
124, and therefore EPA believes it is appropriate to extend these
provisions to part 71 as well. This section outlines procedures for
motions for reconsideration of appeals of final orders. It stipulates a
10 day deadline for motions, and notes that motions are to be directed
to the EAB, unless the case had been referred to the Administrator by
the Board, and in which the Administrator had issued the final order.
The effective date of the final order is not stayed unless specifically
so ordered by the Board.
One commenter suggested that the proposal's requirement of a right
to appeal every permit decision would be overly burdensome, commenting
that even de minimis revisions would be subject to appeal. The EPA
notes that final part 71 permitting actions are final actions for
purposes of judicial review under section 307(b)(1) of the Act.
Consequently, EPA does not have the discretion to eliminate the
opportunity for judicial review of final part 71 permitting actions.
Moreover, EPA disagrees that requiring administrative appeal to the EAB
as a prerequisite to judicial review is either redundant or jeopardizes
a source's ability to rely on its permit. Requiring administrative
exhaustion of remedies is longstanding practice in EPA permit programs,
and EPA notes that States with approved part 70 programs generally
require administrative appeal as a prerequisite to challenging permits
in State court. Also, in requiring administrative exhaustion,
litigation in Federal court over permit actions will often be avoided,
thus conserving both public and private resources. Finally, since
pending administrative appeal sources will be able to rely on the
application shield, they will not be placed in any greater ``jeopardy''
than if they had directly appealed the final permit to Federal court.
Changes have been made to section 71.11(n) to replace the term
``Administrator'' with ``permitting authority,'' to allow for those
circumstances where a State has been delegated a part 71 program by
EPA.
IV. Administrative Requirements
A. Docket
The docket for this regulatory action is A-93-51. 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. Executive Order 12866
Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to the Office of Management and Budget (OMB)
review and the requirements of the Executive Order. The Order defines
``significant'' regulatory action as one that is likely to lead to a
rule that may:
(1) Have an annual effect on the economy of $100 million or more,
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 obligation of recipients
thereof;
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
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 EPA has estimated the annualized cost of the part 71 program
based on the number of sources that would be subject to part 71
permitting requirements in the 8 States where EPA
[[Page 34227]]
believes the program will be implemented. A survey of those States
showed that the number of part 71 sources in those States (many of
which are not heavily industrialized) is much smaller than EPA's
original estimates. The EPA had previously assumed that part 71 sources
in 8 States would comprise 16 percent of all title V sources. However,
in the States where EPA is likely to administer a part 71 program, the
part 71 source population comprises slightly less than 6 percent of all
title V sources. The estimated annualized cost of implementing the part
71 program is $19.8 million to the Federal government and $18.1 million
to respondents, for a total of $37.9 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 draft regulatory impact analysis (RIA) was made
available for public comment as part of the April 27, 1995 proposal.
The primary difference between the current RIA and the prior draft is
that the RIA now assesses impacts based on the streamlined permit
revision procedures that were proposed for part 70 and 71 in August of
1995, in lieu of the more cumbersome 4-track permit revision procedure
that was contained in the part 71 proposal. 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
The Regulatory Flexibility Act (5 U.S.C. 601) requires EPA to
consider potential impacts of proposed regulations on small entities.
If a preliminary analysis indicates that a proposed regulation would
have a significant adverse economic impact on a substantial number of
small entities, then a regulatory flexibility analysis must be
prepared.
The original part 70 rule and the recently proposed revisions to
part 70 were determined to not have a significant adverse impact on
small entities. See 57 FR 32250, 32294 (July 21, 1992), and 60 FR
45530, 45563 (Aug. 31, 1995). Similarly, a regulatory flexibility
screening analysis of the part 71 rule revealed that the rule would not
have a significant adverse impact on a substantial number of small
entities, since few small entities would be subject to part 71
permitting requirements as a result of the rule's deferral of the
requirement to obtain a permit for nonmajor sources.
Consequently, I hereby certify that the part 71 regulations will
not have a significant adverse effect on a substantial number of small
entities.
D. Paperwork Reduction Act
The OMB has approved the information collection requirements
contained in this rule under the provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et. seq. and has assigned OMB control number 2060-
0336.
The information is planned to be collected to enable EPA to carry
out its obligations under the Act to determine which sources are
subject to the Federal Operating Permits Program and what requirements
should be included in permits for sources subject to the program.
Responses to the collection of information will be mandatory under
section 71.5(a) which requires owners or operators of sources subject
to the program to submit a timely and complete permit application and
under sections 71.6 (a) and (c) which require that permits include
requirements related to recordkeeping and reporting. As provided in 42
U.S.C. 7661b(e), sources may assert a business confidentiality claim
for the information collected under section 114(c) of the Act.
The annual average burden on sources for the collection of
information is approximately 678,000 hours per year, or 329 hours per
source. The annual cost for the collection of information to
respondents is $18.1 million per year. The EPA has estimated the
annualized costs based on the number of sources that would be subject
to part 71 permitting requirements in the 8 States where EPA believes
the program will be implemented, most of which have fewer than average
number of part 71 sources per State. There is no burden for State and
local agencies. The annual cost to the Federal government is $19.8
million (assuming part 71 programs are delegated), which is recovered
from sources through permit fees. Thus, the total annual cost to
sources would be $37.9 million. Burden means the total time, effort, or
financial resources expended by persons to generate, maintain, retain,
or disclose or provide information to or for a Federal agency. This
includes the time needed to review instructions; develop, acquire,
install, and utilize technology and systems for the purposes of
collecting, validating, and verifying information, processing and
maintaining information, and disclosing and providing information;
adjust the existing ways to comply with any previously applicable
instructions and requirements; train personnel to be able to respond to
a collection of information; search data sources; complete and review
the collection of information; and transmit or otherwise disclose the
information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15. The EPA
is amending the table in 40 CFR part 9 of currently approved
information collection request (ICR) control numbers issued by OMB for
various regulations to list the information requirements contained in
this final rule.
Send comments on the Agency's need for this information, the
accuracy of the provided burden estimates, and any suggested methods
for minimizing respondent burden, including through the use of
automated collection techniques, to the Director, Regulatory
Information Division, Office of Policy, Planning, and Evaluation, U.S.
Environmental Protection Agency (2136), 401 M Street, S.W., Washington,
DC 20460, and to the Office of Information and Regulatory Affairs,
Office of Management and Budget, 725 17th St., N.W., Washington, DC
20503, marked ``Attention: Desk Officer for EPA.'' Include the ICR
number in any correspondence.
E. Unfunded Mandates Reform Act
As noted in the ICR document, today's action imposes no costs on
State, local and Tribal governments. This is because the EPA incurs all
costs in cases where it implements a part 71 program. A State, local,
or Tribal government will incur costs where it elects to take
delegation of a part 71 program. As noted in the ICR document, EPA
expects that, of the estimated eight part 71 programs, States will take
delegation of all eight programs. However, the costs of running these
delegated programs do not represent costs imposed by today's action.
This is because the costs of running a delegated part 71 program are
essentially the same
[[Page 34228]]
as those of running an approved part 70 program. Furthermore, taking
delegation is optional on the part of States. Regardless of whether a
State, local, or Tribal agency chooses to take delegation of a part 71
program, the costs to these agencies imposed by this rule over and
above the costs of existing part 70 requirements are zero.
Regarding the private sector, the EPA estimates that the total cost
of complying with the part 71 program would be $37.9 million per year,
assuming that the part 71 program is in effect in 8 States. The
estimated costs of collection of information would be $18.1 million per
year, and $19.8 million would be collected in fees.
For these reasons, EPA believes that the total direct costs to
industry under today's action would not exceed $100 million in any 1
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 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 1 year.
F. Submission to Congress and the General Accounting Office
Under section 801(a)(1)(A) of the Administrative Procedure Act
(APA), as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the General Accounting
Office prior to publication of the rule in today's Federal Register.
This rule is not a ``major rule'' as defined by section 804(2) of the
APA as amended.
List of Subjects
40 CFR Part 9
Reporting and Recordkeeping Requirements
40 CFR Part 55
Environmental Protection 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: June 19, 1996.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as set forth below.
PART 9--[AMENDED]
1. In Part 9:
a. The authority citation for part 9 continues to read as follows:
Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003,
2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33
U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, 1321, 1326, 1330,
1342, 1344, 1345 (d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR,
1971-1975 Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g,
300g-1, 300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2,
300j-3, 300j-4, 300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 7542,
9601-9657, 11023, 11048.
b. Section 9.1 is amended by adding the new entries to the table
under the indicated heading in numerical order to read as follows:
Sec. 9.1 OMB approvals under the Paperwork Reduction Act.
* * * * *
------------------------------------------------------------------------
OMB control
40 CFR Citation No.
------------------------------------------------------------------------
* * * * *
Federal Operating Permit Programs
71.5....................................................... 2060-0336
71.6(a),(c),(d),(g)........................................ 2060-0336
71.7....................................................... 2060-0336
71.9(e)-(j)................................................ 2060-0336
* * * * *
------------------------------------------------------------------------
PART 55--[AMENDED]
2. The authority citation for part 55 continues to read as follows:
Authority: Section 328 of the Clean Air Act (Act) (42 U.S.C.
7401, et seq.) as amended by Public Law 101-549.
3. Section 55.6 is 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 of this part.
* * * * *
4. Section 55.10 is amended by revising paragraph (a)(1) and by
adding paragraph (b) to read as follows:
Sec. 55.10 Fees.
(a) * * *
(1) The EPA will calculate and collect operating permit fees from
OCS sources in accordance with the requirements of 40 CFR part 71.
* * * * *
(b) The OCS sources located beyond 25 miles of States' seaward
boundaries. The EPA will calculate and collect operating permit fees
from OCS sources in accordance with the requirements of 40 CFR part 71.
5. Section 55.13 is 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]
6. The authority citation for part 71 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
7. Subpart A of part 71 consisting of Secs. 71.1 through 71.12 is
added 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 issuance, renewal, reopenings, and revisions.
71.8 Affected State review.
71.9 Permit fees.
71.10 Delegation of part 71 program.
[[Page 34229]]
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 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 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 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.
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 modification 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 an eligible Tribe.
(2) The State or Tribal area in which a part 71 permit, permit
modification, or permit renewal is being proposed. A Tribe and any
associated Tribal area shall be treated as a State under this paragraph
(2) only if EPA has determined that the Tribe is an eligible Tribe.
(3) Those areas within the jurisdiction of the air pollution
control agency for the area in which a part 71 permit, permit
modification, or permit renewal is being proposed.
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 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;
(3) Any standard or other requirement under section 111 of the Act,
including section 111(d);
(4) 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;
(5) Any standard or other requirement of the acid rain program
under title IV of the Act or 40 CFR parts 72 through 78;
(6) Any requirements established pursuant to section 114(a)(3) or
504(b) of the Act;
(7) Any standard or other requirement governing solid waste
incineration, under section 129 of the Act;
(8) Any standard or other requirement for consumer and commercial
products, under section 183(e) of the Act;
(9) Any standard or other requirement for tank vessels, under
section 183(f) of the Act;
(10) Any standard or other requirement of the program to control
air pollution from outer continental shelf sources, under section 328
of the Act;
(11) Any standard or other requirement of the regulations
promulgated at 40 CFR part 82 to protect stratospheric ozone under
title VI of the Act, unless the Administrator has determined that such
requirements need not be contained in a title V permit; and
(12) 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
section 402(26) of the Act and 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.
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.
EPA or the Administrator means the Administrator of the U.S.
Environmental Protection Agency (EPA) or his or her designee.
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 permit means the version of a part 71 permit issued by the
permitting
[[Page 34230]]
authority that has completed all review procedures required by
Secs. 71.7, 71.8, and 71.11.
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.
Major source means any stationary source (or 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 and that are described in paragraph (1), (2), or
(3) of this definition. For the purposes of defining ``major source,''
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.
(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 tpy or more of any hazardous air pollutant which has been
listed pursuant to section 112(b) of the Act, 25 tpy or more of any
combination of such hazardous air 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 major source of 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, 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) Any other stationary source category which, as of August 7,
1980, is being regulated under section 111 or 112 of the Act.
(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 (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:
(A) That are classified as ``serious,'' and
(B) 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.
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.
Part 70 program or State program means a 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, as provided in Secs. 70.3(a) and
70.3(b).
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 Secs. 71.3(a) and 71.3(b).
Permit modification means a revision to a part 71 permit that meets
the requirements of Sec. 71.7(e).
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).
Permit revision means any permit modification or administrative
permit amendment.
Permitting authority means one of the following:
(1) The Administrator, in the case of EPA-implemented programs;
[[Page 34231]]
(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 authorized by the
Administrator to carry out a permit program under 40 CFR part 70.
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) requirements.
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 insofar as actions, standards,
requirements, or prohibitions under title IV of the Act or 40 CFR parts
72 through 78 are concerned; and
(ii) The designated representative for any other purposes under
part 71.
Section 502(b)(10) changes are changes that contravene an express
permit term. Such changes do not include changes that would violate
applicable requirements or contravene federally enforceable permit
terms and conditions that are monitoring (including test methods),
recordkeeping, reporting, or compliance certification requirements.
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.
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;
(2) Any source, including an area source, subject to a standard,
limitation, or other requirement under section 111 of the Act;
(3) Any source, including an area 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 affected source; and
(5) 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) In the case of nonmajor sources subject to a standard or other
requirement under either section 111 or 112 of the Act after July 21,
1992 publication, the Administrator will determine whether to exempt
any or all such applicable 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 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
[[Page 34232]]
Pollutants for Asbestos, Sec. 61.145, Standard for Demolition and
Renovation.
(c) Emissions units and part 71 sources. (1) For major sources, the
permitting authority shall include in the permit all applicable
requirements for all relevant emissions units in the major source.
(2) For any nonmajor source subject to the part 71 program under
paragraphs (a) or (b) of this section, the permitting authority shall
include in the permit all applicable requirements applicable to
emissions units that cause the source to be subject to the part 71
program.
(d) Fugitive emissions. Fugitive emissions from a part 71 source
shall be included in the permit application and the part 71 permit in
the same manner as stack emissions, regardless of whether the source
category in question is included in the list of sources contained in
the definition of major source.
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 July 31, 1996, 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 July 31, 1996. The effective
date of such a part 71 program is July 31, 1996.
(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 July 31, 1996, whichever is later. Such a
part 71 program shall be effective upon expiration of the interim
approval or July 31, 1996 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, or by a rulemaking, 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 July 31, 1996.
(1) [Reserved]
(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 2
years of the 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 July 31,
1996.
(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 July 31,
1996.
(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
publication of this part in the Federal Register on July 1, 1996
[[Page 34233]]
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 Delegation Agreement referred to in Sec. 71.10 will define the
respective roles of the State or eligible Tribe and the 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
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(f), 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.
(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. For each part 71 source, the owner or operator
shall submit a timely and complete permit
[[Page 34234]]
application in accordance with this section.
(1) Timely application. (i) 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 after the
source becomes subject to the permit program or on or before such
earlier date as the permitting authority may establish. Sources
required to submit applications earlier than 12 months after the source
becomes subject to the permit program will be notified of the earlier
submittal date at least 6 months in advance of the date.
(ii) Part 71 sources required to meet the requirements under
section 112(g) of the Act, or to have a permit under the
preconstruction review program approved into the applicable
implementation plan under part C or D of title I of the Act, shall file
a complete application to obtain the part 71 permit or permit revision
within 12 months after commencing operation or on or before such
earlier date as the permitting authority may establish. Sources
required to submit applications earlier than 12 months after the source
becomes subject to the permit program will be notified of the earlier
submittal date at least 6 months in advance of the date. Where an
existing part 70 or 71 permit would prohibit such construction or
change in operation, the source must obtain a permit revision before
commencing operation.
(iii) For purposes of permit renewal, a timely application is one
that is submitted at least 6 months but not more that 18 months prior
to expiration of the part 70 or 71 permit.
(iv) 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.
(2) Complete application. To be deemed complete, an application
must provide all information required pursuant to paragraph (c) of this
section, except that applications for permit revision need supply such
information only if it is related to the proposed change. To be found
complete, an initial or renewal application must remit payment of fees
owed under the fee schedule established pursuant to Sec. 71.9(b).
Information required under paragraph (c) of this section must be
sufficient to evaluate the subject source and its application and to
determine all applicable requirements. A responsible official must
certify the submitted information consistent with paragraph (d) 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)(4). 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, it 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.
(3) Confidential information. An applicant may assert a business
confidentiality claim for information requested by the permitting
authority using procedures found at part 2, subpart B of this chapter.
(b) 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.
(c) Standard application form and required information. The
permitting authority shall provide sources a standard application form
or forms. The permitting authority may use discretion in developing
application forms that best meet program needs and administrative
efficiency. The forms and attachments chosen, however, shall include
the elements specified below. An application may not omit information
needed to determine the applicability of, or to impose, any applicable
requirement, or to evaluate the fee amount required under the schedule
established pursuant to Sec. 71.9.
(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 number and names of plant site manager/
contact.
(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 this
paragraph (c). The permitting authority shall require additional
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(b).
(ii) Identification and description of all points of emissions
described in paragraph (c)(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 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.
(vi) Limitations on source operation affecting emissions or any
work practice standards, where applicable, for all regulated pollutants
at the part 71 source.
(vii) Other information required by any applicable requirement
(including information related to stack height limitations developed
pursuant to section 123 of the Act).
(viii) Calculations on which the information in paragraphs (c)(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.
[[Page 34235]]
(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)(9) or to define
permit terms and conditions implementing Sec. 71.6(a)(10) or
Sec. 71.6(a)(13).
(8) 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 with, the applicable requirements on
which it is based.
(iv) A schedule for submission of certified progress reports no
less frequently than every 6 months for sources required to have a
schedule of compliance to remedy a violation.
(v) The compliance plan content requirements specified in this
paragraph shall apply and be included in the acid rain portion of a
compliance plan for an affected source, except as specifically
superseded by regulations promulgated under parts 72 through 78 of this
chapter with regard to the schedule and method(s) the source will use
to achieve compliance with the acid rain emissions limitations.
(9) Requirements for compliance certification, including the
following:
(i) A certification of compliance with all applicable requirements
by a responsible official consistent with paragraph (d) 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 submission of compliance certifications during
the permit term, to be submitted no less frequently than annually, or
more frequently 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.
(10) The use of nationally-standardized forms for acid rain
portions of permit applications and compliance plans, as required by
regulations promulgated under parts 72 through 78 of this chapter.
(11) Insignificant activities and emissions levels. The following
types of insignificant activities and emissions levels need not be
included in permit applications. However, for insignificant activities
which are exempted because of size or production rate, a list of such
insignificant activities must be included in the application. An
application may not omit information needed to determine the
applicability of, or to impose, any applicable requirement, or to
calculate the fee amount required under the schedule established
pursuant to Sec. 71.9 of this part.
(i) Insignificant activities:
(A) Mobile sources;
(B) Air-conditioning units used for human comfort that are not
subject to applicable requirements under title VI of the Act and do not
exhaust air pollutants into the ambient air from any manufacturing or
other industrial process;
(C) Ventilating units used for human comfort that do not exhaust
air pollutants into the ambient air from any manufacturing or other
industrial process;
(D) Heating units used for human comfort that do not provide heat
for any manufacturing or other industrial process;
(E) Noncommercial food preparation;
(F) Consumer use of office equipment and products;
(G) Janitorial services and consumer use of janitorial products;
and
(H) Internal combustion engines used for landscaping purposes.
(ii) Insignificant emissions levels. Emissions meeting the criteria
in paragraph (c)(11)(ii)(A) or (c)(11)(ii)(B) of this section need not
be included in the application, 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.
(A) 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 2 tpy.
(B) 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.
(d) 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
[[Page 34236]]
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 78, 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 modification process, and the permitting authority
elects to use such process, any 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.
(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.
(3) Monitoring and related recordkeeping and reporting
requirements. (i) Each permit shall contain the following requirements
with respect to monitoring:
(A) 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;
(B) 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 (a)(3)(iii) 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 (a)(3)(i)(B); and
(C) As necessary, requirements concerning the use, maintenance,
and, where appropriate, installation of monitoring equipment or
methods.
(ii) With respect to recordkeeping, the permit shall incorporate
all applicable recordkeeping requirements and require, where
applicable, the following:
(A) Records of required monitoring information that include the
following:
(1) The date, place as defined in the permit, and time of sampling
or measurements;
(2) The date(s) analyses were performed;
(3) The company or entity that performed the analyses;
(4) The analytical techniques or methods used;
(5) The results of such analyses; and
(6) The operating conditions as existing at the time of sampling or
measurement;
(B) 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.
(iii) With respect to reporting, the permit shall incorporate all
applicable reporting requirements and require the following:
(A) Submittal of reports of any required monitoring at least every
6 months. All instances 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(d).
(B) 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:
(1) 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.
(2) For emissions of any regulated air pollutant, excluding those
listed in paragraph (a)(3)(iii)(B)(1) of this section, that continue
for more than two hours in excess of permit requirements, the report
must be made within 48 hours.
(3) For all other deviations from permit requirements, the report
shall be contained in the report submitted in accordance with the
timeframe given in paragraph (a)(3)(iii)(A).
(4) A permit may contain a more stringent reporting requirement
than required by paragraphs (a)(3)(iii)(B)(1), (2), or (3).
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 (a)(3)(iii)(B) (1) through (4) of this section. A
written notice, certified consistent with Sec. 71.5(d), must be
submitted within 10 working days of the occurrence. All deviations
reported under paragraph (a)(3)(iii)(A) of this section must also be
identified in the 6 month report required under paragraph
(a)(3)(iii)(A) of this section.
(C) For purposes of paragraph (a)(3)(iii)(B) of this section,
deviation means any condition determined by observation, by data from
any monitoring protocol, or by 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:
(1) A condition where emissions exceed an emission limitation or
standard;
(2) A condition where process or control device parameter values
demonstrate that an emission limitation or standard has not been met;
(3) 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.
(4) A permit condition prohibiting emissions exceeding any
allowances that the source lawfully holds under 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,
[[Page 34237]]
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 source. The source 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.
(5) A severability clause to ensure the continued validity of the
various permit requirements in the event of a challenge to any portions
of the permit.
(6) Provisions stating the following:
(i) The permittee 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 permittee in an enforcement action that it would have
been necessary to halt or reduce the permitted activity in order to
maintain compliance with the conditions of this permit.
(iii) The permit may be modified, revoked, reopened, and reissued,
or terminated for cause. The filing of a request by the permittee for a
permit modification, 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 modifying,
revoking and reissuing, or terminating the permit or to determine
compliance with the permit. Upon request, the permittee shall also
furnish to the permitting authority copies of records required to be
kept by the permit or, in the case of a program delegated pursuant to
Sec. 71.10, for information claimed to be confidential, the permittee
may furnish such records directly to the Administrator along with a
claim of confidentiality.
(7) A provision to ensure that a part 71 source pays fees to the
Administrator consistent with the fee schedule approved pursuant to
Sec. 71.9.
(8) Emissions trading. A provision stating that no permit revision
shall be required, under any approved economic incentives, marketable
permits, emissions trading and other similar programs or processes for
changes that are provided for in the permit.
(9) 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;
(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.
(10) 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
each emissions trade. Such terms and conditions:
(i) Shall include all terms required under paragraphs (a) and (c)
of this section to determine 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 requirements of
this part.
(11) Permit expiration. A provision to ensure that a part 71 permit
expires upon the earlier occurrence of the following events:
(i) twelve years elapses from the date of issuance to a solid waste
incineration unit combusting municipal waste subject to standards under
section 112(e) of the Act; or
(ii) five years elapses from the date of issuance; or
(iii) the source is issued a part 70 permit.
(12) Off Permit Changes. A provision allowing changes that are not
addressed or prohibited by the permit, other than those subject to the
requirements of 40 CFR parts 72 through 78 or those that are
modifications under any provision of title I of the Act to be made
without a permit revision, provided that the following requirements are
met:
(i) Each such change shall meet all applicable requirements and
shall not violate any existing permit term or condition;
(ii) Sources must provide contemporaneous written notice to the
permitting authority (and EPA, in the case of a program delegated
pursuant to Sec. 71.10) of each such change, except for changes that
qualify as insignificant under Sec. 71.5(c)(11). Such written notice
shall describe each such change, including the date, any change in
emissions, pollutants emitted, and any applicable requirement that
would apply as a result of the change;
(iii) The change shall not qualify for the shield under
Sec. 71.6(f);
(iv) The permittee shall keep a record describing changes made at
the source that result in emissions of a regulated air pollutant
subject to an applicable requirement, but not otherwise regulated under
the permit, and the emissions resulting from those changes.
(13) Operational flexibility. Provisions consistent with paragraphs
(a)(3)(i) through (iii) of this section to allow changes within a
permitted facility 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 Administrator (in
the case of a program delegated pursuant to Sec. 71.10) and the
permitting authority with written notification as required below in
advance of the proposed changes, which shall be a minimum of 7 days.
(i) The permit shall allow the permitted source to make section
502(b)(10) 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).
(A) For each such change, the written notification required above
shall include a brief description of the change within the permitted
facility, the date on which the change will occur, any change in
emissions, and any permit term or condition that is no longer
applicable as a result of the change.
(B) The permit shield described in Sec. 71.6(f) shall not apply to
any change made pursuant to this paragraph (a)(13)(i).
(ii) The permit may provide for the permitted source to trade
increases and decreases in emissions in the permitted facility, where
the applicable
[[Page 34238]]
implementation plan provides for such emissions trades without
requiring a permit revision and based on the 7-day notice prescribed in
this paragraph (a)(13)(ii) of this section. This provision is available
in those cases where the permit does not already provide for such
emissions trading.
(A) Under this paragraph (a)(13)(ii), 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.
(B) The permit shield described in Sec. 71.6(f) shall not extend to
any change made under this paragraph (a)(13)(ii). Compliance with the
permit requirements that the source will meet using the emissions trade
shall be determined according to requirements of the applicable
implementation plan authorizing the emissions trade.
(iii) The permit shall require the permitting authority, if a
permit applicant requests it, to issue permits that contain terms and
conditions, including all terms required under Sec. 71.6 (a) and (c) to
determine compliance, allowing for the trading of emissions increases
and decreases in the permitted facility solely for the purpose of
complying with a federally-enforceable emissions cap that is
established in the permit independent of otherwise applicable
requirements. The permit applicant shall include in its application
proposed replicable procedures and permit terms that ensure the
emissions trades are quantifiable and enforceable. The permitting
authority shall not be required to include in the emissions trading
provisions any emissions units for which emissions are not quantifiable
or for which there are no replicable procedures to enforce the
emissions trades. The permit shall also require compliance with all
applicable requirements.
(A) Under this paragraph (a)(13)(iii), 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.
(B) The permit shield described in Sec. 71.6(f) may extend to terms
and conditions that allow such increases and decreases in emissions.
(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, are enforceable by the Administrator and citizens
under the Act.
(c) Compliance requirements. All part 71 permits shall contain the
following elements with respect to compliance:
(1) Consistent with paragraph (a)(3) of this section, compliance
certification, testing, monitoring, reporting, and recordkeeping
requirements sufficient to assure compliance with the terms and
conditions of the permit. Any document (including reports) required by
a part 71 permit shall contain a certification by a responsible
official that meets the requirements of Sec. 71.5(d).
(2) Inspection and entry requirements that require that, 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:
(i) 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;
(ii) Have access to and copy, at reasonable times, any records that
must be kept under the conditions of the permit;
(iii) Inspect at reasonable times any facilities, equipment
(including monitoring and air pollution control equipment), practices,
or operations regulated or required under the permit; and
(iv) 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.
(3) A schedule of compliance consistent with Sec. 71.5(c)(8).
(4) Progress reports consistent with an applicable schedule of
compliance and Sec. 71.5(c)(8) to be submitted at least semiannually,
or at a more frequent period if specified in the applicable requirement
or by the permitting authority. Such progress reports shall contain the
following:
(i) 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
(ii) 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.
(5) Requirements for compliance certification with terms and
conditions contained in the permit, including emission limitations,
standards, or work practices. Permits shall include each of the
following:
(i) The frequency (not less than annually or such more frequent
periods as specified in the applicable requirement or by the permitting
authority) of submissions of compliance certifications;
(ii) In accordance with Sec. 71.6(a)(3), a means for monitoring the
compliance of the source with its emissions limitations, standards, and
work practices;
(iii) A requirement that the compliance certification include the
following:
(A) The identification of each term or condition of the permit that
is the basis of the certification;
(B) The compliance status;
(C) Whether compliance was continuous or intermittent;
(D) The method(s) used for determining the compliance status of the
source, currently and over the reporting period consistent with
paragraph (a)(3) of this section; and
(E) Such other facts as the permitting authority may require to
determine the compliance status of the source;
(iv) A requirement that all compliance certifications be submitted
to the Administrator as well as to the permitting authority; and
(v) Such additional requirements as may be specified pursuant to
sections 114(a)(3) and 504(b) of the Act.
(6) Such other provisions as the permitting authority may require.
(d) 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 conditions and terms of the general permit.
Notwithstanding the shield provisions of paragraph (f) 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
[[Page 34239]]
program unless otherwise provided in 40 CFR parts 72 through 78.
(2) Part 71 sources that would 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
Sec. 71.5. The permitting authority may, in the general permit, provide
for applications which deviate from the requirements of Sec. 71.5,
provided that such applications meet the requirements of title V of the
Act, and include all information necessary to determine qualification
for, and to assure compliance with, the general permit. 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, but such a grant shall
not be a final permit action for purposes of judicial review.
(e) 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 include the
following:
(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.
(f) 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 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 or in any part 71 permit shall alter
or affect the following:
(i) The provisions of section 303 of the Act (emergency orders),
including the authority of the Administrator under that section;
(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.
(g) 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 (g)(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 (a)(3)(iii)(B) of this section. This
notice must contain a description of the emergency, any steps taken to
mitigate emissions, and corrective actions taken.
(4) In any enforcement proceeding, the permittee seeking to
establish the occurrence of an emergency has the burden of proof.
(5) This provision is in addition to any emergency or upset
provision contained in any applicable requirement.
Sec. 71.7 Permit issuance, renewal, reopenings, and revisions.
(a) Action on application. (1) A permit, permit modification, 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 modification, or permit renewal, except that a
complete application need not be received before issuance of a general
permit under Sec. 71.6(d);
(ii) Except for modifications qualifying for minor permit
modification procedures under paragraphs (e) (1) and (2) of this
section, the permitting authority has complied with the requirements
for public participation under this section or Sec. 71.11, as
applicable;
(iii) The permitting authority has complied with the requirements
for notifying and responding to affected States under Sec. 71.8(a);
(iv) 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, the
Administrator has received a copy of the proposed permit and any
notices required under Sec. 71.10(d) and has not objected to 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
for 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 modification or renewal) within 18
months after receiving a complete application.
(3) The permitting authority shall ensure that priority is given to
taking action on applications for construction or modification under
title I, parts C and D of the Act.
(4) 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
[[Page 34240]]
application shall be deemed complete. For modifications processed
through minor permit modification procedures, such as those in
paragraphs (e) (1) and (2) of this section, the permitting authority
need not make a completeness determination.
(5) 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.
(6) The submittal of a complete application shall not affect the
requirement that any source have a preconstruction permit under title I
of the Act.
(b) Requirement for a permit. Except as provided in the following
sentence, Sec. 71.6(a)(13), and paragraphs (e)(1)(v) and e(2)(v) of
this section, no part 71 source may operate after the time that it is
required to submit a timely and complete application under this part,
except in compliance with a permit issued under this part. If a 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)(4) 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) (i) Permits being renewed
are subject to the same procedural requirements, including those for
public participation, affected State review, and EPA review (in the
case of a program delegated pursuant to Sec. 71.10) that apply to
initial permit issuance.
(ii) 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 Sec. 71.5(a)(1)(iii).
(2) In the case of a program delegated pursuant to Sec. 71.10, if
the permitting authority fails to act in a timely way on permit
renewal, EPA may invoke its authority under section 505(e) of the Act
to terminate or revoke and reissue the permit.
(3) If a timely and complete application for a permit renewal is
submitted, consistent with Sec. 71.5(a)(2), 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 71 permit, then the permit shall
not expire until the renewal permit has been issued or denied and any
permit shield that may be granted pursuant to Sec. 71.6(f) may extend
beyond the original permit term until renewal; or all the terms and
conditions of the permit including any permit shield that may be
granted pursuant to Sec. 71.6(f) shall remain in effect until the
renewal permit has been issued or denied.
(d) Administrative permit amendments. (1) An ``administrative
permit amendment'' is a permit revision that:
(i) Corrects typographical errors;
(ii) Identifies a change in the name, address, or phone number of
any person identified in the permit, or provides a similar minor
administrative change at the source;
(iii) Requires more frequent monitoring or reporting by the
permittee;
(iv) Allows for a change in ownership or operational control of a
source where the permitting authority determines that no other change
in the permit is necessary, provided that a written agreement
containing a specific date for transfer of permit responsibility,
coverage, and liability between the current and new permittee has been
submitted to the permitting authority;
(v) Incorporates into the part 71 permit the requirements from
preconstruction review permits authorized under an EPA-approved
program, provided that such a program meets procedural requirements
substantially equivalent to the requirements of Secs. 71.7 and 71.8
(and Sec. 71.10 in the case of a delegated program) that would be
applicable to the change if it were subject to review as a permit
modification, and compliance requirements substantially equivalent to
those contained in Sec. 71.6; or
(vi) Incorporates any other type of change which the Administrator
has determined to be similar to those in paragraphs (d)(1)(i) through
(iv) of this section.
(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. An administrative
permit amendment may be made by the permitting authority consistent
with the following:
(i) The permitting authority shall take no more than 60 days from
receipt of a request for an administrative permit amendment to take
final action on such request, and may incorporate such changes without
providing notice to the public or affected States provided that it
designates any such permit revisions as having been made pursuant to
this paragraph.
(ii) The permitting authority shall submit a copy of the revised
permit to the Administrator in the case of a program delegated pursuant
to Sec. 71.10.
(iii) The source may implement the changes addressed in the request
for an administrative amendment immediately upon submittal of the
request.
(4) The permitting authority may, upon taking final action granting
a request for an administrative permit amendment, allow coverage by the
permit shield in Sec. 71.6(f) for administrative permit amendments made
pursuant to paragraph (d)(1)(v) of this section which meet the relevant
requirements of Secs. 71.6, 71.7, and 71.8 for significant permit
modifications.
(e) Permit modifications. A permit modification is any revision to
a part 71 permit that cannot be accomplished under the provisions for
administrative permit amendments under paragraph (d) of this section. A
permit modification for purposes of the acid rain portion of the permit
shall be governed by 40 CFR part 72.
(1) Minor permit modification procedures.
(i) Criteria.
(A) Minor permit modification procedures may be used only for those
permit modifications that:
(1) Do not violate any applicable requirement;
(2) Do not involve significant changes to existing monitoring,
reporting, or recordkeeping requirements in the permit;
(3) Do not require or change a case-by-case determination of an
emission limitation or other standard, or a source-specific
determination for temporary sources of ambient impacts, or a visibility
or increment analysis;
(4) Do not seek to establish or change a permit term or condition
for which there is no corresponding underlying applicable requirement
and that the source has assumed to avoid an applicable requirement to
which the source would otherwise be subject. Such terms and conditions
include:
(i) A federally enforceable emissions cap assumed to avoid
classification as a modification under any provision of title I; and
(ii) An alternative emissions limit approved pursuant to
regulations
[[Page 34241]]
promulgated under section 112(i)(5) of the Act;
(5) Are not modifications under any provision of title I of the
Act; and
(6) Are not required to be processed as a significant modification.
(B) Notwithstanding paragraphs (e)(1)(i)(A) and (e)(2)(i) of this
section, minor permit modification procedures may be used for permit
modifications involving the use of economic incentives, marketable
permits, emissions trading, and other similar approaches, to the extent
that such minor permit modification procedures are explicitly provided
for in an applicable implementation plan or in applicable requirements
promulgated by EPA.
(ii) Application. An application requesting the use of minor permit
modification procedures shall meet the requirements of Sec. 71.5(c) and
shall include 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) The source's suggested draft permit;
(C) Certification by a responsible official, consistent with
Sec. 71.5(d), that the proposed modification meets the criteria for use
of minor permit modification procedures and a request that such
procedures be used; and
(D) Completed forms for the permitting authority to use to notify
affected States (and the Administrator in the case of a program
delegated pursuant to Sec. 71.10) as required under Secs. 71.8 and
71.10(d).
(iii) EPA and affected State notification. Within 5 working days of
receipt of a complete permit modification application, the permitting
authority shall meet its obligation under Sec. 71.8(a) to notify
affected States (and its obligation under Sec. 71.10(d) to notify the
Administrator in the case of a program delegated pursuant to
Sec. 71.10) of the requested permit modification. In the case of a
program delegated pursuant to Sec. 71.10, the permitting authority
promptly shall send any notice required under Sec. 71.8(b) to the
Administrator.
(iv) Timetable for issuance. In the case of a program delegated
pursuant to Sec. 71.10, the permitting authority may not issue a final
permit modification until after EPA's 45-day review period or until EPA
has notified the permitting authority that EPA will not object to
issuance of the permit modification, whichever is first, although the
permitting authority can approve the permit modification prior to that
time. Within 90 days of the permitting authority's receipt of an
application under minor permit modification procedures (or 15 days
after the end of the Administrator's 45-day review period under
Sec. 71.10(g) in the case of a program delegated pursuant to
Sec. 71.10, whichever is later), the permitting authority shall:
(A) Issue the permit modification as proposed;
(B) Deny the permit modification application;
(C) Determine that the requested modification does not meet the
minor permit modification criteria and should be reviewed under the
significant modification procedures; or
(D) Revise the draft permit modification (and, in the case of a
program delegated pursuant to Sec. 71.10, transmit to the Administrator
the new proposed permit modification as required by Sec. 71.10(d)).
(v) Source's ability to make change. The source may make the change
proposed in its minor permit modification application immediately after
it files such application. After the source makes the change allowed by
the preceding sentence, and until the permitting authority takes any of
the actions specified in paragraphs (e)(1)(iv) (A) through (C) 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 modify. 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
modify may be enforced against it.
(vi) Permit shield. The permit shield under Sec. 71.6(f) may not
extend to minor permit modifications.
(2) Group processing of minor permit modifications. Consistent with
this paragraph, the permitting authority may modify the procedure
outlined in paragraph (e)(1) of this section to process groups of a
source's applications for certain modifications eligible for minor
permit modification processing.
(i) Criteria. Group processing of modifications may be used only
for those permit modifications:
(A) That meet the criteria for minor permit modification procedures
under paragraph (e)(1)(i)(A) of this section; and
(B) That collectively are below the threshold level of 10 percent
of the emissions allowed by the permit for the emissions unit for which
the change is requested, 20 percent of the applicable definition of
major source in Sec. 71.2, or 5 tpy, whichever is least.
(ii) Application. An application requesting the use of group
processing procedures shall meet the requirements of Sec. 71.5(c) and
shall include 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) The source's suggested draft permit.
(C) Certification by a responsible official, consistent with
Sec. 71.5(d), that the proposed modification meets the criteria for use
of group processing procedures and a request that such procedures be
used.
(D) A list of the source's other pending applications awaiting
group processing, and a determination of whether the requested
modification, aggregated with these other applications, equals or
exceeds the threshold set under paragraph (e)(2)(i)(B) of this section.
(E) Certification, consistent with Sec. 71.5(d), that, in the case
of a program delegated pursuant to Sec. 71.10, the source has notified
EPA of the proposed modification. Such notification need only contain a
brief description of the requested modification.
(F) Completed forms for the permitting authority to use to notify
affected States as required under Sec. 71.8 (and the Administrator as
required under Sec. 71.10(d) in the case of a program delegated
pursuant to Sec. 71.10).
(iii) EPA and affected State notification. On a quarterly basis or
within 5 business days of receipt of an application demonstrating that
the aggregate of a source's pending applications equals or exceeds the
threshold level set under paragraph (e)(2)(i)(B) of this section,
whichever is earlier, the permitting authority promptly shall meet its
obligation under Sec. 71.8(a) to notify affected States (and its
obligation under Sec. 71.10(d) to notify EPA in the case of a program
delegated pursuant to Sec. 71.10) of the requested permit modification.
The permitting authority shall send any notice required under
Sec. 71.8(b) to the Administrator in the case of a program delegated
pursuant to Sec. 71.10.
(iv) Timetable for issuance. The provisions of paragraph (e)(1)(iv)
of this section shall apply to modifications eligible for group
processing, except that the permitting authority shall take one of the
actions specified in paragraphs (e)(1)(iv) (A) through (D) of this
section within 180 days of receipt of the application (or, in the case
of a program delegated pursuant to Sec. 71.10, 15 days
[[Page 34242]]
after the end of the Administrator's 45-day review period under
Sec. 71.10(g), whichever is later).
(v) Source's ability to make change. The provisions of paragraph
(e)(1)(v) of this section shall apply to modifications eligible for
group processing.
(vi) Permit shield. The provisions of paragraph (e)(1)(vi) of this
section shall also apply to modifications eligible for group
processing.
(3) Significant modification procedures.
(i) Criteria. Significant modification procedures shall be used for
applications requesting permit modifications that do not qualify as
minor permit modifications or as administrative amendments. Every
significant change in existing monitoring permit terms or conditions
and every relaxation of reporting or recordkeeping permit terms or
conditions shall be considered significant. 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.
(ii) Significant permit modifications shall meet all requirements
of this part, including those for applications, public participation,
review by affected States, and review by EPA (in the case of a program
delegated pursuant to Sec. 71.10), as they apply to permit issuance and
permit renewal. The permitting authority shall design and implement
this review process to complete review on the majority of significant
permit modifications within 9 months after receipt of a complete
application.
(f) 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 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 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.
(3) Reopenings under paragraph (f)(1) of this section shall not be
initiated before a notice of such intent is provided to the 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.
(g) 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, modify, or revoke
and reissue a permit pursuant to paragraph (f) 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, modification, 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 EPA makes and to terminate,
modify, 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 (g)(2) of this section or fails to
resolve any objection pursuant to paragraph (g)(4) of this section, the
Administrator will terminate, modify, 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 (g) (1) through (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
Sec. 71.7 or Sec. 71.11(d) except to the extent Sec. 71.7(e)(1) or (2)
requires the timing of the notice to be different.
(b) Notice of refusal to accept recommendations. Prior to issuance
of the final permit, the permitting authority shall notify any affected
State 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. In the case of a program delegated pursuant
to Sec. 71.10, the permitting authority shall include such notice as
part of the submittal of the proposed permit to the Administrator (or
as soon as possible after the submittal for minor permit modification
procedures allowed under Sec. 71.7(e)(1) or (2)).
(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.
(d) Notice provided to Indian Tribes. The permitting authority
shall provide notice of each draft permit to any federally recognized
Indian Tribe whose air quality may be affected by the permitting action
and whose reservation
[[Page 34243]]
or Tribal area is contiguous to the jurisdiction in which the part 71
permit is proposed or is within 50 miles of the permitted source.
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) 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;
(2) Processing permit reopenings;
(3) 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;
(4) 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;
(5) 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
(6) 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 $32 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 fully delegated pursuant to
Sec. 71.10:
(i) Where the EPA has not suspended its part 71 fee collection
pursuant to paragraph (c)(2)(ii) of this section, the annual fee for
each part 71 source shall be $24 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.
(ii) Where the delegate State collects fees from part 71 sources
under State law which are sufficient to fund the delegated part 71
program, the EPA may suspend its collection of part 71 fees. The
specific terms and conditions regarding the suspension of fee
collection will be addressed in the applicable delegation agreement
pursuant to Sec. 71.10.
(3) For part 71 programs that are administered by EPA with
contractor assistance, the per ton fee shall 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 32)+[(1-E) x $C]
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. 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 nonpersonnel data management and
tracking costs.
(4) For programs that are delegated in part, the fee shall be
computed using the following formula:
Cost per ton=(E x 32)+(D x 24)+[(1-E-D) x $C]
Where E and D represent, respectively, the EPA and delegate agency
proportions of total effort (expressed as a percentage of total effort)
needed to administer the part 71 program, 1-E-D represents the
contractor's effort, and C represents the contractor assistance cost on
a per ton basis. C shall be computed using the formula for contractor
assistance cost found in paragraph (c)(3) of this section and shall be
zero if contractor assistance is not utilized.
(5) The following emissions shall be excluded from the calculation
of fees under paragraph (c)(1) through (c)(4) 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(c)(11).
(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.
(7) Notwithstanding the provisions of paragraph (c) (1) through (4)
of this section, if the Administrator determines that the fee
structures provided in paragraphs (c)(1) through (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 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 of the full amount
must accompany each initial fee calculation work sheet.
(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
[[Page 34244]]
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.
(3) The initial fee calculation worksheet shall be certified by a
responsible official consistent with Sec. 71.5(d).
(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 6
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 7
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 8
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 9 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(a)(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(a)(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)(1) of this section. However,
initial fee calculation work sheets for such sources and full payment
of the initial fee 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 by April 1.
(2) Annual emissions reports and fee calculation worksheets shall
be certified by a responsible official consistent with Sec. 71.5(d).
(3) 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.
(4) 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 shall retain, in
accordance with the provisions of Sec. 71.6(a)(3)(ii), 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.
(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) If a source underpays the fee owed, except as provided in
paragraph (l)(4) of this section, the permitting authority shall assess
a penalty charge of 50 percent on the amount by which the fee was
underpaid. Interest shall also be assessed, computed under paragraph
(l)(1) of this section, on the amount by which the fee was underpaid.
(4) If a source bases its initial fee calculation on estimated
emissions from the source's current or preceding calendar year, as
provided under paragraph (h)(4) of this section, and underpays its fee
based on an underestimation of these emissions, the permitting
authority shall assess a penalty charge of 50 percent on certain of
these underpayments, according to the following provisions:
(i) The penalty charge shall be assessed whenever a source's
underpayment exceeds the underpayment penalty cutoff established in
paragraph (l)(4)(iii) of this section. The penalty amount shall be 50
[[Page 34245]]
percent of the portion of the underpayment which is in excess of the
underpayment penalty cutoff.
(ii) Where a source is subject to a penalty for underpayment
pursuant to paragraph (l)(4)(i) of this section, interest as computed
under paragraph (l)(1) of this section shall be assessed on that
portion of the underpayment which is in excess of the underpayment
penalty cutoff established in paragraph (l)(4)(iii) of this section.
(iii) The underpayment penalty cutoff for a source shall be the sum
of the following:
(A) 50 percent of the portion of the initial fee amount which was
calculated from estimated emissions of HAP listed pursuant to 112(b) of
the Act, and
(B) 20 percent of the portion of initial fee amount which was
calculated from estimated emissions of the remainder of the regulated
air pollutants (for fee calculation).
(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 (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 2 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.
(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 Notice of Delegation of Authority Agreement. The
Administrator shall publish a notice in the Federal Register informing
the public of any delegation of a portion of the part 71 program to a
State, eligible Tribe, or local agency.
(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, the delegate agency shall provide to
the Administrator a copy of each permit application (including any
application for permit modification), each proposed permit, and each
final part 71 permit. 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. 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.
(2) The Administrator may waive the requirements of paragraph
(d)(1) 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.
(e) Retention of records. The records for each draft, proposed, and
final permit, and application for permit renewal or modification 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 modification) 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.
(g) EPA objection. (1) The Administrator will object to the
issuance of any proposed permit determined by the Administrator not to
be in compliance with applicable requirements or requirements under
this part. 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;
[[Page 34246]]
(iii) Process the permit under the procedures required by
Secs. 71.7 and 71.11; or
(iv) 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 Administrator shall issue or deny the permit 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 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) Nondelegable 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 this section shall apply to all permit
proceedings. Notwithstanding the preceding sentence, paragraphs (a)
through (h) and paragraph (j) of this section shall not apply to permit
revisions qualifying as minor permit modifications or administrative
amendments, except that public notice of the granting of appeals of
such actions under paragraph (l)(3) of this section shall be provided
pursuant to paragraph (d)(1)(i)(E) of this section, and except that
affected States shall be provided notice of minor permit modifications
under Sec. 71.8 as pursuant to paragraph (d)(3)(i)(B) of this section.
(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; and
(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 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) 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 or Federal Land Manager whose lands
may be affected by emissions from the source;
(D) The local emergency planning committee having jurisdiction over
the
[[Page 34247]]
area where the source is located, and State agencies having 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 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
[[Page 34248]]
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 (h)
shall identify the issues to which the requirements of paragraphs
(h)(1) through (4) of this section 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 30 days after
the service of notice of the decision, unless:
(i) A later effective date is specified in the decision;
(ii) Review is requested under paragraph (l) of this section (in
which case the specific terms and conditions of the permit which are
the subject of the request for review shall be stayed); or
(iii) No comments requested a change in the draft permit, in which
case the permit shall become effective immediately upon issuance.
(j) Response to comments. (1) At the time that any final permit
decision is issued, the 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 or other new grounds that were not
reasonably foreseeable during the public comment period on the draft
permit. 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,
except that the 30-day period within which a person may request review
of a minor permit modification or administrative amendment begins upon
the effective date of such action to revise the permit. 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
[[Page 34249]]
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) Motions to reconsider a final order shall be filed within ten
(10) days after service of the final order. Every such motion must set
forth the matters claimed to have been erroneously decided and the
nature of the alleged errors. Motions for reconsideration under this
provision shall be directed to, and decided by, the Board. Motions for
reconsideration directed to the Administrator, rather than to the
Board, will not be considered, except in cases that the Board has
referred to the Administrator and in which the Administrator has issued
the final order. A motion for reconsideration shall not stay the
effective date of the final order unless specifically so ordered by the
Board.
(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 Permitting Authority.
(1) Any interested person (including the permittee) may petition
the permitting authority to reopen a permit for cause, and the
permitting authority may commence a permit reopening on its own
initiative. However, the permitting authority shall not revise, revoke
and reissue, or terminate a permit except for the reasons specified in
Sec. 71.7(f)(1) or Sec. 71.6(a)(6)(i). All requests shall be in writing
and shall contain facts or reasons supporting the request.
(2) If the permitting authority decides the request is not
justified, it 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 permitting authority may be
informally appealed to the Environmental Appeals Board by a letter
briefly setting forth the relevant facts. The Board may direct the
permitting authority 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 permitting authority decides the request is justified
and that cause exists to revise, revoke and reissue or terminate a
permit, it shall initiate proceedings to reopen the permit pursuant to
Sec. 71.7(f) or Sec. 71.7(g).
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. 96-16257 Filed 6-28-96; 8:45 am]
BILLING CODE 6560-50-P
