[Federal Register Volume 59, Number 166 (Monday, August 29, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-20497]
[[Page Unknown]]
[Federal Register: August 29, 1994]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 70
Operating Permits Program Rule Revisions; Proposed Rule
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[FRL-5053-2]
Operating Permits Program Rule Revisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The EPA is today proposing a number of revisions to the
operating permits rule mandated by title V of the Clean Air Act (Act)
as amended in 1990. That rule, codified in part 70 of chapter I of
title 40 of the Code of Federal Regulations, was originally promulgated
on July 21, 1992 (57 FR 32250). Part 70 requires each State to
establish and administer a program for issuing to each covered source
in the State an operating permit. Part 70 also sets forth the minimum
elements of any State or local agency operating permits program.
Today's notice proposes revisions to several of part 70's provisions
establishing these elements. Most of the proposed revisions relate to
those provisions that define when and how a permit must be revised to
reflect changes at a permitted source. In addition, today's notice
proposes numerous minor changes to part 70 to clarify its scope or
effect or address issues that have surfaced in the course of its
implementation. It also provides clarification of some regulatory
provisions that do not require revision.
DATES: Comments on the proposed regulatory changes must be received by
November 28, 1994. The EPA is unlikely to be able to extend the public
comment period. The EPA will hold a public hearing at 9:00 a.m. (EDT)
on October 19, 1994. Requests to present oral testimony must be
received on or before October 5, 1994.
ADDRESSES: Comments must be mailed (in duplicate if possible) to: EPA
Air Docket (LE-131), Attn: Docket No. A-93-50, room M-1500, Waterside
Mall, 401 M Street SW, Washington, DC 20460. The public hearing will be
held in the Waterside Mall auditorium at the EPA's Headquarters Office
in Washington, DC.
Docket: Supporting information used in developing the proposed
regulatory revisions is contained in Docket No. A-93-50, at the
preceeding address. This docket is available for public inspection and
copying between 8:30 a.m. and 3:30 p.m. Monday through Friday. A
reasonable fee may be charged for copying.
FOR FURTHER INFORMATION CONTACT: Michael Trutna (telephone 919/541-
5345), mail drop 15, United States Environmental Protection Agency,
Office of Air Quality Planning and Standards, Air Quality Management
Division, Research Triangle Park, North Carolina 27711.
SUPPLEMENTARY INFORMATION:
Public Comments
If possible, comments should be sent in both paper and computerized
form. Two paper copies of each set of comments are requested. Comments
generated on computer should also be sent on an IBM-compatible, 3\1/2\
inch diskette and clearly labeled. Comments should refer to specific
page numbers and regulatory section numbers whenever possible.
Table of Contents
The contents of today's preamble are in the following format:
I. Introduction
II. Background
A. Basic Statutory Requirements
B. Rule Promulgation and Litigation
C. Settlement Negotiations and Resulting Proposals for Rule Changes
and Clarifications
D. Program Implementation and Resulting Proposed Revisions
III. Proposed Revisions of the Flexibility Provisions
A. Overview
B. Off-Permit Provisions
C. Operational Flexibility Provisions
D. Other Elements of the Rule Providing Operational Flexibility
E. Permit Revisions
F. General Permits
IV. Other Changes and Clarifications
A. Section 70.2--Definitions
B. Section 70.3--Applicability
C. Section 70.4--State Program Submittals and Transition
D. Section 70.5--Permit Applications
E. Section 70.6--Permit Content
F. Section 70.7--Permit Issuance, Renewal, Reopenings, and Revisions
G. Section 70.8--Permit Review by EPA and Affected States
H. Section 70.9--Fee Determination and Certification
I. Section 70.10--Federal Oversight and Sanctions
J. Section 70.11--Requirements for Enforcement Authority
V. Decision-Making Flow Charts
A. Flow Chart for Changes Subject to Major NSR
B. Flow Chart for Changes Subject to Minor NSR
C. Flow Chart for Section 112(g) Modifications
VI. Administrative Requirements
A. Public Hearing
B. Docket
C. Office of Management and Budget (OMB) Review
D. Regulatory Flexibility Act Compliance
E. Paperwork Reduction Act
I. Introduction
The provisions of title V of the Act and the implementing part 70
regulations are far-reaching in both scope and effect. By the terms of
title V and part 70, every State must establish an operating permits
program under which every major source of air pollution must obtain and
abide by a permit that includes all of the requirements applicable to
it under the Act. The operating permits program's potential
consequences for air pollution control and for sources' ability to meet
changing market demands have made the process of developing and
implementing a program complex and controversial. Indeed, nearly 20
entities, including State and local governments, environmental groups,
and industry associations, petitioned for judicial review of the part
70 regulations. Today's proposed revisions are the result of EPA's
continuing efforts to ensure that part 70 is effective and workable.
Many of the revisions stem from the Agency's discussions with the State
and local agency, environmental, and industry group petitioners. Other
revisions grow out of EPA and State and local agency experience in
implementing part 70.
As required by the Act, many State and local agencies have already
developed operating permits programs in accordance with the current
part 70 and submitted the programs to EPA for approval. Others are well
along in their efforts to develop and submit programs. The EPA has
considered these circumstances in deciding whether and how to revise
part 70. The Agency believes the revisions proposed today are necessary
for the legal and policy reasons explained below. At the same time, EPA
wants to minimize any disruption caused by these revisions. The Agency
is thus proposing that State and local program approvals be governed by
the version of part 70 in effect at the time of a program's submittal,
except that programs submitted within 6 months after the publication
date of the part 70 revisions will be judged by whichever version of
part 70 the permitting authority chooses.
In light of ongoing discussions with petitioners in the part 70
litigation, EPA expects to propose several additional revisions to part
70 in the near future. The EPA is proposing revisions today in part
because of agreements reached with petitioners and in part because
several of the revisions are important to better program
implementation. In addition, most State and local agencies are likely
to need program revisions to correct the deficiencies identified by EPA
in granting their programs interim approval. The Agency wishes to avoid
requiring permitting authorities to engage unnecessarily in multiple
rounds of program revision. As a result, EPA is proposing that
permitting authorities be required to revise their programs in a time
frame that would allow permitting authorities options to combine
rulemakings where possible.
II. Background
A. Basic Statutory Requirements
Title V, added by the 1990 amendments to the Act, requires the
establishment of an operating permits program in every State for
stationary sources of air pollution. The purpose of the program is to
improve the enforceability, and thus the effectiveness, of the Act's
requirements by issuing to every covered source a permit that lists all
of the requirements applicable to the source under the Act and that
includes monitoring provisions sufficient to determine compliance with
those requirements.
Title V directs EPA to issue regulations setting forth the minimum
elements of an operating permits program (section 502(a)). It further
directs every State to submit by November 1993 an operating permits
program meeting those minimum elements to EPA for approval (section
502(d)(1)). The EPA has 1 year to approve or disapprove State or local
agency program submissions (section 502(d)(1)). Once EPA has approved a
State or local agency's program, the covered sources within that
agency's jurisdiction have 1 year to submit permit applications to the
permitting authority (section 503(c)) unless the permitting authority
establishes an earlier date. Within the first 3 years of the program,
the permitting authority must act on all applications submitted in the
first year of the program (section 503(c)). Before the permitting
authority may issue a permit, the public must have an opportunity to
comment on the draft permit (section 502(b)(6)), and EPA must have an
opportunity to object to the proposed permit if it does not comply with
the Act's requirements (section 505(b)).1 Once the permitting
authority issues a source its part 70 permit, the source may not
violate any requirement of its permit or operate except in compliance
with it (section 502(a)).
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\1\If EPA objects to issuance of a permit, the permitting
authority may not issue the permit unless it is revised to meet the
objection. If the permit has already been issued by the time the
permitting authority receives an objection by EPA, the permit must
be revised and reissued to meet the objection.
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B. Rule Promulgation and Litigation
On July 21, 1992, the part 70 operating permits regulations were
published in the Federal Register. Nearly 20 entities filed 12
petitions for review of the part 70 regulations with the U.S. Court of
Appeals for the District of Columbia Circuit. Petitioners included 8
State and local permitting authorities (Maine, Vermont, Connecticut,
New York, New Jersey, Pennsylvania, and two California air quality
control districts, South Coast and Mojave Desert); three national
environmental groups (Natural Resources Defense Council, Sierra Club
Legal Defense Fund, and Environmental Defense Fund); and industry
umbrella groups, trade associations, and individual corporations (Clean
Air Implementation Project, Chemical Manufacturers Association,
American Petroleum Institute, American Forest and Paper Association,
American Mining Congress, Alabama Power and other utilities, and Eli
Lilly and Company). Many of the petitioners intervened in one another's
lawsuits and several other entities intervened as well (e.g., Motor
Vehicle Manufacturers Association, Synthetic Organic Chemical
Manufacturers Association, and Pharmaceutical Manufacturers
Association). The petitions were consolidated into one suit, Clean Air
Implementation Project v. EPA, No. 92-1303.
Taken together, the petitions raised over 60 issues for judicial
review. Approximately one-third of the issues related to the provisions
of part 70 that had been most contentious during the rulemaking, i.e.,
those that determine when and how a source must revise its permit to
account for changes at the source that could affect emissions. Other
major issues concerned part 70's provisions regarding the deferral of
the permitting requirement for minor sources; an emergency defense for
violation of permit terms; general permits; compliance plans and
schedules; the designation of State-only requirements included in part
70 permits as not federally enforceable; and the inclusion in part 70
permits of monitoring terms sufficient to ensure that applicable
requirements included in the permit are practicably enforceable.
C. Settlement Negotiations and Resulting Proposals for Rule Changes and
Clarifications
After the petitions were filed, EPA and the litigants explored the
prospect of settling some or all of the issues raised, and over the
past year have engaged in active and ongoing settlement negotiations.
The Agency and the litigants early on identified approximately 10
issues that were the result of misunderstandings of the relevant
regulatory provisions. In an effort to resolve those issues, EPA has
decided to provide appropriate clarifications. Today's notice provides
those clarifications, either in the preamble alone or together with
minor revisions to the regulatory language.
The EPA and the relevant litigants also addressed the issue of the
appropriate treatment of fugitive emissions in making major source
determinations. The current rule expressly provides that in determining
whether a source is major for purposes of part C (prevention of
significant air quality deterioration) or part D (nonattainment) of
title I of the Act, the source's fugitive emissions are to be counted
if the source is in a source category subject to any standard under
section 111 (providing for new source performance standards (NSPS)) or
section 112 (providing for emissions standards to control hazardous air
pollutants (HAP's)) of the Act. For the reasons subsequently set forth
in this notice, the Agency today generally proposes to revise part 70
to no longer designate sources in source categories subject to a
section 111 or 112 standard promulgated after August 7, 1980 as sources
for which fugitive emissions must be counted for purposes of
determining major source status under part C or part D of title I of
the Act. In addition, today's notice clarifies that fugitive emissions
of HAP's must be counted for purposes of determining major source
status under section 112 of the Act.
As previously noted, nearly one-third of the issues raised by the
petitioners pertain to the so-called ``flexibility'' provisions of part
70, i.e., those provisions that determine when and how a source must
revise its permit to account for a change at its facility. They were
and remain the most controversial provisions of part 70. Most of the
issues in this category were raised by State and local agency and/or
environmental group petitioners. These petitioners were primarily
concerned that the flexibility provisions are vague, fail to provide
for public participation, or inadequately provide for State or local
permitting authority review. Industry petitioners also raised several
issues with respect to the flexibility provisions, alleging generally
that the Agency lacked authority or justification for several of the
related requirements imposed on industry.
Although settlement negotiations usually involve only the party or
parties raising the particular issue being discussed, industry
petitioners requested that they be allowed to participate in
negotiations of the flexibility related issues raised by State and
local agency and environmental group petitioners. In view of the
importance of those issues to industry's ability to make changes to
meet market demands, EPA and the other petitioners agreed that all
litigants should be involved in the relevant discussions. Accordingly,
over a 9-month period, EPA conducted a series of negotiating sessions
that involved all of the litigants.
The litigants represented a broad spectrum of the interests with a
stake in the operating permits regulations. While State and local
petitioners were not representative of all permitting authorities, they
sought a rule that would allow State and local agencies to fashion
programs that achieve air quality benefits at a minimum of cost and
disruption to existing pollution control programs. Environmentalists
sought a rule that provided an opportunity for public participation in
permitting decisions, not only to augment citizens' role in air quality
control, but to ensure the integrity of the permitting process.
Industry petitioners represented nearly all of the major industry
sectors affected by the rule; only small business was not represented
at all. For its part, industry sought a rule that allowed sources to
make changes expeditiously, so that they could respond to changing
market conditions in a timely manner.
The multilateral settlement discussions fostered a common
understanding of the different stakeholders' interests in the permits
regulations and a constructive effort to fashion permit flexibility
provisions that would strike an appropriate balance between those
interests. A broad consensus was achieved on the basic structure of
revised flexibility provisions, i.e., a clear definition of those
changes that require a permit revision and permit revision procedures
that provide for public process for environmentally-significant changes
on a sliding scale, with more process provided as the significance of
the change increases.
On several issues related to permit revision procedures the
litigants did not reach a consensus. These issues typically required
more information to resolve than the litigants, including EPA, had
available at the time. For instance, one of the proposed revision
tracks provides only after-the-fact public notice of, and an
opportunity to comment on, ``small'' changes at a permitted facility.
The parties could not agree on what constitutes a ``small'' change, at
least in part because the information needed to determine the
consequences of choosing any particular definition was lacking.
Today's proposed revisions to the flexibility provisions of part 70
grow out of the progress made in the settlement discussions. The basic
framework developed by the litigants is followed, and on those issues
the litigants were unable to achieve consensus, alternatives are
proposed for public comment. The proposal does not, however, represent
a formal agreement among the parties as to how part 70 should be
ultimately revised. All of the litigants are free to request changes to
the proposal in their public comments. For its part, EPA is satisfied
that today's proposed changes represent a reasonable compromise of the
conflicting concerns and objectives of the various petitioners.
However, EPA is concerned that the proposed changes are intricate and
complex and are based on discussions with only a fraction of the
companies, regulators, and citizen groups that have an interest in the
permit program provisions at issue. For this reason, EPA encourages all
interested parties to provide detailed comments on these changes and to
address in these comments not only the specifics of the four-track
permit revision system proposed today, but simpler alternatives that
achieve the same regulatory goals.
D. Program Implementation and Resulting Proposed Revisions
Since part 70 was promulgated, EPA has also participated
extensively in State and local agency efforts to implement part 70. As
indicated above, permitting authorities were statutorily required to
submit their programs to EPA by November 1993. Thus, permitting
authorities could not wait until the part 70 litigation had been
resolved to develop their programs. These development efforts have
revealed other issues not covered by the litigation.
In addition, EPA has made progress in its own efforts to implement
section 112 of the Act, which requires the Agency to comprehensively
regulate HAP emissions. The form and timing of recently promulgated
standards under section 112(d) (i.e., maximum achievable control
technology (MACT) standards) have made necessary further revisions of
part 70 to provide for orderly incorporation of MACT standards. The EPA
is therefore including in today's notice proposed revisions to deal
with certain issues arising from implementation of part 70 and section
112.
III. Proposed Revisions of the Flexibility Provisions
A. Overview
As mentioned above, the flexibility provisions of part 70 prescribe
what changes at a source require a revision2 to the source's
permit and what procedures apply if a revision is required. These
provisions fall into three categories. The first two, containing the
``off-permit'' and ``operational flexibility'' provisions, define
changes that do not require permit revision. For changes requiring
permit revision, the third category specifies the procedures to be used
to revise the permit. This preamble sets forth the proposed revisions
to each category in turn. It describes the current provisions, the
issues they have posed, and the proposed approach to resolving those
issues.
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\2\The term ``revision'' is used in this preamble to refer to a
change made to the permit during the permit's term, as opposed to a
change at the time of permit renewal. Under the current rule, many
changes that do not require permit revision must nevertheless be
incorporated into the permit when it is renewed at the end of its
term.
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One issue, however, is common to all three categories and should be
explained at the outset. The current rule limits the availability of
the off-permit, operational flexibility, and minor permit modification
(revision) provisions to changes that are not ``modifications under any
provision of title I'' of the Act. The rule does not define the term
``title I modification,'' and much confusion and controversy has
surrounded its interpretation. Industry and most States, pointing in
particular to footnote 6 of the proposed part 70 regulations (56 FR
21712, 21746-7 (May 10, 1991)), have read that phrase as not including
modifications governed by State or local agency minor new source review
(NSR) programs. Environmentalists, on the other hand, have read the
phrase as including minor NSR modifications (i.e., changes subject to
minor NSR), since the statutory basis for minor NSR is section
110(a)(2)(C), which is in title I of the Act.
The confusion stems from EPA's failure to state explicitly whether
or not ``modification under any provision of title I'' includes minor
NSR changes. Several commenters requested that EPA clarify the meaning
of title I modification in the final rule, but the Agency declined to
do so, stating in its response to comment document that footnote 6 of
the proposed rule (56 FR 21712, 21746-21747) contained an adequate
description. Footnote 6 refers to other title I provisions addressing
``modifications,'' but does not mention section 110(a)(2)(C), which
requires States to regulate the ``modification'' (as well as
construction) of stationary sources as necessary to assure that
national air quality standards are met. Footnote 5 of the same preamble
(56 FR at 21746) refers to footnote 6 ``for what constitutes a
`modification' under CAA title I.'' Footnotes 5 and 6 thus imply that
the phrase title I modifications excludes minor NSR modifications. The
final rule's preamble discussion of minor permit modifications also
implies that title I modifications do not include minor NSR
modifications.
At the same time, the phrase, ``modifications under any provision
of title I,'' is broad enough to cover modifications under section
110(a)(2)(C). As noted above, section 110(a)(2)(C) appears in title I
and covers modifications of stationary sources. The prior rulemaking
notices did not address how the phrase ``title I modifications'' can be
read to exclude modifications under section 110(a)(2)(C), nor did they
address how exclusion of minor NSR would affect the regulatory purposes
of the NSR program.
As previously noted, the purpose of section 110(a)(2)(C) is to
assure that new or modified sources do not cause an area to fall short
of achieving air quality standards. Virtually every State currently
administers a minor NSR program. Section 110(a)(2)(C) and EPA's
implementing regulations (40 CFR 51.160-164) leave States discretion to
craft de minimis exemptions from the minor NSR program, and State
programs broadly differ, in large part as a reflection of States'
differing air quality conditions. Under section 110, these State
programs must be included in State implementation plans (SIP's) and
thus are integral parts of the Federal-State program for controlling
air pollution under the Act.
Congress defined ``modification'' under various title I provisions
for purposes of determining the scope of particular Federal pollution
controls; it did not define that term for purposes of section
110(a)(2)(C). An argument can be made that the phrase ``title I
modification'' only refers to modifications defined in title I
provisions (e.g., section 112(a)(5)). It does not necessarily follow,
however, that those title I modifications that States are left to
define as a function of their minor NSR programs should be ignored.
Indeed, given the Federal-State partnership established under the Act,
``modifications under any provision of title I'' could be construed as
including modifications of significance to States under minor NSR as
well as those defined by Congress itself.
Since 1977, when Congress established a separate and much more
stringent NSR program for ``major'' new and modified sources (see parts
C and D of title I of the Act), NSR programs under section
110(a)(2)(C), i.e., minor NSR, have taken on the additional important
function of providing a means for sources to avoid major NSR
requirements. The statute defines ``major'' in terms of a new source's
potential to emit, and EPA's implementing regulations provide that
federally-enforceable controls and operational limits be considered in
determining a source's potential to emit. As to modifications, EPA has
by regulation also limited the reach of NSR under parts C and D to only
``major'' modifications. Since minor NSR programs approved into SIP's
establish federally-enforceable emissions limits, minor NSR permits
have become the vehicle of choice for creating ``synthetic minor new
sources'' and ``synthetic minor modifications.'' Available information
indicates that many minor NSR permits issued in the last decade serve
the function of creating ``synthetic minors.''
Thus in light of the role of minor NSR in creating synthetic
minors, the integrity of minor NSR programs is linked to the integrity
of the major NSR program. Underscoring the importance of both programs
is EPA's regulatory requirement that State or local permitting
authorities provide an opportunity for public participation in major
and minor NSR permitting (40 CFR 51.160, 161, 165, and 166). Against
this backdrop, EPA believes that ``modifications under any provision of
title I'' should be interpreted to include minor NSR modifications. The
Agency solicits comment on this interpretation.
The EPA is aware that many State and local agencies interpreted
EPA's regulatory language to exclude minor NSR and developed their part
70 programs accordingly. The Agency believes that it bears primary
responsibility for the confusion that has surrounded the interpretation
of ``a modification under any provision of title I.'' It is therefore
proposing in another rulemaking action to revise the part 70
regulations to allow the Agency to grant interim approval to State or
local operating permits programs that allow minor NSR actions to be
processed as minor permit modifications.
B. Off-Permit Provisions
The first question to be addressed in designing a flexible permit
program is what changes at a permitted facility that have the potential
to affect regulated air emissions require a revision to the facility's
permit.3 The current rule addresses that question in its ``off-
permit'' and ``operational flexibility'' provisions. The off-permit
provisions generally define the realm of changes that a source can make
without first revising its permit because the changes are neither
prohibited nor addressed by the permit. It should be noted, however,
that off-permit changes may need to be incorporated into a source's
permit at permit renewal. The operational flexibility provisions,
discussed in the next section of this preamble, describe particular
categories of changes that a source can make without revising its
permit because the permit provides for those changes, the changes
involve emissions trading authorized by the permit, or the changes meet
specified criteria.
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\3\This discussion is not concerned with changes in those
activities that have no bearing on regulated air pollutant
emissions. Such activities do not give rise to permit terms, and
thus changes to those activities cannot require a revision of permit
terms. Examples of such ``unconstrained activities'' could include
moving process equipment and conducting routine maintenance
activities. Changes to activities that only insignificantly affect
regulated air emissions are also not at issue here. The current rule
provides that a source need not include in its permit application
insignificant activities and emissions levels, provided they are not
relevant to determining a source's applicable requirements or the
permit fees the source owes. However, insignificant activities or
emissions levels that are exempted because of their size or
production rate must be listed in the permit application. A
permitting authority is required to submit to EPA for approval as
part of its part 70 program a list of activities to be considered
insignificant.
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1. Current Rule
Section 70.4(b)(14) of the current rule provides that a permitting
authority may allow a source to make changes that are ``not addressed
or prohibited by the permit'' without revising its permit. As EPA
explained in the preamble to the current rule, while section 502(a)
prohibits a source from operating ``except in compliance'' with its
permit, a source does not violate this prohibition when it operates in
ways that are neither addressed nor prohibited by its permit.
At the same time, the current Sec. 70.4(b)(15) prohibits any source
from making changes that are modifications under any provision of title
I or subject to any requirements under title IV (acid rain) of the Act
without revising its permit. As EPA explained, section 502(b)(10)
indicates that permits should be revised to reflect modifications under
any provision of title I, and the allowance trading system for acid
rain sources under title IV would not be feasible if changes subject to
title IV requirements could be made off-permit.
In the case of sources required to obtain a permit under parts C or
D of title I or section 112(g) of the Act, however, the current part 70
allows for the permit to be revised after the source begins operation
of the change. Under Sec. 70.5(a)(1)(ii), applications for permit
revisions for such sources or source changes must be received within 12
months of commencing operation of the modification or new unit, unless
the permit prohibits such a change in operation, in which case the
permit must be revised first.4
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\4\The Agency discussed the relationship of these two provisions
in the preamble to the proposed section 112(g) rulemaking (see 59 FR
15537-39 (April 1, 1994)). In that rulemaking, EPA proposed that
Sec. 70.5(a)(1)(ii) rather than Sec. 70.4(b)(15) govern when part 70
permit revisions are needed to implement the requirements of section
112(g). In today's rulemaking, EPA is proposing that
Sec. 70.5(a)(1)(ii) govern when part 70 permit revisions are needed
for changes, including section 112(g) changes, that qualify for off-
permit treatment under today's proposal.
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Even in the case of changes eligible for ``off-permit'' treatment,
Sec. 70.4(b)(14)(ii) requires sources to provide contemporaneous notice
to the permitting authority and EPA of each such change, any resulting
change in emissions, and any requirements under the Act that apply as a
result of the change. The purpose of this provision is to allow the
permitting authority and/or EPA to confirm that the change is eligible
for ``off-permit'' treatment and to determine if the source is subject
to any new applicable requirements.
2. Issues Raised
Part 70's off-permit provisions have been another source of
confusion and controversy. Questions about what changes qualify for
off-permit treatment grow out of the title I modification criterion
discussed above as well as the other criteria set out in the relevant
regulatory provisions. Very different views of what changes qualify
have been suggested. Some have argued that the off-permit provisions
allow a source to change its operations in ways not contemplated by the
permit and to no longer comply with permit terms that were developed in
light of the source's pre-change operations, even if the permit terms
on their face remain applicable. Others have argued for a much narrower
interpretation, suggesting that as long as a permit term applies to a
unit or operation at a source, no change that affects which
requirements are applicable to that unit or operation can be made on an
off-permit basis.
Further, industry has questioned whether the off-permit provisions
extend even to changes that neither violate a permit term nor change
the applicable requirements to which a source is subject. As noted
above, Sec. 70.4(b)(14) authorizes changes that are ``not addressed or
prohibited'' by the permit to be made without revising the permit, but
requires that such changes be reported to the permitting authority and
EPA. On its face, it does not distinguish between changes that do and
changes that do not affect the requirements applicable to the source,
although the accompanying discussion in the preamble to the final part
70 rule suggests that it was intended to cover only changes that affect
which requirements apply to the source. Industry has been concerned
that the provision could be read to cover all changes ``not addressed
or prohibited'' by the permit, not just changes that affect which
requirements are applicable to a source.
As to the effect of the off-permit provisions, many State and local
agencies have expressed concern that allowing sources to make changes
off-permit is inconsistent with their current operating permit
programs. Under those State or local programs, permits effectively cap
a source's emissions; in other words, a source is prohibited from
emitting more or differently than the terms of its permit provide.
Permitting authorities with this type of permit program are concerned
that the current rule's off-permit provisions may result in sources
being allowed to make changes before the permitting authority has
approved them. Other permitting authorities whose permits do not
establish caps are nevertheless similarly interested in reviewing a
source's changes before they are made to ensure that they comply with
all applicable requirements.
3. Changes Not Requiring Permit Revision
At the outset, EPA believes it is important to make clear that
under title V and the current part 70, not all changes that bear on
regulated air emissions require a change in the permit (either through
permit revision or at permit renewal). A change at a source does not
require a change in its part 70 permit if the source can make the
change (1) without violating any permit term, and (2) without rendering
the source newly subject to an applicable requirement. Since such a
change does not violate permit terms, the permit need not be revised to
accommodate the change. Since such a change does not make the source
newly subject to an applicable requirement, the permit need not be
updated to accurately reflect the requirements applicable to the
source. Simply put, under part 70, such a change is within the scope of
the permit and therefore does not require a change to the permit. This
flexibility is inherent in the current part 70 rule, irrespective of
the additional flexibility provided by Sec. 70.4(b)(14).
The EPA is concerned that the rule does not clearly express this
principle. As mentioned above, industry in particular has been
concerned that the rule could be read to require any change to be
reported and ultimately incorporated into the permit. The EPA is
therefore proposing to revise part 70 to make clear that the only
changes requiring a permit revision are those that a source cannot
operate (1) without violating a permit term, and (2) without rendering
a source newly subject to an applicable requirement. The Agency's
reasons for requiring the permit to be revised during the term of the
permit as opposed to updated at renewal are set forth below.
This clarification of the rule's effect on changes that are within
the scope of the permit is not meant to preclude permitting authorities
from taking a more stringent approach to reviewing changes at permitted
sources. As noted above, some permitting authorities are interested in
reviewing all changes (or all changes with an emissions effect greater
than a specified amount) to ensure that they meet all applicable
requirements. Section 506(a) of the Act provides that States may adopt
permitting requirements more stringent than EPA's permit rule requires.
Permitting authorities may thus provide for review of all changes, even
those within the scope of the permit, if they so desire. Permitting
authority review of all changes has the advantage of ensuring that all
changes meet applicable requirements, but EPA does not believe it
necessary or appropriate to require permitting authorities to take this
approach. Permitting authorities have differing air pollution control
needs, and many permitting authorities may justifiably conclude that
their situations do not warrant such comprehensive review of changes.
4. Appropriate Scope of Off-Permit Changes
As described above, very different approaches have been taken to
interpreting the off-permit provisions. These differences stem from
differing views about what part 70 permits should attempt to
accomplish. One of the principal purposes of title V is to create a
single document for each covered source listing all of the applicable
requirements that the source must meet under the Act. To the extent a
source can make changes off-permit that affect which applicable
requirements it must meet, its part 70 permit becomes at least somewhat
outdated. A related goal of the part 70 permit is to ensure that the
requirements applicable to a source are correctly determined and
practicably enforceable. To the extent a source can make changes off-
permit, there is a risk that the source will incorrectly determine what
requirements apply to it as a result of a change and will not
adequately monitor its compliance with any newly applicable
requirements.
Beyond these purposes, some permitting authorities treat permits as
licenses that allow a covered source to emit no more or no differently
than the terms of its permit prescribe. Allowing sources to make off-
permit changes is inconsistent with this approach to permits. On the
other hand is industry's concern for flexibility. If a source cannot
make any change without first revising its permit, the source could
lose valuable time in responding to changing market conditions.
The Agency has re-evaluated the statutory basis and role of off-
permit changes, and believes several revisions of the current rule's
off-permit provisions are warranted. As EPA noted in the preambles to
the proposed and final part 70 regulations, section 502(a) of the Act
prohibits a source from operating except in compliance with its permit.
A source that could operate a change while remaining in compliance with
its permit would not violate this prohibition, even if the change
affected the composition of emissions or increased emissions. At the
same time, sections 502(b)(5)(A) and 504(a) require that a permit
program and permit ``assure compliance with applicable requirements.''
How far a program or permit must go to ``assure compliance'' is not
clear, since it is not possible for any program or permit to guarantee
that a covered source will comply with all of its applicable
requirements all of the time. The EPA believes that these provisions
require that the permitting process include reasonable measures for
ensuring that the requirements applicable to a source are correctly
determined and made enforceable. Obviously, to the extent a source can
make changes before revising its permit, the permitting process cannot
ensure that the source has properly assessed any resulting change in
applicable requirements or undertaken to adequately monitor its
compliance with them by the time it makes the change. The EPA does not
believe, however, that sections 502(b)(5)(A) and 504(a) necessarily
require that the permitting process screen all changes before they are
made. Depending on the nature and significance of the change and the
incentives created for sources to carefully assess the effect of a
change on applicable requirements, it may be adequate for purposes of
``assuring compliance'' for the permitting process to review the change
within a reasonable amount of time after the change is made.
Section 502(b)(9) is also relevant. It provides that permits with a
remaining term of at least 3 years must be expeditiously revised to
incorporate standards or regulations promulgated under the Act after
the permit is issued. It thus indicates that Congress did not
contemplate that permits would necessarily include all of the
applicable requirements to which a source is subject at any given time.
At the same time, it also indicates that Congress wanted permits
updated quickly, so that they would remain reasonably comprehensive.
The EPA believes that the statutory language and structure of title
V indicate that Congress intended to carefully circumscribe, but not
entirely foreclose, a source's ability to make changes without first
revising its permit. Section 502(a) makes clear that a source may not
violate any term of its permit. It also provides that a source may not
operate ``except in compliance with'' its permit. If a source makes a
change that violates a permit term, then it violates section 502(a). If
it makes a change and no longer complies with permit terms that remain
applicable on their face, it also violates section 502(a). In short, a
source may live within section 502(a) and make a change without first
revising its permit if it can and does operate the change while
continuing to comply with all of its applicable permit terms.
The Agency considers the preceding sentence to describe the legal
outer bounds of off-permit changes under section 502(a). It therefore
rejects the interpretation of the current rule's off-permit provisions
that would allow sources to no longer comply with permit terms that
remain applicable on their face but that the source believes to be out-
dated because it changed its operations in a manner not contemplated by
the permit. In today's notice, EPA proposes to revise Sec. 70.4(b)(14)
to clarify that off-permit changes do not relieve the source from
complying with permit terms that remain applicable on their face.
The question remains whether the full extent of off-permit changes
allowable under section 502(a) should be provided in view of sections
502(b)(5)(A) and 504(a). The effect of the proposed clarification of a
source's ability to avoid permit terms by making off-permit changes
could largely depend on the way in which its permit is written. To the
extent a permit requires a source to conduct its operations in a
certain way, there may be little or no ability on the part of the
source to make off-permit changes, since any change to its operations
may conflict with permit terms. At the other extreme, to the extent a
permit requires a source to conduct its operations in a certain way
only under certain circumstances, the source may well be able to more
or less sidestep its permit by merely changing those circumstances. For
instance, a permit that requires the application of a particular
control technology if a source uses a certain fuel in a boiler unit
does not constrain the operation of that boiler unit if the source
switches fuels. Where the permit is written in such a conditional
manner, the source is not violating its existing permit terms when it
switches to a different fuel.
To give effect to sections 502(b)(5)(A) and 504(a), however, a
permit program may not allow permits to be so narrowly written as to
guarantee their early obsolescence. To contain the potential realm of
off-permit changes, a source's permit should identify and make
enforceable the applicable requirements with which the source must
comply over the foreseeable range of its operations. Put another way,
permits should be crafted to remain reasonably comprehensive during
their term. So, under the preceding example, where the source is
designed to operate its boiler unit using alternative fuels, a permit
that addresses only one mode of operation would not satisfy the section
504(a) requirement for comprehensiveness. To help ensure that permits
are reasonably comprehensive, EPA is proposing a minor change to the
current rule to authorize a permitting authority to identify and
include in a source's permit reasonably anticipated alternative
operating scenarios.
In addition to provisions for including alternative operating
scenarios in permits, EPA is considering whether the realm of off-
permit should be more directly contained by limiting the kinds of
changes that can be made off-permit. As noted above, title V was
enacted to provide an accurate, enforceable compilation of the
requirements applicable to every covered source. When a source makes a
change that triggers a newly applicable requirement not contemplated by
its permit, there is a public interest in ensuring that the correct
requirements are identified and made enforceable. The source, on the
other hand, has an interest in making changes as quickly as possible,
and the changes at issue here by definition do not jeopardize the
source's compliance with its permit.
The EPA believes that a source should not be required to revise its
permit before making a change (1) that it can make and still comply
with its existing permit, and (2) that decreases emissions allowable
under the permit.5 In the case of changes that decrease allowable
emissions, the public interest in reviewing the change before it is
made is offset by the public interest in maximizing emissions
decreases. Further, such changes are at least sometimes the result of
voluntary pollution prevention efforts, which might be discouraged by
requiring a prior permit revision. In discussing when a source could
make a change that does not violate permit terms but does trigger a
newly applicable requirement, the litigants in the part 70 litigation
agreed that emissions-decreasing changes should not await permit
revision.
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\5\The change need not decrease actual emissions so long as it
results in a decrease in allowable emissions. A decrease only in
allowable emissions could occur where a source has been emitting at
levels below its permit allowables and then makes a change that
results in the source being subject to a more stringent limit on
allowable emissions that nonetheless requires no decrease in actual
emissions to meet.
---------------------------------------------------------------------------
The EPA similarly believes that a source should not be required to
revise its permit before making a change while still complying with its
permit, if the change does not result in a net increase in emissions
allowable under the permit. When a no-net increase in allowable
emissions is expected, the public's interest in ensuring that
applicable requirements have been correctly identified and made
enforceable is adequately served by review after the change is made.
The Agency is interested, however, in examples of changes that would
not cause a net increase in allowable emissions and comments on how
straightforward determinations of a no-net increase in such emissions
would be. The Agency also solicits comment on whether the test for a
net increase in emissions should be based on actual emissions instead
of allowable emissions and what factors the Agency should consider in
implementing such a test.
The EPA solicits comment on whether a change that meets the off-
permit test but nonetheless causes allowable emissions to increase (for
instance, as a result of the addition of a new unit or change in raw
materials not prohibited by the permit) should be made without first
revising the permit. As stated above, the Agency does not believe the
statute requires that part 70 permits effectively cap a source's
allowable emissions. A source may be able to make certain emissions-
increasing changes and still operate in compliance with its permit. At
the same time, the public interest in ensuring that applicable
requirements are correctly identified and practically enforceable is
greatest in the case of emissions increases. Arguably, the public
should have an opportunity to ensure that any increases are in keeping
with applicable requirements and that any limits on those increases are
enforceable before a source may increase its allowable emissions over
that level effectively established by its current permit. The EPA
solicits comment on whether a source should be allowed to make changes
meeting the off-permit test without first revising its permit even if
those changes increase allowable emissions.
Some have urged EPA to entirely foreclose a source's ability to
make off-permit changes as a way of ensuring that permits are
comprehensive. The EPA solicits comment on this option. The Agency
believes, however, that this source of flexibility is likely to be
important to a source's ability to meet not only changing markets, but
new standards. Under section 112, EPA foresees promulgating a
potentially large number of MACT standards. Sources will become subject
to those standards either at the time the standards are promulgated or
on making changes that trigger the application of the standard. To
comply with those standards, sources may well need to make changes
before their permits can be revised. To the extent they can make those
changes while still complying with their permits, EPA believes they
should be allowed to do so.
Even though the Agency believes that at least some changes meeting
the off-permit test can be made without first revising the permit, it
believes such changes should be incorporated into the permit within a
reasonable period of time after the source begins to operate the
change. As also noted above, the primary purpose of part 70 permits is
to compile sources' applicable requirements. To meaningfully serve that
purpose, part 70 permits must be kept reasonably up-to-date. Sections
502(b) (9) and (10) confirm the need to keep permits reasonably
current. As also noted above, the permitting authority and public have
an interest in ensuring that applicable requirements have been
correctly identified and made practically enforceable. Revising the
permit within a reasonable time to reflect an off-permit change gives
the permitting authority and the public an opportunity to provide that
quality control. Accordingly, EPA proposes that a source be required to
submit an application to revise its permit to reflect an off-permit
change within 6 months of commencing operation of that change. Six
months should provide the source with ample time to prepare a permit
application and should not prevent the source from commencing the
change when it needs to.
Since a source could wait up to 6 months before filing a permit
revision application for a change that it had made off-permit, the
Agency is proposing to largely retain the current rule's requirement
that a source provide contemporaneous notice to the permitting
authority and EPA of off-permit changes. The requirement would be
revised to make clear that only changes that render a source newly
subject to an applicable requirement must be reported. Contemporaneous
reporting would provide the permitting authority and EPA with an early
opportunity to ensure that the source was operating the change in
compliance with both its permit and the requirements applicable to the
source as a result of the change.
C. Operational Flexibility Provisions
The current rule provides that a source can make several types of
changes without ever revising its permit. Most of these changes are
defined by the ``operational flexibility'' provisions of the rule, so-
called because they implement section 502(b)(10).6 That section
requires that the minimum elements of an approvable permit program
include provisions to allow changes within a permitted facility without
requiring a permit revision, so long as those changes do not constitute
a modification under any provision of title I or increase emissions
above permitted levels. An additional type of change not requiring
permit revision is that defined by the ``alternative scenarios''
provision of the rule. Since alternative scenarios do not implement
section 502(b)(10), they are not discussed in this section of the
preamble, although they do provide another sort of operational
flexibility. A minor revision to the alternative scenarios provision of
the rule is proposed in the next section of this preamble.7
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\6\Section 502(b)(10): The Administrator shall promulgate * * *
regulations establishing the minimum elements of a permit program *
* * These elements shall include each of the following: * * *
Provisions to allow changes within a permitted facility (or one
operating pursuant to section 503(d)) without requiring a permit
revision, if the changes are not modifications under any provision
of title I 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 and the permitting authority with written
notification in advance of the proposed changes which shall be a
minimum of 7 days, unless the permitting authority provides in its
regulations a different timeframe for emergencies. (Parenthesis
missing in original.)
\7\Other regulatory provisions (e.g., the off-permit provisions)
also provide sources with operational flexibility, but not as a
function of section 502(b)(10).
---------------------------------------------------------------------------
The current rule contains three provisions implementing operational
flexibility under section 502(b)(10). Section 70.4(b)(12)(i) allows a
source after providing the permitting authority with seven days prior
notice to contravene permit terms that are unrelated to assuring
compliance with applicable requirements (section 502(b)(10) changes).
Section 70.4(b)(12)(ii) authorizes a permitting authority to allow a
source to opt into an emissions trading program contained in the SIP,
but not necessarily in the permit, to comply with limits established in
its permit (trading based on a SIP). Section 70.4(b)(12)(iii) requires
permitting authorities to allow a source to comply with an independent
emissions cap in its permit through emissions trading when the source
proposes an acceptable trading plan.
Concerns have been raised about some or all of these provisions by
State and local agencies, environmentalists, and industry. In response
to these concerns, EPA is proposing to revise some aspects of the
operational flexibility provisions and to clarify the operation of
others. This section of the preamble examines each of the operational
flexibility provisions and the proposed changes to it in turn. It is
important first to understand EPA's general theory for implementing
section 502(b)(10), however, before discussing the details of the
proposed rule changes.
1. Statutory Interpretation
As indicated above, EPA believes that section 502(b)(10) requires
State and local permitting authorities to provide a minimum level of
operational flexibility in a federally-approved part 70 program.
Several of the petitioners in the permits case, however, challenged
this view. They argued that section 506(a) allows permitting
authorities to establish additional permitting requirements that may
limit operational flexibility, and further that section 116 of the Act
secures the permitting authorities' rights to enforce any requirement
respecting air pollution control as long as it is no less stringent
than Federal requirements.8
---------------------------------------------------------------------------
\8\Section 506(a): Nothing in this title shall prevent a State *
* * from establishing additional permitting requirements not
inconsistent with this Act. [42 U.S.C. 7661e(a)]
Section 116: Except as otherwise provided in sections [not
relevant to title V] nothing in this Act shall preclude or deny the
right of any State or political subdivision thereof to adopt or
enforce * * * any requirement respecting control or abatement of air
pollution; except that if an emissions standard or limitation is in
effect under an applicable implementation plan or under section 111
or 112, such State or political subdivision may not adopt or enforce
any emission standard or limitation which is less stringent than the
standard or limitation under such plan or section. [42 U.S.C. 7416]
---------------------------------------------------------------------------
The EPA believes the language of section 502(b) clearly settles the
issue. Section 502(b) requires EPA to promulgate regulations
establishing the ``minimum elements'' of a State or local operating
permit program. It then lists what these elements must include, and
section 502(b)(10) is one of the specified elements. Thus, section
502(b) requires that operational flexibility as prescribed by section
502(b)(10) be included in an approvable permit program.
Section 506(a) does allow a permitting authority to adopt
additional permitting requirements, but those additional requirements
must not be inconsistent with the Act, and the Act contains a mandate
for operational flexibility in a federally-approved permitting program.
Similarly, while petitioners correctly point out that section 116 gives
State and local authorities considerable autonomy in operating an air
pollution control program, section 116 does not alter the mandate for
this minimum element; it simply preserves the permitting authority's
right to enforce its own air pollution control requirements.
Various groups have expressed differing views on how EPA should
require permit programs to meet the Act's mandate for operational
flexibility. Some argue that section 502(b)(10) merely authorizes the
permitting authority to put alternative scenarios into a source's
permit. For a source which anticipates making specific changes in its
operations, its permit may be written to identify and enforce the
applicable requirements to which the source would become subject on
making the specified changes. A permit containing such alternative
scenarios allows a source to change its operations from one scenario to
the other without requiring a permit revision. At the other extreme,
others argue that section 502(b)(10) allows sources, after 7 days'
notice, to implement changes at the facility in contravention of their
existing permit terms as long as the total allowable emissions from the
permitted facility do not increase.
The Agency disagrees with both extremes. Interpreting section
502(b)(10) to only mandate that programs provide for the inclusion of
alternative operating scenarios in permits makes the operational
flexibility provision a virtual redundancy. The Agency does not believe
that Congress would have included section 502(b)(10) in the 1990 Act
amendments if it were merely a mandate providing for permits containing
alternative scenarios, because section 504(a) effectively requires the
same. As explained above, section 504(a) provides that a source's
permit must contain the terms and conditions necessary to assure
compliance with applicable requirements. For a source whose operations
change in routine or foreseeable ways, its permit should accordingly
anticipate those changes and specify the requirements that will apply.
On the other hand, EPA cannot support the idea that section
502(b)(10) obliges permitting authorities to allow unrestricted ad hoc
proposals for emissions shifts across the permitted facility after only
7 days' notice. This interpretation would effectively allow sources at
will to revise requirements of the Act, revise the compliance
requirements in their permits, or both. Neither practice is defensible
as a legal or policy matter, for they would render the permit
unenforceable, in violation of the mandates of sections 502(b)(5)(A)
and 504(a) that permit programs and the permits themselves assure
compliance with the requirements of the Act.9
---------------------------------------------------------------------------
\9\The current rule does allow sources to make some changes that
contravene permit terms. However, the rule's definitions governing
section 502(b)(10) changes (``section 502(b)(10) change'' and
``emissions allowable under the permit'') are drawn tightly to limit
such changes to those permit terms that are unrelated to enforcing
the applicable requirements of the Act. The EPA believes that such
changes are only available in a case where some extraneous term has
found its way into the federally-enforceable part of the permit. A
well-drafted permit should not contain any terms subject to section
502(b)(10) changes.
---------------------------------------------------------------------------
In view of the necessarily limited scope of section 502(b)(10)
changes, EPA interprets this section primarily as a mandate to promote
emissions trading within permitted facilities that is consistent with
the applicable underlying requirements. The EPA does not believe,
however, that Congress intended to create free-floating authority for a
source to revise unilaterally the compliance requirements in its
permit. The combination of sections 502(b)(5)(A), 502(b)(10), and
504(a) appears to contemplate changes in a facility's operations that
do not require rewriting the permit and that do not increase emissions
allowable under the permit. This is a reasonable description of a well-
crafted emissions trading plan with compliance terms governing pre-
established emissions trading parameters. The common theme shared by
the program elements EPA is proposing today to implement section
502(b)(10) is that they provide opportunities for emissions trading,
while requiring that the trading plans be clearly enforceable according
to established compliance terms.
2. Section 502(b)(10) Changes
For the reasons presented above, EPA considers the potential scope
of section 502(b)(10) changes to be very narrow. Many State and local
agencies, however, contend that section 502(b)(10) changes are illegal,
unworkable, and unwise. They argue that these changes allow a permittee
to violate its permit terms without going through a permit revision
process, in violation of sections 502(b)(5)(A), 502(b)(6), and 504(a).
As a policy matter, they argue that the section 502(b)(10) change
process will be susceptible to misuse and possible abuse by permittees
seeking to confuse the permitting authority and avoid enforcement
actions.
As noted above, EPA views section 502(b)(10) changes as providing
an opportunity for a source to clean up its permit by avoiding
compliance with provisions that unnecessarily constrain its operations
in ways unrelated to implementing the Act's requirements. However, EPA
now believes that section 502(b)(10) changes will create a mechanism
that could potentially wreak havoc with orderly compliance
determinations under the permit.
As permitting authorities began developing programs and probing the
operation of this provision, it became clear that determining what
qualified as a section 502(b)(10) change is a delicate evaluation of
just what terms are absolutely necessary to enforce applicable
requirements. At its root, this evaluation involves the fundamental
question of applicability: are the permit terms justified by the
applicable requirements? The process for these changes allows the
source to make these determinations unilaterally and act on them after
only 7 days' notice, with the likelihood that neither the permitting
authority nor EPA will have reviewed them in any detail, and with no
systematic opportunity for review by the public. A permit with a series
of section 502(b)(10) notices attached to it voiding various permit
terms would be a cumbersome document to enforce at best, and may
include mistaken determinations of inapplicability which would cloud
the enforcement of the permit terms which are avoided by using the
section 502(b)(10) change notices.
The Agency believes that the risks posed by this mechanism far
outweigh the relatively slight contribution it makes to a permittee's
operating flexibility. One central goal of the permit program is to
settle disputes in the permit issuance process about the applicability
of the Act's requirements at a source and to keep such disputes out of
enforcement actions. Section 502(b)(10) changes could inject such
disputes into enforcement action where a facility claims to have
properly avoided a permit term that the permitting authority seeks to
enforce. Litigating the availability of the section 502(b)(10) process
to avoid the permit term would basically reopen the question of the
applicability of the permit term and the underlying applicable
requirement to the facility.
Moreover, the permit issuance process already protects a source's
interest in avoiding permit terms unrelated to the Act's requirements.
If a permit contains an unnecessary or extraneous term, the facility
will have good grounds to challenge it in the permit issuance process,
and ultimately to seek review in State court. This is the forum where
such fundamental disputes of applicability are appropriately resolved,
not with a unilateral 7-day notice. Section 502(b)(10) changes give the
source another opportunity for contesting applicability, and arguably
rewards a source that is not diligent in scrutinizing the basis for the
permit terms established in the permit issuance process.
Consequently, EPA proposes today to eliminate section 502(b)(10)
changes as a mechanism for implementing operational flexibility. The
Agency solicits comment on the rationale for this proposed elimination.
3. Trading Under Permitted Emissions Caps
Section 70.4(b)(12)(iii), as described earlier, requires permitting
authorities to allow a source to comply with a certain type of cap
through emissions trading if it can suggest a workable trading program.
The type of cap eligible for trading under this section is a cap the
source undertakes in its part 70 permit to limit emissions independent
of any applicable requirement, usually to avoid an applicable
requirement to which the source would otherwise be subject.
Several State and local agencies have expressed concern that this
provision requires them to approve emissions trading proposals that
they would find inadequate absent the mandate of section 502(b)(10).
They are also concerned that the trading regime established pursuant to
this provision would supplant enforcement or other requirements
associated with underlying applicable requirements, perhaps undoing a
permitting authority's decisions regarding whether and how to include
emissions trading in its SIP. In addition, some State and local
agencies are concerned that this provision is designed to authorize
sources to create ad hoc bubbles after only 7 day's notice.
Industry, for its part, has objected to the fact that the benefit
of this provision is only available when a State or local agency, in
its discretion, allows a source to establish a cap in its permit. They
argue that this provision can hardly be considered adequate
implementation of section 502(b)(10)'s ``mandate'' to provide
operational flexibility if State or local agencies can unilaterally
block the use of the provision by simply refusing to grant caps.
The Agency proposes to retain this provision as the basic mandate
for implementing section 502(b)(10), but to revise it to address the
concerns expressed by permitting authorities and by industry. As to
permitting authorities' concerns, the proposed rule makes clear that a
permitting authority must allow trading if it determines that the
trading plan proposed by the source is consistent with all applicable
requirements (including any SIP provisions governing trading) and meets
the criteria for responsible emissions trades (described below). The
permitting authority retains its discretion to evaluate proposed
trading plans using those criteria. Of course, this provision also
creates an obligation for the permitting authority to evaluate proposed
trading plans, and its exercise of discretion will be subject to the
appropriate standard of review applicable in State court where a permit
applicant believes the permitting authority has arbitrarily rejected a
trading proposal. The permitting authority may not reject a trading
proposal simply because as a matter of policy it does not allow trading
in circumstances when SIP or other applicable requirements would not
otherwise restrict such trading.
The Agency also proposes to revise the language in the current rule
to clarify that any emissions trading plan developed pursuant to this
provision should operate independently of the measures a source
undertakes to meet (as opposed to avoid) applicable requirements. This
provision would require the permitting authority to consider emissions
trading plans designed to comply with emissions caps that the
permitting authority establishes in the part 70 permit in addition to
applicable requirements. The rule would go on to specify that the
permit must in addition require compliance with all applicable
requirements. Further, if an emissions cap is established in the permit
pursuant to a requirement in the SIP, and the SIP does not provide for
emissions trading to demonstrate compliance with the cap, the mandate
in the SIP for line-by-line compliance under the cap controls. The
section 502(b)(10) emissions trading provision therefore attaches only
where the part 70 permit alone creates the cap, not where the
underlying applicable requirement provides for one.
As to State and local agency concern over ad hoc bubble authority,
EPA proposes to clarify what is implicit in the current rule. That is,
the compliance terms governing emissions trading under permit caps must
be established along with the cap in a permit issuance or revision
process subject to public review and comment. All the terms and
conditions of any emissions trading plan must be contained in the
permit. The function of the 7-day notice under this provision is not to
establish the terms of emissions trading, but rather to notify the
permitting authority and EPA that the source is utilizing the trading
opportunities already provided for in the permit.
In response to industry's concern, EPA is proposing to revise the
language of the current rule to require permitting authorities to grant
a source's request to establish as well as trade under an independent
cap, if the source proposes an acceptable cap and trading plan. The
Agency understands industry's concern about the potential
unavailability of trading under this provision as currently drafted,
although EPA did not expect permitting authorities to arbitrarily
reject well-crafted caps. As provided above for trading, permitting
authorities would have discretion to reject proposed caps if they were
not allowed under the relevant applicable requirement(s) or did not
meet the relevant criteria described below for trading under SIPs.
Permitting authorities would also have the same duty to scrutinize
proposed caps and approve them if they do meet these criteria.
The Agency believes that affording sources an opportunity to
establish an emissions cap and an opportunity to comply with that cap
through trading is an appropriate means of implementing section
502(b)(10). Accordingly, a source could request an emissions trading
plan to meet a cap that would allow the source to shift emissions among
several emissions units operating under the cap. At the same time, the
permit must contain the emission limits and compliance terms, including
monitoring, that are necessary to assure compliance with SIP limits and
other applicable requirements. Indeed, it would probably behoove the
source to attempt to employ the same monitoring regime for both the
applicable requirements and the cap.
In addition, a source could request a cap that would restrict total
plant emissions of a particular pollutant (including emissions of that
pollutant from new or modified units and activities) at an emissions
level that would avoid a specific applicable requirement. Two examples
serve to illustrate traditionally accepted options for such cap
development. First, a source that must obtain a part 70 permit because
it is already major for NOx emissions might wish to avoid also being
major for volatile organic compounds (VOC) emissions in order to avoid
the reasonably available control technology (RACT) requirements that
apply only to major VOC sources (e.g., for this example, sources of 100
or more tons per year (tpy) VOC's are major). To accomplish this
result, the source could establish in its part 70 permit an enforceable
emissions cap for VOC's of 99 tpy and an enforceable means to track
total plantwide VOC emissions from the source (including any emissions
from new or modified units). Compliance with such a cap would have the
effect of insulating the source from the RACT requirement to which any
major source of VOC's would be subject.
Second, a plant-wide emissions limit could be set for a major
source of VOC's at a level which, if not exceeded, would allow the
source to avoid triggering preconstruction review under part C of the
Act even when it made physical changes that increased VOC emissions. In
this example, the cap would be set at a VOC emissions level which is
representative of actual source emissions over the preceding 5-year
(contemporaneous) period plus an amount just below the significance
level defining a major modification for VOC (i.e. 40 tpy). If a
practical, enforceable means can be defined in the permit to track
emission changes from new as well as existing emissions sources at the
plant, then compliance with the cap would avoid the triggering of
otherwise applicable PSD requirements.
In designing a cap such as in the second example, it is important
to remember that, by its terms, section 502(b)(10) cannot accommodate
title I modifications. As explained earlier, EPA believes that the
better interpretation of the term ``title I modifications'' would
include changes subject to a SIP-approved minor NSR program. Industry
representatives have expressed concern that under this interpretation
of title I modifications, the utility of section 502(b)(10) trading
could be significantly limited to the extent changes made pursuant to a
trading regime were minor NSR modifications. They contend that under
this interpretation such changes would be outside the scope of section
502(b)(10) and would require permit revision, even if they did not
exceed the cap established in the permit.
The Agency believes that section 502(b)(10) trading plans need not
be circumscribed by State or local minor NSR programs. The effect of a
minor NSR program on trading plans would initially depend on the scope
and design of the minor NSR program. The more inclusive the minor NSR
program, the greater the likelihood that a trade might involve a minor
NSR modification. At the same time, a minor NSR program that allows a
source to undertake a practicably enforceable emissions cap to avoid
the need for modification-by-modification application of minor NSR
requirements would allow section 502(b)(10) trading plans to avoid the
same.
Regardless of the availability of emissions caps under a minor NSR
program, trading plans could be developed consistent with section
502(b)(10) to the extent the plans anticipated and provided for minor
NSR requirements that the source would have to meet as a result of
changes made pursuant to the trading plan. As described in more detail
later in this preamble, permitting authorities could use the device of
``advance NSR'' to avoid modification-by-modification application of
minor NSR requirements. The EPA expects that a source may often be able
to anticipate both the prospective minor modifications that would occur
at a facility as a result of trading, as well as the technology or
other minor NSR requirements that would apply as a result of the
modification. To the extent the trading plan provided for these
requirements to be met when the changes are made, the changes
themselves would at that time not trigger NSR and thus would not be
title I modifications.
It is also worth noting that the Agency's regulations at 40 CFR
51.160-164 give permitting authorities significant discretion in
shaping their minor NSR programs to meet the statutory requirements of
section 110(a)(2)(C) of the Act. This discretion would enable
permitting authorities to tailor their minor NSR programs to better fit
the desired shape of emissions trading programs under proposed
Sec. 70.4(b)(12), provided that the structure of any program or cap
would adequately safeguard all applicable ambient constraints (e.g.,
national ambient air quality standards). This limitation might
constrain caps to VOC emissions trades unless additional ambient
safeguards are added for other criteria pollutants (e.g., PM-10 or
SO2). For instance, a permitting authority that wanted to make full use
of emissions trading under proposed Sec. 70.4(b)(12) could as part of
its minor NSR program allow sources to establish plant-wide emissions
caps that are practicably enforceable for the combination of new and
existing emissions units at the plant site. Individual changes under
this cap would then not trigger either major or minor NSR and would
fall within the scope of section 502(b)(10).
These options for cap development should effectively address many
of the concerns that have been raised by industry about the potential
effect of minor NSR on a source's ability to trade. In addition to
these options, it should be noted that today's proposal contains other
provisions that would also be useful in addressing these concerns. As
previously described, the proposal would provide that changes
qualifying for off-permit treatment could be made before even a permit
revision application is submitted. Moreover, changes not qualifying for
off-permit treatment might qualify for the streamlined permit revision
tracks (described later in this notice) that allow a source to begin
operation of the change as early as the day it submits its permit
application. These proposed provisions would reduce delay and
opportunity costs to affected sources. The Agency solicits comment on
whether these aspects of the proposal together with the options for cap
development and ``advance NSR'' noted above would adequately address
the concerns raised by industry while assuring compliance with the Act.
The foregoing discussion on caps points out the ramifications of
the intersection of minor NSR and part 70 permit revision requirements
generally for plant-wide caps, whether or not developed pursuant to the
part 70 provisions implementing section 502(b)(10). Plant-wide caps
currently are being used to both limit applicability (as in the case of
a NSR cap) and as an air quality management tool (as in the case of a
ratcheting cap within the Regional Clean Air Incentives Market program
in the South Coast Air Quality Management District of California). The
EPA believes that plant-wide caps represent a sound alternative for
sources seeking to maximize their production flexibility while still
meeting Act mandates. However, under either the current or proposed
part 70, care must be used in constructing caps to avoid triggering
part 70 permit revision requirements.
The Agency wishes to clarify that neither the proposal nor the
current rule would interfere with the establishment of other plant-wide
caps set by permitting authorities that are in addition to applicable
requirements. It notes that changes at a source operating in compliance
with a plant-wide cap developed by a State or local agency would not
need a permit revision, provided the change did not violate an existing
permit term or trigger an applicable requirement to which the source
was not previously subject.
4. Trading Under the Implementation Plan
As noted above, Sec. 70.4(b)(12)(ii) authorizes, but does not
require, permitting authorities to allow a source to engage in
emissions trading as provided by the applicable implementation plan
without revising its permit. Environmental groups argue that this
provision creates the risk of a ``shell game'' in which neither the
permit nor the SIP contain adequate compliance requirements to assure
that the emissions trades allowed are enforceable. They believe that
after incorporating carefully crafted emission limits into the permit
at issuance, a source could send in a 7-day notice to opt into a SIP
trading regime that no one scrutinized at permit issuance.
In response to this concern, the proposed part 70 revisions would
require that the permit identify as part of a permit issuance, renewal,
or significant permit revision process those permit terms which may be
replaced with the emissions trading provisions in the implementation
plan.
A similar concern has been expressed that this provision allows
sources to replace enforceable emission limits in the permit with as
yet undefined trading programs in SIP's. The Agency's response is that
the trading provisions which a source may use under this provision must
be approved into the SIP through a process that involves rulemaking on
the State or local level (including a hearing) and on the Federal level
with public notice and an opportunity for public comment. As EPA stated
when it promulgated this provision, there are currently no approved
SIP's that are designed to implement these trading provisions (57 FR
32268). If permitting authorities choose to develop such SIP
requirements, the public will have ample opportunity to scrutinize the
ability of a SIP trading plan to supply the compliance terms that would
replace permit terms.
Furthermore, EPA envisions that there will be substantial effort
required to formulate such SIP provisions, which would be roughly
analogous to developing a general permit within the SIP consistent with
the criteria for emissions trading outlined below for classes of
emissions trades at source categories. One reason EPA has made this
method for implementing section 502(b)(10) optional for permitting
authorities is that it would entail a significant restructuring of
existing SIP's to accomplish. Moreover, such SIP's would have to supply
sufficient detail to enforce compliance with the level of emissions
reduction required by the permit term that the SIP's requirements could
replace. If any party believed that a proposed SIP revision did not
contain sufficiently clear or detailed compliance requirements, they
could challenge the SIP proposal or the proposed permit that identified
the units eligible for such trading based on its failure to include
enforceable emission limitations consistent with section 110(a)(2)(A)
of the Act. Therefore, there is no risk of a ``shell game'' in which
the public searches fruitlessly in the permit or the SIP for
enforceable compliance terms.
5. Criteria for Emissions Trading Provisions
As a result of the above interpretation of section 502(b)(10) and
other elements of the part 70 rule, EPA anticipates that State and
local permitting authorities will be evaluating proposals for emissions
caps and trading plans in a variety of contexts. Therefore, EPA
believes it is useful to emphasize the key criteria it has identified
for evaluating emissions caps and trading caps. These criteria are
drawn from EPA's Emissions Trading Policy Statement (51 FR 433814 (Dec.
4, 1986), hereinafter the ET Policy) and the final Economic Incentive
Program Rules (59 FR 16690 (April 17, 1994), hereinafter the EIP rule.
See also the preamble to the final part 70 rules (57 FR 32268).
Although each of these prior statements discusses emissions caps or
trading in a slightly different context (e.g., setting up an entire
program as opposed to determining an emissions reduction credit at an
individual source or establishing a plant-wide emissions cap below
which a particular requirement such as major NSR or 112(g) would not
apply for that pollutant), there are critical criteria that run through
all responsible emissions caps or trading plans as they would apply in
the context of this rule.
a. Quantifiable. Emissions being capped or traded in an emissions
trading plan must be quantifiable. There must be a workable, reliable
method for determining the amount of emissions being counted towards a
cap or being traded. ``Quantification may be based on emissions
factors, stack tests, monitored values, operating rates and averaging
times, process or production inputs, modeling, or other reasonable
measurement practices. The same method of calculating emissions should
generally be used to quantify emission levels both before and after the
reduction'' (ET Policy, 51 FR 43832, see also final EIP preamble, 59 FR
16689). For example, emission sources that are regulated by work
practice standards because emissions are difficult to quantify using an
emission limit would be unlikely candidates for inclusion in an
emissions cap or trading plan, absent some new development in
measurement or monitoring methodology.
b. Enforceable. The emissions cap or trading plan must be embodied
in a federally-enforceable instrument with clear and unambiguous
compliance requirements which EPA, the permitting authority, and
citizens may readily enforce as a practical matter. Typically this will
be the part 70 permit, although, as discussed above, it may also be the
SIP. An emission limit must also be practicably enforceable, with
monitoring and recordkeeping requirements that match the emissions
limits and averaging time designed into the emissions trading plan.
``Bubbles should be incorporated in an enforceable compliance
instrument which requires recordkeeping based on the averaging period
over which the bubble is operating, so it may easily be determined over
any single averaging period that bubble limits are being met'' (ET
Policy, 51 FR 43832).
c. Replicable. Caps and trading procedures should be structured so
that two independent entities applying the procedures would obtain the
same result when determining compliance with the emission cap or
trading provisions. In the context of an emissions cap or trading plan
approved into a permit, this involves objective methods of quantifying
and accounting for emissions. ``All source-specific program
requirements must be structured in such a way that both inspectors and
facility owners can judge the compliance status of a facility at any
time. * * * This will require an authoritative, reliable repository of
all relevant information at each facility'' (EIP rule, 59 FR 16690).
d. Surplus. Where a permitting authority is establishing SIP rules
to authorize trading at permitted facilities, as described above, those
rules must be consistent with the assumptions made in the demonstration
of reasonable further progress, attainment, or maintenance supporting
the SIP. For example, emissions reductions which a source may use as an
emissions reduction credit in any trading rule must not already be
relied upon for SIP planning purposes (see generally ET Policy, 51 FR
43832), nor may the reductions be otherwise required under any
provision of the Act.
e. Accountable. Correspondingly, the reasonable further progress,
attainment, or maintenance demonstration must account for the aggregate
effect of the emissions cap or trades allowed under any such cap or
trading rules (see 57 FR 32268).
D. Other Elements of the Rule Providing Operational Flexibility
Beyond the mandate in section 502(b)(10), the current rule requires
that permit programs contain other elements providing operational
flexibility. The Agency is proposing to retain these provisions with
minor adjustments subsequently described.
1. Emissions Trading Based on Applicable Requirements
Section 70.6(a)(8) of the current rule requires that permits state
that no permit modification shall be required under approved economic
incentive and similar programs for changes that are provided for in the
permit. Section 70.6(a)(10) further provides that permits must also
include terms and conditions for emissions trading where the applicant
requests them and the underlying applicable requirements provide for
emissions trading without requiring a case-by-case review of each
emissions trade.
Several of the petitioners in the permits case expressed concern
that the rule is not clear that economic incentive programs must be
approved in the SIP and that the permit terms and conditions governing
the trading must be established in the permit pursuant to procedures
that involve public comment. They also objected that these provisions
improperly require a permitting authority to include trading
requirements in a permit, preempting their authority to deny emissions
trading to sources.
The Agency is not proposing to change these provisions
significantly, other than to clarify in Sec. 70.6(a)(8) that any
economic incentive or similar program or process providing for
emissions trading in the permit must first be approved in an
implementation plan or other applicable requirement. Both provisions
read in context make clear that the permit must contain the compliance
terms and conditions governing any emissions trades authorized in the
permit pursuant to these requirements. Section 70.6(a)(8) requires that
any emissions trading changes must be provided for in the permit.
Nothing in that section removes the obligation for all permits to have
terms and conditions pursuant to Secs. 70.6(a) and (c) to assure
compliance with all permit terms, including the trading provisions.
Section 70.6(a)(10) explicitly refers to the rest of Secs. 70.6(a) and
(c) in directing that compliance terms must be in the permit.
Therefore, when the permit is issued, the public will have ample
opportunity in the permit issuance process to scrutinize those
compliance terms governing the emissions trades.
The Agency does not agree that these trading provisions preempt the
discretion of State and local permitting authorities. Rather, these
provisions require a permitting authority to include in the permit
emissions trading opportunities already contained in the underlying
applicable requirements. Note, however, that where the opportunity for
trading to meet an applicable requirement is optional and subject to
the discretion of the permitting authority, this discretion is limited
by the requirement in Sec. 70.6(a)(10) which requires the permitting
authority to provide for such trading. Commenters may raise any
complaint they may have with the appropriateness of mandatory emissions
trading when the applicable requirement is established, through either
an approval or rulemaking process for a SIP or Federal standard. The
permitting authority will be required to incorporate the applicable
requirement and its trading opportunity into the permit.
2. Alternative Operating Scenarios
Section 70.6(a)(9) requires that reasonably anticipated alternative
operating scenarios must be provided for in the permit to the extent
all scenarios comply with applicable requirements. The current rule
specifies that the permitting authority include such scenarios in the
permit at the request of the source. As explained above, the inclusion
of all reasonably foreseeable alternative scenarios in the permit is
important to the permit's comprehensiveness. The Agency is therefore
proposing a minor revision to this section of the rule to make clear
that the permitting authority is authorized to include in a source's
permit the alternative scenarios that it identifies as likely.
Section 70.6(a)(9) further requires that a source keep a
contemporaneous record of all changes among alternative scenarios in an
on-site log. Several petitioners in the permit case have challenged the
use of an on-site log to record changes among scenarios. They argue
that the risk of post hoc manipulation of an on-site log is too great,
potentially allowing a facility to change records of which scenario was
in effect at specific times in an effort to reconcile the recorded
scenarios with the monitoring data the source must submit semi-
annually.
In response to these concerns, today's proposed revisions to part
70 would allow a source to use an on-site log of changes among
operating scenarios when each of those scenarios has monitoring that
meets two conditions. First, each scenario must be monitored in a way
that yields objective, contemporaneous measurement and recordation of
the relevant emissions or parameters. Second, each scenario must have a
sufficiently different means of measurement that the contemporaneous
record reveals the scenario under which the source was operating when
the record was made. In any other case, the facility would be required,
for each week during which one or more changes to a different operating
scenario was made, to copy the on-site log of changes for that week and
mail it to the permitting authority. These proposed new provisions
would assure that either the scenarios are monitored in a way that
inherently reveals the scenario in effect at all times, or the
permittee reports changes among scenarios within a sufficient period of
time to avoid any significant possibility of after-the-fact tampering.
The Agency invites comments on two aspects of this proposal to
revise the reporting requirements associated with alternative
scenarios. First, EPA is concerned that this framework for reporting
would create another layer of complexity and paperwork in order to
address a risk that may be theoretically important, but actually small.
Subsequently in today's notice, EPA proposes to clarify that the
required monitoring reports must indicate the alternative scenario that
was in operation during each monitored period. In light of this
clarification, EPA requests information concerning the need for and
burden of the proposed changes to the alternative scenarios reporting
requirements. The Agency is particularly interested in permitting
authorities' experiences with monitoring alternative scenarios. In
their experience, has tampering with compliance reports been a problem?
Would the proposed revisions effectively address any such problem?
Specific accounts of experiences and practices in the field would
assist EPA in deciding whether to include the proposed revisions in the
final rule.
Second, assuming EPA promulgates revisions requiring reporting of
changes between alternative scenarios, the Agency is interested in
receiving comments on the appropriate interval for reporting. Weekly
reports are proposed, but EPA requests comments and information on
whether monthly or quarterly reporting would be sufficient to
significantly reduce any risk of tampering with the relevant records.
3. Advance NSR Approval
The Agency also proposes to allow the use of alternative scenarios
to provide advance approval of construction or modification subject to
NSR. If a permit applicant can anticipate its construction or
operational needs with sufficient particularity, the permitting
authority may be able to build into the permit an alternative scenario
that sets forth and makes enforceable the applicable NSR requirements
to which the source would become subject on constructing or modifying
its operations in that fashion. The permitting authority would
essentially be approving a construction permit in advance and placing
its terms within the operating permit. The opportunity for the source
to act on the permission to construct would expire consistent with the
limits in the underlying program for the duration of a construction
approval (e.g., a PSD permittee must generally begin a continuous
course of construction within 18 months of permit issuance). Where the
applicable NSR requirement(s) would not allow the source to implement
an advance NSR change as an alternative scenario through the full term
of the permit, EPA solicits comment on allowing a permitting authority
to extend the availability of the advance NSR option subject to certain
additional constraints. For example, when the period over which a
specific control determination is authorized would be exceeded, the
permit might still provide that the advance NSR option remains
available to the source if the source resubmits the control approach to
the permitting authority before its expiration and it is reaffirmed. If
no change from the originally approved approach is required, the source
could again have the option to implement the related operational change
as an alternative scenario.
The Agency anticipates that the advance opportunity may prove
useful in enhancing the flexibility under the permit for facilities
that can anticipate their expansion needs with reasonable specificity.
Comment is invited on the use of ``advance NSR'' for any of the
following programs: nonattainment area NSR under part D of the Act, PSD
under part C, minor NSR under section 110(a)(2)(C), and modifications
at HAP's sources under section 112.
E. Permit Revisions
1. Introduction
As set forth above, the only changes requiring a permit revision
are those that cannot be operated without (1) violating a permit term,
or (2) rendering the source subject to a requirement to which the
source has not been previously subject. The number of changes requiring
permit revision can be minimized, moreover, through the use of
alternative scenarios and operational flexibility provisions, as well
as ``worst-case'' permitting (i.e., writing permits to reflect maximum
allowable emissions). In view of these provisions, EPA believes that a
permit can and should be crafted to accommodate a broad spectrum of
changes at the covered source.
There is a limit, however, to a source's ability to predict the
future, and some changes at a facility will require permit revision.
The issue then becomes how to revise the permit. Of course, changes
qualifying for off-permit treatment need not await permit revision
before being operated. But for all other changes requiring permit
revision, the procedures for revising the permit will be key to a
source's ability to make changes in time to meet market demands.
Finding the right balance between industry's need for flexibility and
the public's interest in permit decisionmaking has been a challenge for
the Agency.
The current rule establishes a three-track revision process that
provides differing levels of review depending on the nature of the
change being made. Administrative amendments receive the least process
(i.e., no public, affected State, or EPA review), and are consequently
limited to changes that either are trivial in nature or have already
undergone a preconstruction permit process (e.g., NSR) that met part 70
permit content and process requirements (see Sec. 70.7(d)(1)(v)). Minor
permit modifications receive EPA and affected State review, but only
after the source has begun to operate the change. They receive no
public review, and are accordingly limited to changes that, among other
things, are not modifications under any provision of title I and do not
involve case-by-case determinations. Significant permit modifications
are processed using full permit issuance procedures, including public,
affected State, and EPA review. All changes not eligible for
administrative amendment or minor permit modification treatment must be
processed as significant permit modifications. In addition, such
changes may not be operated until the permit has been revised to
accommodate the change.
Related to these procedures is the availability of a ``permit
shield'' against enforcement action. Under Sec. 70.6(f) of the current
rule, States are authorized to include in a source's permit a provision
stating that compliance with the conditions of the permit shall be
deemed compliance with any applicable requirement to which the source
was subject as of the date of permit issuance and which is addressed by
the permit. In other words, so long as a source complies with its
permit, and its permit indicates which applicable requirements do and
do not apply to the source, the source may not be prosecuted for
failing to comply with a requirement that the permit failed to
incorporate either correctly or at all. The rule, however, does not
extend the shield to permit terms that are revised via administrative
amendment or minor permit modification procedures, because of the lack
of public process associated with those permit revision tracks.
As noted above, many of the issues raised in the part 70 lawsuit
relate to one or more of the revision tracks. State petitioners are
concerned that the rule allows sources to make changes eligible for
administrative amendment and minor permit modification procedures
without adequate permitting authority review or prior approval.
Environmental groups and some State litigants argue that public notice
and opportunity for comment must be provided for minor permit
modifications; otherwise, sources will be able to rewrite with
virtually no process substantive permit terms that had been established
through full public process. They also assert that the public's right
under the statute and the rule to petition EPA or the courts to
overturn permitting decisions is effectively mooted in the case of
minor permit modifications by the rule's failure to provide public
notice of those changes.
Industry, on the other hand, believes that the current rule's
revision procedures are more burdensome than necessary for small
changes or changes that have undergone prior permitting authority
review. In general, they argue that there is some level of changes that
may be incorporated into a part 70 permit without public process on de
minimis grounds. In particular, they contend that changes that have
already received preconstruction approval (e.g., pursuant to NSR) do
not warrant further process before being incorporated into a part 70
operating permit. They therefore recommend that the rule allow such
changes to be treated as administrative amendments and included in a
part 70 permit without public, affected State, or EPA review. They also
suggest that minor permit modifications do not warrant affected State
and EPA review and should get the benefit of a permit shield.
Clouding the debate over the sufficiency of the current rule's
revision procedures has been the issue of the proper interpretation of
the phrase, ``modifications under any provision of title I.'' As
indicated above, under the current rule title I modifications are not
eligible for minor permit modification procedures. The scope of minor
permit modifications thus depends in part on the interpretation of
``title I modification.'' Under a narrow reading of that term, a change
subject to minor NSR can be operated before affected State and EPA
review and then incorporated into a part 70 permit without public
review, provided the change is not prohibited by any of the other
applicable ``gatekeepers.'' Under a broad reading, a minor NSR change
can be operated only after the permit has been revised via significant
permit modification procedures providing for full public process. The
meaning of title I modification thus determines whether the public gets
any notice of permit actions involving a minor NSR change and whether
sources can operate such a change as soon as they apply for a part 70
permit revision or as long as 18 months afterwards.
The Agency is concerned that the current rule requires either too
little or too much public process depending on how the title I
modification gatekeeper is read. As explained previously, EPA believes
that minor NSR programs play an important role in the statutory design
for achieving clean air. Not only do those programs ensure that minor
sources do not interfere with an area's attainment of air quality
standards, they also provide sources with a means of establishing
federally-enforceable limits on potential to emit that sources may rely
upon to avoid more burdensome requirements. Accordingly, EPA considers
it inappropriate to allow all minor NSR actions to escape public review
altogether. On the other hand, EPA does not believe that all or even
most minor NSR changes warrant the full public procedures required for
significant permit modifications. All changes subject to minor NSR by
definition have undergone prior permitting authority review, and many
involve at most only small increases in emissions. More streamlined
procedures should thus be sufficient for incorporating those changes
into the part 70 permit.
In attempting to resolve the issues concerning permit revision
procedures, EPA has sought to strike the appropriate balance between
permitting integrity and flexibility. Title V of the Act provides for a
number of procedural safeguards to ensure the integrity of the
permitting process. These safeguards include EPA review of, and
appropriate opportunities for public and affected State participation
in, permit decisionmaking (see sections 505(a) and (b) and 502(b)(6)).
At the same time, title V calls for permit procedures that are
``streamlined'' and ``expeditious[]'' (see section 502(b)(6)). The
Agency believes the statute affords it broad discretion to fashion
permit revision procedures that are reasonable in light of the
environmental interests at stake. In developing the proposed permit
revision procedures, EPA's approach has been to provide procedural
safeguards, including opportunities for public and affected state
participation, that are commensurate with the potential environmental
significance of the change being sought. Thus, for the most
environmentally significant changes, the greatest procedural
protections would be afforded, including a 30-day public comment period
and permitting authority final decision before the change could be
made. For environmentally insignificant changes, however, EPA has
authority to forego procedural protections, including public and
affected State review, on de minimis grounds (see Alabama Power Co. v.
Costle, 636 F.2d 323, 357-361 (D.C.Cir. 1979). To ensure that the
changes are indeed insignificant, though, EPA proposes to provide for
abbreviated public review after the change has been made and it
solicits comments on this approach.
As detailed below, EPA is proposing a four-track system that
matches the amount of public process provided to the potential
environmental significance of the change, taking into account the
amount of prior public review. Only the most significant changes that
had received little or no prior public review would be processed as
significant permit revisions requiring a 30-day public comment period
and an opportunity for a public hearing before the source could operate
the change. The large majority of changes requiring permit revision
would be processed using one of the three more streamlined tracks, with
the choice of track depending primarily on the size of the change and
the amount of public process the change received prior to the part 70
revision process. To the extent a change was subjected to public review
prior to the part 70 process (e.g., as a result of preconstruction
review), it would receive abbreviated or no additional public review
during the part 70 process. To the extent a change was small in terms
of emissions impact, even if no prior public review was provided, it
would receive only post hoc public review during the part 70 process.
In addition, the permit shield would be available for some of the
changes that underwent streamlined processing.
The following section of the preamble provides an overview of the
four permit revision tracks being proposed and then examines each of
the tracks in turn, beginning with the most streamlined. While EPA
believes that the proposed framework better balances the interests of
industry and the public in the permit revision process, it is
nonetheless concerned that it may be too complex to be readily
implemented. The Agency thus solicits suggestions as to how the
proposed procedures might be simplified while generally retaining the
balance struck by the overall framework.
2. Overview of Proposed Revision Procedures
EPA today is proposing changes to the current rule's revision
procedures to provide a streamlined process that includes appropriate
opportunities for public participation. Briefly stated, the Agency
proposes to largely retain the current rule's administrative amendment
procedures, which provide no public, affected State, or EPA review and
allows a source to operate an eligible change upon submission of a
permit revision application. (In operating a change before its permit
is revised, the source accepts the risk of being found liable for
violating its existing permit if its revision application is later
denied.) Indeed, EPA is proposing to ease one of the requirements for
use of administrative amendments. Under the current rule, any change
that undergoes a prior preconstruction review process that (1) provides
public and affected State review opportunities substantially equivalent
to those required by the part 70 rule, (2) addresses part 70 permit
content requirements, and (3) provides a 45-day EPA objection
opportunity is eligible for administrative amendment incorporation into
the part 70 permit. Under today's proposal, however, a source would no
longer have to wait until the end of EPA's objection opportunity to
construct the requested change. Instead, the source could construct the
change upon receiving preconstruction approval and could operate the
change at its own risk 21 days after, or upon submission of, an
administrative amendment application, depending on the nature of the
change. The Agency's objection opportunity would begin only upon
submission of the administrative amendment application.
The Agency also proposes to create a new permit revision track for
changes having a de minimis effect on emissions. A source could
generally operate at its own risk any change at a small unit or a small
change at a big unit as early as the day it submits a permit revision
application. To ensure the continuing enforceability of controls on big
units, a small change at a big unit would qualify for de minimis
processing only if no unauthorized changes to compliance terms were
needed. Public and affected State notice and opportunity to challenge
the eligibility of the change for the process would be provided after
the change was made. The Agency would not review de minimis changes
unless petitioned to do so. Today's notice takes comment on a range of
possible size thresholds for defining what units and what changes would
be eligible for de minimis change processing.
Extensive revisions are being proposed to the current rule's minor
permit modification provisions to create the minor permit revision
track. Public and affected State notice and a 21-day opportunity to
challenge the eligibility of the change for the process would be
provided before the source could operate the change. Following the
close of the comment period, however, the source could operate the
change at its own risk if no commenter objected and the permitting
authority or EPA did not act to disapprove the change by then. If a
commenter did object, the source could operate the change starting 1
week after the close of the comment period if the permitting authority
or EPA did not act to disapprove the change by then. A public commenter
whose objection was not heeded would have recourse to the courts,
either to require the permitting authority to respond to the objection
or to challenge the agency's rejection of it. The permitting authority
would be required to take final action on the revision application
within 60 days of receiving it or 15 days after EPA's 45-day review
period had expired.
In view of the public participation opportunities provided, the
scope of changes eligible for minor permit revision procedures would be
significantly expanded. Most changes that had undergone a
preconstruction approval process that was not upgraded to part 70
standards would be eligible for minor permit revision procedures. In
addition, a permit shield would be authorized for all changes so
processed.
The current rule's significant permit modification procedures would
remain unchanged in the significant permit revision track. However, as
a result of the changes to the other revision procedures, the scope of
significant permit revisions would be greatly narrowed. Changes that
conflicted with the gatekeepers to the more streamlined permit revision
tracks would have to be processed using significant permit revision
procedures. For example, any change to a permit term which establishes
an emissions limit or cap developed through a part 70-only permit
action10 could not be made pursuant to the more streamlined tracks
and would have to undergo significant permit revision processing. Any
change that involved large or complex netting transactions that did not
receive adequate prior public review would also be subject to the
significant permit revision process.
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\1\0The phrase ``part 70-only permit actions'' is used to refer
to those permit actions that involve only part 70 processes, as
opposed to actions undertaken pursuant to a preconstruction review
process that has been upgraded to meet part 70 requirements. Part
70-only permit actions could include establishment of early
reductions alternative emissions limitations under section
112(i)(5), case-by-case MACT limits under section 112(j), and
federally-enforceable emissions caps created in a part 70 permit to
limit a source's potential to emit in order to avoid otherwise
applicable requirements.
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It should be noted that the permit revision procedures set forth in
this proposal would represent minimum requirements for permit programs.
Permitting authorities would be free, as they are under the current
rule, to establish revision procedures that are more stringent than
those proposed here. Some State or local agency laws, for example, do
not allow a source to operate a change until after it has received the
affirmative approval of the permitting authority to do so. Those
permitting authorities could include such provisions in their
regulations implementing part 70.
While EPA believes that the four-track revision process outlined
above better matches the opportunities for public participation to the
environmental significance of the change, it understands that a four-
track process requires sources and permitting authorities to make
further distinctions between changes than the current three-track
process requires them to make. The basic eligibility criteria for the
four tracks are easy to comprehend, but the interaction of the relevant
gatekeepers may make the task of identifying the appropriate revision
track for a given change difficult. In section V. of this preamble are
several flow charts that list the relevant questions to be asked in the
proper order to ascertain what revision track applies to a particular
type of change. While the charts do not cover all types of changes,
they address the most common ones (e.g., major and minor NSR), and
should assist in identifying the proper revision process for those
changes. They also illustrate the application of and interaction
between the various gatekeepers. The EPA solicits comments on whether
all of the proposed gatekeepers are necessary and suggestions as to
other ways the revision process might be simplified.
It should also be noted that EPA is considering, and soliciting
public comment on, a variation on the revision tracks just described
that would provide for more flexible treatment of changes to compliance
monitoring permit terms. At the end of the ``Permit Revision'' section
of this preamble, EPA delineates this alternative approach to changes
in compliance monitoring terms. The Agency developed this approach
after the close of its discussions about the flexibility provisions
with the permits case litigants. It is therefore presented separately.
At the same time, EPA believes the alternative approach to changes in
compliance monitoring terms better matches the significance of
potential changes with the amount of public process required. For
instance, under the proposal just described, the de minimis permit
revision process could be used to change any compliance monitoring term
associated with a change at a small unit, but could not be used to
change any compliance monitoring term associated with a de minimis
change at a big unit, unless the change had been previously approved in
a process involving substantially more public, affected State, and EPA
participation. The alternative subsequently described, however, would
allow specified types of changes to compliance monitoring terms to be
made pursuant to de minimis permit revision procedures. The overall
effect of the alternative would be to partially limit the types of de
minimis changes that could be made at small units but significantly
expand the types of de minimis changes that could be made at big units.
The proposed permit revision tracks first discussed in this
preamble should thus be viewed as representing one approach to changes
in compliance monitoring terms; the latter section of the preamble
presents another. The Agency solicits comment on the relative costs and
benefits of the two approaches. It should also be pointed out that the
flow charts mentioned above reflect the first approach to changes in
compliance monitoring terms. They would have to be changed if EPA
adopted the alternative approach later described.
3. Administrative Amendments
a. Current Administrative Amendment Procedures.-- (1) Scope.
Currently, part 70 allows three categories of changes to be processed
under the administrative amendment procedures of Sec. 70.7(d). The
first category of changes is generally clerical in nature. It includes
correction of typographical errors; changes in the name, phone number,
or address of persons identified in the permit; and changes in
ownership if no other change is necessary and certain conditions are
met concerning transfer of ownership. The second category includes
increases in the frequency of required monitoring or reporting. Other
changes similar to the ones just described may also be made as
administrative amendments if the permitting authority receives
authorization from EPA to treat them as such at the time of program
approval.
The third category of changes that existing part 70 classifies as
an administrative amendment includes requirements of a NSR permit,
provided the NSR program under which the permit was issued meets
procedural requirements substantially equivalent to those of Secs. 70.7
and 70.8 of the rule and provides for compliance requirements
substantially equivalent to those of Sec. 70.6. A NSR program is termed
``enhanced'' if it meets all of these requirements.
Section 70.7(d) also provides that acid rain sources are governed
by any administrative amendment procedures promulgated under title IV.
(2) Process. The current part 70 administrative amendment process
is uncomplicated. The permitting authority must take final action
within 60 days after receiving a request from a source for an
administrative amendment, and may incorporate the requested change in
the existing part 70 permit without providing notice to the public or
affected States, but must submit a copy of the revised permit to EPA.
The source may implement the requested change immediately upon
submitting a request. The permitting authority may provide a permit
shield only to administrative amendments incorporating ``enhanced'' NSR
permit requirements.
b. Proposed Administrative Amendment Procedures.-- (1) Scope.
Today's proposal retains the provisions of the current rule at
Secs. 70.7(d)(1)(i-iv) allowing certain clerical changes, changes that
result in more frequent monitoring and reporting, and changes of
ownership or operational control to be made as administrative
amendments. Also retained is the provision allowing State or local
permit programs to establish other changes similar to those in
Secs. 70.7(d)(1)(i-iv) provided they are approved by EPA.
In addition, the proposed revisions would allow changes that
undergo a ``merged'' part 70/NSR or part 70/section 112(g) process to
be incorporated into the part 70 permit as administrative amendments.
To be merged, a part 70/NSR or part 70/section 112(g) review process
would have to address and comply with the permit application and
content requirements of both part 70 and NSR or section 112(g)
programs, and provide for certain minimum elements of public process.
These elements are:
(i) Prior (i.e., preconstruction) notice to the public, EPA, and
affected States of proposed NSR or section 112(g) actions;
(ii) A public comment period of at least 30 days for major NSR or
section 112(g) actions, and for minor NSR changes, as many days as
required by the State or local agency's existing minor NSR regulations
as of November 15, 1993, but not less than 1511); and
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\1\1However, for any minor NSR change that involved a netting
transaction that included any single emissions increase that is
greater than applicable significance levels or a sum of increases
greater than applicable major source levels, a public comment period
of at least 30 days would have to be provided. This qualification is
needed to ensure consistency between the proposed procedures for
administrative amendments and minor permit revisions (subsequently
described in this preamble).
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(iii) An opportunity for a public hearing for major modifications
under part C or part D of the Act.
The public comment period, and hearing if required, would occur
prior to any permitting authority approval for the source to construct.
However, unlike the current rule, EPA's opportunity to object to the
change would not need to be provided prior to construction or
modification of the source. Rather, EPA's opportunity to object could
occur at the time the source applies for the administrative amendment.
A permitting authority or source would remain free to provide for EPA's
objection opportunity to occur prior to construction, if it preferred
not to run the risk of EPA's objecting to the change after
construction. Today's proposal uses the term ``merged'' to refer to a
part 70/NSR or part 70/section 112(g) process that meets the
requirements set forth above, to distinguish it from one meeting the
current rule's requirements for ``enhanced'' NSR, which includes a
preconstruction EPA objection opportunity.
Permitting authorities could also obtain approval from EPA in their
part 70 programs to conduct merged processing on a case-by-case basis.
That is, permitting authorities could be authorized to provide merged
process for all or some of their preconstruction determinations or to
allow sources to elect merged process for only individual changes.
State and local agencies that provided merged process on only a case-
specific basis would be required to state when they were doing so in
the initial notification of the permit action sent to EPA.
Under both the current part 70 and the proposed revisions, State
and local part 70 programs must provide adequate, streamlined, and
reasonable procedures for expeditious review of permit revisions
(Sec. 70.4(b)(13)). A permitting authority that wished to provide for
merged NSR changes would, therefore, have to set out the eligibility
criteria and process for merged NSR changes in its part 70 program.
Depending on existing State or local statute or regulatory provisions,
no changes would be required to existing State or local NSR programs.
The EPA solicits comments, however, on whether changes in a State or
local agency's policies or procedures (as opposed to regulations) would
be sufficient to provide for merged processing in their part 70
program.
Finally, EPA wishes to make clear that a merged NSR program could
be one which totally integrates the preconstruction and part 70 review
requirements into a single permit system. That is, a part 70 permit
under such a system could be revised through an operating permit
revision process that is integrated with the preconstruction review
process resulting in a single permit containing both preconstruction
and operating permit terms and conditions, rather than a merged NSR
process followed by an administrative amendment process to incorporate
the change into the separately existing part 70 permit. Such an
integrated approach would be allowable under today's proposal in that
NSR determinations as well as NSR permit terms and conditions could be
incorporated administratively into a part 70 permit after EPA's
objection period had ended.
(2) Process for All Administrative Amendments. For all changes that
qualify as administrative amendments, the following procedures would be
used. First, the source would submit to the permitting authority an
application for an administrative amendment. The application would
include a description of the change and supporting information as
necessary to allow the permitting authority to review the request. The
application would also contain a demonstration and a certification that
the change is eligible for the administrative amendment process and a
proposed addendum to the permit reflecting the new permit terms that
would apply as a result of the change. The addendum would specify that,
unless disapproved, it is effective 60 days from the date the
permitting authority received the request.12
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\1\2States could provide in regulations or guidance when
requests would be deemed received, given the particular manner and
timing of submissions. For instance, a State could provide that
requests submitted by telefax are deemed received the same day the
transmission occurs, so that 60 days from the date of receipt would
be the same as 60 days from the date of submission.
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In its part 70 program, the permitting authority may authorize a
source, at its own risk, to operate the change in compliance with the
terms of the proposed addendum after submitting its request. The
addendum would be incorporated into the permit if the permitting
authority did not disapprove the administrative amendment request
within 60 days after receipt. The permit would be amended by attaching
the proposed addendum to the permit. A copy of the addendum would then
be provided to EPA. Any administrative amendment to the permit would be
designated as such. No permit shield would be available for changes
qualifying as administrative amendments under Secs. 70.7(e)(1) (i)-
(iv).
(3) Process for Merged Program Changes. Changes that had undergone
merged part 70/NSR or part 70/section 112(g) procedures would generally
follow the process just outlined for administrative amendments with
some important additional steps reflecting the greater environmental
significance of these changes. First, the source would be required to
submit with its application an affidavit acknowledging that if it
operates the change before its permit is revised, it may be liable for
violating the terms of its existing permit in the event that its
revision request is denied. (An affidavit would be required only for
merged program changes because they would typically involve significant
changes to substantive permit terms.) Second, the source would submit
to EPA, as well as the permitting authority, a copy of the
administrative amendment request, including the proposed addendum. For
major NSR and section 112(g) changes, the source would be required to
wait at least 21 days after EPA receives the request13 or 21 days
after the permitting authority makes its NSR or section 112(g)
determination, whichever is later,14 before operating the change
at its own risk. For all other changes (i.e., minor NSR), the source
could operate the change at its own risk under the proposed addendum on
the day EPA receives the request, except where this process would be
prohibited by applicable requirements.15 The EPA would have 45
days from receipt of the request (or 45 days from the day the
permitting authority makes its NSR or section 112(g) decision,
whichever is later) to object to the change.
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\1\3The EPA would provide in regulations or guidance when
requests would be deemed received based on the manner and timing of
submissions.
\1\4In this description of a merged process, EPA's objection
opportunity begins only after the permitting authority has completed
its NSR or section 112(g) review. This is not meant to preclude the
possibility of EPA's objection opportunity running during
preconstruction review by the permitting authority. Any parallel
processing procedures established by the permitting authority should
provide that EPA's review period extends 30 days beyond the close of
the public comment period to afford EPA the opportunity to take
timely comments into account.
\1\5In the case of delegated PSD programs, for example, where a
public comment has been received, applicable regulations prohibit
sources from commencing construction before a specified amount of
time has passed following issuance of the State preconstruction
permit. This delay enables appeal to the Environmental Appeal Board
on the issue raised by the commenter (40 CFR 124.19).
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The proposed addendum would be incorporated into the permit if EPA
had not objected to it within its 45-day review period. The addendum
would specify that it is effective 45 days from the date EPA received
the request unless EPA objected to it by then. For merged process
changes incorporated as administrative amendments, the permit shield
would be available.
(4) Liability for Making Changes Before the Permit is Renewed. As
already noted, the proposed administrative amendment procedure would
authorize a permitting authority to allow a source to begin operation
of the change prior to its permit being revised. However, if the
source's request for an administrative amendment (e.g., for a merged
program change) were disapproved, the source would be liable for
violating its existing permit from the time it began to operate the
change. Rather than disapprove the request, however, the permitting
authority could in some cases revise a request without necessarily
rendering the source liable for violating its existing permit. So long
as (1) the permitting authority's revisions were not necessary to make
the request eligible for administrative amendment procedures and did
not change the source's proposed determination of which applicable
requirements it must meet as a result of the change, and (2) the source
could demonstrate its compliance with proposed permit terms using
reasonably available means, the permitting authority would be
authorized to determine that its revisions did not render the source
liable for violating its existing permit.
c. Rationale for Proposed Revisions.--(1) Scope. The proposed
revisions generally build upon the current part 70 provisions that
allow NSR permit terms or section 112(g) actions to be incorporated
through the administrative amendment process if the State or local
agency's NSR or section 112(g) program is ``enhanced.'' The theory
behind these provisions is that the public, affected States, and EPA
need only one opportunity to review a change prior to its incorporation
into a part 70 permit. So long as the NSR or section 112(g) process
offers an adequate opportunity for the public, affected States, and EPA
to address part 70 as well as NSR or section 112(g) issues, title V's
procedural safeguards are fulfilled. Changes that undergo enhanced NSR
or section 112(g) review may thus use the most streamlined (i.e.
administrative amendment) procedures for incorporation into the part 70
permit.
Industry petitioners in the permits case challenged the current
rule's requirement that preconstruction review programs be enhanced for
changes made pursuant to those programs to be incorporated into part 70
permits as administrative amendments. They argued that the only issue
posed by the incorporation of NSR changes into part 70 permits is
whether the change is being accurately recorded in the permit. The
Agency does not agree. Title V independently requires that all part 70
permit terms be enforceable. Thus, part 70 requires that permitting
authorities include in permits supplemental compliance monitoring terms
where needed. Given the importance of compliance monitoring terms and
the fact that these types of terms often require the exercise of
permitting authority discretion, some public review of these terms is
important. Relatedly, part 70 imposes application and other permit
content requirements that other preconstruction review programs do not
necessarily meet. Assurance that these requirements are met at least
during the part 70 permitting process also warrants public review.
Enhancement under the current rule offers permitting authorities
the opportunity to combine the operating permit and NSR or section
112(g) programs and thereby avoid sequential permitting. The current
rule, though, requires that an enhanced program subject proposed NSR or
section 112(g) actions to a 45-day opportunity for EPA objection prior
to the final NSR or section 112(g) determination being made. While this
requirement avoids the possibility of a source constructing a change
pursuant to a preconstruction determination only to have EPA object to
its operation, it does so at the cost of potentially lengthening the
preconstruction review process by 45 days.16
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\1\6The potential for delay under the current rule is greatest
in the case of minor NSR actions subject to expedited procedures
under existing SIP programs. Providing a 45-day EPA objection
opportunity following issuance of the draft permit but before
construction could begin would, in many instances, delay issuance of
the final approval to construct beyond the date when such approval
would have been granted in the absence of a preconstruction EPA
objection opportunity. In the case of major NSR and section 112(g)
actions, however, it is not clear that deferring EPA's objection
opportunity would expedite the permitting process. This is because
the time needed to respond to comments received during the required
30-day comment period and, in many instances, public hearing, and to
perform the other tasks necessary to reach a final decision on these
more complex and environmentally significant actions, historically
has required (in the case of major NSR) and likely will require (in
the case of section 112(g) actions) more than 45 days, even in those
cases where EPA's objection opportunity commences after the 30-day
comment period.
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The Agency is proposing to allow EPA's objection opportunity to
follow the final NSR or section 112(g) action to give permitting
authorities greater flexibility in merging their NSR and operating
permit programs. A permitting authority could still provide for an EPA
objection opportunity prior to a final NSR and section 112(g)
determination. It would have the option, however, of allowing a source
to act on a NSR determination and become subject to a potential EPA
objection only at the time it files an application for an
administrative amendment to its part 70 permit. The source could
thereby avoid the possibility of being unnecessarily delayed by an EPA
review period, although at the risk of an EPA objection after
construction. Like the current rule, however, the proposal would
require that EPA receive prior notification of, and an opportunity to
comment on, every NSR or section 112(g) action. As a result of EPA
involvement in the earlier preconstruction action, the source would
likely learn of any EPA objection to its requested change prior to
construction.
The Agency expects that, given this additional flexibility, every
State and local permitting agency would at least merge its major NSR
program with its part 70 program. As required by current EPA
regulations, virtually every State provides public and EPA notice, a
30-day comment period, and an opportunity for a public hearing prior to
making final major NSR determinations. To merge its existing major NSR
program with its part 70 program, a permitting authority need only
assure that affected States receive notice at the same time as the
public and EPA, that part 70 permit application and content
requirements are met, and that EPA is provided with an objection
opportunity when a source applies for an administrative amendment. The
EPA thus expects that under the revised rule, all major NSR actions
would be incorporated into part 70 permits through administrative
amendments.
Permitting authorities may also find it advantageous to merge their
minor NSR programs with their part 70 programs. At least some State and
local agency minor NSR programs already provide public review
opportunities equivalent to those that would be required under today's
proposal (i.e., prior notice and at least 15 days of public comment).
For those agencies, merging minor NSR as well as major NSR with part 70
would be relatively straightforward. Most State or local minor NSR
programs, however, do not provide the requisite public process. These
agencies would have the option of upgrading their current programs to
part 70 standards so minor NSR changes would be treated as
administrative amendments to part 70 permits. To the extent a
permitting authority did not want to merge its programs for all
permitting actions, the proposal would allow it to follow merged
procedures on an ad hoc basis when the source requests such processing.
Those changes that did not undergo a merged process would be
incorporated into part 70 permits through the other permit revision
processes (i.e. de minimis, minor, and significant permit revision
procedures). These procedures would provide for public process, the
timing and amount depending on the size and nature of the change.
Today's proposal would have the effect of requiring that all minor
NSR changes receive some level of public notice before their final
incorporation into a part 70 permit. As discussed, if the State or
local minor NSR program includes public participation requirements
meeting the ``merged'' program criteria set out above, the change could
be incorporated into the part 70 permit through the administrative
amendment track. On the other hand, if the minor NSR change did not
receive sufficient public process during the permitting authority's
processing of the action to meet the requirements for a merged program,
it would face a public participation requirement as part of the part 70
process. In requiring public process for all minor NSR permitting
actions by permitting authorities, this proposal is adding process
steps that in some cases may not be required by the underlying minor
NSR program.
The EPA's regulations governing these State or local programs
require that permitting authorities establish ``legally enforceable
procedures'' that ``enable the State or local agency to determine
whether the construction or modification'' of a source violates the
State or local agency's ``control strategy'' or interferes ``with
attainment or maintenance of a national standard'' in the State or
local agency area of jurisdiction or in a neighboring State (see 40 CFR
51.160(a)). These procedures ``must also require that the State or
local agency provide opportunity for public comment,'' which is
specified to include notice to the public, EPA, and to surrounding
States, of the source's project and the permitting authority's analysis
and proposed decision, as well as a 30-day comment period (or a shorter
time where approved by EPA) (see 40 CFR 51.161).
However, EPA's regulations also contemplate that this review
program will not extend to every source if the permitting authority
provides a reasoned explanation for any exclusions. Specifically, the
permitting authority must ``identify types and sizes of facilities,
buildings, structures, or installations which will be subject to
review'' and directs that the plan discuss ``the basis for determining
which facilities will be subject to review'' (see 40 CFR 51.160(e)).
This last provision is intended to allow permitting authorities to
exclude from State or local NSR sources that have negligible impacts on
air quality. Any such exclusion must be justified on de minimis or
administrative necessity grounds in accordance with the doctrine of
Alabama Power Co. v. Costle, 636 F.2d 323,355-61 (D.C. Cir.
1979).17 Consistent with this result, authorities may also
determine that sources or source activities that could otherwise be
totally exempted pursuant to this provision may be subject to a partial
exemption, for instance from all or part of the public notice
requirements, upon the same showing that the excluded category is not
environmentally significant, or a similar but more limited showing that
the value of public participation regarding that category would provide
negligible benefits or would be administratively impractical.
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\1\7As noted, section 160 is a direct descendent of EPA's first
new source review regulations implementing the Clean Air Act
Amendments of 1970 and predates the existence of the major new
source review programs under parts C and D of the Act. As proposed,
these original regulations provided that States could exclude
sources ``of minor significance'' (see 36 FR 6680, 6688 (April 7,
1971) proposed rule). While the explicit requirement that States
adopt a permit program to implement NSR procedures was eliminated
from the final rule (see 36 FR 15486 (August 14, 1971)), most States
responded to EPA's regulations by in fact adopting stationary source
permitting programs for new and modifying sources including
exclusions for insignificant sources. Because of concerns that these
exclusions were too broad, EPA several years later clarified its
regulations to specify that States must in the plan describe the
``types and sizes'' of sources subject to the exclusion and provide
the basis for this determination (see 38 FR 15834, 15836 (June 18,
1973)). Since that time, the decision in Alabama Power has provided
judicial guidance on the circumstances in which such exclusions may
be granted, making it clear that States' ability to adopt, and EPA
to approve, exemptions from statutory requirements is limited.
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In fact, many State and local agencies have adopted minor NSR
programs that either exclude certain types of source changes
completely, or excludes them from some or all of the public
participation requirements. These exclusions have been approved by EPA
and are included in the agencies' current SIP's. Arguably, valid
exceptions in a State or local agency minor NSR program should carry
over to part 70 since, as described above, the public participation
requirement of title V also does not extend to environmentally
insignificant actions. Thus, under this theory, part 70 could allow the
incorporation through the administrative amendment track of minor NSR
changes that have not been subject to public notice and comment in
accordance with a valid exemption in the State or local minor NSR
program.
Adoption of existing State or local exclusions from public process
raises several issues, however. First, existing exemptions may not all
be appropriate given that many State or local programs were adopted and
approved into SIPs by EPA in the early 1970's prior to the adoption of
the public participation requirements of 40 CFR 51.161, and that the
environmental significance of these exclusions has since changed. For
instance, the use of minor NSR to provide federally-enforceable limits
on a source's potential to emit in order to avoid the major NSR
programs in parts C and D of title I was not a consideration at that
time, since these programs were not added until the Act was amended in
1977. Also, this approach would require State and local agencies to
review and possibly revise their minor NSR permitting programs at the
same time that they are faced with adopting and implementing a part 70
program. For these and other reasons, today's proposal establishes
minimum public process requirements for all minor NSR changes without
regard to the validity of existing State or local exclusions.
The EPA, however, solicits comment on the question of whether State
or local minor NSR process exclusions can and should carry over into
the part 70 permit revision process. For instance, EPA could allow
permitting authorities to demonstrate, as part of their program
revisions in response to the revised part 70 permit revision
procedures, that their existing minor NSR exclusions cover only
environmentally insignificant actions. To the extent a permitting
authority made the required demonstration, minor NSR actions eligible
for an exclusion could be incorporated into part 70 permits as
administrative amendments, without having undergone a merged part 70/
minor NSR process. Alternatively, a permitting authority might seek to
demonstrate that a portion of the minor NSR exclusions should pass
through to its part 70 program. The EPA is especially interested in
receiving comments on this issue from permitting authorities with
inclusive minor NSR programs that rely on exclusions to limit the
delays and costs associated with their programs.
With regard to today's proposal for merged programs, since there
would be affirmative NSR approval and public review of merged actions,
EPA does not see a clear need for any (and has not proposed any)
limitations on the use of administrative amendment procedures for
merged part 70/NSR and part 70/section 112(g) actions. However, the
Agency solicits comment on whether sources should be allowed to use the
merged process to change a requirement uniquely established in the part
70 permit, such as an early reduction limit under section 112(i) of the
Act or an emissions cap to avoid an otherwise applicable requirement.
Without a limitation on this use of merged procedures, a source could
seek a change to part 70 permit-unique emissions limits in the context
of a merged State or local NSR or 112(g) action and have the change
incorporated into the part 70 permit as an administrative amendment.
The EPA notes that such a limitation is proposed for both the de
minimis and the minor permit revision processes.
(2) Process for All Administrative Amendments. The Agency's
proposed minor changes to the current rule's administrative amendment
process should provide additional safeguards and streamlining.
Specifically, the proposed requirement that the source demonstrate and
certify that the change is eligible for the administrative amendment
process should increase the likelihood that the source is properly
invoking this most streamlined process. The proposal to require the
source to submit a proposed permit addendum and to no longer require
the permitting authority to affirmatively act to revise the permit
should help streamline the process. The current rule was challenged by
States as unnecessarily forcing permitting authorities to act
affirmatively on changes of extremely low environmental significance
and diverting limited resources away from higher priorities. The Agency
is therefore proposing to allow the requested change to be deemed
granted 60 days after the permitting authority's receipt of an
administrative amendment request (45 days from EPA's receipt, in cases
of merged program changes), unless the permitting authority (or EPA)
disapproves the change by then. The permit would be amended by simply
attaching to the permit the addendum previously submitted as part of
the application for the administrative amendment and as potentially
revised by the permitting authority.
The proposal, like the current rule, provides no public process,
opportunity for affected State review, or opportunity for EPA objection
for the first four types of administrative amendments listed in the
regulations. The EPA believes, and there has been no dispute, that
exempting these types of clerical changes from the statute's
requirements for public process, affected State review, and EPA
objection opportunity is well within the Agency's power to grant de
minimis exemptions under Alabama Power.
For merged program changes, EPA believes that the proposal, again
like the current rule, legitimately relies on the public process
afforded by merged NSR/operating permit programs to discharge title V's
notice and comment requirements. The Agency acknowledges that its
proposed requirements for merged programs do not include an opportunity
for a public hearing except where otherwise required by the NSR
program. The Agency sees little point in requiring a hearing for part
70-only purposes for a change that has already undergone public notice
and comment procedures that meet part 70 requirements. Given the
potential number of merged program changes, EPA is also concerned that
providing a hearing for them would be infeasible for permitting
authorities. In light of the small incremental benefit that public
hearings would afford and the likely administrative impracticality of
providing them for merged program changes, the Agency believes it may
exempt merged program changes from the statute's public hearing
requirement.
(3) Additional Process for Merged Program Changes. For merged
program changes, a few additional procedural requirements are proposed
to account for the potential change in timing of EPA's objection
opportunity. For those permitting authorities that opt to begin EPA's
objection opportunity at the time a source submits its administrative
amendment application, instead of during preconstruction review, the
source would be required to submit a copy of its application to EPA.
For those permitting authorities that authorized the source to begin
operation of the change prior to the expiration of EPA's objection
opportunity, the source would also be required to submit with its
application an affidavit acknowledging its potential liability if it
operates the change before its permit is revised. The purpose of the
affidavit would be to ensure that the source and the courts understand
that a source operates a change prior to permit revision at its own
risk. (See explanation of liability provisions of administrative
amendment procedures below.) Further, the Agency is proposing that a
source wait 21 days after submitting its amendment request before
operating a major NSR or section 112(g) change to give EPA the
opportunity to object to these more significant types of changes before
they are operated. It solicits comments, however, on the need for, and
cost of, the proposed 21-day waiting period for operation of major NSR
and section 112(g) changes.
(4) Liability for Making Changes Before Permit is Revised. As
indicated above, EPA is retaining the aspect of the current rule's
administrative procedures that allows a source to operate the change
for which it seeks an administrative amendment before its permit has
been amended. Indeed, EPA is proposing to similarly allow a source to
operate changes qualifying for the de minimis and minor permit revision
procedures before its permit is revised. Assuming, however, that the
source could not operate the change without violating an existing
permit term, its operation of the change would violate the section
502(a) prohibition against operating in violation of its permit.
For the reasons set forth in the preamble to the current rule and
briefly restated below, the Agency believes it may exercise its
authority to grant de minimis exemptions from statutory provisions to
allow permitting authorities to temporarily exempt sources from the
section 502(a) prohibition under certain circumstances. For a change
that poses relatively small environmental risk as a result of its
nature, size, or prior review by permitting authorities, the Agency
believes the source may be allowed to operate the change before its
permit is revised, so long as the source undertakes the risk of being
found in violation of the original permit from the time it makes the
change if its request to revise the permit is ultimately denied. (The
source must also comply with the terms of its proposed permit
revision.) Placing a source at risk for operating a change before its
permit is revised gives the source a powerful incentive to correctly
assess and account for the effect of the change on its compliance with
applicable requirements. This incentive in turn lowers the risk of a
source not complying with applicable requirements before its permit is
revised, rendering the incremental effect of the section 502(a)
prohibition on source compliance de minimis.
The litigants in the permits case generally agreed that a source
should be allowed to make certain changes prior to permit revision at
its own risk. Industry representatives were concerned, however, about
the situation where the permitting authority believes that a source's
proposed revision is largely approvable, but nevertheless requires
relatively minor changes to, for instance, the proposed recordkeeping
and reporting provisions. They feared that the need to make even small
changes might mean that the proposed revision was not approvable and
that the source would therefore be liable for having operated the
change in violation of its existing permit.
In response to industry's concern, the litigants agreed that the
permitting authority should have authority to make relatively minor
alterations to a proposed permit revision, approve the revision as
altered, and thereby avoid subjecting the source to liability for any
violations of its existing permit. To maintain a source's incentive to
correctly assess and implement its proposed change, however, the
permitting authority's discretion to correct deficient proposals for
permit revisions must be limited. The Agency is therefore proposing two
criteria for defining the alterations that a permitting authority may
make to a proposed revision without rendering the source liable for
operating the change: (1) the change is unnecessary to make the
revision request eligible for the streamlined process the source has
undertaken to use; and (2) the change is unnecessary to correct the
source's identification of the applicable requirements it must meet.
The first criterion would dissuade a source from attempting to use a
more streamlined procedure than it qualifies for, while the second
would maintain the source's incentive to correctly assess and comply
with the requirements that apply to it as a result of its requested
change.
The enforceability of proposed permit terms must also be
safeguarded. If a permitting authority were allowed to broadly correct
deficient proposals, a source might be tempted to not include adequate
compliance monitoring terms in its proposed revision. The ability to
operate the change before the permit is revised would allow the source
to at least temporarily trade an enforceable requirement for an
unenforceable one. However, industry is concerned that sources may find
it increasingly difficult to confidently predict what monitoring
requirements permitting authorities may impose. The current rule
requires that permitting authorities supplement the monitoring required
by regulations establishing applicable requirements to the extent
necessary to determine a covered source's compliance with those
requirements. The Agency's proposed enhanced monitoring rule (58 FR
54648 (October 22, 1993)) would also require permitting authorities to
impose supplemental monitoring requirements where needed. Particularly
under the enhanced monitoring rule, if issued as proposed, industry
foresees that many monitoring decisions will be made on a case-specific
basis and thus be very difficult to predict. Industry is concerned that
permitting authorities may often see fit to make some changes to the
monitoring terms that a source has included in its proposed revision.
If a permitting authority is unable to make those changes without
rendering the source liable for violating its existing permit, industry
contends that the utility of the current and proposed rules' provisions
for operation of changes before permit revision will be largely lost.
The Agency acknowledges that sources may face some short-term
uncertainty regarding what constitutes adequate compliance terms under
the operating permit and enhanced monitoring rules. It is therefore
proposing that a decision by the permitting authority to require
different monitoring not automatically render the source in violation
of its existing permit because it failed to monitor its proposed change
in the manner ultimately specified by the permitting authority. So long
as the source using reasonable available methods demonstrates
compliance with the proposed terms incorporating applicable
requirements, the permitting authority could find the source not in
violation of its existing permit. The Agency is proposing that the
permitting authority be the judge of the adequacy of the source's
compliance monitoring to avoid that becoming an issue in enforcement
actions.
The Agency solicits comment on all aspects of the proposal to allow
the permitting authority to approve proposed permit revisions with
minor supplemental alterations and to limit source liability for
operation of changes prior to permit revision that are subsequently
altered. In particular, EPA solicits comment on the practical extent
and nature of the risk posed by potential source liability for
operating the change, whether relief from liability is necessary and
appropriate in some or all of the revision tracks for which it has been
proposed, and the efficacy of reliance on State, local, and Federal
enforcement discretion to address industry concerns in lieu of the
proposed approach.
4. De Minimis Permit Revisions
As noted above, the current rule does not include a permit revision
track analogous to the de minimis permit revision track proposed today.
The Agency is proposing the addition of this track for changes that did
not undergo merged program review but have only a small emissions
impact. Under this track, a source would be able to operate the change
as early as the day it submits its permit revision application. Public
review of the change would follow and EPA review and objection
opportunity would not occur except in response to a public petition.
The Agency believes that many, typically minor NSR, changes involve
small changes in emissions. Requiring these changes to undergo the more
extensive public procedures required for minor permit revisions would
almost certainly overwhelm State permitting authorities and is not
justified given their small environmental impact.
a. Overview of Proposal. Under the proposed rule, a source could
operate a de minimis change 7 days after submitting its application for
a permit revision to the permitting authority or as early as the day it
submits its application if the permitting authority so allows. Similar
to the requirements for merged program changes, the source's
application would be required to include a proposed addendum for
revising the permit to reflect the change, a demonstration and
certification that the change is eligible for the de minimis change
track, and an affidavit accepting the risk of operating the change
before its permit is revised.
Public notice of de minimis changes would occur on a monthly,
batched basis after the changes could have been made. In other words,
all of the de minimis changes for which the permitting authority had
received applications in a given month would be listed together in a
public notice issued the following month. For a specified period of
time after public notice is given, citizens would have the opportunity
to petition the permitting authority to disapprove the change. Grounds
for objection would include a change's ineligibility for the de minimis
permit revision process or its inconsistency with applicable
requirements. If the permitting authority failed to respond to any
objections by the end of that period and did not otherwise disapprove
the permit revision request, the proposed permit addendum would take
effect. A person who was unsuccessful in persuading the permitting
authority to disapprove the change could petition EPA to do so.
Unlike the other revision tracks proposed today, the permitting
authority would have discretion regarding whether and to what extent to
allow any particular source to make changes via this process. The
permitting authority would include in the source's draft permit a term
describing the extent to which it could use the de minimis permit
revision process, and the public would have the opportunity to comment
on that permit term. The proposed rule, however, would not establish
criteria for final permitting authority decisions regarding whether to
include such a permit term in a source's permit and the scope of that
term (within the limits specified below).
The scope of de minimis changes would be defined in two ways. Any
change at a small unit (unit-based de minimis) would qualify, as would
a small change at a big unit (increment-based de minimis) provided
certain conditions designed to ensure the enforceability of the
resulting permit limit were met. The Agency is soliciting comment on a
range of values for defining ``small'' for the purpose of these
procedures.
b. Scope of Unit-Based De Minimis Revisions. Unit-based de minimis
changes would include the addition of any new unit, and the
modification of any existing unit, whose permit allowable emissions
(after the change in the case of modifications) did not exceed the
unit-based de minimis thresholds. In other words, the new unit or the
existing unit after the de minimis change could not have a potential to
emit greater than the unit-based threshold. Inter-unit netting could
not be used to avoid exceeding the de minimis threshold.
(1) Proposed Thresholds. For criteria pollutants, EPA proposes a
range of four possible threshold levels,18 as well as a provision
that would allow a permitting authority to develop alternative
threshold levels for its own jurisdiction. For the final rule, EPA
would select a level from the range or include the provision for a
permitting authority-determined level, or both. The four proposed
criteria pollutant threshold levels are as follows:
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\1\8These levels (and any others representing a cutoff for de
minimis permit revision eligibility) would not require that an
emissions cap be established in the part 70 permit as part of the
process. Calculations relative to the threshold level would be made
on the basis of increases in potential to emit and would accompany
the source's request for processing as a de minimis permit revision.
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(i) 4 tons per permit term (tppt)19 carbon monoxide (CO), 1
tppt NOX, 1.6 tppt sulfur dioxide (SO2), 0.6 tppt PM-10, and
1 tppt VOC;
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\1\9``Tons per permit term (tppt)'' refers to a level that could
not be exceeded over the remaining life of the permit (up to 5
years). Once the threshold were met, no more de minimis permit
revisions could be made during that term of the permit. For example,
a threshold of 4 tppt would allow one change of 4 tons during the
permit term, or 2 changes of 2 tons each, or any number of small
changes that totalled 4 tons over the life of the permit.
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(ii) 5 tpy (for any criteria pollutant);
(iii) 20 percent of the applicable major source threshold or 5 tpy
VOC or NOX (whichever is greater) or 15 tpy PM-10 or 0.6 tpy
lead20 (whichever is less)21;
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\2\015 tpy PM-10 and 0.6 tpy lead are the significance levels
under the PSD program for these pollutants.
\2\1For example, if the major source threshold were 100 tpy for
all criteria pollutants, then 20% of major source thresholds would
be 20 tpy and the formula would take the greater of 20 tpy or 5 tpy
for VOC or NOX. For PM-10, it would take the lesser of 20 tpy
or 15 tpy, and for lead it would take the lesser of 20 tpy or 0.6
tpy. Thus, the formula would yield values of 20 tpy VOC, 20 tpy
NOX, 15 tpy PM-10 and 0.6 tpy lead. If the major source
threshold were 10 tpy VOC and NOX, 70 tpy PM-10 and 100 tpy
lead, the values would be 5 tpy VOC or NOX (greater of 2 tpy or
5 tpy), 14 tpy PM-10 (20% of 70 tpy) and 0.6 tpy lead.
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(iv) 30 percent of the applicable major source threshold or 5 tpy,
whichever is greater.
Some have suggested that thresholds higher than the ones proposed
would be appropriate, including major title I modification levels for
criteria pollutants. The EPA solicits comment as to the appropriateness
of higher levels, as well as submission of data that would support
higher thresholds in the final rule.
As noted above, EPA also proposes to allow any permitting authority
to establish alternative unit-based threshold levels based on a
demonstration it would be required to make as specified below. The
threshold levels would be pollutant-specific and would be based on
total emissions from units after the changes were made. The permitting
authority would have to submit to EPA for approval the demonstration,
including the calculations upon which the unit-based threshold levels
were based.
To establish a specific threshold, a permitting authority would
have to submit historical data that would (a) document the aggregate
amount of emissions (i.e., total emissions after the change) from all
units subject to the State or local SIP-approved NSR program over a
representative period of time (e.g., previous 2 years) and (b)
demonstrate that all units above the proposed cut-off for unit-based de
minimis changes represent at least 80 percent of emissions subject to
NSR. The EPA would place this data in the rulemaking record when
determining approvability of the part 70 program. (Data of this sort
from New Jersey is in the docket of today's rule.) Potentially, the
levels established by the permitting authority could be larger than the
national levels ultimately promulgated.
As an example of how threshold levels could be established, if a
permitting authority demonstrated that (1) emissions of VOC from all
new or modified units subject to NSR totaled 5,000 tpy and (2) units
comprising 80 percent (i.e., 4,000 tpy) of these emissions were all
above 20 tpy, the permitting authority could adopt 20 tpy as the
threshold level for VOC in lieu of the national threshold level for VOC
adopted in the final rule. (Similar showings would need to be made for
other pollutants.) In the case of a 20 tpy VOC threshold level, a
change would be eligible for the unit-based de minimis category if the
total emissions of a unit after the change did not exceed 20 tpy. For
toxic pollutants, EPA proposes three possible threshold levels:
(i) 0 tppt;
(ii) 20 percent of section 112 major source thresholds or 50
percent of section 112(g) de minimis levels, whichever is less; or
(iii) 75 percent of section 112(g) de minimis levels.
Again, EPA would select a threshold level from within the proposed
range and solicits comment and data in support of the proposed options.
Moreover, EPA solicits comment on whether higher de minimis thresholds
for toxic pollutants might be appropriate, such as section 112(g) de
minimis levels, and data supporting them. While EPA does not propose to
allow permitting authorities to establish alternative unit-based
threshold levels for toxic pollutants, the Agency solicits comment on
this possibility and the potential criteria for establishing such
program-specific levels.
For section 111 pollutants (i.e. those regulated by EPA under
section 111, including fluorides, sulfuric acid mist, municipal waste
combustor emissions, and hydrogen sulfide), EPA proposes that the
applicable PSD significance levels be used to define the unit-based de
minimis thresholds for those pollutants (40 CFR 52.21).
(2) Proposed Gatekeepers. Even if a change qualifies for de minimis
procedures based on size, EPA is proposing that it not qualify for the
de minimis permit revision process if:
(i) The source is in violation of the part 70 permit terms and
conditions it seeks to change;
(ii) The need for the permit revision does not result from a
physical or operational change; or
(iii) The change does not involve a permit term or condition
established to limit emissions which is federally enforceable only as a
part 70 permit term or condition.
Thus, if a change were disallowed by any of these gatekeepers, even
if it were clearly below the relevant de minimis threshold levels, it
could not be processed as a de minimis permit revision.
(3) Aggregation limitation. The EPA is not proposing an aggregation
or ``stacking'' limitation on unit-based de minimis permit revisions.
However, EPA recognizes concerns that sources might make inappropriate
use of de minimis procedures by dividing what would otherwise be a
significant emissions increase into several smaller increases to avoid
more extensive public, permitting authority, EPA, and affected State
review. The EPA does not believe stacking limitations are necessary to
guard against inappropriate disaggregation, because de minimis changes
will be publicly noticed, enabling the public as well as the permitting
authority and EPA to spot questionable consecutive changes. In
addition, section 182(c)(6) of the Act establishes a stacking
limitation for VOC emissions in serious and worse nonattainment areas.
Nevertheless, EPA solicits comment on the need for stacking limitations
to prevent multiple unit-based de minimis permit revisions from
increasing the size of any source by certain amounts or percentages of
the source's total permitted emissions. The Agency also solicits
comment on the administrative difficulty they would represent for
permitting authorities and covered sources. Finally, EPA solicits
comment and suggestions on appropriate stacking limits, and whether
such limits should be based on a specified emissions amount or a
percentage of a source's total permitted emissions.
c. Scope of Increment-Based De Minimis Permit Revisions.--(1)
Proposed Thresholds. For criteria pollutants, EPA proposes a range of
three possible threshold levels for increment-based de minimis changes.
It also proposes that a permitting authority have the option of
developing alternative thresholds for its jurisdiction. For the final
rule, EPA would select increment-based levels from the proposed range
or include the provision for permitting authority-defined levels, or
both. The three proposed increment-based threshold levels for criteria
pollutants are:
(i) 4 tppt CO, 1 tppt NOX, 1.6 tppt SO2, 0.6 tppt PM-10,
or 1 tppt VOC;
(ii) 20 percent of the applicable major source threshold, 10
percent of the limit applicable to the unit undergoing the change, or
15 tpy VOC or NOX (whichever is less, but not less than 2-5 tpy),
or 15 tpy PM-10 or 0.6 tpy lead (whichever is less)22; or
---------------------------------------------------------------------------
\2\2For example, if the major source thresholds were 100 tpy for
VOC, NOX, PM-10 and lead, and the unit's allowable emissions
were 10 tons VOC, then 20% of major source thresholds would be 20
tpy, 10% of the unit's allowables is 1 tpy, and the formula would
take the lesser of 20 tpy, 1 tpy or 15 tpy VOC or NOX, but not
less than 2-5 tpy. Thus, the formula yields de minimis values of 2-5
tpy VOC or NOX.
---------------------------------------------------------------------------
(iii) 30 percent of the applicable major source threshold, 15
percent of the limit applicable to the unit undergoing the change,
whichever is less, but not less than 5 tpy VOC or NOX.
Permitting authorities would also be allowed to develop an
alternative threshold level for each pollutant based on the estimated
annual emissions increases of that pollutant from all units subject to
NSR. The permitting authority would have to submit a demonstration
containing the calculations upon which the threshold levels were based.
The demonstration would have to show that the increment-based de
minimis threshold level specified by the permitting authority for a
pollutant would correspond to a level where at least 80 percent of the
emissions increases of that pollutant were above that level. The Agency
solicits comment on whether it should allow permitting authorities to
set their own increment-based de minimis threshold levels.
For toxic pollutants, EPA proposes a range of three possible
increment-based threshold levels:
(i) O tppt;
(ii) 20 percent of section 112 major source thresholds, 50 percent
of section 112(g) de minimis levels, or 10 percent of the limit
applicable to the unit undergoing the change, whichever is less; or
(iii) 75 percent of section 112(g) de minimis levels.
As with unit-based de minimis threshold levels for toxics, EPA is
not proposing an option for permit program-specific threshold levels,
but again solicits comment on the desirability of such an option and
what would be the grounds for approving State or local agency
demonstrations. Also, EPA solicits comment on whether higher increment-
based threshold levels would be appropriate for toxic pollutants and
data supporting any higher levels.
As proposed for the unit-based de minimis threshold levels, EPA
proposes the PSD significance levels for section 111 pollutants.
(2) Proposed Gatekeepers. In addition to the gatekeepers applicable
to unit-based de minimis permit revisions set forth above, two other
gatekeepers would apply to increment-based de minimis permit revisions.
First, the resulting emission limit would have to be expressed in the
same form and unit of measure as the previous limit. Second, any
associated changes in compliance monitoring terms would have to be
undertaken in a manner established in the permitting authority's
program regulations, in the source's permit, or through the proposed
minor permit revision procedures. Therefore, any change that was
disallowed by any of these additional gatekeepers, even if it met
increment-based emissions threshold levels and complied with the unit-
based de minimis gatekeepers, could not be processed as an increment-
based de minimis permit revision.
The Agency recognizes that the proposed provisions defining the
scope and gatekeepers for the de minimis process are quite complex.
Thus, EPA solicits suggestions on how to make the approach less
complicated while at the same time providing adequate flexibility and
programmatic integrity.23
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\2\3The alternative approach to changes in compliance monitoring
terms, discussed later in this preamble, presents one potential way
of simplifying de minimis permit revision procedures. That approach
would apply the same compliance term gatekeepers to changes at both
small and large units and would thus obviate the need for the two
different types of de minimis permit revisions, unit-based and
increment-based.
---------------------------------------------------------------------------
(3) Aggregation limitations. As in the case of unit-based de
minimis permit revisions, EPA is not proposing aggregation or stacking
limitations for increment-based de minimis permit revisions. However,
for the reasons discussed previously, EPA solicits comment on the need
for stacking limitations to prevent increment-based de minimis permit
revisions from increasing the size of any unit or an entire source by
certain amounts or percentages of limits applicable to a unit or
source. The EPA also solicits comment on whether stacking limits should
be based on a specified amount or percentage of a source's total
permitted emissions and what those amounts or percentages should be.
d. Process for De Minimis Permit Revisions. De minimis permit
revisions would be processed as follows. First, the source would submit
its application to make a de minimis permit revision to the permitting
authority. As for merged program changes, the application would be
required to contain a description of the change and supporting
information, a demonstration, a certification signed by a responsible
official that the change is eligible for the de minimis permit revision
process, an affidavit accepting the risk of making the change before
the permit is revised, and a proposed addendum to the permit containing
the proposed permit terms that would apply as a result of the change.
The permit program could authorize the source to operate the
requested change 7 days after the permitting authority received the
application or, with the permitting authority's permission, as early as
the day its application is submitted. Public notice of the changes
would be provided on a monthly, batched basis. In other words, one
notice listing all changes for which applications for de minimis permit
revisions had been received in the preceding month would be provided
each month. The proposal does not specify the manner in which such
public notice should be given, and on whom the responsibility should
fall to provide it. The final rule would at least provide that State or
local permit programs establish a mechanism sufficient to ensure that
public notice reaches all interested citizens. In any case, EPA is not
proposing that EPA and affected States receive separate notification of
de minimis permit revisions, but that they have access to the monthly
reports. The permitting authority would also be required to establish a
public docket into which it places de minimis permit revision requests
on the date it receives them, or otherwise provide substantially
equivalent public access to the requests as they are received.
The extent to which the permitting authority would be required to
retain authority to disapprove the de minimis permit revision request
would depend on the nature of any preconstruction review the change may
have undergone. State and local agency minor NSR procedures vary in
terms of whether affirmative permitting authority review is required
for all changes and whether and how much public review is provided. The
proposed de minimis revision procedures would take account of these
differences and require that the permitting authority retain authority
to disapprove a de minimis permit revision request depending on the
extent of permitting authority and public review of the change in the
underlying minor NSR process.
For a change that the permitting authority had affirmatively
approved (i.e., had not approved by default) pursuant to a minor NSR
process that included a public comment period of at least 21
days,24 the permitting authority would be required to retain
authority to disapprove incorporation of the change into the part 70
permit as a de minimis permit revision for a period of no more than 7
days after receipt of the request. For such a change, the proposed
permit addendum containing the revised terms could take effect 7 days
after receipt of the application or as early as the day of receipt
where the permitting authority so allowed in response to a request by
the source. For a change that the permitting authority approved by
default in the preconstruction review process or for which a 21-day
public comment period was not provided, the permitting authority would
have to retain authority to disapprove the change for a specified
period of time following the date public notice was given. Such a
change would be incorporated into the part 70 permit on the day after
this period expired if the permitting authority had not acted by then
to disapprove the change. For all de minimis permit revisions, the
permit would be amended by attaching the proposed addendum to the
permit.
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\2\4As in the case of a merged part 70/NSR or part 70/section
112(g) process, permitting authorities whose NSR programs operate by
default could provide in their permit programs that sources could
elect to subject changes to NSR requiring an affirmative decision
and 21-day comment period on a case-by-case basis.
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In the case of any change for which the permitting authority
retained authority to disapprove, citizens could request that the
permitting authority disapprove the change.25 Any such request
would have to be submitted within a specified period of time after the
date public notice was provided for the change. (The Agency solicits
comment on whether the public would need as little as 15 days to as
much as 45 days to submit such requests.) If any requests were
submitted, the permitting authority would have a specified period of
time following the deadline for submission of such requests to respond.
(The Agency solicits comment on how long this period for permitting
authority response should be, from 15 to 45 days.) If the permitting
authority did not heed a request to disapprove the change, the person
requesting disapproval could petition EPA to object to the change in
the manner set forth in Sec. 70.8. Any such petition to EPA would have
to be submitted within 60 days of the end of the period for permitting
authority response to citizen objections.
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\2\5In the case of a change for which the permitting authority
did not retain authority to disapprove, the permit would be revised
to incorporate the change as explained above, but, like the permit
as a whole, the permit revision would be subject to the current part
70 provisions for revocation for cause.
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If the permitting authority disapproved a request for a de minimis
change or EPA objected to a request (in response to a public petition)
after the source had made the change, the source would be liable for
violating the existing permit from the time it made the change.
However, as would be the case for merged program changes made through
administrative amendments, the permitting authority, to a limited
extent, could revise (instead of disapprove) a de minimis change
request without necessarily rendering the source liable for violating
its existing permit from the time it made the proposed change. So long
as (1) the permit authority's revisions were not necessary to make the
request eligible for de minimis procedures and did not change the
source's proposed determination in the request of which applicable
requirements it must meet as a result of the change, and (2) the
source, using reasonably available means, demonstrated its compliance
with the proposed permit terms incorporating applicable requirements,
the permitting authority could find that its revisions to the de
minimis permit revision request did not render the source liable for
violating its existing permit.
Finally, a copy of the final addendum would have to be provided to
EPA. No permit shield would be available for de minimis changes.
e. Rationale.--(1) In General. The Agency believes that the
proposed de minimis revision track is necessary and appropriate to
address the large number of small physical or operational changes that
will occur at part 70 sources each year. Most changes at sources
involve the addition of small new units or small increases in emissions
at existing units, and these changes usually receive prior review under
existing preconstruction review programs. In many States, thousands of
these small changes take place each year. For example, more than 10,000
changes subject to preconstruction review occur annually in Texas and
over 5,000 in New Jersey. Of those, only a few hundred are subject to
major NSR. Nationwide, most of the tens of thousands of preconstruction
actions that occur each year are subject to minor NSR for which little
or no public review is provided. Many States provide public process for
minor NSR actions that result in emission increases above certain
(generally relatively high) levels, but few (if any) provide public
process for all actions that undergo minor NSR.
Requiring full part 70 public process for all minor NSR actions
would make extraordinary demands on State and local resources. One
State, in the detailed fee demonstration accompanying its part 70
program submittal, estimated that to comply with the current rule's
requirements for issuing part 70 permits, 150 hours will be required to
hold a public hearing and respond to public comments for each permit.
If this amount of process were required for all part 70 permit
revisions (including all minor NSR changes) in that State, it would
need to spend well in excess of 1,000,000 hours per year on public
process. To accommodate this level of process, the State would need to
nearly double its current staffing estimates for part 70 permit review
and devote the added staff full time to providing public process (see
analysis in docket number A-93-50). Although these time and staffing
estimates are based on one State's submission, EPA believes they are
representative of what other permitting authorities would face if
required to provide full permit issuance process for permit revisions.
Permitting authorities are already having to substantially increase
staffing to meet title V requirements and are facing difficult
obstacles in finding qualified staff. Moreover, such unprecedented
levels of staff, even if they could be obtained, would present
additional communication and prioritization problems.
Largely as a function of the need for more staff, providing
substantial public process for every permit revision would also be very
costly. While title V requires that permitting authorities charge fees
sufficient to cover the costs of the permit program, this mandate must
be read in light of the other signposts provided by Congress. For
example, title V establishes a presumption that a fee of $25/ton,
adjusted for the Consumer Price Index (CPI), is adequate to cover the
direct and indirect costs of the permitting program. That figure would
be $30.18/ton for 1995. Based on the aforementioned State's fee
demonstration, the cost of providing full public process for all permit
revisions in that State would be over $8,000,000 and would cause its
fee rate to exceed $45.00/ton, more than 50 percent above the amount
Congress presumed would be adequate. While the foregoing cost
projections are based on one State's analysis of its program, EPA's
review of other States' fee demonstrations indicate that the
projections are not unusually high.
Permitting authorities and sources alike are also very concerned
with the potential of extensive public review of permit revisions to
produce permitting gridlock. If every new unit and every physical or
operational change at existing units were required to undergo
substantial review beyond that provided by existing preconstruction
review, substantial delays in revising part 70 permits would result and
sources would likely incur significant opportunity costs.
The sheer volume of small changes make necessary and appropriate
procedures that provide for public review after the source may make the
change at its own risk and that do not require affirmative permitting
authority action except where objections are raised. The Agency
believes more burdensome procedures would probably overwhelm permitting
authorities and impose unreasonable costs on both agencies and sources.
Indeed, the proposed de minimis procedures would subject most of the
minor NSR actions that take place each year to more process than is
typically provided by State and local minor NSR programs. At the same
time, EPA believes that the proposed requirement for post hoc public
notice and an opportunity to object would help ensure the integrity of
part 70 and minor NSR programs without significantly increasing the
permitting burden on agencies and sources. Post hoc public process
would provide sources with a significant incentive to accurately assess
the effect of requested changes on emissions and compliance with
applicable requirements. Put another way, subjecting even small changes
to public scrutiny would increase the likelihood that sources would
limit requests for de minimis changes to changes that are truly small
and that can be made in compliance with applicable requirements.
As previously pointed out, in requiring public process for all
minor NSR modifications, today's proposal would add public procedures
that in some cases may not be required by the underlying minor NSR
programs. Like the requirements for merged program review, the proposed
de minimis change procedures would have the effect of requiring at
least some public process for minor NSR modifications that may be
eligible for valid exclusions from public process under State or local
minor NSR programs. For the reasons set forth in the discussion of
merged program requirements earlier in this preamble, EPA is
considering whether valid exclusions from minor NSR process should
carry over into the title V context. It thus requests comments on
whether a change that would otherwise be subject to de minimis change
procedures (presumably in part because it did not undergo merged
program review), should be eligible for incorporation into a part 70
permit as an administrative amendment if it qualifies for a minor NSR
exclusion from public process.
As further explained below, the scope of changes eligible for the
de minimis process would be restricted by several ``gatekeepers'' to
guard against improper or high risk use of the process. The procedures
for revising the permit would provide added safeguards. In view of the
small size of the eligible changes, the applicable gatekeepers and the
additional procedural safeguards, EPA believes the proposed process
would be sufficient to meet title V's public process requirements.
From industry's perspective, the proposed procedures would provide
streamlined processing of permit revisions. The small size of the
eligible changes and the checks and balances provided by the procedures
would justify the Agency temporarily exempting sources from the section
502(a) prohibition against operation in noncompliance with permit
terms. Thus, small changes could be operated as soon as or shortly
after applications are submitted. While sources would remain at risk
for violating their permits until the end of the public review period
for changes that the permitting authority retained authority to
disapprove, they could proceed expeditiously to operate small changes
that they were confident met all applicable requirements. The proposed
procedures would further provide that permits be revised by default if
the permitting authority fails to act affirmatively. The EPA thus
believes that the proposed process would also be sufficient to meet
title V's requirement that permitting procedures be streamlined and
expeditious.
The Agency solicits comment on the effectiveness of a post hoc
public review process in assuring that requests for de minimis changes
are limited to changes that are truly small and consistent with
applicable requirements. The Agency is also interested in comments on
the costs of the post hoc review process and on whether the benefits
justify the costs of such a program. It further solicits comment on
whether the post hoc review process could be eliminated without
violating statutory requirements. Finally, EPA solicits comments on
whether, in the absence of a post hoc process, the Agency would be
authorized to limit its objection opportunity and to allow sources to
operate de minimis changes before their permits are revised, as
proposed.
(2) Scope. A critical question in the evaluation of the proposed
procedures, however, is what constitutes a ``small'' change. Before
exploring that issue, it should be pointed out that whatever threshold
EPA eventually selects for defining ``small'' changes, under the
proposal the scope of the changes a particular source could process
using the de minimis track would depend on its permit. As indicated
above, the proposal would require that a source's use of de minimis
procedures be authorized by its part 70 permit. The purpose of this
requirement is to give the permitting authority the option of allowing
only those de minimis changes at specific units that it considers
appropriate, and the public an opportunity to comment on the extent to
which any source could use de minimis revision procedures. Conceivably,
the public could comment and the permitting authority could decide that
certain situations (e.g., a bad compliance record) warrant limiting or
denying altogether a source's use of de minimis procedures.
The Agency solicits comment, though, on whether the permitting
authority should be authorized to provide in its part 70 program for
certain categories or classes of sources or changes to get the benefit
of de minimis change procedures. For instance, for any change subject
to preconstruction review, there arguably would be little basis for
depriving a source of the availability of the de minimis permit
revision track, given that such a change would have already undergone
permitting authority review by the time the part 70 permit revision
application was received. The Agency solicits comment on whether and
under what circumstances the permitting authority should be allowed to
authorize use of de minimis revision procedures on a generic basis.
It also bears explaining at the outset why EPA is proposing two
types of de minimis changes: unit-based and increment-based. As noted
above, unit-based de minimis changes include any change at a small
unit. Because the unit is itself small in terms of its emissions
potential, the environmental risk of a source inappropriately
processing a change at such unit through de minimis procedures is
relatively small, since the most the unit could emit is the de minimis
threshold itself. Increment-based de minimis changes, however, are
small changes at big units. Because the unit in this case could be very
large (e.g., 400 tpy VOC), a purportedly small change could in fact
have very large emissions consequences. For instance, if a 400 tpy unit
is controlled to 200 tpy, the source could potentially make a change
that it represents as small but that increases the unit's emissions by
200 tpy. Because of this risk, EPA is proposing to restrict the
availability of increment-based de minimis changes in ways that ensure
the continued enforceability of the controls on the unit undergoing the
change. The Agency is concerned, however, that two types of de minimis
changes may be confusing and unnecessarily complex. It therefore
requests comments on whether it should promulgate one or both types of
de minimis revision tracks and what applicable gatekeepers it should
retain or reject. It also refers the reader to the discussion later in
this preamble that suggests a different approach to changes in
compliance monitoring terms that may provide a basis for collapsing the
two types of de minimis permit revisions into one.
The Agency is proposing a range of possible values of de minimis
changes because it thus far lacks adequate information to choose
between the proposed values. The Agency believes that the proper
approach to choosing de minimis thresholds is to determine what
threshold will likely result in the public having a prior opportunity
to comment on the large majority of regulated pollutants' total
emissions and in the permitting authority's being relieved from
processing a significant percentage of permit revisions through more
burdensome procedures. As suggested by EPA's proposal for permitting
authority-determined de minimis levels, the Agency believes that about
80 per cent of total emissions subject to NSR should not be eligible
for the de minimis process, but it requests comment on the appropriate
percentage and information indicating what emission level(s) would come
close to achieving this result.
The Agency recognizes the inherent difficulty of utilizing a
national emission level to ensure that the public receives prior notice
and an opportunity to comment on a certain percentage of total
emissions, since that level is apt to vary with the nonattainment area
and the types of controls applicable in it. However, EPA is still
interested in promulgating a national emission level for several
reasons. First, a number of States have indicated a desire for a
national de minimis threshold to avoid permitting authorities
``bidding'' for sources or source expansions by offering higher
thresholds than their neighboring State or local agencies. Second, the
showing that EPA has proposed that State and local agencies make to
justify a unique de minimis threshold may be very difficult for a
particular agency to make depending on the extent and detail of its
historical records.
The Agency is also interested, however, in providing permitting
authorities with the option of developing their own de minimis
thresholds if they can make the requisite showing. Although EPA
understands the desire on the part of some permitting authorities for
national uniformity, it also appreciates that permitting authorities
are in very different positions with regard to the emission levels that
would achieve the 80 percent mark in a particular agency's
jurisdiction. While in some heavily industrialized areas a 5 ton per
year (tpy) cut-off may result in 80 or 90 percent of the emissions
being subjected to prior NSR, more rural areas may achieve the same
with a much higher cut-off. Indeed, a 5 tpy cut-off for unit-based de
minimis might well be useless in an area where the agency does not
regulate such small emissions units or increases. On the other hand,
the permitting authority for that area might not have so great a need
for de minimis procedures. The EPA today proposes to both promulgate a
national level and to allow a permitting authority to develop
alternative de minimis thresholds that would apply in the area of the
agency's jurisdiction instead of the national threshold. The Agency
requests comment on whether it should promulgate both approaches or
just one or the other.
As for the proposed national thresholds, EPA believes that each
represents a reasonable approach, even though the range of values they
produce is wide. The low end of the range (e.g., 1 tppt NOX, 0
tppt HAP's) is the same for both unit and increment-based de minimis
purposes and produces the smallest threshold and best protects against
overuse of the de minimis track. However, this proposal may also result
in the de minimis process becoming unavailable over the life of the
permit even for very small changes that would otherwise qualify.
A single 5 tpy cutoff proposed for each criteria pollutant under
the unit-based de minimis approach has the advantage of simplicity and
is in the range that many permitting authorities recognize as small
(judging by the caps on insignificant activities in State and local
permit programs submitted pursuant to the current rule). It does not,
however, recognize differences in pollutants. New Jersey has submitted
a specific demonstration to the record which shows that approximately
90 percent of the sources subject to preconstruction review in New
Jersey over a recent 20-month period involve emissions units of 5 tpy
or less. These same units account for not more than 10 percent of all
the relevant air pollutant emissions subject to New Jersey's NSR
program over the same period. Consequently, under a 5 tpy threshold
test, New Jersey would be able to focus more thoroughly on the 10
percent of the sources responsible for 90 percent of emissions from
preconstruction review actions.
The middle ground approach proposed for criteria pollutants under
both unit and increment-based de minimis processes would allow for
variation among nonattainment areas with differing major source
thresholds, and would protect against de minimis changes larger than
the PSD significance levels. For unit-based de minimis, it would allow
changes in VOC and NOX of up to 20 tpy where major source sizes
are 100 tpy, up to 10 tpy where major source sizes are 50 tpy, and up
to 5 tpy emissions where major source sizes are below 25 tpy. For PM-
10, the unit-based threshold would allow de minimis changes up to 15
tpy where the major source cutoff is 100 tpy, and up to 14 tpy where
the major source cutoff is 70 tpy. For lead, the threshold value would
always be 0.6 tpy. The EPA believes the formula for VOC and NOX in
the unit-based approach (i.e., 20 percent of the major source cutoff or
5 tpy, whichever is greater) is appropriate since it allows greater de
minimis thresholds in nonattainment areas with less severe problems,
yet provides some relief for permitting authorities and sources in
areas with the most severe problems. The EPA notes also that the values
produced by the formula are well below the PSD significance levels of
40 tpy for VOC and NOX and 15 tpy for PM-10 that apply in
attainment areas (where major or minor source size would be 100 tpy).
The values for lead are equal to the PSD significance levels, but are
themselves low enough to protect against significant emission
increases.
Increment-based de minimis changes would generally be the least of
20 percent of the applicable major stationary source cutoff, 10 percent
of the permitted limit, or 15 tpy (but in no event greater than a major
modification cutoff or less than 2-5 tpy NOX or VOC). Where major
source size is 100 tpy, this formula would yield an upper bound of 15
tpy for VOC and NOX for unit allowables at or above 150 tpy. As
unit allowable falls to between 50 and 150 tpy for the same major
source size, the formula would allow de minimis changes between 5 and
15 tpy. Below unit allowables of 20-50 tpy, the result would be 2-5 tpy
de minimis thresholds. Where major source size is 50 tpy, the upper
bound falls to 10 tpy for any unit allowable at or above 100 tpy. For
unit allowables between 50 and 100 tpy, the formula yields de minimis
thresholds of 10 percent of unit allowables, or 5-15 tpy. If unit
allowables are between 20 and 50 tpy or below, de minimis thresholds of
2-5 tpy would result. At 25 tpy major source size, the formula yields
de minimis thresholds of 5 tpy for any unit allowables at 50 tpy or
above, and values of 2-5 tpy for unit allowables of 20-50 tpy or lower.
When major source size is 10 tpy, the formula yields 2-5 tpy de minimis
thresholds regardless of unit allowable levels.
Although complicated, the formula does allow relatively small
changes to occur at units that could not qualify for unit-based de
minimis permit revision procedures. For example, any unit with an
allowable level over 20 tpy would not qualify for unit-based
procedures, but would be allowed under the increment-based approach to
make de minimis changes of as low as 2-5 tpy if their allowables were
in the range of 20-50 tpy (for any major source size) or as high as 15
tpy if their allowables were at or above 150 tpy and the major source
size were 100 tpy. Yet these values are well below the major source
thresholds, are protective of PSD significance levels, and allow
proportionately higher de minimis changes at units with higher
allowable emissions.
Certain aspects of this formula (i.e., 20 percent of the relevant
major source definition) are consistent with previous comments of State
and local air pollution control officials with permitting experience.
Other aspects (i.e., 10 percent of the unit's allowable level) are
contained in the current part 70 as cutoffs for when group processing
may be allowed for minor permit modifications. Even at the 15 tpy upper
bound under this formula, many State or local agencies do not require
any type of a permit for sources at or below these levels. Moreover,
individual changes at or below these levels are unlikely to trigger new
federally-promulgated applicable requirements and to affect
significantly the attainment of PSD increments and national ambient air
quality standards. Accordingly, EPA believes that they serve as one
appropriate starting point for de minimis change thresholds. The EPA
believes a higher threshold (i.e., 15 tpy rather than 5 tpy) may be
appropriate for reasons previously stated. To safeguard the usefulness
of de minimis revision procedures in areas with low major source
thresholds, EPA also believes that the definition of unit-based de
minimis should include a lower bound or ``floor'' and that a floor of
2-5 tpy is appropriate.
There are some significant differences between the two de minimis
approaches. For example, the ``10 percent of permitted allowable
emissions'' criterion is appropriate for only an increment-based
approach. It is not necessary for a unit-based system, since the
entirety of the unit (not just some change to it) is the basis for
judging eligibility for de minimis procedures. In addition, the
proposed unit-based de minimis approach could be used at a source as
large as 20 tpy in attainment or moderate nonattainment areas, while an
increment-based de minimis change could not be larger than 15 tpy even
in attainment areas. The proposed increment-based number is smaller
because, even with the additional gatekeepers safeguarding compliance,
any change at a large unit carries the inherent risk of resulting in a
large emissions increase. The larger number would also apply only for
the larger units (150 tpy allowable or higher) and where major source
size is 100 tpy.
The high end of the proposed range would allow unit-based de
minimis changes up to 30 tpy where major source sizes are 100 tpy, up
to 15 tpy where major source sizes are 50 tpy, up to 7.5 tpy where
major source size is 25 tpy, and up to 5 tpy where major source sizes
are below 16 tpy. Even these higher values could be viewed as
reasonable considering that these changes have already been subject to
State or local NSR (or are categorically exempt from it) and
authorization to make a change up to those bounds was provided during
issuance of the source's part 70 permit.
For toxic pollutants (i.e., HAP's), a range from zero to 75 percent
of section 112(g) de minimis levels is proposed. The lower end of the
range represents a position that any increase in the permitted limit of
a HAP would be significant enough to warrant at least the minor permit
revision process. The upper end of the range is defined relative to a
percentage of the de minimis levels proposed for section 112(g) (59 FR
15504 (April 1, 1994)). This approach reasonably links the trigger for
more part 70 permit revision process to a change with an increase still
comfortably below the level proposed to require regulatory control
under section 112(g). The Agency foresees the likelihood of sources
taking controls to keep themselves below section 112(g) de minimis
levels in a manner analogous to what occurs in the NSR context. A
change below section 112(g) de minimis levels that requires a permit
revision at all might thus be to a limit establishing a ``synthetic
minor'' source for HAP's. This approach in establishing a de minimis
level for HAP's is also consistent with the proposed treatment of
insignificant activities (57 FR 32273) which is linked to the proposed
section 112(g) de minimis levels.
Cutoffs are proposed for another set of pollutants, those that are
regulated under section 111 of the Act. These pollutants are those
covered under NSPS but are not criteria pollutants or pollutants
regulated under section 112 of the Act (e.g., fluorides, hydrogen
sulfide, sulfuric acid mist). The proposed de minimis cutoffs for both
unit and increment-based changes are the PSD significance levels for
these pollutants. Any change at these levels or higher would be a
modification under section 111 and not eligible for de minimis permit
revision procedures. Lower cut-offs would not be justified because
increases and decreases of these pollutants are not tracked on an area-
wide basis (unlike criteria pollutants) and no additional standards
covering these pollutants will be forthcoming. An applicable NSPS or a
section 111(d) provision applicable to a source (i.e., a source that
was in existence when the NSPS was promulgated) will constitute an
applicable requirement that cannot be violated. The only part 70
concern with respect to these pollutants is triggering PSD review as a
major modification.
Further, EPA is proposing several restrictions on the use of de
minimis procedures for changes that meet the applicable cut-offs. The
general purpose of these ``gatekeepers'' is to guard against improper
or inappropriate use of the de minimis process. The first three
gatekeepers apply to both unit-based and increment-based changes, while
the last two apply only to increment-based changes to address the
greater potential environmental risk they pose.
The first gatekeeper would prohibit a source from using the de
minimis process for a change to a permit term that the source was
violating. The Agency is proposing this gatekeeper because sources
might otherwise be tempted to use the streamlining features of the de
minimis process, i.e., limited public review and permit revision by
default, to avoid or moot enforcement actions.
The second gatekeeper would require that the requested change be
associated with a physical or operational change at the plant. This
gatekeeper would ensure that a source uses the de minimis process only
for permit revisions necessitated by a change at its facility and not
as a means of appealing a permit term it finds objectionable. If a
source takes issue with a permit term issued after full public process,
its proper recourse is to the permitting authority to reopen its permit
or to the courts for review of that term. Part of the justification for
post hoc process is to allow a source to expeditiously make changes as
needed to respond to the market. A source's preference for a less
stringent permit term apart from the need to make physical or
operational changes does not justify expedited procedures.
A further gatekeeper that would apply to both unit- and increment-
based changes would prohibit the use of de minimis procedures for
changes to permit terms establishing emission limits or caps developed
only through part 70-only process. Development of such limits is
generally very time-consuming and case-specific, and changes to them
would warrant full public process in the part 70 context since
presumably there would be no prior permitting authority review.
The two additional gatekeepers are proposed for increment-based de
minimis changes. The resulting permit limits would have to be expressed
in the same form and unit of measure as the previous limit, and any
associated changes in compliance monitoring terms would have to be
undertaken in a manner established in the State or local permit
program, the source's permit, or through the proposed minor permit
revision procedures. The purpose of these gatekeepers is to assure that
permit limits whose enforceability has been insured through compliance
requirements established during permit issuance are not replaced by
apparently more stringent limits that are not practicably enforceable.
Many compliance monitoring requirements need to be tailored to the
affected unit and the applicable controls. For example, monitoring of
operating parameters such temperature or pressure is often substituted
for direct emissions measurements. These parameters must be calibrated
to emissions results and changes in them do not necessarily result in
proportionate emissions changes. Establishing the proper calibrations
often requires testing and interpretation of test results and so is not
appropriately subject to an abbreviated process providing little or no
prior permitting authority or public review.
(3) Process. The proposed rule would impose on de minimis changes
the same application requirements imposed on merged program changes
processed as administrative amendments. The basis for these
requirements would also be the same as that for their administrative
amendment counterparts. That is, besides a description of the change,
the source would be required to demonstrate and certify that the change
is eligible for the de minimis process to help ensure that the source
has properly evaluated the eligibility of the change for the
streamlined process. The source would also be required to submit an
affidavit accepting the risk of making the change before the permit is
revised. Finally, the source would have to submit a proposed permit
addendum to simplify the process of revising the permit.
The proposal would provide that a source could operate the change
seven days after submitting its application to the permitting
authority, but it would also allow the permitting authority to waive
all or part of this waiting period at the source's request. The 7-day
notice requirement is intended to provide the permitting authority with
prior notice of a change so that it would have an opportunity to stop
inappropriate changes. However, in many cases the permitting authority
would already be familiar with the change as a result of
preconstruction review. It thus makes sense to allow the permitting
authority for whose benefit the prior notice is provided to waive it in
those circumstances the permitting authority considers it unnecessary.
The Agency is interested in comment on whether a permitting authority
could waive the waiting period for classes of sources or changes (e.g.,
all changes subject to permitting authority review prior to
construction), instead of through case-by-case waivers.
The proposal specifies the minimum content of public notice to make
sure it is adequate to alert interested citizens to the opportunity to
review the change. The public docket requirement would ensure that an
interested citizen could obtain the information needed to evaluate the
change. The Agency is proposing, however, to give permitting
authorities some latitude in providing citizens with this information.
Permitting authorities would be able to propose for EPA approval other
means that reasonably afford citizens the information they need.
The proposal does not specify the manner in which public notice is
to be given. The Agency requests comments on means of giving notice
that would be both effective and low cost, and on whether EPA should
specify or leave to permitting authority discretion the manner for
giving notice. Alternative methods EPA has considered include monthly
lists published in a State or local government register or sent to
interested citizens by the source making the request. Interested
citizens would include those who commented on the source's initial
permit or any revision thereto, or requested to be notified of permit
revisions requested by the source. Another possibility is the posting
of the monthly lists in local government buildings accessible to area
residents.
The proposal also lays out a range of potential time periods for
the public to object and for the permitting authority to respond to any
objections. The Agency solicits comments on what time periods would be
adequate for the public to make objections and for the permitting
authority to respond. It should be pointed out that the time period for
the public to object may well depend on the manner of giving notice.
For instance, notice by means of listings posted in public buildings
may warrant a longer public objection period to take into account the
additional time required to access the notice.
Where a requested change underwent preconstruction review and
received affirmative permitting authority approval following a 21-day
public comment period, EPA is proposing that there be no further
opportunity for the public to request that the change be disapproved.
Of course, a change that underwent a 15 to 30-day public comment period
(depending on the permitting authority's existing minor NSR
regulations) during a process that also met part 70 permit content
requirements would be the product of a merged program change that could
be processed as an administrative amendment. This provision of the de
minimis change procedures is intended to take account of circumstances
falling somewhat short of merged program requirements for small
changes. So long as preconstruction review afforded the public notice
and a 21-day comment period and required a final determination by the
permitting authority in light of any public comments, the change need
only be publicly noticed. An interested member of the public, if
dissatisfied with the part 70 permit revision, may petition the
permitting authority to revoke and reissue it. (Presumably, a citizen
would also be able to challenge the underlying preconstruction review
action in State court.) There would be no deadline, however, on the
permitting authority's response to that petition, except as provided
under State administrative law. The Agency believes that small changes
that receive the requisite amount of public process during
preconstruction review do not warrant further public review in part 70
permitting.
Like the proposed procedures for administrative amendments, the de
minimis procedures would provide that permits be revised by default if
the permitting authority fails to act affirmatively by the relevant
deadline. In the case of changes for which the permitting authority did
not retain authority to disapprove, the permit could be deemed revised
at the end of the 7-day notice period if the permitting authority
failed to act. For changes the permitting authority could disapprove,
the permit could take effect at the end of the period for consideration
of any public objections in the absence of a permitting authority
objection. The permit would be revised by attaching the addendum
proposed by the source. This is an advantage over all the processes
established by the current rule, which require permitting authority
action to complete the permit revision process. Of course, a permitting
authority could choose to provide that the permit is not revised until
it takes action to revise it.
While a citizen who unsuccessfully requested disapproval of a
change could petition EPA to object to it, the Agency would not
otherwise be involved in the processing of de minimis change requests.
Just as the small emissions impact and the procedural safeguards
associated with de minimis changes make post hoc public review
adequate, these same considerations make routine EPA review
unnecessary. Recourse to EPA to object to a change is sufficient to
provide the statutorily required Agency check on State or local agency
processing for these small changes. Beyond that, further EPA
involvement in processing de minimis changes would simply be
infeasible. The Agency is proposing a de minimis change procedure that
allows a permit to be revised by default in recognition of the fact
that State and local permitting authorities are unlikely to be able to
affirmatively act on every small change. Prospects for EPA's ability to
attend to all such changes occurring nationwide are that much dimmer.
Finally, as for merged program changes processed as administrative
amendments, the source would be liable for violating its existing
permit if it operated the change before its permit was revised and the
permitting authority ultimately disapproved the change, potentially in
response to a public objection. This provision should ensure that
sources take the potential for public objection to heart. Like for
merged program changes, however, to the extent that a source's request
required only minor alterations to be approvable, the permitting
authority could spare the source from liability under the circumstances
specified earlier in this preamble.
In view of the limited public, affected State, and EPA review
afforded for de minimis changes, the Agency is also proposing that the
permit shield not be available for such changes. The lack of a shield
would provide a further check on the potential consequences of a change
processed through de minimis procedures. Even if a source were
successful in having its permit revised to reflect a change that failed
to comply with applicable requirements, enforcement action could still
be taken against that source for its noncompliance.
5. Minor Permit Revisions
a. Overview. Under today's proposal, most changes ineligible for
administrative amendment or de minimis permit revision procedures would
be eligible for the minor permit revision process. Taking the current
rule's minor permit modification process as a starting point, the
proposal would add expedited procedures for providing public notice and
a 21-day comment period, allow the source to operate the requested
change at the end of the comment period when no objections were
received, and provide for permitting authority action on the request
within 60 days of its submission.
In return for the addition of public review, the proposal would
remove several of the current rule's gatekeepers, substantially
expanding the scope of the changes that qualify. For example, major and
minor NSR changes and section 112(g) actions that did not undergo
merged program process would qualify as minor permit revisions with few
exceptions. In addition, most changes triggering other Federal
requirements (e.g., RACT or MACT) would also qualify for minor permit
revision treatment.
b. Description of Current Minor Permit Modification Procedures. The
minor permit modification procedures as currently promulgated in
Secs. 70.7(e)(2) and (3) allow sources to make certain types of changes
immediately upon filing a permit revision application with the
permitting authority, and do not require that the permitting authority
provide an opportunity for public participation before revising the
source's permit. To insure that inappropriately significant changes are
not processed through this very streamlined revision track, part 70
strictly limits the universe of eligible changes.
For example, no change could be processed as a minor permit
modification that involves significant changes to existing monitoring,
reporting, or recordkeeping requirements in the permit. Nor would a
modification that requires or changes a case-by-case determination of
an emission limitation or other standard, or that is a modification
under any provision of title I of the Act, be eligible. Changes that
are eligible could be implemented by the source immediately upon filing
a minor permit modification application with the permitting authority.
Thus, sources could operate changes even before the permitting
authority has any opportunity to review the requested change. Moreover,
EPA's review period and opportunity to object to the modification do
not begin until after the source has began to operate the change.
Finally, the permitting authority is not required to provide public
notice or an opportunity for the public to comment on the requested
modification before revising the permit.
Consequently, part 70 does not allow the permit shield to apply to
any change processed as a minor permit modification. Any change for
which a modifying source wishes to have the protection of the permit
shield can only be processed through the more rigorous track unless it
were processed under an enhanced NSR procedure (see discussion of
administrative amendments).
c. Description of Proposed Minor Permit Revision Procedures.--(1)
Scope. Due to the significant improvements being proposed to the
current minor permit modification process (subsequently discussed), the
proposed scope of changes eligible for the new minor permit revision
process would be increased. However, eligibility for the proposed minor
permit revision procedures would be subject to several of the same
gatekeepers that limit the eligibility of changes that may be processed
through the de minimis permit revision track. These include the
requirement that a source be in compliance with the permit terms it
seeks to modify and a prohibition on changes to permit terms or
conditions established to limit emissions which is federally
enforceable only as a part 70 permit term or condition. In addition,
the change could not be a significant revision to compliance monitoring
requirements in the permit unless any such revision was associated with
a change that otherwise would qualify for minor permit revision
procedures.
Changes eligible for minor permit revision procedures would include
major or minor NSR or 112(g) changes that presumably did not undergo
merged program review, with one exception. Those minor NSR actions that
involved netting transactions would not be eligible unless the netting
transaction at issue either provided a 30-day public comment period at
the minor NSR stage or did not involve a single emissions increase
greater than the area's applicable title I significance levels or a sum
of emissions increases that is greater than the area's applicable major
source threshold. Also eligible would be changes to compliance terms,
even if such changes are significant, that are necessary to implement
other changes that are eligible to be processed as minor permit
revisions. Finally, changes that are not subject to NSR or section
112(g) but that trigger the applicability of a Federal requirement,
such as a SIP requirement, would be eligible for minor permit revision
procedures.
(2) Process. To make use of the proposed minor permit revision
procedures, the source would first submit its minor permit revision
application to the permitting authority. The application requirements
would include those applicable to the de minimis process and merged
program changes: a description of the requested change; a draft permit
and supporting information; a demonstration and certification that the
proposed change is eligible for the minor permit revision process; and
an affidavit accepting the risk of operating the change prior to permit
revision. In addition, the source would have to certify that it had
provided notice to the public, affected States, and EPA as required by
the minor permit revision procedures.
As for de minimis permit revision requests, when the permitting
authority received a minor permit revision application, it would have
to enter it into a public docket or provide substantially equivalent
public access to it.
At the same time it submits its application to the permitting
authority, the source would be required to provide notice to the
public, affected States, and EPA of its request. The source could
satisfy its notification requirement by publishing a public notice in a
newspaper of general circulation in the area where the source is
located or in a State or local authority publication or register
designed to give general public notice, and by sending by first-class
mail a letter to affected States, EPA, and interested persons.
Interested persons would include any person who commented on a source's
original permit or any subsequent revision, reopening, or renewal and
all persons who ask the permitting authority to place them on a list of
interested persons. The list would be maintained by the permitting
authority and kept up-to-date on-site by the source.
The notice itself would have to describe the change, specify that a
copy of the revised application is available from the permitting
authority, and briefly describe the public comment procedures required.
It would also have to indicate that the source may implement the
requested change after 21 days from the date of the notice if by that
date (1) no germane and non-frivolous objection has been received from
the public or affected States, (2) the permitting authority has not
denied the change or transferred it for processing under significant
permit revision procedures, and (3) EPA has not objected to the
requested change.
Following publication of the required notice, citizens and affected
States would have 21 days to submit written comments or objections to
the permitting authority. The permitting authority would be required to
keep a publicly-available record of the comments so that EPA would be
able to fulfill its permit review obligations and determine whether any
subsequent citizen petition for an EPA objection should be granted.
Permitting authorities would not be required, however, to provide any
opportunity for a public hearing on changes processed as minor permit
revisions.
If the permitting authority did not receive from the public or
affected States any written comment or objection within 21 days after
publication of the notice, the source could implement the requested
change on the 22nd day provided that the permitting authority had
neither denied the request nor transferred it for processing under
significant permit revision procedures and EPA had not objected to the
request by then.
On the other hand, if the permitting authority did receive a public
or affected State comment or objection within the 21-day period, the
source would not be able to implement the requested change on the 22nd
day as discussed above. Instead, the permitting authority would be
required to determine within 7 days after the close of the 21-day
public comment period (i.e., within 28 days of the date of the public
notice) whether the comment or objection is germane and non-frivolous
and thus warrants denying the minor permit revision request or
transferring it for processing under significant permit revision
procedures.
To be considered germane, a comment would have to object to the use
of minor permit revision procedures for the requested change on the
grounds that the source had failed to comply with the procedural
requirements of the minor permit revision process (e.g., the source
failed to send public notice to interested persons), or argue that the
change is ineligible for the minor permit revision process because it
conflicts with one or more of the applicable gatekeepers (e.g., the
source is in violation of a permit term it seeks to change). To be
considered non-frivolous, a comment would have to specify the basis for
its objection and present factual or other relevant information in
support of its claim. To keep the permitting authority from allowing
the source to make the requested change, the comment would have to be
both germane and non-frivolous. For example, the comment could not
merely assert that the change is ineligible for the minor permit
revision process without providing any explanation or information to
aid the permitting authority in evaluating its claim.
The permitting authority would have to provide a written
explanation of whether a comment or objection is germane and non-
frivolous. The permitting authority would not be required to accept any
recommendations that are not based on applicable requirements or the
requirements of the part 70 program. All such written responses would
then be placed in the administrative record of the permit revision. In
cases of objections filed by affected States, the permitting authority
would have to forward to EPA a written response to any of these
objections that were not accepted as part of EPA's opportunity to
review the requested change. Finally, any permitting authority
rejection of a written public or affected State comment or objection
would have to be judicially reviewable in State court following the
permitting authority's final action on the minor permit revision
application.
If the permitting authority either rejects a public or affected
State objection as not germane and non-frivolous or fails to respond to
such objection within 28 days after public notice of the revision
request, the source could implement the requested change on the 29th
day after the public notification. Again, this ability to implement the
change would be contingent both on the permitting authority not having
denied the request or transferred it for processing as a significant
permit revision, and on EPA not having objected to the requested change
by then.
It should be noted that the permitting authority may address in the
minor permit revision process any comments that do not object to the
use of minor permit revision procedures for the requested change, but
instead object to an aspect of the proposed permit revision that is
unrelated to whether the change is eligible for minor permit revision
procedures. This would not keep the source from making the change on
the 29th day and would not require the permitting authority either to
deny the minor permit revision request or to transfer it for processing
as a significant permit revision. For example, the comment could
suggest additions to the source's proposed recordkeeping or reporting
requirements, to which the permitting authority could respond while
continuing to process the requested change as a minor permit revision.
The permit program would also have to provide that if the
permitting authority failed to act on a public objection, the commenter
could file suit in State court to force the permitting authority to
take action on the written comment. If the permitting authority denied
the minor permit revision request (because, for example, the change
failed to comply with applicable requirements) and the source had
already implemented the change, the program would have to provide that
the source would be liable for violating its existing permit from the
time it implemented the change. If the permitting authority decided to
transfer the revision request to the significant permit revision track
and the source had implemented the change, the source would be liable
for violating its existing permit from the time it implemented the
change, unless the permitting authority ultimately approved its
revision request and found that the change had been eligible for minor
permit revision procedures. The Agency requests comment on whether, if
the change is transferred to the significant permit revision track, the
source should be required to cease operation of the change until a
final decision is made on its revision request.
In addition, the program would have to enable the commenter to
bring suit in State court to seek an injunction against the source
implementing or continuing to implement the change. Injunctive relief
would have to be available in accordance with the applicable standards
for obtaining such relief under State or local law. In proposing such a
requirement, EPA is not proposing to promulgate a national standard
that must be met to obtain an injunction.
On the other hand, if the permitting authority rejected a public or
affected State written objection within the required 28-day period, the
commenter could obtain judicial review of that rejection after the
permitting authority takes final action on the permit.
As for merged program changes and de minimis permit revisions, when
processing a minor permit revision request, the permitting authority
would be able to revise (rather than deny or transfer for processing as
a significant permit revision) the request without necessarily
rendering the source liable for violating its existing permit from the
time it implemented the requested change. Provided that the permitting
authority's revisions to the requested draft terms and conditions are
not necessary to qualify an ineligible change for processing as a minor
permit revision and do not change the source's proposed determination
of which applicable requirements it must meet as a result of the
change, such revisions need not render the source liable for violating
the terms of its existing permit if the source can demonstrate using
reasonably available means its compliance with the revised permit terms
incorporating applicable requirements.
For changes that the permitting authority continues to process as
minor permit revisions, the permitting authority could take final
action to revise the permit after the close of EPA's 45-day review
period, provided that EPA has not objected to the requested change, and
provided that the final revision to the permit does not substantially
differ from the originally proposed minor permit revision. Under the
proposed part 70 revisions, the permitting authority would be required
to act on the minor permit revision request within 60 days after
receipt of the minor permit revision application or 15 days after the
expiration of EPA's final 45-day review period, whichever is later. The
required permitting authority action could take one of four forms:
final approval of the minor permit revision request; final denial of
the request; revision of the request accompanied by re-notice and re-
submittal of the revised request to EPA as a new minor permit revision;
or a determination that the request is not eligible for minor permit
revision procedures accompanied by a transfer for processing the
request as a significant permit revision. These actions would
constitute ``final action'' for the purpose of judicial review to which
previous reference was made.
When the permitting authority took final action to approve the
minor permit revision request, the permitting authority would attach
the approved addendum to the originally issued permit. The addendum
would specify the date on which it took effect. Upon approving the
requested change, the permitting authority would also have to notify
any person or affected State who commented on or objected to the
requested change during the 21-day public comment period for purposes
of triggering the period for petitioning for EPA or judicial review.
The permitting authority would have discretion, however, in determining
the best method for providing such notice. The permitting authority
would also have to place a copy of its final determination (including
approvals, denials, and revisions) in the public docket in which it
places all minor permit revision requests, or provide a substantially
equivalent means of insuring public access to the final minor permit
revision approval. Finally, the permitting authority would be allowed
to extend the permit shield provided in Sec. 70.6(f) to any minor
permit revision that had been approved pursuant to a process at least
as stringent as the one described in this proposal.
If the permitting authority denies or transfers a minor permit
revision request on germane and non-frivolous grounds, it would have to
notify any person or affected State that objected during the public
comment period of its determination to deny the request or to transfer
it for processing as a significant permit revision, and would have to
place a copy of its determination in the public docket to the minor
permit revision file.
Whenever a requested minor permit revision is transferred for
processing as a significant permit revision, the permitting authority
would have to provide public notice and a further opportunity to
comment on the proposed revision in the manner required by the
permitting authority's applicable significant permit revision
procedures. Such notice would have to provide an opportunity for a
public hearing, and describe the procedures to request a hearing or
indicate the time and place of any hearing already scheduled. However,
after transferring the change from minor permit revision procedures,
the permitting authority would not be required to wait the full 30 days
before conducting the hearing. Rather, it could hold the hearing as
soon as 14 days after publishing notice that the change has been
transferred to the significant permit revision track. The permitting
authority would not be allowed, however, to shorten the 30-day period
in which the public and affected States would be able to submit written
comments on the transferred change, and a new 45-day period for EPA
review would begin when the permitting authority forwarded to EPA a
subsequent proposed significant permit revision.
It should be noted that following final action on minor permit
revision requests, all affected parties would have all the rights
provided them elsewhere under part 70. In other words, permittees would
have the right to appeal and get judicial review of permitting
authority denial of minor permit revision requests, and commenters
would have the right to appeal and seek judicial review of permitting
authority final approval of minor permit revisions. In addition,
commenters would also have the ability to petition EPA to object to the
minor permit revision request, as provided in Sec. 70.8.
d. Rationale for Proposed Minor Permit Revision Procedures. The
Agency believes that part 70 as originally promulgated fails to provide
adequate opportunities for public review of the changes now eligible
for minor permit modification procedures. At the same time, EPA is
concerned that the current part 70 may be unnecessarily restrictive in
allowing few changes to be processed through expedited permit revision
tracks and requiring most changes to be processed through significant
permit revision procedures. Under the interpretation of ``title I
modifications'' that includes minor NSR changes, minor NSR changes
would be ineligible for processing as minor permit modifications.
Consequently, EPA proposes to make a broad universe of changes eligible
for minor permit revision treatment, and simultaneously to enhance the
public notice and procedural elements of this revision track to make
the permit revision process, and the permit program in general, more
usable for sources, permitting authorities, affected States, the
public, and EPA.
(1) Scope.--(i) Minor NSR changes. Many States and local agencies
have extensive minor NSR programs that EPA approved into SIP's under
section 110(a)(2) of the Act. Most of these programs provide for public
participation for preconstruction actions at certain levels (e.g., 25
tpy). Below these levels, however, many programs provide no public
participation. Under EPA regulations governing minor NSR programs (40
CFR 51.160), permitting authorities approving preconstruction actions
are required to provide public notice and an opportunity to comment for
such actions except to the extent EPA approved any exemptions from
public process established in the minor NSR program.
The EPA believes that some prior public process is generally
necessary in the part 70 context for minor NSR changes that exceed de
minimis levels and that did not undergo the merged program process.
Many minor NSR actions establish facility-specific limits that keep
sources from exceeding major source thresholds. For those limits to
properly serve that purpose, they must reduce emissions to the extent
claimed and they must be practicably enforceable. The importance of
properly developed limits accordingly makes public review of those
changes important.
At the same time, to the extent that part 70 is largely a
procedural regulation that does not establish new applicable
requirements, EPA does not believe it is necessary to require that
permitting authorities subject minor NSR actions to the significant
permit revision process. To require the permitting authority, after
providing a substantial preconstruction review of the change, to
provide the additional level of review required under full significant
permit revision procedures for all minor NSR changes exceeding de
minimis thresholds would place an unnecessary and potentially crippling
burden on permitting authorities and cause needless delay to many
sources. This would be an unfortunate and unintended legacy for the
permit program, and would conflict with the Congressional intent that
permit revision procedures be adequate, streamlined, reasonable, and
expeditious.
Consequently, EPA believes that minor NSR changes should be
eligible for the proposed minor permit revision track (with one
exception described below). The EPA believes that the proposed minor
permit revision process with its 21-day public comment period would
provide adequate public review opportunities to ensure that the minor
NSR decisions meet part 70 requirements. This reliance in part on the
review by the permitting authority during the minor NSR process is
consistent with EPA's policies to build upon and not unduly disrupt
existing State and local programs and to promote the integration of
part 70 with existing programs where possible. The EPA solicits comment
as to whether including this category of changes within the scope of
those eligible for minor permit revision procedures is appropriate, and
whether such changes would more appropriately be processed through
either a less or more expeditious process. The Agency also notes again
that it is considering the advisability of adopting for part 70
purposes valid State or local minor NSR exemptions from public process
(see discussion in section III.E.3., Administrative Amendments).
The one exception to allowing the proposed minor permit revision
procedures to be used to process any minor NSR change involves certain
``netting'' transactions (i.e. a single minor NSR action employing
trades between more than one emissions increase and decrease to remain
below major NSR significance levels and avoid processing as a major NSR
modification). Netting transactions which would be ineligible for the
minor permit revision process are those (1) for which at least a 30-day
public comment period was not in fact provided and (2) that include
either a single emissions increase greater than the applicable
significance level or a sum of increases greater than the applicable
major source threshold. The EPA stresses that both conditions (1) and
(2) must be met to render the netting transaction ineligible for the
proposed minor permit revision track. For example, a transaction of
several increases and decreases since the last time the permit received
public review of at least 30 days, including any single increase above
significance levels or a series of increases the sum of which is above
major source thresholds, would still be eligible for minor permit
revision procedures if the NSR process for these transactions provided
a public comment period of at least 30 days. The EPA is proposing to
exclude this category of minor NSR changes due to concerns about the
complexity of such transactions and their greater potential for
significant environmental impact. The Agency foresees a greater need
for public, affected State, and EPA oversight before these changes
should be implemented at a source. The EPA solicits comment regarding
the need to exclude this class of minor NSR changes from eligibility as
a minor permit revision, whether the exclusion criteria are
sufficiently protective, and whether there are any other classes of
minor NSR changes that should be excluded for similar reasons.
(ii) Major NSR changes. In response to concerns arising from State
and local permitting authorities and from discussions with petitioners
in the part 70 litigation, and for reasons similar to those previously
given for minor NSR changes, EPA is proposing to allow permitting
authorities to use the proposed minor permit revision process to
incorporate major NSR changes that did not undergo merged program
revision. (As noted earlier, EPA expects that all major NSR programs
would be merged with the part 70 program, making the need for minor
permit revision procedures for major NSR changes largely academic.)
Since major NSR changes receive extensive review by the permitting
authority and a minimum of a 30-day public comment period prior to
final action by the permitting authority, EPA believes that these
programs should not need the significant permit revision process before
they could be incorporated into the part 70 permit. Although major NSR
changes have more significant environmental impact than do minor NSR
changes, EPA recognizes that the process for developing applicable
requirements for major NSR changes is also more elaborate. The EPA
expects that incorporation of major NSR permit terms and conditions
into the part 70 permit would be noncontroversial.
As with minor NSR changes, EPA believes that some additional part
70 process is necessary to assure that applicable requirements of major
NSR are incorporated into the part 70 permit, that any additional
compliance monitoring terms and conditions required by part 70 are
properly developed, and that all other part 70 requirements are
satisfied. The EPA does not believe, however, that permitting
authorities should need the significant permit revision process to meet
these requirements for major NSR changes. Rather, EPA believes that the
expedited procedures of the proposed minor permit revision process
strike a reasonable balance between the need for permit revision
procedures to be adequate and streamlined and the need to provide an
appropriate opportunity for public participation. The EPA solicits
comment on allowing major NSR changes to be eligible for minor permit
revision procedures, and whether any additional conditions should be
placed on such eligibility.
(iii) Section 112(g) actions. To address concerns raised during
development of State and local programs and discussions with the part
70 litigants, EPA proposes to allow offsets and modifications approved
pursuant to ``non-merged'' section 112(g) pre-operation and
preconstruction programs to be incorporated into the part 70 permit
through minor permit revision procedures, provided such actions were
subject to at least a 30-day public comment period. While permitting
authorities do not currently have EPA-approved section 112(g) programs,
EPA notes that proposed regulations for implementing the offset and
modification requirements of section 112(g) would require that
permitting authorities provide a 45-day comment period for making such
determinations. Where permitting authorities in fact provide an
opportunity for at least a 30-day public comment period, EPA believes
that the additional part 70 requirements described above for minor and
major NSR changes would be adequately satisfied by the proposed minor
permit revision process. Due to the greater risk potentially posed by
emissions of HAP's, however, EPA solicits comment on the
appropriateness of extending eligibility to this class of changes, and
whether the requirement that permitting authorities provide at least a
30-day public comment period for the section 112(g) change prior to
starting the minor permit revision process is sufficient to ensure that
the section 112(g) requirements are appropriately determined and
incorporated into the part 70 permit.
In addition to the approach EPA is proposing today, EPA is
considering an alternative mechanism for approving section 112(g)
offsets due to concerns which have been expressed about the delay costs
which industries may experience as a result of the offset pre-approval
process. Under the alternative approach which was also outlined in
EPA's proposal notice to implement section 112(g) (see 59 FR 15504
(April 1, 1994)), the source would submit its offset demonstration to
the permitting authority at the time it begins operation of the
equipment causing the increase. If the permitting authority during its
review were to determine that the offset failed to meet the offset
requirements of the section 112(g) rule, the source would be liable for
violating the requirement to apply case-by-case MACT to the equipment
causing the increase and would be subject to the full range of
enforcement activities and penalties available under the Act. The EPA
believes that the penalties faced by sources under the Act create an
incentive for the source to ensure that the offset in fact complies
with the requirements of section 112(g). Consequently, EPA believes
that this approach also deserves consideration for a merged part 70/
section 112(g) program, particularly if it is included in the final
section 112(g) rule. The EPA solicits comment on whether such an
approach would provide a significant benefit to industry by reducing
delays and whether it would create obstacles to enforcement, and the
nature of those obstacles, by the Federal, State, or local governments
or citizens should it be determined that the source's offset was
inadequate. The EPA intends to incorporate into part 70 the results of
the final rulemaking to implement section 112(g) with respect to public
review and offsets.
Changes triggering the applicability of other requirements under
the Act, including MACT and SIP requirements, would generally also be
eligible for the minor permit revision process. (For MACT standard
incorporation, however, see discussion later in this preamble
explaining alternative approaches to addressing changes that render a
source subject to MACT.) While these changes would not have undergone a
NSR process prior to the source requesting a part 70 permit revision,
EPA believes that implementation of these requirements (with the
probable exception of some MACT standards) will be relatively
straightforward and that the proposed minor permit revision process
period would thus be sufficient to afford adequate permitting
authority, public, affected State, and EPA review. The Agency solicits
comment on this aspect of its proposal and in particular seeks
information on current permitting authority implementation of these
other standards.
To address concerns raised in discussions with petitioners, EPA
proposes to remove the current minor permit modification gatekeeper
prohibiting changes that violate applicable requirements, because this
prohibition applies not only to minor permit revisions but across the
board to all permit revisions. By applying the gatekeeper only to minor
permit modifications, the current rule implies that significant permit
modifications may be used to incorporate changes that violate
applicable requirements, but no change that violates applicable
requirements could be incorporated into a part 70 permit. Title V and
part 70 require permits to assure compliance with applicable
requirements. Permits may not then include terms, regardless of the
amount of public process provided, that violate applicable
requirements. Indeed, an important function of public process is to
ensure that permit terms accurately reflect, and are not inconsistent
with, applicable requirements. The principle that permit terms, new or
revised, must assure compliance with applicable requirements is so
fundamental to title V and part 70 that EPA believes it is unnecessary
to apply the current rule's ``may not violate'' gatekeeper to all the
proposed revision tracks. If a proposed permit term, whether developed
at permit issuance or revision, violates an applicable requirement, it
is not approvable. No additional gatekeeper is needed to reinforce that
point.
Another reason to delete that gatekeeper is to avoid the
implication that any of the permit revision tracks prohibit changing
conditions in a part 70 permit that derive from major or minor NSR
permits. Since the NSR permits generate applicable requirements that
become terms and conditions of the part 70 permit, issuance of a
revised NSR permit would redefine the applicable requirement and the
part 70 permit could then be correspondingly revised under the proposed
minor permit revision process without violating an applicable
requirement.
The EPA is also deleting the gatekeeper in current part 70 that
would make changes ineligible for minor permit revision procedures if
they are required by the operating permits program to be processed as
significant permit revisions. The Agency is deleting this gatekeeper
because it too should be applied to all of the streamlined permit
revision tracks if it is applied to any. Indeed, EPA believes this
gatekeeper goes without saying since the permitting authority clearly
retains authority to require changes to be processed using more
stringent procedures than part 70 requires.
The EPA proposes the gatekeeper prohibiting the use of minor permit
revision procedures for changes to permit terms with which the source
is not in compliance for the same reason it is proposing that
gatekeeper for de minimis permit revision procedures. Consequently, EPA
proposes that the significant permit revision process be used where
changes need to be made to terms with which the source is not in
compliance. The Agency is concerned, however, that the proposed
gatekeeper, by requiring the significant permit revision process, might
delay a source from making revisions to its permit that it can
demonstrate to be necessary to achieve compliance with applicable
requirements. For this reason, EPA solicits comment on the
appropriateness of the proposed restriction, and whether additional or
different safeguards might serve the same purpose of assuring that
noncomplying sources do not use streamlined procedures to avoid
enforcement actions for noncompliance. Specifically, EPA proposes to
narrow the proposed gatekeeper to exclude situations where the source's
proposed change has already been addressed by the permitting authority
and the public in prior procedures, such as minor and major NSR
actions. To the extent that these prior procedures addressed and
remedied a source's noncompliance, EPA recognizes that it might be
unnecessary to require that the results of these actions be
incorporated through the more burdensome significant permit revision
process.
The EPA also takes comment on whether it should allow exemptions
from the ``in-compliance'' gatekeeper when the permitting authority has
determined that, solely as a result of new emissions-calculating
methods or information, the source is not in compliance with a permit
term. In such a case, EPA solicits comment on allowing the permitting
authority to revise the permit using either the minor permit revision
or de minimis permit revision process if the change would otherwise be
eligible for those tracks. The EPA solicits comment on how to limit the
exemption described to external factors, such as changes in emission
factors or source models, rather than factors over which the source has
control.
The EPA proposes to retain the current gatekeeper that would
exclude from the minor permit revision process changes to a part 70
permit term established to limit emissions and developed through a part
70-only process for which there is no underlying applicable requirement
enforceable by EPA outside the part 70 permit. Such terms include
federally enforceable emissions caps in the permit assumed to avoid
classification as a major modification or major stationary source for a
particular pollutant, alternative emissions limits established in the
part 70 permit pursuant to Sec. 70.6(a)(1)(iii), alternative emissions
limits approved pursuant to a HAP early reductions program under
section 112(i)(5) of the Act, and case-by-case MACT limitations
determined pursuant to section 112(j) of the Act. These classes of
terms are established for the first time in a part 70 permit issuance
or revision process, usually on a case-by-case basis, and are not
otherwise federally enforceable outside the part 70 permit. They also
lack review or approval by the permitting authority prior to the start
of the part 70 process and, to the extent the part 70 terms or
conditions were taken to avoid an applicable requirement, revising
those terms and conditions could render the source subject to
applicable requirements to which it was not previously subject. The
Agency believes that revisions to such requirements should be made only
after full review by the permitting authority, public, EPA, and
affected States. Consequently, EPA continues to believe these types of
changes should not be eligible for the minor permit revision process.
The EPA proposes to retain the requirement that significant permit
revision procedures apply to these types of changes, but solicits
comment on the appropriateness of this approach.
(2) Process. In keeping with the expansive scope of changes
eligible for the new minor permit revision procedures, EPA believes
more procedural safeguards are necessary to ensure that incorporation
of a wider scope of changes through the minor permit revision track
results in accurate, enforceable permits. First, the source would have
to meet the application requirements like those for merged program
changes and de minimis permit revision for the same reasons (see
earlier discussions for descriptions and explanations). In addition, a
minor permit revision application would have to include a certification
that the source had provided the required public, affected State, and
EPA notice of the requested change, as discussed below. This
certification would assure permitting authorities that all
prerequisites to review of the minor permit revision application had
been met. It would also alert EPA of the presence of any grounds for
objection to the proposed permit revision. In recognition of the
notification requirements that would apply to the source under the
proposed revisions to part 70, EPA would rescind the requirement that
applications include completed forms for the permitting authority to
use to notify EPA and affected States of the minor permit revision.
To promote expeditious processing of minor permit revision
requests, today's proposal requires the source, rather than the
permitting authority, to provide direct notice to affected States and
EPA of proposed minor permit revision actions. Notices to EPA would
have to include the draft addendum containing the proposed revisions to
the existing permit. This would relieve permitting authorities the
added burden of copying and sending notice to EPA and affected States
immediately upon receipt of applications. While this places a slightly
greater burden on sources than does the current rule, EPA notes that
sources are generally in the best position to provide quick notice to
EPA and affected States, and that minor permit revision processing will
be more expeditious as a result. The permitting authority, however, may
retain the option of providing this notice instead of the source.
Nevertheless, EPA solicits comment on whether there may be other
methods for notifying EPA and affected States that better accomplish
this goal, and on the appropriateness of sources, instead of permitting
authorities, providing notice.
For similar reasons, the proposed revisions to part 70 would
require sources to provide public notice of minor permit revision
requests. Again, EPA believes that having the source provide direct
notice by publication and mailings to interested persons would better
enable expeditious processing of minor permit revisions. It would avoid
the delay that would likely occur if permitting authorities had to
prepare and provide notice and would assure that the permitting
authority, affected State, EPA, and public review periods would run
from the same point in time. Public notices would have to provide
enough information to enable the public to comment on a timely basis,
and indicate that if the permitting authority did not receive germane
and non-frivolous objections to the requested change within the public
comment period, the source could implement the change, provided the
permitting authority had not denied the request or transferred it for
processing as a significant permit revision and EPA had not objected to
it. The EPA believes that publication of notices in a newspaper of
general circulation within the area where the source is located,
supplemented by direct mailing to interested persons, would be
sufficient to provide the required notice. The EPA solicits comment as
to alternative means of adequately providing notice.
As for de minimis permit revisions, to assure public access to
minor permit revision applications, the proposed revisions would
require that permitting authorities maintain a public docket in which
requests are placed on the day that the permitting authority receives
them. The EPA believes that a docket would assure that concerned
citizens may review applications and submit pertinent comments before
the close of the public comment period and before sources can implement
proposed changes. However, EPA thinks there may be alternatives to a
public docket that could adequately assure public access and proposes
to allow permitting authorities to propose substantially equivalent
methods in their permit programs which EPA would evaluate on a case-by-
case basis.
The EPA proposes that public comment periods for minor permit
revisions last at least 21 days from the date the source provides the
public notice. The EPA believes that this is the shortest amount of
time in which a potential public commenter could reasonably be expected
to learn of the requested change, gain access to necessary information
to evaluate the request, review and evaluate the application, draft
written comments meeting the germane and non-frivolous standard, and
submit them before the source implements the requested change. However,
EPA solicits comment as to whether other time periods may be
appropriate, either shorter or longer, based on State or local
permitting experience.
The proposed minor permit revision procedures would establish an
admittedly elaborate set of checks and balances to ensure that the
source and the permitting authority are motivated to anticipate and
respond to public concerns with requested changes. The fact of public
review and the potential for liability if its request is denied should
instill in the source a strong incentive to exercise care in the
preparation of its requests and its use of the procedures. The
potential for citizen suits for failure to respond to timely public
objection should encourage permitting authorities to respond to any
objections. The source's self-interest should also be served by
encouraging the permitting authority to respond to timely objections,
to avoid suits or injunctions brought by citizens and the possibility
of the permitting authority being ordered by a court to act on the
objection after the source had begun to operate the change. Where the
source or the permitting authority fails to live up to its
responsibilities, the public can comment to that effect or resort to
EPA or the courts, depending on the circumstances. The EPA believes the
incentive structure established by these checks and balances is
important to ensuring the integrity of streamlined public review of
changes having larger potential environmental significance. However,
the Agency is interested in comments and suggestions as to how to
simplify the process without substantially undermining the discipline
it would impose.
As now provided by the minor permit modification process in the
current part 70, a source could implement its requested change prior to
the permitting authority taking final action on it. Sources could
implement the change on the day after the close of the public comment
period where no comments had been submitted, and provided that the
permitting authority had not denied the requested change or transferred
it to another process and that EPA had not objected to the request. The
Agency believes that the procedural safeguards provided by the minor
permit revision process so minimize the risk of the source operating a
change that violates applicable requirements that it may temporarily
exempt sources from the statute's prohibition on operations ``except in
compliance'' with existing permit terms. Beyond the safeguards provided
by the de minimis procedures, the minor permit revision process
requires that sources wait to operate changes until the end of the
comment period, so that the public has a chance to flag problems before
operation.
While part 70 currently allows a source to implement a minor permit
modification upon submitting its application, EPA now believes that in
view of the potential environmental significance of changes qualifying
for this revision track, the permitting authority, affected States,
EPA, and public should have some period of time in which to review such
requests before the source implements the change. The EPA also believes
that the proposed 21-day waiting period is not an unreasonable burden
on sources considering the kinds of changes allowed under the proposed
minor permit revision process.
The deadline for permitting authority final action on minor permit
revision requests under the proposal would be significantly shorter
than that established by the current part 70 for minor permit
modifications. Final action would occur when the permitting authority
either approves or denies the request, determines that it does not
qualify for minor permit revision processing, or revises the request
and re-notices it and resubmits it to EPA. Final action under the
proposal would be required to occur within 60 days after receipt of the
application or 15 days after the expiration of EPA's review period,
whichever is later. Currently, part 70 requires permitting authorities
to take final action on a minor permit modification within 90 days.
While EPA recognizes that expanding the eligibility for minor permit
revisions over the current provisions could significantly increase the
number of requests subject to the shorter deadline, EPA believes that
incorporation into part 70 permits of such changes will be generally
straightforward, as most changes will have already received permitting
authority scrutiny and approval in other procedures, such as
preconstruction review. Consequently, EPA believes that 60 days
provides permitting authorities adequate time to process minor permit
revision requests. Of course, permitting programs may be more stringent
by providing for longer periods before permitting authorities must take
final action. The EPA requests comment on whether a period different
than 60 days is necessary for permitting authorities to process minor
permit revisions.
The proposed revisions would also require permitting authorities,
when final action is taken on minor permit revision requests, to notify
public commenters and affected States who commented on the request.
While permitting authorities would have substantial discretion in
determining the best method for providing this notice of final action,
EPA believes that some notice is necessary to insure that commenters
are informed as to the outcome of the process so that they may utilize
their various opportunities to appeal to the permitting authority,
State court, or to EPA when they disagree with the final action.
Permitting authorities would also be required to place a copy of the
final determination in the public docket (or substantially equivalent
mechanism) that they maintain for minor permit revision requests.
Again, permitting authorities would have substantial discretion in
developing a docket system that best assures that the public has access
to final determinations.
Part 70 does not currently allow the permit shield to extend to
minor permit modifications, principally due to the absence of public
participation in the process. Since the proposed revisions to part 70
would require that the process include a public comment period before
sources could implement requested changes, EPA proposes to allow
permitting authorities to extend the permit shield to minor permit
revisions upon their final approval. The EPA is concerned that not
allowing the permit shield could force sources to request otherwise
qualifying changes to be processed as significant permit revisions to
obtain the shield. This could undermine the effort to create
streamlined and expeditious procedures for permit revisions. The EPA
seeks comment on the appropriateness of providing the permit shield in
these situations.
Part 70 currently provides that if a source fails to comply with
the terms and conditions proposed in its minor permit modification
application during the interim period before the permitting authority
acts to revise the source's permit, the existing permit terms and
conditions it seeks to modify may be enforced against it. While this
would provide some deterrent against a source making improper use of
the minor permit revision track, it does not address the degree to
which EPA believes a source should be liable if the permitting
authority does not approve the minor permit revision request. The
proposed revisions to part 70 would fill this gap by providing that the
source would be liable for violating its existing permit from the time
it implemented the change, if a source implements a requested change
before the permitting authority takes final action on the application,
and (1) the permitting authority then denies the request or transfers
it for processing as a significant permit revision on germane and non-
frivolous grounds, or (2) EPA subsequently objects to the request. The
EPA believes this addition is necessary to assure that sources do not
frivolously submit and implement minor permit revision requests that
permitting authorities are not likely to approve.
As in the case of merged program and de minimis process changes,
however, a permitting authority would be able to revise (rather than
disapprove) minor permit revision requests to a limited extent without
necessarily rendering the source liable for violating its existing
permit. The EPA is proposing this relief for the reasons set forth in
the administrative amendment section of this preamble where the
provision is further discussed.
7. Significant Permit Revisions
Under the proposed revised rule, the significant permit revision
process would remain essentially the same as the current significant
permit modification process, but the types of changes required to be
processed under it would shrink dramatically. Significant permit
revision procedures would be required for those changes that cannot be
made as administrative amendments, de minimis permit revisions, or
minor permit revisions. The EPA has designed the proposed revision
procedures such that most changes that would require processing as a
significant permit modification under the current rule should qualify
under the proposed rule as minor permit revisions, de minimis permit
revisions (if they are below de minimis thresholds and meet the de
minimis gatekeepers), or administrative amendments (if they are
subjected to a merged process). Examples of changes that would require
processing as significant permit revisions under the proposed revisions
to part 70 include:
(i) Establishing or revising an emissions limit which uniquely
resides in a part 70 permit (other than in a merged part 70 permit),
such as (A) alternative emissions limits approved pursuant to
regulations promulgated under section 112(i)(5) of the Act; (B)
restrictions on potential to emit that reside only in a part 70 permit;
or (C) equivalent RACT requirements established in a permit under the
provisions of Sec. 70.6(a)(1)(iii);
(ii) Netting transactions for which a 30-day public comment was not
provided and that include any single increase that exceeds minor
modification significance levels or a sum of increases that exceed
major source thresholds; and
(iii) Significant changes in existing monitoring requirements and
relaxations of recordkeeping or reporting requirements in the permit
(as in the current rule).
8. Solicitation of Input
While today's proposal attempts to strike a reasonable balance
between industry's desire to minimize permitting delays and the need
for public review and permitting agency oversight, the Agency is
concerned with the complexity of the proposal. The Agency is not
proposing any specific alternatives to the proposed four-track permit
revision system, but is seeking information that would provide a basis
for simplifying the proposed system to improve its implementation. The
EPA, therefore, solicits specific suggestions regarding ways to
simplify and streamline the existing proposal. The Agency particularly
solicits comment in the following three areas:
1. Empirical information regarding the appropriate scope for each
permit revision track including such information as the volume of
changes that permitting authorities would expect under each track and
the degree of difficulty permitting authorities would expect to
encounter when implementing the proposed four-track system;
2. Examples of typical source changes that would (or would not)
receive reasonable treatment under the proposed permit revision system;
and
3. Alternative approaches and structures for processing permit
revisions that meet the statutory and policy objectives of title V as
set forth in this notice.
Much of the complexity evident in the proposed permit revision
process results from the need to integrate the part 70 process with the
requirements under title I of the Act, especially the minor NSR program
that all States implement pursuant to section 110(a)(2)(C) of the Act.
Today's proposal provides for a number of specific avenues for
incorporating the results of minor NSR permit actions into the part 70
permit, including (1) an administrative amendment track for changes
that are the product of a merged part 70/NSR process, and (2) a de
minimis track to process revisions expeditiously for many small non-
merged minor NSR actions.
The EPA also solicits comment on allowing a permitting authority to
create in a source's part 70 permit a condition authorizing certain
minor NSR changes that occur during the term of the permit to be
incorporated into the part 70 permit by administrative amendment even
though the changes are not the product of a merged program. This
program would thus be similar to that proposed for the de minimis
permit revision track in that the permitting authority would have to
pre-authorize its use for the specific source at original permit
issuance and subsequently examine its appropriateness for the next
permit term at each renewal. Under the approach, the part 70 program
would have to provide that qualifying minor NSR changes at the source
conform to part 70 requirements for compliance monitoring and comply
with existing part 70 permit conditions for reporting, permit fee
payment, and annual compliance certification. In short, the permit
program would essentially provide that the substantive requirements of
a merged part 70/NSR program would be met for the minor NSR change. No
permit shield would be available until the permit was subsequently
renewed.
The types of minor NSR actions that could qualify for this approach
would be limited to those that (1) do not violate the existing part 70
permit (except that changes to part 70 permit terms originally created
in a previous NSR permit could be authorized to be made under this
approach) and (2) do not establish permit conditions for the purpose of
circumventing the applicability of an otherwise applicable requirement
and/or the status of being major for a particular pollutant. As an
example of the latter qualification, the permitting authority could
determine that actions to restrict the hours of operation, percent
capacity utilization, or production were beyond what is customary and
usual for similar sources. In addition, this restriction is intended to
preclude preauthorization for any other operational conditions taken by
a source in minor NSR which are not directly and easily related to
emissions but have the effect of exempting the source on the basis of
its reduced emissions from a specific otherwise applicable requirement.
The Agency believes the approach outlined above may be appropriate
in that it would provide expedited processing for the many small minor
NSR changes that occur, so long as part 70 permit content requirements
are met. It would also ensure that the public, affected States, and EPA
have an opportunity to review those minor NSR actions that have the
largest potential impact on the environment. A more restrictive
variation on the preceding approach would be to restrict the approach
to only those NSR actions that would qualify for the de minimis permit
revision process.
The EPA solicits comment on the value and legality of these
alternative approaches. The EPA specifically requests identification of
problems associated with these modifications and possible solutions,
such as any appropriate enhancement to the underlying NSR process.
The EPA is also aware that some State and local agencies are
integrating their existing NSR programs with their part 70 programs to
create a ``unitary'' permit program (i.e., a combined permit to
construct and operate issued under an integrated NSR and part 70 permit
program). While EPA fully supports such integrated programs, it is
concerned that several of the gatekeepers defining eligibility of the
various proposed permit revision tracks may not be appropriate for
unitary permit programs. For example, many of the terms and conditions
of a unitary permit would be unique since a separate NSR permit would
not exist. The EPA solicits comment on whether to grant an exemption
from the ``unique'' gatekeeper to terms and conditions of a NSR permit
for unitary permits, provided that the excluded terms are federally
enforceable outside of the unitary permit (e.g., under the SIP). The
EPA also solicits comment on whether any forms of further relief might
be necessary for unitary permit programs.
9. Incorporation of New Standards
This section describes the processes the EPA proposes to use to
incorporate into the part 70 permit new standards promulgated under
section 112. Section F. 3. of this preamble solicits comment on whether
it would be appropriate to use these processes for other standards,
such as SIP requirements.
The proposal outlined below is a result of EPA providing a
mechanism needed for the implementation of MACT standards, and it has
not been discussed with petitioners. To the extent that conflicts
occur, the reader should consider the processes proposed in this
section as an alternative proposal and should expect any conflicts to
be reconciled in the final rulemaking.
a. Background. Section 112(d) of the Act requires the Administrator
to promulgate emission standards for each category or subcategory of
major and area sources of HAP's listed by EPA under section 112(e).
Section 112(e) requires that EPA set emission standards under a
regulatory agenda for: 40 categories by November 15, 1992; 25 percent
of listed categories by November 15, 1994; 25 percent by November 15,
1997; and the remaining 50% by November 15, 2000. On December 3, 1993,
EPA published the regulatory agenda establishing the schedule for
setting MACT standards. Since then, EPA has established MACT standards
for the first 40 categories or subcategories26 and standards for
more than 150 other categories have been identified for development.
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\2\6 As of today, EPA has promulgated section 112 standards for
the following source categories: Hazardous Organic NESHAP (HON) for
the Synthetic Organic Chemical Manufacturing Industry (SOCMI) (59 FR
19402, April 22, 1994), Perchloroethylene Dry Cleaners (58 FR 49354,
September 22, 1993), and Coke Ovens (58 FR 57898, October 27, 1993).
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These MACT standards27 apply in various ways to both new and
existing sources. Generally, existing sources become subject to newly
promulgated MACT standards as a result of being in a source category
for which EPA promulgates a MACT standard. Existing sources may also
add new units or reconstruct existing units and must comply with MACT
standards that apply to new units at startup. Finally, sources may
modify existing units in such a way that the modified unit becomes
subject to the MACT requirements for existing units for the first time.
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\2\7 The term ``MACT standard'' in this section refers to any
standard promulgated by EPA under section 112 and includes Maximum
Achievable Control Technology (MACT) and Generally Achievable
Control Technology (GACT) standards under section 112(d) and
standards promulgated under section 112(f) to address residual risk.
It does not include any case-by-case standard developed by States
under sections 112(g) or 112(j).
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Section 504(a) of the Act requires that each part 70 permit contain
enforceable conditions as necessary to assure compliance with all
applicable requirements. Part 70 defines ``applicable requirement'' to
include any standard or other requirement under section 112 of the Act.
Consequently, after promulgation, section 112 requirements must be
included in the part 70 permit of any source subject to MACT standards.
If a MACT standard is promulgated before the permit is issued, the
permit must include the standard upon issuance, except that some MACT
standards in which compliance requirements are not known until the
compliance date (which may be months after promulgation of the MACT
standard) may require a subsequent permit revision to incorporate
compliance details that are determined at that time. If the standard is
promulgated after the permit is issued, section 502(b)(9) of the Act
and current Sec. 70.7(f) require that the permit be reopened if the
source is major and more than three years remain on the term of the
permit. The reopening and subsequent permit revision to include the
MACT standard must occur within 18 months after the standard is
promulgated.
Section 502(b)(9) requires that reopenings use procedures
consistent with those established under section 502(b)(6). If a source
is major and less than 3 years remain on the permit term, or if it is
nonmajor, section 112 standards would normally be incorporated into the
permit at renewal, unless the permitting authority required reopening
earlier. If a source would need to operate in manner that conflicts
with its existing part 70 permit in order to comply with the MACT
standard, however, section 502(a) would require it to apply for a
permit revision before operating in that way. This of course does not
mean that a source would be relieved from complying with the MACT
standard until it obtained the necessary permit revision. The source
must still comply with the MACT standard independently of its part 70
permit obligations.
Although section 112 standards vary widely in complexity and
sometimes allow sources to select alternative control strategies, EPA
believes MACT standards may be sorted into three broad categories,
referred to in this discussion as ``type one,'' ``type two,'' and
``type three.'' The type one category includes standards that are self-
implementing. That is, the detailed compliance requirements that apply
to sources covered by the standard are specified in the standard itself
at the time of promulgation. Although some standards in this category
may allow sources to choose among several clearly-defined options,
source-specific judgments are not required and the compliance
requirements are known at the time of promulgation. The EPA expects few
MACT standards will provide full compliance requirements at the time of
promulgation, and consequently there will be few type one standards. A
specific example of the first type of standard would be the NESHAP for
industrial process cooling towers. These requirements apply existing
well-documented control technology. Specific compliance requirements,
such as monitoring, recordkeeping and reporting, are promulgated as
part of the standard. While the source may be allowed to select from
several control options, each option was subject to extensive public
comment during the rulemaking establishing the MACT standard. Thus, at
the time of promulgation, all compliance requirements (including
options) for this type of standard are well known. As explained below,
incorporation of these as permit terms and conditions should be
accomplished in a one-step process using streamlined procedures.
The type two category of MACT standards involves standards in which
only a compliance date and general performance specification are known
at the time of promulgation. Standards in the second category contain
options from which the source will choose and then generate source-
specific compliance requirements. Most MACT standards will fall into
this category. There are many examples of this category, including
standards for process vents or storage tanks under the Hazardous
Organic NESHAP (HON) for the synthetic organic chemical manufacturing
industry (SOCMI).
The type three category is similar to the type two category in that
the source develops compliance requirements after promulgation, but the
source also develops source-specific alternatives requiring case-by-
case approval by EPA or the permitting authority. This category
includes standards providing for emissions averaging and alternative
monitoring or recordkeeping, such as data compression techniques. An
example of this type would include the provisions in the HON for
emissions averaging.
As discussed below, for each type of standard, EPA proposes
different processes by which the MACT standard would be incorporated
into the permit. Because EPA expects most MACT standards will be type
two standards, it is proposing a process that would apply to that type,
except that where the source utilizes alternative requiring case-by-
case approval, such as emissions averaging, a variation to the process
is proposed. If the standard is a type one, EPA would exempt the source
from the need to apply for the second-round permit revision. For
standards promulgated by date of promulgation of the final part 70
revisions, EPA would contain any exemptions in the final part 70 rule.
For future MACT standards, EPA intends to establish any exemptions in
the rulemaking for the individual MACT standard.
The following discussion illustrates mainly the second type of
standard, using the HON as an example. The HON applies to SOCMI sources
and to equipment leak sources at certain non-SOCMI facilities. It
requires compliance with equipment leak standards within 6 months after
promulgation for some process units, followed by subsequent control of
process units, storage tanks, and wastewater treatment units. The
following outline shows the scheduled events under the HON (assuming no
compliance extension has been granted under section 112(i)(3)(B) of the
Act).
4/21/94.--Date of promulgation or effective date, making the HON an
applicable requirement for all SOCMI sources and non-SOCMI equipment
leak sources.
10/94.--Equipment leak requirements begin to apply.
11/94.--Anticipated effective date of first State part 70 permit
program. Permit applications are due no later than 1 year after the
effective date of each program.
11/95.--Implementation plan due for points not included in an
emissions averaging compliance alternative, if the permit application
has not been submitted. If the application has been submitted, it would
contain the implementation plan and no separate submittal would be
required.
4/96.--Implementation plan due for non-emissions averaging.
4/97.--Compliance date--all controls and monitoring equipment must
be in place.
9/97.--Notification of Compliance Status (NCS) due for process
vents. This report establishes the parameters to be monitored and the
parameter ranges that will be used to indicate proper operation and
maintenance of the control device.
The second type of MACT standard is illustrated by the requirements
in the HON for the control of group 1 process vents (group 1 vents are
required to install control technology; group 2 vents may remain
uncontrolled). In contrast to the standard for chromium electroplating,
specific monitoring and other compliance requirements of the control
technology are not fully known at the time of promulgation, but will be
determined individually for each source after promulgation and before
the compliance date (3 years after promulgation, unless a compliance
date extension is granted) on the basis of performance testing. As part
of the performance test, a value for the previously selected parameter
will be determined and reported in a compliance statement due 6 months
after the compliance date. For example, the proper operation and
maintenance of an incinerator on a group 1 process vent will be
demonstrated by monitoring temperature and by operating the incinerator
within a range that indicates proper operation and maintenance of the
control device. For process vents, the specific compliance requirements
are required to be reported in the NCS, which is due 5 months after the
compliance date. Under today's proposal, permits issued just after
promulgation of the standard would include a statement that the process
vent requirements of the HON are applicable and a compliance schedule
for meeting those requirements, but need not contain specific
compliance requirements until those are reported in the NCS.
The HON also illustrates the third type of MACT standard, since it
contains options for sources to develop alternatives requiring case-by-
case approval, such as emissions averaging or data compression
techniques. Although prior approval of these alternatives is required,
the specific values needed to assure compliance with the standard,
including the alternative, would not be known until reported in the
NCS.
b. Proposed Approach. The Administrator believes that the part 70
permitting process should enhance compliance with all applicable
requirements, including section 112 standards. Requirements governing
the content of the part 70 permit and the duty to reopen it should
therefore recognize and enhance compliance with applicable MACT
standards. The EPA must balance the goal of enhancing compliance
against the likely reality that large numbers of section 112 standards
(including in some cases multiple standards for different units in the
same facility) will need incorporation into part 70 permits, and that a
large number of permit reopenings could be involved. In striking this
balance, several questions are apparent; the key question being when
must the permit reflect the MACT standard and how should the terms and
conditions necessary to enforce it be incorporated into the permit?
Other questions involve whether and to what extent compliance with the
MACT standard will require a part 70 permit revision before the source
can make changes in control equipment or monitoring necessary to comply
with the standard. This proposal attempts to answer these and other
questions about how requirements should be established in its part 70
permit in order to comply with new section 112 requirements.
Where a new standard is promulgated after the permit has been
issued, section 502(b)(9) requires that permits for major sources with
more than 3 years remaining before expiration must be reopened to
incorporate the standard within 18 months after promulgation of the
standard. The Act also provides some specific guidance on the process
for reopening the permit within the 18-month period. Section 502(b)(9)
requires that reopenings be expeditious and consistent with procedures
established under section 502(b)(6). Thus, the mandate in section
502(b)(6) for adequate, streamlined, and reasonable procedures for
expeditious review of permit actions applies to reopenings as well as
permit revisions, and includes the incorporation of new standards.
As described in more detail below, the Administrator proposes to
adapt the proposed four-track permit revision system to facilitate the
expeditious incorporation of MACT standards, rather than create new
procedures explicitly for MACT standards. Additional permit revision
tracks specifically to address incorporation of MACT standards would
unnecessarily complicate an already complicated system. Moreover, the
Agency sees no reason to distinguish the need to revise a permit
expeditiously to comply with a MACT standard from the need to revise it
expeditiously for other reasons previously discussed, such as source-
originated changes to respond to market conditions.
Section 70.7(f)(2) of the current rule requires any reopening to
incorporate new applicable requirements to follow permit issuance
procedures. Section 502(b)(9) of the Act, however, does not
specifically require this level of process in all cases, but rather
refers to section 502(b)(6), which itself addresses both permit
issuance and permit revisions. The EPA therefore believes it has
discretion under the Act to provide for more expedited reopening
procedures where appropriate. The section 112 standard-setting process
has evolved considerably since promulgation of the current
Sec. 70.7(f)(2). Today's proposal to modify this part 70 requirement is
prompted by an enhanced understanding of the section 112 program, both
with respect to the characteristics of section 112 standards, and with
respect to the administrative burden posed by the need to incorporate
the many new Federal standards that will become applicable over the
next several years.
Selection of a particular permit revision track to incorporate a
MACT standard will depend on the extent to which the standard
establishes how compliance by an individual source will be determined
(i.e., whether it is type one) and on whether the MACT standard has
been promulgated at the time of permit issuance. Generally three
situations will arise where the permit must be issued, revised, or
reopened to incorporate a MACT standard. The first is where the
promulgation of the MACT standard precedes initial issuance of the
permit. In this situation, the permit generally must incorporate the
standard as an applicable requirement upon issuance. The second
situation arises where the permit is issued and is followed by the
promulgation of a standard. In this case, the permit must be revised or
reopened to incorporate the standard, if the source is major and more
than 3 years remains before permit expiration, or the new standard may
be incorporated into the permit at renewal. The third involves a source
that is not subject to the standard until it makes a change that causes
it to be covered by the standard. The process for incorporating
standards into permits for each of these situations is discussed for
each situation in detail below.
(i). MACT Incorporation Upon Initial Permit Issuance. Where the
effective date of the newly promulgated standard would coincide with or
precede the initial issuance of a part 70 permit, the permitting
authority would be required in most cases to place the standard in the
permit upon issuance. If the source has filed a complete part 70 permit
application before the standard is promulgated, the standard would be
added to the permit, based on additional information supplied by the
source. The proposal allows an exception where 90 days has passed since
the close of the public comment period, in which case, the permit,
after initially issuing, would be reopened to incorporate the standard
within 18 months of promulgation of the standard (see section IV.F.1.
of this preamble for further details).
If the standard is self-implementing (i.e., type one), the
permitting authority will incorporate permit terms implementing the
standard directly into the permit upon issuance. Standards of this type
would not require a subsequent permit revision to include more specific
compliance data, since all requirements needed to meet the standard
(including all emissions standards or percent reduction requirements,
compliance deadlines, testing and monitoring, recordkeeping and
reporting requirements) are set forth in the standard itself and can be
incorporated into the permit at issuance. Any of these requirements
having future effective dates would be included in the permit as part
of the compliance schedule required under Sec. 70.6(c)(3).
Standards that are not self-implementing (i.e., type two or type
three) would require a two-step process. In the first step, the permit
would be issued to include (1) a statement that the standard is an
applicable requirement, (2) a compliance schedule (including
milestones) for meeting the standard, (3) a requirement to submit any
implementation plan or reports required under the MACT standard, and
(4) a requirement to apply, by the deadline for the compliance
statement, for a minor permit revision or significant permit revision,
whichever is indicated in the MACT rulemaking (unless the compliance
statement is due within 6 months of the expiration date of the permit,
in which case, the application referred to above could be submitted
with the application for permit renewal). The MACT rulemaking would
indicate any compliance schedule milestones and any additional
conditions to be placed into the permit.
As a federally-enforceable condition of the permit, the compliance
schedule would require the source to take all interim and final actions
required to demonstrate compliance with the applicable standard. A
typical compliance schedule would include a schedule for submission of
the initial notice, the implementation plan, and the compliance
statement or NCS. Nothing in the compliance schedule, of course, may
relieve a source from compliance with the underlying MACT standard.
The EPA proposes that all information required to be submitted by
the permittee would be promptly placed by the permitting authority in a
docket maintained for that source and made accessible to the public.
The details of a source's compliance strategy, such as those contained
in the HON implementation plan, would therefore remain outside the
permit until the second revision, but would be publicly available
through the docket. The compliance schedule would provide enforceable
protection against late or inadequate action by the source in meeting
MACT deadlines (in addition to enforcement powers under the standard
itself), but the permit would not need to be revised if, up to the
compliance statement deadline, the source wanted to change details in
its initial compliance strategy, provided the change did not affect
interim compliance milestones in the permit. The public would have
access to information subsequently placed in the docket, but would not
have an opportunity to comment formally on its content until the second
reopening. The Administrator solicits comment on this approach and, in
particular, whether it needs to require information, such as the
implementation plan, to be placed in a public docket.
The second step of the process would begin at the compliance
statement deadline with the application for the appropriate second-
round permit revision. The EPA proposes that in most cases, the permit
would be revised using the minor permit revision process proposed in
Sec. 70.7(g). A source subject to the HON, for example, would apply for
the second step revision at the due date for the NCS (e.g., 5 months
after the compliance date for process vents). At this time all
remaining permit terms necessary to implement the applicable standard
would be placed into the permit, including final decisions of unit
applicability, monitoring requirements, and compliance terms based on
performance test results.
For the third type of standard involving alternatives requiring
case-by-case approval, such as emissions averaging or non-automatic
monitoring or reporting (e.g., data compression), EPA proposes that the
second step revision would occur using the significant permit revision
process. The EPA believes this process would afford the public
sufficient additional time in which to review the adequacy of proposed
alternatives.
The proposed use of the minor permit revision track for the second
step is appropriate for type two standards, where final compliance or
monitoring requirements will not be known until the NCS is due. During
development of these standards, EPA with public review has selected and
approved the choices available to the sources with respect to control
strategies and monitoring. Sources then select among these options and,
in applying and testing these approved techniques for individual units,
identify specific parameters and corresponding values. The EPA believes
the results of this selection process should not require a lengthy
review procedure, and the minor permit revision process should be
adequate to review the application of the previously-approved options
to the source. In contrast, under the type three standards, a source
would develop source-specific alternatives that require case-by-case
approval, such as emissions averaging, entirely within the permit
process with no prior public review. In EPA's view, the development of
alternatives such as emissions averaging, and the compliance terms
necessary to implement them warrants the significant permit revision
track. However, considering that the public will have the opportunity
to comment on these alternatives during rulemaking promulgating each
MACT standard, the Agency solicits comment on whether the additional
public review under the significant permit revision process (compared
to the minor permit revision process) would be necessary. The EPA in
particular solicits comment on whether such additional public comment
is necessary for alternatives involving nonautomatic data collection or
recordkeeping (such as data compression), compared to those involving
emissions averaging.
With two exceptions, EPA proposes that the source would apply for
the second-step of the permit revision by the time it must report
compliance with the applicable standard (e.g., for the HON, the source
would apply when the NCS is due). The application must meet
requirements in the permitting authority's program for complete
applications, including those proposed at Sec. 70.7(g)(2). Waiting
until the compliance statement (or NCS) due date for a complete
application is appropriate because this is when the source would first
report the compliance information needed to establish enforceable part
70 permit conditions. The EPA believes that requiring complete
applications any sooner could result in substantially more permit
revisions as the detailed compliance requirements might change before
the compliance deadline.
The first exception to the proposal described above would be where
the compliance statement date occurs within 6 months of permit renewal
(i.e., the end of the permit term). In this case, EPA proposes that the
source could submit its application for the second step revision along
with its application for permit renewal. The second exception is where
terms of an existing part 70 permit would not allow the source to make
changes necessary to comply with the MACT standard. In this case, the
permit must be revised before operating the change, in order to comply
with section 502(a), which requires that a source with a part 70 permit
may operate only in compliance with its permit.
The permit shield would not be available for any administrative
amendment under this process, but would be available for type two and
type three standards upon issuance of the second-step permit revision
containing the detailed compliance requirements. The EPA believes the
permit shield should not be available for the initial permit in a two-
step process, because the source will be subject to the substantive
requirements of the MACT standard before the second-step permit
revision is completed to incorporate the substantive compliance terms
necessary to implement the standard. If enforcement action needed to be
taken against a source that had not yet completed its performance
tests, a permit shield could interfere with such action, since the
permit would not yet contain the compliance requirements necessary to
enforce the standard. The Agency solicits comment, however, on whether
the permit shield should be available, with regard to the applicability
determination only, for the second type of standard upon initial
issuance of the permit.
(ii). MACT Incorporation Through Reopening. Mandatory Reopening.
Where a permit has been issued prior to the promulgation of a MACT
standard, section 502(b)(9) and current Sec. 70.7(f) require reopening
of a permit for a major source if 3 or more years remain before it is
due to expire. For reopenings to incorporate new standards, EPA
proposes to use essentially the same process described above for
initial permit issuance, but with some modifications (see proposed
revisions at Sec. 70.7(e) (1)(vii) and (4), and Sec. 70.7(i) (2) and
(3)). For type one standards, the permit would be reopened by the
permitting authority in a one-step process to incorporate the new
standard and all permit terms necessary to implement the standard,
including a schedule for achieving compliance with the standard by the
applicable deadline. Instead of using the full permit issuance
procedures, however, the EPA proposes to revise current Sec. 70.7(f) to
allow use of the administrative amendment procedures for one-step
reopenings. The EPA believes this process is appropriate because for
these types of standards, the applicability is well known (typically
based on information supplied by the source in its initial notice) and
the standard prescribes the compliance terms applicable to the source.
Sources would, of course, have the option of contesting any terms
established in the permit within the time limits provided by the
permitting authority for judicial review (see Sec. 70.4(b)(3)(xii)).
For the second and third type standards, the permit would be
reopened using a two-step process. The initial revision would be made
using the same administrative amendment process just described for the
one-step process. For the second revision, EPA would allow the use of
the minor permit revision procedures, except for type three standards
involving alternatives requiring case-by-case approval, such as
emissions averaging, in which case EPA would require the significant
permit revision process.
The initial reopening and revision, using administrative amendment
procedures, would contain (1) a statement that the new standard is an
applicable requirement, (2) a schedule (with milestones) for achieving
compliance with the standard by the applicable compliance date, (3) a
requirement to submit any implementation plan or report required under
the MACT standard, and (4) a requirement to apply, by the deadline for
the compliance statement, for a minor permit revision (or a significant
permit revision if alternatives requiring case-by-case approval are
being used). If, however, the compliance statement is due within 6
months of the expiration date of the permit, the application for the
minor or significant permit revision could be submitted with the
application for permit renewal. The MACT rulemaking would indicate any
additional compliance schedule milestones or other conditions to be
incorporated into the permit.
For all MACT standards, EPA proposes to revise existing
Sec. 70.7(e) to provide (but not require) that the permitting authority
may begin the administrative amendment process on the date on which the
initial notice is due under the MACT standard. Under the HON, for
example, the initial notice is due 120 days after promulgation.
If EPA receives the initial notification because the MACT standard
has not yet been delegated to the State or local agency, EPA will send
the notice to the permitting authority, and upon receipt of that
notice, the permitting authority could begin processing the
administrative amendment. In many cases, permitting authorities could
have taken automatic delegation of MACT standards (or at least the
responsibility for receiving the initial notification) under an
approved 112(l) program. Even where delegation of an individual MACT
standard is needed and the process to accomplish it is lengthy, EPA
assumes that permitting authorities will not be prohibited from
incorporating the compliance schedule and other brief conditions
described above into the permit as an administrative amendment within
18 months after promulgation of the standard. Nonetheless, the Agency
solicits comment on whether the proposed processes may be adversely
affected by a State or local agency's need to obtain prior delegation.
The EPA also proposes to revise part 70 to provide that the
permitting authority could waive the requirement in Sec. 70.7(f)(3) for
a 30-day reopening notice to any source that had submitted the initial
notice. If a source that the permitting authority believes is subject
to the standard fails to submit an initial notice by the due date under
the MACT standard, the permitting authority would send it a 30-day
notice of its intent to reopen the source's permit as now provided
under Sec. 70.7(f)(3). This notice would also contain the permit
conditions that the permitting authority would incorporate into the
permit upon reopening. The permitting authority would then initiate an
administrative amendment to the source's permit, unless the source
convinces the permitting authority that it is not subject to the
standard. Administrative amendments would need to be effective by 18
months after promulgation of the MACT standard in order to comply with
section 502(b)(9).
To ensure that reopening takes place for all sources subject to the
standard, EPA proposes that the permitting authority would be required
to publish a public notice listing all sources who had submitted an
initial notice and whose permits had been reopened. The notice would
also list any sources that had objected to an initial notification from
the permitting authority. The EPA proposes to require permitting
authorities to provide a 30-day period for the public to comment on the
adequacy of the list and whether they believe any other sources are
subject to the standard and should be listed. The EPA proposes that
permitting authorities would start the 30-day period at such a time as
to allow for completion of any additional reopenings within 18 months
after promulgation of the section 112 standard, as required in section
502(b)(9). If the permitting authority determines that the permit for
an unlisted source should be reopened, the permitting authority would
provide a 30-day notice to the source (as in the case of sources
failing to submit an initial notice), followed by administrative
amendment of the permit. Any failure by the permitting authority to
respond to public comments or a decision not to heed public comments
would be judicially reviewable in State court.
As described previously, the permit shield would not be available
for any administratively-amended permit due to lack of full review
during the administrative amendment process. At the option of the
permitting authority, this shield could be given to a source after
completion of the subsequent revision using either the minor permit
revision or significant permit revision process, as appropriate. The
EPA points out that a permitting authority would also have the option
of requiring sources to use the minor permit revision process if they
want the permit shield for a type two or type three standard, or if
they want to seek an extension of the compliance deadline under section
112(i)(3)(B) of the Act.
Under the process just described, the permitting authority would
supply the revised permit terms that would be incorporated into the
permit in the administrative amendment process. The EPA solicits
comment, however, on whether it should also allow the permitting
authority to require the source to submit an application for
administrative amendment. This could potentially free the permitting
authority from the need to develop numerous permit amendments (even
though the contents would be similar if not identical to each other).
However, it would likely be less efficient and could still require
considerable processing by the permitting authority before reopening of
the permit could begin.
Discretionary Reopening. If a part 70 permit has less than 3 years
left on its term when a new standard is promulgated, the permit is not
required to be reopened (see section 502(b)(9) and proposed
Sec. 70.7(i)). The permitting authority could choose to reopen the
permit using the processes described in the preceding section, or it
could wait until renewal to revise the permit to incorporate the new
standard (using the same procedures as initial permit issuance). If it
chose to wait until renewal, a two-step process would likely be
required for type two MACT standards, since in most cases, the
compliance statement date would occur after the deadline for the
renewal application, and the substantive compliance requirements would
not be available in time for the renewal application. As before, EPA
proposes that the second-round revision would be processed as a minor
permit revision, unless alternative compliance methods such as
emissions averaging are involved, in which case the significant permit
revision process would be used.
Two situations, however, may require the prior revision to the
permit and would not allow the permitting authority to wait until
renewal. The first situation is where the operation of a control
strategy or monitoring technique is blocked by the current terms of the
permit. For example, monitoring conditions in a part 70 permit for an
existing incinerator may need to be revised before an affected unit
subject to a new MACT standard can be ducted into the existing
incinerator. Some of these situations can be quite complicated and can
even require relief from current monitoring conditions in order to
perform tests necessary to develop new ones. As discussed elsewhere
(see section III. E.9., Alternative Option for Monitoring Changes), the
Administrator proposes that the minor permit revision process generally
would allow adequate review of this situation.
The second situation involves the commonplace need to obtain
preconstruction approval under a State or local minor NSR program. New
control devices cannot usually be installed without a State or local
NSR permit, especially where emissions of criteria pollutants are
likely to increase as a result of adding the control device. This is
often true for incinerators, which increase NOX and CO, while
decreasing HAP's and VOC. As previously discussed, today's proposal
offers several options for either merging a minor NSR permit and part
70 permit into one process or processing the minor NSR permit in a
subsequent, expeditious part 70 permit revision. In addition, EPA has
also solicited comment elsewhere in today's notice on whether increases
that do not violate exiting permit terms and conditions could be
eligible for off-permit procedures. Under this approach, a source would
have up to 6 months to apply for a permit revision (see section III. B.
of this preamble).
(iii). Source Changes That Trigger New or Additional MACT
Requirements. Once a source's permit has been issued to assure
compliance with any existing MACT standards, several types of changes
may occur that trigger new or additional requirements. Even if a
source's permit has been issued or reopened to incorporate a new MACT
standard, the source may make changes that render it subject to other
provisions of the MACT standard that are not included in the permit, or
that do not currently apply to that unit in the permit. These
requirements must be incorporated into the permit for the appropriate
units.
One type of change is where an existing unit, as a result of a
change at the source, becomes subject to a MACT requirement already
promulgated. Since this case involves a source becoming subject to a
promulgated standard as a result of a change it makes, revision of the
permit, rather than reopening, is required. As a result, the source
would have to submit a complete application prior to operating the
change (unless it would be eligible for off-permit processing). As
described previously for reopenings to incorporate MACT standards
promulgated after permit issuance, the initial revision could be
processed as an administrative amendment. This procedure would be
appropriate where the source becomes subject to a standard due to a
change at the source where the change either triggers a type one MACT
standard, or triggers a type two or three standard prior to the
deadline for submittal of the NCS. Where the source triggers a type two
or three standard after the NCS is due, the standard would have to be
incorporated through a minor permit revision or significant permit
revision, respectively.
An example of this is a situation where a group two (uncontrolled)
process vent subject to the HON becomes a group one unit (subject to
MACT) by increasing its throughput. This could occur, for example,
because a criteria for group one units is flow rate, and increasing the
throughput could cause an increase in flow rate and trigger the group
one requirements. The HON requires that sources use their periodic
reports to propose how and when points that change their status (i.e.,
group one to group two) will be controlled.
Another type of change would occur where a source subject to a MACT
standard switches from one control technique to another type, both of
which are allowed by the standard. For example, a source subject to and
in compliance with the HON may switch from incineration to a different
technique approved as pollution prevention, say, to reduce NOx
emissions. The switch would require a different set of compliance
monitoring provisions that would need to be incorporated into the
permit. If the switch could be made without violating the existing
permit, and there would not be a net emissions increase, the EPA
believes the source would be eligible for off-permit procedures, and
could defer applying for a permit revision until 6 months after
operation. Since the subsequent permit revision process would address
detailed compliance terms within a generally approved control strategy,
EPA believes that the minor permit revision process would be
appropriate as the subsequent revision process.
Generally, new or reconstructed units must meet more stringent MACT
requirements than existing units and must comply upon startup. (Under
the HON, for example, requirements that apply to new units are
different from those that apply to reconstructed units.) It is also
likely that most new or reconstructed units will be subject to State or
local minor or major NSR. The Administrator again proposes that minor
and major NSR permits, provided they are enhanced to meet part 70
requirements, are acceptable forums for addressing and establishing
part 70 permit conditions needed to assure compliance with MACT
standards. Thus, the merged preconstruction review process applying to
minor NSR permits would also revise the part 70 permit to incorporate
the MACT requirements applicable to the source.
If the NSR process were merged, the MACT incorporation could be
processed under merged NSR/part 70 administrative amendment procedures.
To the extent that compliance monitoring requirements are not known
when the merged permit is issued, a subsequent minor permit revision
would be needed to incorporate those requirements once they are
determined, unless the source needs to make complex judgments such as
emissions averaging, in which case a subsequent significant permit
revision would be needed. If the NSR action were not merged, the part
70 revision would be eligible under the minor permit revision
procedures, or if it met the criteria, eligible under de minimis permit
revision procedures.
Some source changes may trigger the requirements of section 112(g),
instead of triggering requirements of the MACT standard. For example, a
source with some units to which a MACT standard applies may have other
units for which there is no MACT standard and if these non-MACT units
are modified, they would become subject to section 112(g) requirements.
The EPA has proposed rules to implement section 112(g) at 59 FR 15504
(April 1, 1994). The question of whether and to what extent the
procedural requirements of section 112(g) will apply after the
promulgation of a MACT standard will be addressed in the final section
112(g) rule.
c. Solicitation of Additional Comment. The Administrator solicits
comment on the appropriate processes for incorporating new standards
and solicits information regarding any types of changes other than
those described above that would require a permit revision after the
relevant standard has been incorporated into the permit. As stated
earlier with respect to the proposed four-track permit revision system,
the EPA is particularly interested in suggestions that would improve or
simplify the implementation of the proposed approaches, provided they
are consistent with the requirements of the Act and the implementation
principles described earlier.
The EPA also solicits comment on the extent to which the proposed
processes for incorporating MACT standards should be made available for
other standards or requirements, either nationally promulgated or
adopted by State or local agencies and approved by EPA into SIP's.
While EPA does not believe that the proposed processes would be
appropriate for source-specific control requirements such as BACT or
LAER established in a major NSR process, source-specific RACT, or case-
by-case MACT under section 112(g), the Agency is willing to consider
comments regarding application of the proposed processes to these
requirements.
In particular, the Agency solicits comment on whether today's
proposal regarding incorporation of MACT standards would also apply to
requirements for RACT. These are applicable requirements for part 70
permits in ozone nonattainment areas and transport regions, and over
the next several years, State and local agencies will be adopting new
RACT requirements as revisions to their SIP's. The EPA believes that,
because these requirements will have undergone public review at the
State, local, and Federal level, and EPA review prior to adoption into
the SIP, use of the same processes as described above for MACT
incorporation should be adequate. The EPA solicits comment, however, on
whether the proposed processes are appropriate for RACT incorporation
and any specific modifications that would be needed to adapt the
processes to RACT requirements.
The Agency also solicits comments on whether the proposed processes
described above for MACT incorporation would be appropriate for NSPS.
Since these standards apply exclusively to new sources and
reconstructed existing sources, they will generally be processed under
State or local NSR programs, although some agencies exempt source
changes subject only to NSPS unless they are associated with an
emissions increase. If an agency does apply NSR to these sources, EPA
believes the proposed processes for MACT incorporation may be
unnecessary, because the agency could already provide for processing
under the four-track system (e.g., administrative amendment procedures
would be available for merged NSR actions). For permitting authorities
that exempt NSPS sources from NSR, however, EPA believes the proposed
processes may be useful and solicits comment on how they should be
applied to NSPS.
10. Alternative Option for Monitoring Changes
a. Overview. Operating permits serve two functions with respect to
compliance monitoring. One function is to consolidate and reiterate the
testing, monitoring, and recordkeeping provisions required by the
underlying applicable requirements. The other function is to allow
approval of equivalent or improved monitoring or recordkeeping methods.
This latter function is served through the application of enhanced
monitoring or the application of the periodic monitoring provisions as
set forth in Sec. 70.6(a)(3)(i)(B).
Where enhanced monitoring or periodic monitoring applies, it is
implemented through the operating permit. Therefore, any changes to
enhanced monitoring protocols, or periodic monitoring methods, would
occur pursuant to a revision to the source's part 70 permit. Where the
proposed change to monitoring is not part of enhanced or periodic
monitoring, but originates from an underlying applicable requirement in
the SIP, NSPS, or NESHAP, additional process beyond a part 70 revision
may be required. For example, approval of an alternative NSPS or NESHAP
monitoring method currently requires the review and concurrence of EPA
Headquarters. Likewise, in order to provide a change to the SIP
monitoring requirement, the SIP must be structured to ``allow''
alternatives to be developed in the part 70 process (see
70.6(a)(1)(iii)). Thus the SIP must contain language that enables the
permit to provide for alternatives that are ``at least as stringent
as'' existing requirements, and to provide sufficiently specific
criteria to make that determination (i.e., the part 64 requirements).
The EPA recognizes that modifications in source operation may
affect or alter the method by which a source monitors compliance. Such
monitoring changes may range from a simple re-calibration of the
existing monitoring devices, to a request for an entirely new
monitoring method. The current part 70 provides that any
``significant'' change in monitoring must be processed as a significant
permit modification. The regulation does not define the term
significant, beyond identifying a ``relaxation'' in reporting or
recordkeeping terms and conditions as significant, leaving further
distinctions to be defined through guidance and case-by-case analysis.
The only changes in monitoring that are clearly identified in part 70
as appropriate for a lesser level of review are increases in monitoring
and reporting frequency, which may be implemented through an
administrative permit amendment.
Under the proposed four track permit revision system developed
during settlement discussions with the part 70 rule litigants, the test
for determining whether a change to existing monitoring permit terms or
conditions is significant would still be relatively undefined, and
continue to be based largely on whether the change represented a
relaxation of reporting or recordkeeping permit terms or conditions.
While the proposed four track system does provide further specifics
regarding what types of monitoring changes would be eligible for de
minimis permit revision or minor permit revision procedures, EPA is
concerned that the proposal may overly rely on the ``significance''
test described above, and that the tests for eligibility for de minimis
and minor permit revisions could both be very difficult for permitting
authorities to implement and might not take into account the particular
considerations associated with monitoring changes.
For example, the proposed de minimis criteria would allow any
monitoring change, no matter how significant, that is associated with a
change that otherwise qualifies as a unit-based de minimis change, to
be incorporated through de minimis procedures. However, the proposed
increment based criteria could exclude from eligibility minor changes
to monitoring that States currently routinely process with little EPA
oversight. Moreover, the proposed criteria for minor permit revision
eligibility would allow any monitoring change, no matter how
significant and whether or not the permitting authority had prior
opportunity to review the change, to be processed as a minor permit
revision if it was necessary to implement any other change that was
otherwise eligible. Finally, both the proposed de minimis and minor
permit revision criteria would exclude from eligibility changes
involving limits that had been established as federally enforceable
only through part 70 procedures, thus potentially requiring all changes
to enhanced or periodic monitoring protocols, no matter how minor, to
be processed as significant permit revisions. The EPA notes that these
criteria might be perceived as in conflict, and could consequently pose
substantial difficulties for permit authority application of them.
The EPA now believes that the treatment of virtually all monitoring
changes as significant permit modifications under the current rule
could be inconsistent with the goal of providing expeditious,
streamlined, and adequate review pursuant of permit revisions.
Moreover, while the four track permit revision system that EPA
developed in the context of settlement discussions with the part 70
litigants provides some flexibility for many types of changes requiring
permit revisions, EPA is concerned that this flexibility could be
limited if permitting authorities find it too difficult to apply the
eligibility criteria and associated changes to the existing monitoring
methods are required to undergo greater review than the associated
physical or operational changes. This is particularly true in light of
the proposed coverage for part 64 and consequent greater potential for
changes in monitoring approaches and related compliance terms.
Consequently, to avoid this problem, EPA also proposes as an option
alternative provisions governing changes involving monitoring
requirements that recognize the need for certain types of changes to
existing monitoring methods to undergo more expedited review through an
appropriate permit revision track, obviating the need to rely on the
term ``significant'' in the existing part 70 regulations to determine
what changes must be processed as significant permit revisions. In
structuring the review for changes to monitoring or recordkeeping
requirements under this option, EPA has essentially adhered to the
four-track system proposed today. However, to implement the alternative
option, certain provisions in the current proposed tracks would need to
be modified, since they were developed in the context of the litigation
settlement discussions prior to EPA's more specific treatment of the
monitoring issue.
The EPA wishes to stress that this alternative option was developed
internally, after settlement discussions had concluded on the
flexibility issues. However, the litigants had been apprised that EPA
would continue to work on the monitoring issue after the settlement
discussions, and that the Agency would offer additional provisions
regarding monitoring changes in this proposal. In some aspects, the
alternative option conflicts with particular provisions of the proposed
four track permit revision system, and revisions to the proposed system
would be required to integrate it with the alternative option discussed
below. The EPA believes that such integration is viable, could result
in a permit revision system that better provides for appropriate permit
revision procedures for monitoring changes, and would better avoid
rendering changes that otherwise would qualify for expedited process
from being rendered ineligible due to the associated monitoring
changes.
The EPA believes that changes in monitoring must undergo sufficient
review to ensure that any method continues to be representative of
compliance and capable of identifying deviations consistent with the
requirements for enhanced monitoring and periodic monitoring. A
monitoring method that is unable to identify deviations from emission
standards fails to have the ability to assure compliance. Such a result
would be in conflict with the obligation under section 504(c) of the
Act to issue permits that set forth monitoring provisions that assure
compliance with all permit terms and conditions, and would not allow
for the identification of permit violations necessary to implement
section 502(a) regarding the unlawful operation of sources in violation
of the permit.
The proposed alternative option regarding changes in the monitoring
method contained in the existing part 70 permit is intended to better
enable such changes to take advantage of the four-track streamlined
permit revision system also proposed today. This option notably does
not address the process for sources to comply initially with part 64
and periodic monitoring. The EPA believes that the level of review
required by a significant permit revision under the proposed four-track
system may not be necessary for all changes to an existing monitoring
method, and that certain types of monitoring changes should be able to
take advantage of the expedited review provided in the other three
permit revision tracks. The option discussed below is intended to
better match the review process in the previously discussed permit
revision tracks to the scope, nature, and environmental significance of
the requested monitoring change.
The alternative option also introduces the concept of using the
criteria proposed in 40 CFR part 64, Sec. 64.4(b)(5) and (c),
appendices A through D, as the basis for evaluating the equivalency of
proposed changes to the monitoring method in the permit. The EPA
believes that the use of standardized criteria should provide
nationwide consistency with respect to decisions regarding the adequacy
of monitoring changes, thereby lessening the need for close EPA
oversight of certain changes. Moreover, the use of such criteria would
distinguish between changes that do, and do not, affect measurement of
emissions and facilitate equivalency determinations for new or
alternative methods.
The EPA solicits comment on whether the review of all changes to
monitoring and recordkeeping provisions should be based on standardized
criteria, namely part 64 appendices A, B, C, and D. Furthermore,
comment is solicited on whether the use of such criteria would enable
re-delegation of authority in the NSPS and NESHAP programs such that
review and approval of these alternatives could be handled solely
through an operating permit revision, even for those monitoring
provisions which are required by the underlying regulation (i.e., are
not also part of an enhanced monitoring or periodic monitoring
requirement).
b. Background--Distinction Between Testing, Monitoring, and
Recordkeeping. To frame the following discussion, EPA would first like
to clarify the distinction between testing, monitoring, and
recordkeeping methods. The terms testing, monitoring, and recordkeeping
are widely used, and have a variety of meanings. A common understanding
of how EPA proposes to use these terms is essential to understanding
the appropriate review process discussed in this option for changes in
monitoring and recordkeeping.
(i) Compliance Test Methods. Development of a test method is a
controlled experiment whereby all interferents are evaluated or
controlled in order to obtain a ``true'' measurement of the pollutant
of interest, on a consistent and reliable basis. The Agency has
established a review process for changes to the compliance test method.
Specifically, for the NSPS, NESHAP, and SIP programs, EPA has
considered test method changes as either minor or major changes. The
distinction between minor and major changes is based on whether the
change affects the measured emission results relative to the compliance
limit and the uniqueness of the application. Major changes require
extensive technical review to assess the effects on the emission
measurement or compliance determination. An example of a major change
in method would be a change from wet chemistry titration to an ultra-
violet instrument for the measurement of SO2.
The promulgation of method 301, 40 CFR part 63, appendix A,
provides the basic criteria to evaluate a major change in test method.
A proposed alternative test method which meets the criteria in method
301 is considered substantially equivalent to the existing method, and
is an acceptable change.
(ii) Compliance Monitoring Methods. Compliance monitoring has
traditionally been used in the air program as a supplement to the test
method, to provide a basis for identifying proper operation and
maintenance of control devices, and as an indication of compliance
status and in some cases as a compliance determination method. In the
past, however, EPA policy and regulations resulted in primary EPA
reliance on the test method to provide the initial evidence of a
violation.
To ensure compliance with permit terms and conditions, and to
provide for the annual compliance certifications required by title V,
proof of compliance is necessary on a more frequent basis than upon
source start-up, as traditionally required. Frequent use of the test
method may be a costly means of obtaining such compliance information.
Therefore, sources, EPA, and the permitting authority may be using
monitoring data for directly determining compliance with emission
standards.
The acceptability of a monitoring method as direct proof of
compliance with an emission standard is determined, in part, by
correlating measurements from the proposed monitoring method to the
emission standard as measured by the test method. Through the operating
permit, a monitoring method may be proposed, demonstrated, evaluated,
and accepted, as the means of determining compliance with the emission
standard for an individual source. Where the permit relies on
monitoring for compliance certifications, the monitoring method remains
as the applicable compliance-determining method for that source, until
such time as the permit revises or rescinds that method.
The EPA believes that not all changes in monitoring methods need to
be considered as significant changes. The monitoring provisions of part
70, part 64, and part 60 do not establish the standard but instead
provide and require a method to measure the standard that has already
been established through the test method. Therefore, changes to the
monitoring method do not change the standard or its stringency.
Monitoring changes only affect the ability of the monitoring method to
read the standard. It is essential, however, to evaluate the ability of
the requested monitoring method to monitor compliance.
Consequently, the performance specifications of 40 CFR part 60 and
proposed part 64 identify criteria for the evaluation and acceptance of
direct emission monitoring methods, predictive parameter monitoring
methods, and parameter methods whether they are continuous or periodic.
Quality assurance procedures are required to assure that the monitoring
methods maintain the original qualifications of performance. The
ability of the method to determine whether deviations are occurring
must be established. While changes may affect the method's ability to
read whether a deviation has occurred, the redemonstration under part
60 and part 64, in addition to quality assurance procedures, continues
to define and assess the method's ability to monitor the appropriate
standard.
(iii) Recordkeeping. Recordkeeping is traditionally viewed as the
manual or automated permanent documentation on paper or computer file
of operating parameters or emissions, as related to the emission
standard. Where work practices are employed, recordkeeping serves as
the principal means of documenting compliance with the standards. Where
monitoring hardware is used to monitor compliance, recording data from
such monitors is an essential and integral part of the monitoring
system. Where compliance is determined through a series of calculations
alone, such as where complying coatings are used to meet a VOC
standard, recordkeeping may be used as the test method. Recordkeeping
may therefore be the sole means of monitoring compliance, may be a
necessary supplement to compliance monitoring, or may be used directly
to determine compliance. Thus, recordkeeping can serve the function of
compliance testing data or compliance monitoring data. For purposes of
the following discussion recordkeeping is assumed to be included in the
term monitoring, even though recordkeeping may not be specifically
mentioned.
c. Proposed Alternative Option for Treatment of Changes in
Monitoring. The acceptability of changes in monitoring depends upon the
demonstrated ability of the requested monitoring method to represent
compliance accurately and identify deviations from permit terms and
conditions. To the extent such demonstrations prove to be
straightforward and uncomplicated, EPA believes that limited Agency
review and oversight of monitoring changes may be needed. The EPA
believes that changes to existing monitoring can be grouped into four
levels that necessitate differing degrees of review and oversight. The
Agency solicits comment on whether these four levels of monitoring
changes are appropriate distinctions under the proposed permit revision
tracks, balancing the need to provide oversight of compliance methods
and the need to provide relief from the existing part 70 requirement
that many changes in monitoring be processed under the current
significant permit modification track. The EPA is generally taking
comment on the need to increase or decrease the flexibility for
monitoring or recordkeeping changes as proposed today in the four
permit revision tracks.
Under the option discussed below, EPA is proposing the use of
standardized criteria set forth in the proposed part 64 (58 FR 54648
(October 22, 1993)) for the evaluation of these monitoring changes. The
proposed procedures in part 64 would provide quantification of the
effects of changes to the monitoring method. The procedures and
directions of proposed part 64 would be an extension of the Performance
Specifications of part 60, appendix B, which require monitoring methods
to meet certain accuracy and precision requirements (e.g., 20 percent
relative accuracy). Proposed part 64 would provide broader application
to all monitoring methods to ensure a level of correlation to the
standard that is acceptable in assessing compliance. As a result,
proposed part 64 would allow for the use of simple parameters, such as
temperature, as a means of assuring compliance with the standard.
Under proposed Sec. 64.7(b)(2), a source would be required to
identify whether the physical or operational characteristics of the
emission unit affect the performance of the monitoring protocol. The
proposed rules also rely on the source to answer and demonstrate
whether the monitoring change or alternative requested affects and
satisfies the performance requirements of appendices A and B of part
64, and whether the change or alternative provides the same degree of
confidence and reliability as demonstrated by the existing monitoring
method, as set forth in appendices A through D. These investigations as
conducted by the source and assessed by the permitting authority would
provide the basis on which the acceptability of the requested method or
change could be evaluated.
The following discussion provides explanations and examples of the
types of changes in monitoring which may be appropriate for each of the
four proposed permit revision tracks. Note that EPA believes that the
use of the permit revision tracks is appropriate whether the change in
a compliance monitoring method is driven by a need to implement a
physical or operational change at the source, or solely by a desire to
implement a different monitoring method. Some changes to monitoring
will have little or no effect on the measured emission results, and
will simply enhance the ability of the method to measure emissions
accurately. For these changes, EPA believes a lesser level of review is
appropriate. For other changes, the source may have already established
that the operating parameter being monitored (e.g., temperature) is
representative of emissions, and the only monitoring change necessary
is to set a new operating level reflective of compliance with a new
emission limit, or one that is more reflective of compliance in
general. This situation may warrant more review than the former
example; however, EPA believes some streamlining of the review process
is appropriate, given the correlation that has already been established
between the monitored parameter and emissions. In other cases, the
correlation between emissions and the proposed monitoring method may be
unclear, unknown, or poorly established for that source's unique
operating conditions. In these cases, or where the source proposes to
apply an entirely different monitoring method, EPA believes the change
must be reviewed as a significant permit revision.
(i) Administrative Amendments. Like the proposed four track-system
discussed earlier, this option would continue to allow the
administrative permit amendment process for increases in the frequency
of monitoring or reporting. Additionally, this option proposes to allow
increases in the frequency in testing and recordkeeping to undergo
review through the administrative permit amendment process, since EPA
believes that these increased frequencies have no potential to reduce
the ability to monitor compliance. Also, where the monitoring change
was reviewed as part of a merged NSR/part 70 procedure, the resultant
part 70 permit review could be processed as an administrative permit
amendment. However, EPA believes that the administrative amendment
permit revision track provides such limited oversight, review, and
feedback that it is not sufficient for the majority of monitoring
changes that could reduce the ability to monitor compliance. The EPA
solicits comment on other changes to monitoring that are easily
recognized and have no potential to reduce a source's ability to
monitor compliance, and on whether such changes might be appropriately
incorporated through the administrative permit amendment track.
(ii) De Minimis Permit Revisions. The EPA believes that certain
changes to monitoring are such that they do not affect, or only
enhance, the ability of the monitoring method to measure emission
results. Monitoring changes that do not affect the ability to measure
emission results are those changes that do not have an adverse effect
on measurement sensitivity and representativeness such that precision
and accuracy are unaffected. Minor changes may include, for example, a
change from a stainless steel sampling probe to a teflon-lined probe to
address a corrosion problem for a CEMS which measures acid gases (e.g.,
SO2). This change is site-specific, does not affect the measured
value, does not have particular national significance, and will improve
the operation and availability of the CEMS. Another example would be
where a temperature monitor on an incinerator is changed from an analog
readout with manual data recording to an automatic electronic data
management system. These types of changes have traditionally been
labeled ``minor'' changes in the monitoring method under the NSPS and
NESHAP programs.
States are currently delegated the authority to review and approve
minor changes without prior EPA concurrence or consultation under the
7-14 Delegations Manual (a copy of which can be obtained from docket A-
93-50). To maintain consistency with these delegations, and to expand
the ability to expedite such monitoring changes to other regulatory
programs, this option proposes that ``minor'' monitoring or
recordkeeping changes be eligible for processing as de minimis permit
revisions. The EPA expects that the majority of changes requested will
be within this category of monitoring or recordkeeping changes. Since
such changes do not affect the ability to measure emission results and
are anticipated to be numerous, direct EPA oversight and review would
not be necessary, practical, or efficient.
Under the option proposed, to ensure sufficient review of the
requested monitoring change by the permitting authority, the source
would have to conduct a demonstration and obtain affirmative approval
of the demonstration's adequacy from the permitting authority prior to
submitting its application for the de minimis permit revision. The
permitting authority's determination of adequacy would be based on an
evaluation of the demonstration using the criteria provided in part 64.
In the application requesting the de minimis permit revision the source
would have to provide a summary of the demonstration and verification
of the permitting authority's affirmative approval. The permitting
authority would then be required to place a summary of the
demonstration, a copy of the complete demonstration, and an affirmative
statement by the permitting authority of the demonstration's adequacy
in the public docket for the de minimis permit revision. Upon the
monthly, batch public notice of the de minimis permit revision, the
public would have access and an opportunity to review this information,
along with the rest of the de minimis permit revision application, and
could supply written comments on the change. The EPA would also have
access to this information, and under this option could, upon citizen
petition, review and object to any demonstration and de minimis permit
revision that fails to assure compliance with applicable requirements.
The EPA believes that the proposed de minimis permit revision track
would provide sufficient opportunity for oversight of such minor
changes to monitoring methods, since States have already developed
expertise in determining whether changes are minor or major and in
approving minor changes under the delegations policy discussed above.
This practice currently occurs with only minimal EPA oversight.
Processing such changes through the de minimis track would ensure
national and programmatic consistency in the treatment of such changes,
and provide the public with an opportunity to review and comment on
these changes as they occur. It would also ensure that permitting
authorities evaluate and make affirmative determinations on each
change, which would become part of the permitting record for public,
affected State, EPA, and ultimately administrative and judicial review.
For example, where a citizen in the public comment process failed to
elicit a response from the permitting authority on the change, the
citizen could petition EPA to object. The EPA would then review the de
minimis permit application and the demonstration, and if the Agency
found the demonstration was inadequate, it would veto the de minimis
permit revision, and thus render the source liable for the
inappropriate change. The EPA believes this possibility would serve as
a meaningful deterrent and ensure that minor changes to monitoring are
proposed, approved, and implemented with integrity.
The EPA also notes that in order for this option to provide for the
de minimis permit revision track to process certain minor changes to
monitoring methods, SIP revisions would be required to create a
provision in the SIP to allow sources and permitting authorities to
develop changes to SIP-required monitoring methods through the part 70
permitting process without also having to undertake source-specific SIP
revisions. As States develop these ``SIP flexibility'' provisions, the
public would have an opportunity to review and comment upon them, and
EPA approval of the SIP provisions would be required. Moreover, as
would always be required in the de minimis track, the source's permit
would have to contain an express term or condition allowing the source
to make these types of minor changes at the relevant unit through the
de minimis track. Such a term or condition could only be established
through full permitting process, and the public and EPA would have a
full opportunity to review the creation of this ``pre-authorizing''
term. Moreover, all pre-authorizations would have to be renewed every
permit term, which is in itself a deterrent to potential abuse. Given
all of these safeguards, EPA believes minor changes to monitoring may
appropriately be processed through the de minimis permit revision
track.
Note also that integrating this option into the proposed four-track
system would require some amendment to the system. First, under the
unit-based track, any change that otherwise qualified as unit-based de
minimis would be eligible for de minimis procedures, whether or not any
associated changes in monitoring were minor, major, or even entirely
new or alternative. This option would screen out the more significant
monitoring changes, such that changes that would qualify as unit based
de minimis at small units could be processed as de minimis permit
revisions only if any associated monitoring changes were previously
demonstrated to the permitting authority to be minor.
Second, the scope of eligible changes under the increment-based de
minimis track would be expanded. As proposed, the increment-based
criteria exclude from the de minimis permit revisions associated re-
calibration of CEMS or operational parameters unless such changes have
first been established in the permit program, the permit, or through
procedures at least as stringent as minor permit revision procedures.
However, EPA is concerned that permitting authorities would find it
difficult to apply the proposed criteria or to exercise the foresight
to establish how such changes would be governed and incorporated on a
case-by-case basis. The alternative option would replace the proposed
criteria with provisions allowing minor monitoring changes to be
eligible for the de minimis permit revision track.
Third, while this option would retain the provisions that would
require a source to be in compliance with the terms it seeks to revise
through the de minimis track and that would prohibit de minimis
thresholds from being established through netting, for minor changes
solely to monitoring it would create exceptions to the provisions that
would require the need for a permit revision to result from a physical
or operational change and that would exclude from eligibility changes
involving a limit established solely pursuant to part 70 provisions.
The EPA believes these exceptions would be necessary in order to allow
sources and permitting authorities to make minor changes to monitoring
methods where no other change is involved. These minor monitoring
changes might not trigger other preconstruction review, and if there
were no exception to the physical or operational change requirement,
these minor improvements to monitoring would be forced to go through
less streamlined procedures. Moreover, to the extent a source's
monitoring methods were established solely through part 70 procedures,
as may occur for enhanced monitoring protocols, EPA believes it should
not be necessary to require minor improvements to such methods to be
processed through more burdensome significant permit revision
procedures in light of the stringent qualification criteria for minor
changes and the safeguards discussed above. As would be otherwise
provided under the de minimis permit revision track, minor monitoring
changes processed under this option would not receive a permit shield.
The EPA is taking comment on other monitoring changes that may be
appropriate for review under the de minimis permit revision procedures.
One category of such changes might be those associated with unit-based
de minimis changes, notwithstanding whether associated changes to
monitoring qualify as ``minor.'' On one hand, the emission increases
from such changes could be so small that it is unlikely that changes in
the correlation between emissions and the operating parameters being
monitored could be environmentally significant. Further, EPA believes
that any necessary change in the enforceable operating level could be
so small that an expedited review of such changes is appropriate.
However, if the application for the de minimis permit revision did not
demonstrate how the new operating level is correlated to emissions, the
change could not be reviewed through the de minimis track.
The EPA recognizes the challenge in defining the distinction
between changes traditionally considered ``minor'' and ``major.'' If
the definitions are unclear, the result will be inconsistent judgements
as to the appropriate track for reviewing and processing the changes.
As a result of this potential difficulty, the Administrator is taking
comment on the adequacy of the definitions provided, as well as any
means for clarifying the distinction. The EPA is also soliciting
comment on eliminating the distinction and reviewing minor and major
changes under a single track, either the de minimis permit revision
track or minor permit revision track.
(iii) Minor Permit Revisions. The EPA is proposing, in this option,
three categories of monitoring changes as appropriate for review
through the proposed new minor permit revision process. The first
category of monitoring changes are changes in the enforceable operating
level that are correlated to the existing or proposed emission rate.
The second category are monitoring or recordkeeping changes that have
traditionally been considered ``major'' changes in the NSPS and NESHAP
programs, excluding a switch to a new or alternative monitoring method.
The third category are those monitoring changes which have been
approved pursuant to minor or major NSR, including a switch to a new or
alternative monitoring method.
The first category of changes that EPA is proposing for review in
the minor permit revision process are changes to the operating level,
excluding a switch to a new or alternative operating parameter. Where a
source's compliance is determined through the monitoring of operating
parameters, such as temperature or pressure drop, a change in a
source's emission limit will likely necessitate a change in the
operating level which is demonstrative of compliance with the emission
standard. The EPA believes such a change would be appropriate for
review in the minor permit revision process. An example of such a
change would be if compliance with an emission standard has been
correlated to an incinerator temperature of 1800 degrees Fahrenheit and
an increase in the source's emission limit might result in compliance
being achieved at 1600 degrees. Alternatively, a source may wish to
change the enforceable level of the operating parameter, absent a
change in the emission limit, simply based on a demonstration that the
new proposed operating level is also demonstrative of compliance with
the existing emission limit.
In both of these cases, the change in the enforceable operating
level (i.e., the temperature limit) necessitates review sufficient to
ensure that the new operating level is indeed representative of
compliance with the applicable emissions limit. Since in these examples
the temperature limit serves as the direct demonstrator of compliance,
changes in the temperature limit will have a similar impact as a change
in the emission limit and should therefore undergo review by EPA. Under
the option proposed here, where the operating parameter is still
correlated to emissions (i.e., temperature can still be representative
of compliance) such a change could be reviewed through the proposed
minor permit revision process. That is, monitoring changes that involve
solely an adjustment to the level of the parameter being monitored, but
do not necessitate a change in the type of parameter being monitored,
may not need to undergo the longer review periods available through the
significant permit revision process. Using the previous example, where
only the temperature limit or level needs adjustment, but temperature
as an operating parameter is still demonstrative of compliance, the
change in temperature level could be reviewed as a minor permit
revision. Since the original demonstration which showed a correlation
between the operating parameter and emissions is still valid, this
lessens the time and level of review needed by the permitting
authority. However, the permit application would have to justify why
the existing operating parameters are still demonstrative of
compliance, as well as justify the new proposed compliance levels.
Alternatively, where a change at the source is such that the
existing operating parameters are no longer demonstrative of
compliance, EPA believes that the monitoring change must be reviewed
through the significant permit revision process. For example, where a
new raw material is introduced, its properties may be so different from
the previous raw material that different operating parameters need to
be monitored, whereby temperature alone may no longer be representative
of compliance.
The second category of changes that EPA is proposing under this
option are monitoring changes that have traditionally been considered
``major,'' excluding new or alternative monitoring methods. Such
changes include changes to the existing monitoring method that affect
measurement sensitivity and representativeness, thus potentially
affecting the ability to measure emission results; changes that affect
the scope and intent of the existing monitoring method; and changes
that may be applicable to similar monitoring methods in the same or
other source categories.
An example of a ``major'' change qualifying for review under the
minor permit revision process would be a change to a continuous
emission monitoring system (CEMS) to modify the sample conditioning
system with the addition of a moisture condenser to improve the
operating reliability of the analyzer. Such a change would require a
demonstration that the CEMS data are valid for determining compliance
with the applicable emission limit. The sample conditioning system
change could alter the sample by removing not only moisture (change
from wet to dry concentration requiring a moisture measurement and
correction), but also by potentially removing some condensable
compounds before analysis. However, a complete change from a gaseous
CEMS to a parameter or predictive emission monitoring system would
constitute a new or alternative monitoring method, therefore, requiring
review through the significant permit revision process.
Notwithstanding the above exclusion of new or alternative
monitoring changes from the minor permit revision track, EPA is
soliciting comment on the appropriateness of allowing selected new or
alternative monitoring methods to be approved through the minor permit
revision process where the change has received prior EPA approval. The
Agency believes that prior EPA approval would require that EPA has
previously officially recognized the new or alternative method for a
particular source type and emissions matrix (e.g., under previous EPA
delegation authority or Emission Measurement Technical Guidance
documents). In particular, EPA is requesting comment on whether prior
EPA approval of a new or alternative method provides an adequate bright
line test for use by the permitting authority in determining whether a
given new or alternative change may undergo review through the minor
permit revision track. The EPA believes that the minor permit revision
track contains sufficient safeguards to allow the permitting authority
to determine that the new or alternative method has not received
official EPA approval and to require that the method must undergo
review in the significant permit revision track.
The third category of changes that EPA is proposing under this
option as eligible for the minor permit revision process are monitoring
changes that in conjunction with a physical or operational change have
been approved pursuant to minor or major NSR, provided that the
preconstruction review has sufficiently focused on the adequacy of the
proposed monitoring change. This category of monitoring changes may
include ``major'' changes as discussed above, as well as changes to new
or alternative monitoring methods. Changes to new or alternative
monitoring methods are those that result in a fundamental change in the
monitoring protocol used to determine compliance with the permit
conditions. Such changes include, but are not limited to, measurement
of a different pollutant, surrogate constituent, or operating parameter
than measured by the existing monitoring method; use of an alternate
analytical principle for measuring the pollutant, surrogate constituent
or operating parameter; or use of a different monitoring frequency or
data averaging time.
The EPA believes that these types of changes will receive
sufficient review in the NSR process to allow incorporation through the
minor permit revision process. This eligibility, as in the case of
merged NSR, would also be available on a permit by permit basis. Under
this option, the permitting authority would be required to
affirmatively approve the source's monitoring demonstration in the NSR
action, and the demonstration along with verification of affirmative
approval would be included in the source's part 70 minor permit
revision application. Where the level of review and oversight provided
in the NSR process is not sufficient to ensure the adequacy of the
requested monitoring method, the requested change would be required to
be reviewed through the significant permit revision process. Moreover,
initial review of new or alternative change would be processed as a
significant permit revision.
The procedure under this option would require that prior to
applying for a minor permit revision to an existing monitoring method,
the source would have to provide a demonstration under part 64 and
obtain affirmative approval of the demonstration's adequacy from the
permitting authority. The permitting authority's determination of
adequacy would be based on an analysis of the demonstration using the
criteria provided in part 64. In order to provide meaningful public,
affected State, and EPA review, the source would be required to provide
a summary of the demonstration and verification of its approval by the
permitting authority in its application for a minor permit revision.
For monitoring changes approved pursuant to minor or major NSR, the
source would be required to provide supporting documentation from the
minor or major NSR permit approval which evidences the demonstration
and its approval by the permitting authority in the application for the
revision. As would generally be required under the proposed minor
permit revision track, the source would be required to forward the
application to EPA for its 45-day review and to any affected States
immediately upon submitting its application to the permitting
authority.
The permitting authority would then be required to place a summary
of the demonstration, a copy of the complete demonstration, and an
affirmative statement by the permitting authority of the
demonstration's adequacy in the public docket for the minor permit
revision. The public would have access and an opportunity to review
this information, along with the rest of the minor permit revision
application, and could supply written comments on the requested change.
As otherwise provided under the proposed minor permit revision track,
if no comments were submitted during the 21-day public comment period
and if neither the permitting authority or EPA objected to the change,
the source would be able to implement the change on the 22nd day after
submitting its minor permit revision application. If comments were
received, however, the permitting authority would be required to
determine whether those comments were germane and non-frivolous within
28 days after the source submitted its application. Where the
permitting authority failed to make such a determination or found that
the comments were either frivolous or not germane, the source would be
able to implement the change on the 29th day after it submitted its
application, again provided that neither the permitting authority nor
EPA had objected to the change. If the permitting authority failed to
timely respond to submitted comments, the commenter would be able to
sue to compel the permitting authority to respond and would be able to
seek an injunction against the source implementing the requested
change.
The EPA would also be able to review the summary and gain access to
the complete demonstration to determine whether the change assures
compliance with applicable requirements, since the source would have
provided EPA with a copy of the minor permit revision application.
Also, as would be otherwise provided by the proposed minor permit
revision track, where EPA did not object to a given change during its
45-day review period, citizens would be able to petition EPA to object,
and seek judicial review in Federal court if EPA did not object to the
change in response to the petition.
The EPA recognizes that even after permitting authority approval of
initial part 64 demonstrations, subsequent verification testing might
be required in order to ensure that the approved monitoring change was
appropriate, and that such verification testing might not be able to be
completed before the deadline for final permitting authority action on
minor permit revision applications. The verification testing would have
to be conducted according to a fixed compliance schedule with
enforceable milestones established by the permitting authority. After
the permitting authority approved the initial demonstration and
established a compliance schedule for the verification testing, the
source would then submit its minor permit revision application. Upon
expiration of the public comment period, as otherwise provided in the
proposed minor permit revision track, the source could implement the
change and begin the verification testing in accordance with the
established compliance schedule. The permitting authority would then
take appropriate final action on the minor permit revision application
as required, even if verification testing were ongoing. The source
would have up to 90 days to complete any verification testing and to
submit a demonstration of its adequacy to the permitting authority.
Upon receipt of the source's verification test results, the permitting
authority would have to promptly notify the source in writing of its
acceptance or rejection of the test results, and place a copy of its
determination in the public docket. The EPA is soliciting comment on
the definition of ``promptly'' and believes that 30 to 90 days would be
an appropriate definition. If, after the permitting authority's final
action revising the permit, the verification testing showed that the
monitoring change ultimately failed to demonstrate compliance as set
forth in the demonstration, upon receipt of written notice from the
permitting authority the minor permit revision would become null and
void, the source would be required to comply with the monitoring terms
and conditions that applied to the source before the minor permit
revision, and the source would be liable for having operated in
violation of its permit from the time the change was implemented until
the permitting authority took final action to revise the permit.
Moreover, if the source continued to operate the change after the
permit revision had become null and void, it would be liable. However,
if the verification testing confirmed that the monitoring change
demonstrated compliance, the permitting authority would then place a
copy of the final verification test in the public docket for the minor
permit revision.
The EPA believes that the proposed minor permit revision track
would provide sufficient opportunity for oversight of these types of
monitoring changes. The requirement that the permitting authority
affirmatively approve the major monitoring changes and changes in
enforceable operating levels prior to the source's submission of the
minor permit revision application would ensure that the public,
affected States, and EPA have the ability to review and comment upon
not only the source's proposed change, but also on the permitting
authority's assessment of the change. Such permitting authority
assessments would become part of the permitting record for the change,
and would be subject to administrative and judicial review. The public
would be afforded an opportunity to comment upon each change prior to
its implementation, and EPA would retain the ability to disapprove any
change it found objectionable. Such disapproval could occur even after
the source implemented the change, rendering the source liable for
operating in violation of its permit. The EPA believes this possibility
serves as a considerable deterrent against sources proposing and
operating inappropriate major monitoring changes.
Again, EPA notes that in order for States to use the minor permit
revision process for major monitoring changes under this option, SIP
revisions would be required to create a provision in the SIP allowing
sources and permitting authorities to develop changes to SIP-required
monitoring methods through the part 70 permitting process without
having to undergo source-specific SIP revisions. The SIP revisions
creating this ``SIP Flexibility'' would provide the public an
opportunity to comment on the provision both at the State and Federal
level, and would require EPA approval into the SIP.
For major monitoring changes and new or alternative methods
approved pursuant to minor or major NSR, EPA believes that such
preconstruction actions provide an adequate forum for initial
permitting authority approval of these changes prior to the minor
permit revision process. Such a forum is especially important for
changes representing new or alternative monitoring methods. Both minor
and major NSR actions are required by EPA regulations to provide public
process for preconstruction changes, and permitting authorities have
developed a long-standing practice in NSR programs. The NSR actions
that would allow major changes or establish new or alternative methods
would be required to explicitly focus upon and approve the monitoring
change to be eligible for subsequent minor permit revision processing
under this option, and would be required to provide the forum for the
demonstration of the adequacy of the monitoring change under part 64.
Given the safeguards discussed above, EPA believes major monitoring
changes and changes representing new or alternative methods could
appropriately be processed as minor permit revisions.
Integrating the proposed option into the four-track system would
require some amendment to the proposed minor permit revision criteria.
First, this option would delete the proposed provision that changes to
monitoring requirements could be processed as minor permit revisions
only if they are necessary to implement changes that otherwise qualify
for this track. This option would replace that provision with
principles establishing the scope of eligible monitoring changes as
discussed above.
Second, this option would expand the scope of eligible changes in
that it would create an exception to the proposed provision that would
exclude changes involving a limit previously established as federally
enforceable solely pursuant to part 70 procedures. As is the case for
de minimis permit revision procedures, EPA believes this exception
would be necessary in order to allow sources and permitting authorities
to make changes to monitoring where no other changes trigger
preconstruction review. Furthermore, to the extent a source's
monitoring method is established solely through part 70 procedures, as
may occur for enhanced monitoring protocols, EPA believes it would not
be necessary, once those protocols have been established pursuant to
significant permit revision procedures, to require that all changes be
processed through procedures beyond those provided by the minor permit
revision track, given the procedural safeguards that would be required
under this option.
Third, this option would add to the application and public
docketing requirements of the minor permit revision track for eligible
monitoring changes, add the requirement of the demonstration under part
64 prior to submission of a minor permit revision application,
establish the ability to conduct verification testing even where
existing permit terms conflicted with such testing, and establish a
separate liability test where verification testing demonstrates post-
permit revision that a monitoring change was not adequate. While these
amendments to the proposed minor permit revision track would be
substantial, EPA believes the result is a more coherent, flexible, and
appropriate approach for expeditiously processing monitoring changes.
(iv) Significant Permit Revisions. Under this option, monitoring
changes that did not qualify for the administrative, de minimis, or
minor permit revision tracks would have to be processed as significant
permit revisions. For example, a switch to a new monitoring method that
had not been affirmatively reviewed pursuant to NSR, including a new
parameter to be monitored, would be required to be processed as a
significant permit revision. The significant permit revision process
would also be required for the initial implementation of an enhanced
monitoring protocol in order to ensure that EPA has sufficient review
of the new method. Part 64 will provide further discussion of the
implementation of an enhanced monitoring protocol. The EPA solicits
comment on whether there are any other broad types of changes in
monitoring that should be specifically identified as requiring
significant permit revision.
d. Liability Under the Alternative Option. As discussed above (see
``Liability for Making Changes Before Permit is Revised''), industry
expressed concern in settlement discussions that since certain
monitoring, recordkeeping and reporting requirements may be determined
on a case-by-case basis in the permitting process, the utility of the
proposed streamlined revision tracks would be undermined by the
inability of the source to propose with certainty the appropriate
compliance terms in its permit revision application. In particular,
industry suggested a source might expose itself to liability if it
operated a change prior to final approval of the change by the
permitting authority. Were the permitting authority to subsequently
disapprove a change that the source had already begun to operate, the
source would be subject to liability for operating in violation of the
applicable permit terms. As discussed earlier in this notice, the
Agency has proposed to address this concern by allowing the permitting
authority to approve proposed permit revisions (including certain
changes to relevant compliance terms) and to allow the permitting
authority not to hold the source liable for having operated in
violation of the original proposed permit terms.
However, the Agency believes the alternative option concerning use
of the proposed revision tracks for changes to source compliance
monitoring existing in a permit may eliminate most, if not all, of the
short term uncertainty regarding the adequacy of compliance terms in a
proposed permit revision. Under the alternative option, since all
changes to monitoring requirements in an existing permit that are
eligible for de minimis or minor permit revision tracks must have been
approved by the permitting authority prior to the submission of the
proposed operating permit revision, uncertainty as to the permitting
authority's positions will be eliminated. In addition, the existence of
prior permitting analysis and approval of the proposed change should
make it less likely that adjustments to the compliance monitoring
requirements will be necessary in the permitting authorities final
approval of the permit revision.
In light of these considerations, the Agency requests comment on
the need for appropriateness of provisions in the revision procedures
discussed earlier in this notice that allow the permitting authority to
correct minor changes in compliance monitoring requirements in the
final permit revision, and on whether the permitting authority should
be authorized to excuse source liability for operating changes that are
subsequently disapproved. The Agency also solicits comment on whether
under the alternative option any risk of potential source liability for
operating a change prior to final permitting authority approval would
unreasonably limit the use of the streamlined revision process and
whether the integrity of the revision process for compliance monitoring
would be better assured by allowing sources to assume the full risk,
especially given the greater breadth of compliance monitoring changes
subject to streamlined revision procedures under the alternative option
and the greater certainty afforded by requiring prior permitting
authority approval of the proposed change.
e. Solicitation of Input on Test Method Changes. The EPA is also
soliciting comment on whether to allow certain test method changes to
also be eligible for review under permit revision procedures more
streamlined than the significant permit revision processes, similar to
the way monitoring changes are addressed in the proposed option
discussed above. While the potential need to revise a test method
should generally be unrelated to the previously described flexibility
needs of sources, EPA believes that certain types of changes to test
methods may be appropriate for more expeditious review particularly
given the proposed use of method 301 as set forth in 40 CFR part 63,
appendix A, as the standardized criteria for evaluating changes to
testing. As discussed with respect to monitoring changes, test method
changes would be appropriate only as allowed by the underlying
applicable requirements, including the SIP.
The EPA is considering whether the use of method 301 establishes
sufficient and adequate criteria to evaluate new alternative and major
changes in test methods. A proposed alternative test method which meets
the criteria in method 301 is considered substantially equivalent to
the existing method, and is an acceptable change. If EPA were to allow
test methods to be changed pursuant to the procedures described above,
the review and acceptance of new test methods using the method 301
criteria could be conducted by the permitting authority, and EPA
Headquarters would be available for technical assistance and
arbitration of approval or disapprovals of proposed methods.
F. General Permits
The statute and the current rule authorize permitting authorities
to issue general permits to sources that are similar enough that they
are subject to the same set of applicable requirements, may be
monitored in the same way, and thus may be covered by the same permit.
General permits have the potential to greatly reduce the cost of
permitting similar sources and are the likely approach to permitting
numerous smaller sources. The Agency considers general permits an
important element of a workable, cost-effective permit program.
Under the current rule, general permits for specific source
categories are to be developed using full permit issuance procedures.
Following promulgation of the general permit, sources that believe they
meet the criteria for coverage by the general permit may submit a
request to the permitting authority to operate under it. The permitting
authority may authorize sources to operate under the general permit
without public participation, and such authorizations are not
judicially reviewable. A source authorized to operate under a general
permit, however, is subject to an enforcement action for operating
without a part 70 permit, notwithstanding the permit shield provisions,
if the source is later determined not to qualify for coverage under the
general permit.
In the preamble to the current rule, EPA explained that the primary
purpose of general permits is to provide a less burdensome means of
permitting numerous similar sources, and that public participation in
and judicial review of the permitting authority's decision to authorize
a source to operate under a general permit would undermine that
purpose. The Agency sought to offset the lack of public or judicial
review with the provision making sources liable for operating without
any permit if they were later determined not to qualify for a general
permit.
State and environmental group petitioners challenged several
aspects of the current rule's approach to general permits. Both groups
of petitioners objected to the provision denying judicial review of a
permitting authority's decision to authorize a source to operate under
a general permit. Environmental group petitioners also objected to the
lack of public participation in the decision to authorize operation
under a general permit. The petitioners generally challenged EPA's
authority to exempt decisions regarding a source's eligibility for a
general permit from public review or final agency action from judicial
review. They were also not convinced that subjecting a source to
continued liability for operating without a part 70 permit was enough
to offset the loss of public or judicial review. They noted that a
primary purpose of title V was to remove from enforcement actions the
issue of what requirements applied to a source and that EPA's approach
to general permits ran counter to this purpose.
The Agency has reexamined the general permits provisions of the
current rule from a legal and policy standpoint, and has concluded that
the current rule provides too little opportunity for public oversight
of the general permits. As noted above, the current rule relies
exclusively on the availability of an enforcement action against a
source that received authorization to operate under a general permit
but should not have, to ensure the integrity of the general permitting
process. On reflection, EPA agrees with the petitioners that this
liability provision does not appropriately or effectively compensate
for the lack of public or judicial review of the authorization decision
itself. First, the liability provision returns to the enforcement arena
basic issues of applicability that the permit program was established
to settle in the permitting process. It is also questionable how
effective enforcement actions would be as a remedy to inappropriately
granted authorizations. Without public notice of the authorization,
citizens could not easily determine who had been granted authorization
and on what basis. Citizens would therefore be poorly situated to bring
enforcement actions on their own. It is also questionable whether all
courts would be willing to impose the potentially extremely heavy
penalties that could have accrued if a source were found ineligible for
a general permit in an enforcement action. The source would likely
argue, and a court may well agree, that it had received and reasonably
relied upon an authorization to operate under a general permit.
The Agency therefore proposes to delete that portion of the rule
that provides that permitting authority decisions to authorize sources
to operate under general permits are not judicially reviewable. The
Agency also proposes to require that the permitting authority provide
public notice of any authorization decisions it has made. Public notice
could be provided on a monthly, batched basis, as EPA is also proposing
for de minimis permit revisions.
The Agency is also considering whether to revise the rule to
require permitting authorities to provide an opportunity for public
objection to authorization requests. If the public had some opportunity
to participate in the permitting authority's decision-making process
itself, fewer challenges to authorization requests would end up in
court, and those that did would likely have the benefit of an
underlying administrative record for the court to consider in making
its decision. The Agency requests comment on the need for public
comment on decisions by the permitting authority to authorize operation
under a general permit.
One manner of offering the public an opportunity to participate in
authorization decisions is that proposed for de minimis change
procedures. As described before, the proposed de minimis change
procedures would require a monthly public listing of the de minimis
changes for which the permitting authority had received applications
the previous month. Upon posting of the monthly list, the public would
have a specified period of time in which to petition the permitting
authority to disapprove the change request. The permitting authority
would then have a specified period of time in which to respond to any
public objections, and if at the end of that period it had not denied
the change request, the request would be deemed granted. A citizen
unsuccessful in persuading the permitting authority to object to the
change would be able to seek EPA or judicial review. No permit shield
would be available for permit revisions processed using these
procedures.
Applied to the general permit context, the process would entail a
monthly public listing of the sources that had requested authorization
to operate under the general permit; a specified period of time for the
public to object to any such requests; a specified period of time for
the permitting authority to respond to any objections; default granting
of authorization if the permitting authority failed to act by end of
the period for its response; and recourse to EPA or the courts if a
public objection had not been heeded.
Unlike the de minimis revision procedures, however, EPA believes
that authorizations granted (or deemed granted) in accordance with
these public procedures could, at the permitting authority's
discretion, provide a source receiving such an authorization with a
shield against an enforcement action for operating without a permit. In
other words, EPA would delete the current rule's provision that leaves
a source that receives an authorization to operate under a general
permit liable for operating without a permit if the source is found in
an enforcement action to not qualify for the general permit under which
it has been operating. The Agency requests comments on whether a shield
against enforcement against operating without a permit should be
available if the Agency were to require procedures like those described
above. It notes that whether or not such a shield is made available,
the permitting authority could provide for a shield when it first
issues the general permit to the effect that a source which qualifies
to use the general permit may rely on the terms of the permit to comply
with the Act's requirements addressed in the general permit.
The Agency believes that the process described above has the
advantage of providing for public participation in decisions about the
eligibility of particular sources for a general permit in a manner that
would not place any undue burden on sources. A source interested in
being covered by a general permit would only have to apply to the
permitting authority, and would not have to further interact with the
permitting authority unless its application was questioned or denied.
Obviously, public involvement in review of a source's application may
lead to more questions than would have otherwise occurred, but one of
the benefits of public participation is the additional scrutiny it
affords. The Agency recognizes, moreover, that the cost of providing an
opportunity for public participation would be passed on to sources
through permit program fees. These costs to the source, however, would
be offset by the availability of the shield against enforcement for
operation without a permit that the procedures would afford.
The Agency is interested in receiving comment on the burden the
process described above would place on permitting authorities. For de
minimis changes, EPA is not proposing that public notice take any
particular form, and it is not suggesting any particular form for
general permits, either. Potentially, low cost means of publicly
circulating the list of general permit applicants could be found.
Permitting authorities would more likely incur any substantial added
costs as a result of the need to respond to public comment. To the
extent that the public raised significant concerns about the
eligibility of a source for a general permit, though, these costs would
be justified. To the extent the public comments were not significant or
germane, the permitting authority would require less time to respond to
them, if it had to respond at all.
The Agency is also interested in receiving comment on an
alternative approach to authorizing sources to operate under general
permits. Under this approach, the permitting authority could authorize
sources to operate under a general permit without public involvement,
but would be required to provide after-the-fact notice to the public of
the sources whose requests for a general permit were granted. The
permitting authority would also be required to provide as part of its
permit program an expedited means of revoking a permit (see discussion
of permit revocation procedures elsewhere in this preamble). The public
would have the opportunity to petition the permitting authority to use
the expedited process to revoke the authorization a source had received
from the permitting authority.
The advantage of this approach would be that a source could obtain
authorization without having to wait for the expiration of the periods
for public objection and permitting authority response. From the
public's standpoint, it would not require full permit issuance
procedures (which the permitting authority has 18 months to complete)
to revoke an improper authorization to operate under a general permit.
This approach would be preferable, moreover, to that taken by the
current rule, in that questions of eligibility would be settled in an
administrative action prior to an enforcement action. The Agency
requests comments on whether it would be appropriate to establish
minimum criteria for expedited permit revocation procedures if it were
to take this approach, and if so, what those criteria should be.
A difference between the two approaches would be the availability
of the permit shield. As explained above, EPA believes that general
permits issued pursuant to procedures like those proposed for de
minimis changes could provide a shield against enforcement for
operating without a permit, even if the source is later determined to
not qualify for the general permit. Under the second approach described
above, the source would obtain its authorization without the benefit of
any public involvement, and under such circumstances EPA believes it
would be inappropriate to afford any permit shield. Commenters should
taken into account the potential availability of a shield for the
former approach in commenting on the relative merits of the two
approaches.
IV. Other Changes and Clarifications
The following section of today's notice addresses other issues
raised in the permits case or during State/local agency and EPA
implementation of the part 70 permits program. The issues are presented
in the order of the sections in part 70 to which they relate. The EPA
proposes to resolve some issues through rule revisions while for others
the Agency offers clarifications or guidance.
A. Section 70.2--Definitions
1. Applicable Requirements
a. Emissions or Offset Credits and Limits Taken to Avoid Applicable
Requirements. The current definition of ``applicable requirements'' in
part 70 does not include an explicit reference to requirements that
create emissions or offset credits or that limit emissions for the
purpose of avoiding applicable requirements. The proposed change would
clarify that applicable requirements include any emissions-limiting
requirement that is enforceable by EPA and by citizens under the Act
and that is imposed on a source for purposes of creating an emissions
or offset credit or avoiding the applicability of other applicable
requirements. Several petitioners in the permits case are concerned
that the rule may be read to not require the inclusion of such
requirements in a part 70 permit. The Agency believes that virtually
all such requirements fall within the scope of the listed components in
the definition of applicable requirements. For instance, limits taken
to avoid major NSR are generally established in minor NSR permits the
terms of which are included as applicable requirements under paragraph
(2) of the definition. Likewise, a source's ability to earn emissions
or offset credits is generally grounded in regulations establishing an
emission control program or standard (e.g., NSR or MACT) that are also
listed as sources of applicable requirements in the current rule.
The Agency nevertheless appreciates petitioners' concern that
without an explicit reference in the applicable requirements
definition, at least some limits taken for potential to emit or
emissions credit purposes might be construed as not falling within the
listed categories of applicable requirements. It is important to
include these voluntarily undertaken limits in part 70 permits, as they
require emissions reductions or controls that allow a source to avoid
other, presumably more onerous, emissions reductions or controls. It is
especially important if the limit creates a credit to be used to allow
increased emissions at another source. The Agency is thus proposing to
explicitly include these requirements in the list of applicable
requirements. A new paragraph (2) is proposed to be added under the
definition of applicable requirement to reflect these changes. The
remaining paragraphs would be renumbered accordingly.
b. Title VI Requirements.--Currently, Sec. 70.2 defines
``applicable requirement'' to include ``[a]ny standard or other
requirement of the regulations promulgated to protect stratospheric
ozone under the title VI of the Act, unless the Administrator has
determined that such requirements need not be contained in a part 70
permit'' (emphasis added). In today's action, EPA proposes to determine
that certain title VI requirements need not be included in part 70
permits.
The EPA believes that portions of the title VI program are
fundamentally different from the other programs contained within the
definition of ``applicable requirements'' in part 70. These other
programs (e.g, NSR, PSD, NSPS, toxic air pollutants, acid rain, and
solid waste combustion (section 129)) are based on control of emissions
from stationary sources which produce pollutants as a result of their
various processes. In contrast, the title VI program reduces ozone-
depleting substances (ODS) not so much by requiring controls on
emissions but by requiring the phaseout of production of ODS,
technician certification, bans on non-essential products, evaluation of
alternatives for the most potent ODS, regulation of interstate commerce
of ODS, and warning label requirements.
In addition, to be most effective, many title VI activities require
national consistency which could be compromised if implemented by State
or local operating permit programs. Therefore, EPA proposes to delete
as applicable requirements the requirements of sections 604-607 and
610-612 of the Act. Today's proposal would retain, however, the title
VI regulations under sections 608 and 609, which apply to ODS capture
and recycling during service and disposal of refrigerator equipment and
air conditioners (including motor vehicle air conditioners (MVAC)).
These requirements are more similar to requirements issued under
section 111 and 112.
(1) Phase Out of Production and Consumption of ODS--Section 604,
605, and 606. Sections 604, 605, and 606 of the Act require EPA to
promulgate a schedule to phase out the production and use of ozone-
depleting chemicals, and to accelerate the phaseout if certain actions
occur. On December 10, 1993, EPA promulgated regulations which
accelerated the originally promulgated schedule for the phaseout (40
CFR 82, Subpart A, 58 FR 65018). Under the accelerated phaseout,
production of Class I substances will be phased out by 1996. Class I
substances are CFC's, halons, carbon tetrachloride, methyl chloroform,
and methyl bromide. The phaseout is accomplished by issuing decreasing
numbers of production and consumption allowances to ODS producers and
importers which are few in number and scattered across the country.
Allowances are issued not to individual facilities but to corporations,
many of which have facilities in more than one State. Beyond that, the
program involves a national allowance trading system. Thus,
determination of compliance with the program must occur using a
coordinated national program. For these reasons, EPA believes that
implementation of this program through part 70 permits would be
inappropriate and that these applicable requirements need not be
contained in operating permits. Focusing implementation of this
regulation through EPA conserves resources, promotes efficiency and
avoids possible misunderstandings.
(2) National Recycling and Emission Reduction Program--Section 608.
The EPA believes that the regulations promulgated pursuant to section
608 of title VI are applicable requirements that should be included in
operating permits (40 CFR 82, Subpart F, 58 FR 28660), because
inclusion of those requirements in part 70 permits will facilitate
their implementation and enforcement. Inclusion of these requirements
in part 70 permits, however, does not diminish EPA's authority to
enforce section 608 directly.
On May 14, 1993, EPA promulgated final regulations pursuant to
section 608 of the Act. These regulations require recycling of ozone-
depleting refrigerants which are recovered during servicing of non-
motor vehicle air conditioning or refrigeration equipment. The rules
also require recycling during disposal of all air conditioning and
refrigeration equipment. In addition, the regulations establish certain
service practices which reduce emissions of refrigerants and provide
for training and certification of the technicians who service air
conditioners and refrigeration equipment. A source is in the best
position to ensure that any disposal or repair work done at the source
is done only by technicians who are properly certified. In addition,
part 70 requires a compliance certification signed by a responsible
official. Inclusion of the section 608 requirements in the part 70
permit will assist enforcement of these regulations by allowing
permitting authority enforcement officials to investigate and monitor
compliance with the requirements of this program.
(3) Servicing of Motor Vehicle Air Conditioners--Section 609. The
EPA believes that the regulations promulgated under section 609 of
title VI should be in part 70 permits to facilitate implementation and
enforcement of those regulations. Inclusion of those requirements in a
part 70 permit does not diminish EPA's authority to enforce section 609
directly.
On July 14, 1992, EPA promulgated final regulations pursuant to
section 609 of the Act (40 CFR 82, Subpart B, 57 FR 31241). These
regulations prescribe standards and requirements for servicing motor
vehicle air conditioners. The regulations also require certification
for service technicians who repair or service motor vehicle air-
conditioning units. Technicians must be certified to use approved
equipment to recover and recycle certain refrigerants. The regulations
also prohibit the sale of small containers (under 20 pounds) of ODS to
anyone except certified technicians.
Many part 70 sources have company cars or fleets of motor vehicles.
The need for motor vehicle air conditioner maintenance and service is
routine and foreseeable. In addition, technicians who perform the MVAC
repair and maintenance are usually either employees of the part 70
source or independent contractors. The source is in the best position
to ensure these technicians are properly certified before performing
any work. The EPA believes that including section 609 requirements in
operating permits will enhance compliance with these requirements by
requiring a compliance certification signed by a responsible official.
(4) Nonessential Products Containing Chlorofluorocarbons--Section
610. On January 15, 1993, EPA promulgated final regulations which
prohibit the sale and distribution, or offer of sale or distribution,
of certain ``nonessential'' products into interstate commerce which
contain or were produced with CFC's after specified dates (40 CFR 82,
Subpart C, 58 FR 4768). On December 30, 1993, EPA promulgated final
regulations which prohibit the sale and distribution, or offer of sale
or distribution, of certain ``nonessential'' products into interstate
commerce which contain or were produced with hydrochlorofluorocarbons
(HCFC) after specified dates (40 CFR 82, Subpart C, 58 FR 69637).
Examples of ``nonessential'' products are cleaning fluids for
noncommercial photographic or electronic equipment. These rules involve
the movement of certain items into interstate commerce, not the
emission of pollutants from stationary sources. The EPA believes that
the operating permit program was not intended to implement and enforce
these types of provisions, and that the section 610 regulations are
more appropriately implemented and enforced nationally by EPA,
therefore, EPA believes that section 610 applicable requirements need
not be contained in operating permits.
(5) Labeling--Section 611. On February 11, 1993, EPA promulgated
final regulations establishing labeling requirements for products
manufactured with ODS, products that contain these substances, and the
physical containers of these substances (40 CFR 82, Subpart E, 58 FR
8136). These products must contain a conspicuous ``warning label''
which clearly informs the reader that the product contains (or was
manufactured with) substances which harm ``* * * public health and the
environment by destroying ozone in the upper atmosphere * * *'' (40 CFR
82.106). The warning label requirement does not necessarily apply to
particular facilities, but instead applies more generally to the
company which produces covered products. Inclusion of these
requirements in a part 70 permit could thus be inappropriate or at
least unnecessary. Accordingly, EPA believes that there is no
significant benefit to including these requirements in part 70 permits
and proposes that they not be included.
(6) Safe-Alternatives--Section 612. On March 18, 1994, EPA issued
final regulations pursuant to section 612 of the Act establishes a
program to identify, evaluate, and, if warranted, regulate substitutes
for ODS (40 CFR 82, Subpart G, 59 FR 13044). This program is called the
Significant New Alternatives Policy (SNAP) program and is intended to
facilitate the switch to non-ozone-depleting chemical substitutes. The
EPA believes that this program cannot be implemented via operating
permits because EPA is charged with judging the acceptability of non-
ozone-depleting chemical substitutes. This function must be performed
at the Federal level to provide for national consistency. However,
operating permits may refer to the SNAP list of acceptable ODS
alternatives in order to provide maximum flexibility under regulations
promulgated under sections 608 and 609.
The EPA reserves the right to determine through future rulemaking
that the applicable requirements of title VI it today proposes to not
include in part 70 permits be included if evidence arises indicating
that such applicable requirements should be contained in operating
permits. Similarly, EPA may determine in future rulemaking that the
applicable requirements of sections 608 and/or 609 need not be
contained in operating permits.
2. Administrator
In several places in part 70, a change is made where reference is
made to the Administrator to reflect that the appropriate reference
should be ``his or her'' instead of ``his.''
3. Deletion of ``Section 502(b)(10) Change'' Definition
The definition of ``Section 502(b)(10) changes'' is being deleted
since the provisions using that term are being revised such that the
term is no longer needed. Refer to the previous discussion of the
revisions proposed to be made to the permit revision procedures in
Sec. 70.7.
4. Addition of Major NSR and Minor NSR Definitions
Definitions of ``major new source review'' and ``minor new source
review'' are being added so they can be used in describing the proposed
revised permit revision procedures. Since the various processes by
which permits would be revised under the proposed four-track system
often would depend on whether the change had been previously subject to
major or minor NSR, it is critical to define these terms.
5. Major Source Definition
a. SIC Codes for Hazardous Air Pollutants (HAP's) Sources. Today's
proposal would change the definition of major source in part 70 to
conform to the definition in section 112(a) of the Act and implementing
regulations governing HAP's sources recently promulgated in 40 CFR part
63. Under the current definition of ``major source'' in part 70, a
stationary source or group of stationary sources located within a
contiguous boundary and under common control would be considered to be
a major source only if those stationary sources belong to the same two-
digit SIC code. However, in section 112 of the Act and 40 CFR part 63
there is a somewhat broader definition of major source of HAP emissions
(see 40 CFR 63.2). ``Major source'' is defined in part 63 as any
stationary source or group of stationary sources located within a
contiguous boundary and under common control that emits (or has the
potential to emit, considering controls) above a threshold level of
HAP's, regardless of SIC code commonality.
As currently written, part 70 requires some, but not all, sources
considered major under part 63 to obtain a part 70 permit. Unless the
part 70 definition is revised as proposed, there will likely be some
sources that are major for purposes of part 63 but not major for
purposes of part 70. These sources could be subject to a section 112
standard or other requirement, but under the current rule would not
have to apply for and obtain a part 70 permit until required to do so
by a specific section 112 standard. Section 501 of the Act defines
major source for title V purposes as, among other things, major sources
as defined in section 112 of the Act. Section 502(a) requires that all
major sources obtain permits. Since EPA has defined section 112 major
sources in part 63, there is no basis for a different definition in
part 70. Moreover, EPA believes the implementation of section 112 will
be enhanced if it is clear from the start that any source that would be
major under part 63 must apply for a part 70 permit within 12 months
(or a shorter time designated by the permitting authority) of becoming
subject to the part 70 program. Therefore, today's notice proposes to
change the definition of major source in part 70 to include all sources
defined as major in part 63.
b. Fugitive Emissions. The current definition of ``major source''
in part 70 requires sources to count fugitive emissions in determining
major source status for PSD and nonattainment NSR purposes, when the
source is subject to a standard promulgated under section 111 or 112 of
the Act, regardless of when the standard was established. In previous
rulemaking under section 302(j), EPA has determined that fugitive
emissions for purposes of NSR are to be counted for sources in
categories subject to section 111 or 112 standards that were
established prior to August 7, 1980. One petitioner asserts that EPA
may not require that fugitives be counted in determining NSR major
source status for sources in categories subject to section 111 or 112
standards promulgated on or after August 7, 1980 without conducting
future rulemaking under section 302(j).
The EPA agrees that it did not follow the procedural steps
necessary under section 302(j) to expand the scope of sources for which
fugitives must be counted in making NSR major source determinations.
Today's proposed revision would thus change paragraph (2)(xxvii) of the
definition of ``major source'' such that only a source belonging to a
source category subject to a section 111 or 112 standard issued prior
to August 7, 1980 would be required to count fugitive emissions of the
pollutant regulated by that standard in determining if it were major
for NSR purposes. States would not be required to provide that a source
belonging to source category subject to a section 111 or 112 standard
promulgated after August 7, 1980 include fugitive emissions of the
relevant pollutant in its calculation of NSR major source status,
unless and until EPA conducts future section 302(j) rulemaking (except
where such a source would qualify as a support facility; see discussion
below).
With respect to determinations of major source status under section
112, EPA believes the Act requires that fugitive emissions, to the
extent quantifiable, be counted. The section 112(a)(1) ``major source''
definition is distinguishable from the part C and part D definitions of
major source in some important respects. Section 112(a)(1) uses the
term ``major source'' as opposed to ``major stationary source,'' and
legislative history indicates an intent to treat this definition as
distinct from the section 302(j) ``major stationary source''
definition. The Senate Committee Report states that ``[t]he concept of
`major source' is not used in the current regulatory regime for
hazardous air pollutants and, thus, a definition of `major source'
ne[e]ds to be added to section 112. The definition established here
will only apply in the context of this section and should not be
confused with other meanings of the term `major source' in [parts C and
D] of the Act'' (S. Rep. No. 228, 101st Cong., 1st Sess. 150-51
(1989)). Moreover, section 112 establishes a new regulatory program the
focus of which is specific hazardous air pollutants at source
categories to be determined by EPA. All this suggests that the section
302(j) rulemaking requirement does not apply in the context of section
112, and that fugitive emissions must therefore be included for
purposes of determining whether a source is major under section
112(a)(1).
The current part 70 rule requires that fugitive emissions be
included in the determination of major sources of section 112
pollutants under paragraph (1) of the definition of ``major source,''
although EPA acknowledges that the existing language may be unclear in
this respect. In paragraph (1)(i) of the definition of ``major
source,'' therefore, the words ``including fugitive emissions'' are
proposed to be added to clarify that fugitive emissions of any
hazardous air pollutant listed in section 112(b) of the Act must be
counted in calculating the source's emissions to determine if the
source is major under section 112(a)(1).
Pollutants for which a standard has been set under section 112
after August 7, 1980 are included in the list of HAP's in section
112(b) of the Act. Fugitives for those pollutants must thus be counted
in determining whether a source is major under paragraph (1)(i) of the
part 70 definition of ``major source.''
For further analysis of when fugitives must be counted in making
major source determinations under the Act, see in the docket for this
rulemaking (A-93-50) the March 8, 1994 memorandum, ``Consideration of
Fugitive Emissions in Major Source Determinations'' from Lydia Wegman,
Deputy Director, Office of Air Quality Planning and Standards to EPA's
Regional Office Air Division Directors.
c. Support facility. A clarification of the definition of ``major
source'' is proposed to reflect EPA's intention with respect to
including the emissions of support facilities when determining if a
source is major. The preamble to the part 70 proposal states that ``* *
* any equipment used to support the main activity at a site would also
be considered as part of the same major source regardless of the 2-
digit SIC code for that equipment'' (56 FR 21724). The discussion goes
on to indicate that greater than 50 percent of the output of the
support equipment would have to be dedicated to a source to be
considered as part of the same major source. The proposed clarification
would establish the term ``support facility'' and specify that
emissions from such a facility would be included with the source it is
supporting if 50 percent or greater of its output were dedicated to
that source.
6. Potential to Emit
The current definition of ``potential to emit'' in part 70 refers
to limitations enforceable by the Administrator. Several petitioners
pointed out that federally-enforceable potential to emit limits are
enforceable under the Act by the Administrator and by citizens. The
Administrator agrees, and thus proposes to revise the definition so
that limitations are considered in determining a source's potential to
emit if they are enforceable by the Administrator and citizens under
the Act.
7. Responsible Official
The definition of ``responsible official'' is proposed to be
revised to allow a person other than the designated representative to
be the responsible official for activities not related to acid rain
control at affected sources. The reason for this proposed change is
that the nature of the responsibilities of a designated representative
(e.g., performing allowance account transactions) has prompted many
owners and operators of affected sources to select corporate personnel,
in lieu of site personnel, to act as their designated representative.
Such persons, though, may not be in the best position to handle title V
duties not related to acid rain. This revision, therefore, would allow
sources to designate the appropriate individual to carry out each
responsibility. Procedurally, the designated representative would still
be responsible for signing all documents relating to acid rain (e.g.,
the acid rain permit applications and revision requests) and would be
authorized to submit them directly to the permitting authority for
action without the consent of the non-acid rain responsible official.
Similarly, the non-acid rain responsible official may carry out
responsibilities not related to the acid rain program without the
consent of the designated representative.
8. Title I Modification
As previously discussed, the failure of the current rule to define
the phrase ``modification under any provision of title I of the Act,''
has caused confusion and controversy. The EPA is thus proposing today
to add a new definition of ``Title I modification'' or ``modification
under any provision of title I'' to specify that it includes minor NSR
actions.
B. Section 70.3--Applicability
1. Part C and D Sources
Section 502(a) of the Act includes in the list of sources required
to obtain a permit ``* * * any other source required to have a permit
under part C or D of title I. * * *'' Although this category was not
specifically mentioned in Sec. 70.3(a), EPA notes that sources required
to obtain a permit under part C or D of the Act are also major sources
which are subject to part 70. Today's proposal would add a separate
item to Sec. 70.3(a) with respect to sources required to obtain permits
under parts C and D to make it parallel with the Act.
2. Nonmajor Sources
Sections 70.3(a) (2) and (3) of the current part 70, as part of the
list of sources that must obtain permits under part 70, refer to any
source, including an ``area'' source subject to a standard, limitation,
or other requirement under sections 111 and 112 of the Act,
respectively. Section 70.3(b)(1) then refers to sources that are not
major being eligible for an exemption from permitting. Essentially,
``area source'' and ``nonmajor source'' mean the same thing for
purposes of part 70 and language is proposed to be added to
Secs. 70.3(a) (2) and (3) to clarify this point.
3. Section 112(r) Pollutants
Currently, Sec. 70.3(a)(3) requires any source subject to a
standard or other requirement under section 112 of the Act to obtain a
part 70 permit unless it would be subject to part 70 solely because it
is subject to regulations or requirements under section 112(r). Section
112(r)(3) requires EPA to promulgate a list of regulated substances and
thresholds for the prevention of accidental releases. Section 112(r)(4)
establishes criteria for the development of the list of regulated
substances, focusing on acute effects which result in serious off-site
consequences, rather than chronic effects. As a result, many of the
substances that EPA listed in 40 CFR 68.130 pursuant to section
112(r)(3) (59 FR 4478 (January 31, 1994)) are not regulated elsewhere
under the Act.
Questions have been raised as to whether section 70.3(a)(1), which
provides that ``any major source'' is subject to the permit rule,
requires that sources that have major source levels of section 112(r)
pollutants must be permitted. Setting aside the issues of whether and
how major source status is to be determined for section 112(r)
purposes, section 112(r)(7)(F) exempts from title V permitting
requirements any source that would be subject to title V only as result
of being subject to section 112(r) requirements. That section provides
that ``[n]otwithstanding the provisions of title V or this section, no
stationary source shall be required to apply for, or operate pursuant
to, a permit issued under such title solely because such source is
subject to regulations or requirements under this subsection.'' It is
thus clear that even if a source could be considered a ``major source''
for section 112(r) purposes, it would not be subject to title V
permitting on that basis alone. The EPA proposes to revise section
70.3(a) to clarify this point.
C. Section 70.4--State Program Submittals and Transition
1. Group Processing
The reference in section 70.4(b)(3)(xi) to the 180-day time limit
for group processing of minor permit modifications is proposed to be
deleted since the proposed minor permit revision provisions would make
it no longer applicable. See the discussion above on the proposed
changes to the permit revision provisions.
2. Judicial Review Time Period
Section 70.4(b)(3)(xii) in the current part 70 requires that a
program may allow a period of no more than 90 days for filing petitions
for judicial review after a final permit action or after new grounds
for review arise. Several petitioners pointed out that the 90-day limit
is shorter than that provided by some State or local statutes. They
argued that it is inappropriate for the Federal Government to be
requiring shorter statutes of limitation than those provided by State
or local law.
The Agency included the 90-day limit in the current rule to ensure
the finality of permit terms and conditions. Without such a limit,
challenges to permit terms and conditions would likely take place in
the context of enforcement actions, thus undercutting the title V
purpose of improving the enforceability of Act requirements. The Act
itself contains such a limit on judicial review of EPA rules (see
section 307).
At the same time, EPA wants to build on, and not unnecessarily
disrupt, State and local programs. The Agency believes that a judicial
review time limit of 125 days from the date a permit is issued or
revised would not require any State or local agency to revise
applicable State or local statutes of limitation. Lengthening the
period for obtaining judicial review to 125 days should not
significantly undermine the goal of obtaining finality. The Agency thus
proposes to revise the current rule to extend the allowable judicial
review period to 125 days. As under the current rule, permitting
authorities would be free to establish shorter time periods.
3. Program Revision
Section 70.4 of the current rule contains provisions governing when
and how operating permits programs are to be revised. As explained in
section 70.4(i), State or local programs may need to be revised when
the relevant Federal or State or local statutes or regulations are
revised. Today's notice proposes a number of revisions to the Federal
regulations establishing the minimum elements of operating permits
programs that, if promulgated, will require revisions of those permit
programs. In this section of the preamble, EPA is also proposing a few
changes to the provisions that will govern permitting authority efforts
to revise their programs.
The Agency proposes to consolidate the provisions governing
operating permits program revisions in section 70.4(i) and to set
deadlines for submission of program revisions to EPA for approval.
Specifically, EPA proposes to delete the second sentence of section
70.4, which requires permitting authorities to submit permit program
revisions as needed in response to part 70 revisions within 12 months
of EPA promulgating the part 70 revisions or such other time as the
Administrator authorizes. That sentence would be replaced by deadlines
established in section 70.4(i) for submission of various types of
program revisions to EPA.
Where a permitting authority could revise its program to comport
with part 70 revisions without changing State or local law or
regulations, the permitting authority would be required to submit its
revisions within 180 days of the publication of the part 70 revisions.
Where a change in State or local regulations were needed, the
permitting authority would have up to 12 months to submit the
revisions. Where statutory changes were needed, the permitting
authority would have up to 2 years to complete the necessary changes.
Notwithstanding these deadlines, the Administrator could set other
deadlines as appropriate. This graduated series of timeframes reflects
the probable effort needed by State and local agencies to accomplish
different types of program revisions. Where State legislatures meet
only every 2 years, however, 2 years may not be enough time. The
Administrator could provide a longer timeframe in such an instance
under the proposed revisions to Sec. 70.4(i).
4. Savings Provision
Several State and local permitting authorities have raised
questions and concerns about the effect that revisions to part 70 will
have on the Agency's approval of operating permits programs that were
developed in light of the current rule. While a number of State and
local authorities have yet to submit their part 70 programs to EPA for
approval, many have submitted their programs and all State and local
authorities have relied on the current rule in designing their
programs. Many permitting authorities have expressed the concern that
if EPA were to base program approval decisions on the revised part 70,
most if not all submitted programs would be disapproved.
The Agency recognizes this timing concern and is proposing a new
paragraph (j) to be added to Sec. 70.4 to govern how submitted programs
that were developed based on the current part 70 would be reviewed by
EPA after promulgation of the part 70 revisions. The proposal would
allow State and local agencies to submit programs based on the current
part 70 for up to 6 months after promulgation of the revised part 70.
The EPA would then evaluate those programs under part 70 as originally
promulgated. The permitting authority could also request that its
program, or portions of it, be judged against the revised part 70.
Programs receiving approval based on the originally promulgated
part 70 would still have to be revised to conform with the revised part
70 in accordance with the schedule being proposed in Sec. 70.4(i) for
program revisions. Programs submitted after the 6-month period would be
evaluated against only the revised part 70.
The EPA believes it may provide for such ``grandfathering'' of
permit programs developed and submitted pursuant to part 70 as
originally promulgated (see Sierra Club v. EPA, 719 F.2d 436 (D.C. Cir.
1982), cert. denied, 468 U.S. 1204 (1984) and memorandum from Gerald
Emison, June 27, 1988, ``Grandfathering of Requirements for Pending SIP
Revisions''). First, the proposed changes to the part 70 provisions for
permit revisions would represent a significant departure from the
regime under which permitting authorities are currently required to
develop programs. Permitting authorities will need adequate time to
develop program revisions consistent with the new requirements and
could not reasonably be expected to convert their programs to the new
system immediately. Second, EPA recognizes that the process for
developing part 70 programs is time-consuming, and does not wish to
inadvertently punish State and local agencies that have relied on the
existing rule in developing programs for submittal to EPA. Third, EPA
does not believe there is a strong statutory interest in applying the
revised part 70 immediately upon promulgation, especially where State
and local agencies have developed and submitted programs in good faith
based on the current rule.
Other reasons also strongly support a 6-month transition period.
Some State and local agencies may be submitting initial part 70
programs in 1995. To require review of those programs under the revised
part 70 could result in imposition of a Federal program since programs
submitted based on the current part 70 would not likely be approvable
under the proposed revised part 70. The proposed 6-month grandfathering
period allows EPA a reasonable opportunity to approve programs
developed under the current part 70 and avoid unnecessary imposition of
a Federal program.
The EPA solicits comment on the appropriateness of the proposed
grandfathering provision and the adequacy of a 6-month period following
promulgation during which permitting authorities could submit programs
based on current part 70. The EPA also solicits comment on the need for
grandfathering considering other options that could be provided, such
as postponing the effective date of the revised part 70 (as discussed
in the following section).
5. Phase In of New Requirements
As previously discussed, to accommodate the workload associated
with making regulatory and legislative changes, EPA proposes to allow
permitting authorities a period of up to 2 years after promulgation of
part 70 revisions to submit revisions of their part 70 programs. This
is of particular importance because revisions to part 70 are likely to
occur in two or more phases and, in addition, many permitting
authorities will have to develop and submit program revisions to
address deficiencies identified through the interim approval process.
Most State and local agencies would like the effect of these revised
part 70 provisions and the next series of revisions to be phased in
such a way that existing programs are not disrupted.
The EPA believes that avoiding undue disruption to State and local
programs is important to program continuity and helps reduce
uncertainty. The EPA also believes that there is sufficient flexibility
in the Act (particularly after a permit program meeting the current
part 70 is in place) to provide for a reasonable transition to the
revised procedures for permit revisions and any changes in the
requirements relating to the content of issued permits. This issue as
it pertains to changes in permit content is not critical with respect
to today's proposal since it would not impose significant new permit
content requirements. In subsequent rulemaking, however, EPA may
address one or more aspects of permit content. The EPA solicits comment
on how specifically to balance the need to implement revisions to part
70 expeditiously with the need to avoid undue disruption of State or
local programs submitted under the current part 70. For changes in
permit content requirements, any approach to balance these needs should
minimize the workload that would be required to reopen and reissue
permits before their renewal and to expedite the required updates to
permits at the first convenient time.
One possible approach to upgrading permit content would be to defer
generally the incorporation of new, more restrictive requirements
created by revisions to part 70 until renewal of issued part 70
permits. Another approach would be, after the effective date of the
revised State or local program but before the permit renewal date, for
permit revisions processed through the significant permit revision
process to include during that process incorporation of the additional
requirements created by the part 70 revisions. In all cases, the permit
shield would not preclude EPA, citizens, and the permitting authority
from enforcing any applicable requirement to which the source would be
subject outside the part 70 permit.
The EPA solicits comment on these suggested approaches to phasing
in new permit content requirements and the legal basis for them. With
regard to new permit revision procedures, EPA is not today proposing to
allow permitting authorities to phase them in. However, EPA solicits
comment on the need to provide such relief. The EPA solicits comment on
whether such relief is needed to address potential adverse impacts to
permitting authorities. The Agency believes that there are widely
differing State and local situations for implementing the new permit
revision procedures. If this is of concern, one approach that promotes
equitable treatment of these different situations is to prescribe, as
previously outlined, varying deadlines for the submittal of program
revisions depending on how difficult it is to development them (e.g.,
12 months for a State or local agency to accomplish rulemaking which
does not itself require prior changes to enabling legislative
authority). Another approach would be to establish one date by which
all agencies would have to implement the new permit revision
procedures. Permit issuance, renewal, or revision would be subject to
the permitting authority's existing part 70 program until
implementation of the new requirements by the agency, which could be
before but not after the national date. Setting such a date would
create national consistency, but would require that all permitting
authorities act in time for EPA to approve their programs by the date.
The EPA solicits comment on this approach and what any such date should
be.
In addition to the concern over impacts to permitting authorities,
the Agency is also concerned with the potential transitional problems
for sources. Sources may include in their permit applications, and have
adopted into their permits, terms and conditions designed with an
understanding of which permit revision tracks would be used to process
changes at their facility and what other changes would qualify for off-
permit treatment. Such sources may wish, and need the opportunity, to
redesign their permit terms and conditions when the proposed four-track
permit revision system is adopted by the permitting authority, if the
new permit revision system is not phased into effect. The EPA solicits
comment on whether additional relief should be provided for sources
that find themselves in this situation.
6. Processing Time for Early Reductions
A minor change is proposed with respect to permitting authority
action on permit applications containing early reduction
demonstrations. In the current part 70 at Sec. 70.4(b)(11)(iii), State
and local programs are required to include a transition plan providing
final action within 9 months on any complete, initial permit
application containing an early reductions demonstration (pursuant to
section 112(i)(5) of the Act). Today's proposal would revise the
interval for final action on such applications to 12 months. Although
it is imperative that sources participating in the Early Reductions
Program receive timely action on their permit applications, the
original 9-month action requirement would in many cases be too short
for adequate processing of the permit application by the permitting
authority, especially considering the time needed for public review of
draft permits. The proposed 12-month final action requirement would be
consistent with a similar requirement for action on specialty permit
applications under proposed 40 CFR part 71 subpart B, which provides
for interim Federal issuance of specialty title V permits to sources
participating in the Early Reductions Program until permitting
authorities can begin issuing permits to such sources.
The 12-month period for final action on applications containing
early reductions demonstrations also has been proposed as a requirement
under Sec. 70.7(a)(2). This change is necessary because permit
applications (or applications for permit revision) under the Early
Reductions Program may continue to be received by the title V
permitting authority well after the transition period (possibly until
around the year 2000), and these later applications must be processed
just as quickly as those submitted during the transition period.
D. Section 70.5--Permit Applications
1. Complete Application
Section 70.5(a)(2) of the current rule provides for criteria and
procedures for determining when a permit application is complete. It
specifies that unless the permitting authority determines that the
application is not complete within 60 days of receiving it, the
application is deemed complete.
In response to a concern raised by one of the permits case
petitioners, EPA wants to clarify that the permitting authority may
deem an application complete if it contains the information needed for
the permitting authority to begin processing the application. The
application should contain the information it is required to contain
under Sec. 70.5(c), but the permitting authority need not ensure that
the application contains all of the information that the permitting
authority ultimately finds necessary to issue a permit. Consistent with
its original intent, Sec. 70.5(a)(2) is today proposed to be revised to
provide expressly for the permitting authority to deem complete an
application which contains information sufficient to allow the
permitting authority to begin processing the application.
The proposal would allow the permitting authority considerable
flexibility to obtain additional information in recognition of the fact
that it and sources are likely to discover the need for additional
information as the permitting process progresses and that information
to address certain applicable requirements (particularly those with
future compliance dates) will only be available in the future. While
Sec. 70.5(c) requires that a part 70 permit application for a subject
source comprehensively address all applicable requirements of the
source, the permitting authority under today's proposal would retain
considerable discretion in deciding the amount of information needed
for the completeness determination. The following illustrates the
degree of flexibility that EPA believes would be available.
Under the proposed rule revisions, a permitting authority could
provide that an application for a source with an applicable requirement
with a future compliance date is complete enough for processing if it
contains (1) a statement acknowledging the applicability of the
requirement, and (2) an acceptable schedule for submitting the more
detailed information necessary to define its compliance. This approach
would allow the source to defer the submittal of information that is
not otherwise required at this time and that may be based on
complicated control choices still open to the source. Such an approach
for applications would be similar to EPA's proposed approach for
incorporating MACT standards into part 70 permits (see section III.E.9.
of this preamble).
In addition, a permitting authority would have the flexibility to
make completeness determinations consistent with its approved
transition plan. That is, permitting authorities could require sources
scheduled for permit issuance in years 2 and 3 of the initial phase-in
of their program to submit less detailed applications than those
sources scheduled for permit issuance in the first year, provided that
the minimum requirements of Sec. 70.5(c) are met and that the required
information is subsequently submitted to the permitting authority to
allow permit issuance consistent with Secs. 70.7 and 70.8. Such an
approach again would meet the requirements of Sec. 70.5(a) as well as
assure needed flexibility to State and local agencies as they start up
their approved part 70 programs.
The EPA solicits comment on its proposal to allow these options for
allowing additional flexibility to permitting authorities in
determining complete applications after certain minimum criteria are
met. In particular, the Agency is interested in receiving comment on
how well its proposal addresses concerns over application content
during the initial phase-in of State and local programs.
2. Identification of Units
An addition to Sec. 70.5(c)(7) is proposed to make it consistent
with the proposed permit revision procedures. Under the proposed
change, a permit application would identify any units that were
eligible for emissions trading or were eligible for the de minimis
permit revision process. See the discussion above on proposed permit
revision procedures under Sec. 70.7.
3. Compliance Information
Section 503(b) of the Act requires that a sources include in its
permit application a compliance plan describing how it will comply with
the applicable requirements to which it is subject and including a
schedule of compliance. The current rule implements that provision at
Sec. 70.5(c)(8) by requiring that a source submit a compliance plan and
schedule that for requirements with which the source is already in
compliance, a statement to that effect, and for requirements to which
the source will first become subject during the permit term, a
statement that the source will comply with those requirements.
State petitioners in the permits case expressed concern that the
rule might be read to prohibit permitting authorities from requiring
compliance plans and schedules that contained more information and
enforceable milestones than those required by the rule. The Agency
wishes to make clear that the permits rule in general, and the
compliance plan and schedule provision in particular, only establish
minimum requirements for State or local permit programs. State and
local permitting authorities are free to prescribe more stringent
permitting requirements, including more extensive compliance plan and
schedule requirements.
E. Section 70.6--Permit Content
1. Clarification of EPA's View on Referencing of Requirements
Petitioners have asked for clarification as to how much of the
permit content required by Sec. 70.6 may be referenced rather than be
required to reside in the permit. The EPA did not address this issue in
the July 21, 1992 preamble; however, the Agency did respond to comments
on this issue in the ``Technical Support Document for title V Operating
Permit Programs,'' May 1992, which is in public docket number A-90-33
for the final part 70 rulemaking. In that document, EPA states that
emission limit, test method, and monitoring and recordkeeping
requirements should within reason be placed in the permit, rather than
referenced. The Agency also stated that referencing may be appropriate,
however, where the test method is too cumbersome to be placed entirely
in the permit.
To clarify its position on this issue, EPA notes that certain
elements must be included in the permit. Section 504(a) states that
each permit ``shall include enforceable emission limitations and
standards'' and ``such other conditions as are necessary to assure
compliance with the applicable requirements.'' In addition, section
504(c) requires each permit to ``set forth inspection, entry,
monitoring, compliance certification, and reporting requirements to
assure compliance with the permit terms and conditions.'' The EPA
believes these provisions place limits on the type of information that
need not be contained in the permit and can be referenced. Clearly,
each emission limit with its basis of origin must expressly be included
in the permit. In addition, the permit must contain monitoring,
compliance certification, and reporting requirements necessary to
assure compliance with the emission limit.
A key principle, then, is that any referenced provision must not
interfere with the enforceability of other permit terms and conditions.
This means that the reference citation must be free of ambiguity
regarding applicability. Thus, requirements may be referenced only
where their applicability to the source is clearly beyond dispute.
Referencing should not allow enforcement of the permit to be
compromised, for example, by a defense by the source that it is using
an alternative provision in the referenced provision. Such alternatives
must be expressly included in the permit.
Current practices in some State and local permit programs would
clearly not meet this principle. Some State and local permits have
simply referenced the applicable requirement without expressly
including emission limitations, monitoring, reporting, and other
requirements. The EPA believes such a practice is inadequate to meet
the requirements of sections 504 (a) and (c). For example, it would be
insufficient to cite ``Subpart VVV of the NSPS'' as the applicable
requirement for a source without also restating in the permit the
emission limitations, monitoring requirements, the applicable test
method, or other compliance terms from the NSPS.
On the other hand, EPA recognizes that when used appropriately by
permitting authorities, referencing may support enforcement of permit
terms and meet the requirements of sections 504 (a) and (c). In
addition, referencing could help reduce the size of the permit and
eliminate the unnecessary restatement of technical procedures.
Referencing appears to be generally appropriate for (1) test
methods, (2) definitions, (3) startup, shutdown, or malfunction
requirements or plans, and (4) detailed emission calculation protocols.
For example, it would be appropriate for a permit to require that
testing be performed using EPA method 25, without containing the
detailed provisions of method 25, or the permit could require that a
source comply with startup, shutdown, and malfunction requirements of
the SIP and cite the section of the SIP containing those requirements.
It would not be appropriate, however, merely to cite a regulation
containing procedures for determining emission limits, such as a
process weight curve. The permit would need to include the specific
emission limit that applies to the source or unit covered by the
permit. It would have to include the results from the procedure and
could not simply cite the procedure itself. The EPA solicits comment on
other types of requirements for which referencing would be appropriate.
The EPA also solicits comment on any criteria that would be
necessary for adequate citation of referenced requirements. One
possible criteria might be the date of the adopted rule being
referenced. The EPA solicits comment on an approach in which the permit
would cite the date of the referenced requirement, but also would
reference any subsequent revisions to the requirement. This would
provide for automatic updating of the referenced requirement when test
methods or other requirements residing outside of the permit are
revised, and avoid the need to revise the permit.
F. Section 70.7--Permit Issuance, Renewal, Reopenings, and Revisions
1. New Applicable Requirements
The July 21, 1992 preamble to the current rule (57 FR 32275)
included a discussion of EPA's intent to revise part 70 in the future
to provide for a system of grandfathering, whereby requirements that
are promulgated or approved late in the permit issuance or renewal
process may be incorporated into the permit after issuance or renewal.
This discussion was a response to concerns expressed by permitting
authorities late in the part 70 rulemaking process that the
promulgation of new requirements, particularly by EPA, could
significantly delay individual permit actions. Delay could occur
because of the part 70 requirement that any permit issued or renewed
must assure compliance with all applicable requirements, and because
incorporation of requirements promulgated during or after the public
comment period for permit issuance or renewal would require another
round of public and EPA review. These permitting authorities argued
that implementation of title V and the Act would be enhanced if the
permit could be issued on schedule and the new applicable requirements
be incorporated through a permit reopening.
While EPA was sympathetic to these concerns, it was not able to
take action in the final part 70 rule because the issue had not been
properly noticed in the proposal, nor had it been raised in comments
submitted during the comment period. However, permitting authorities
have continued to express these concerns to EPA since promulgation of
part 70. The EPA is therefore taking this opportunity to propose
revisions to part 70 that would address this concern.
Since promulgation of the current part 70, EPA has learned that the
potential for delay is even greater than anticipated due to the fact
that the majority of States must, as a matter of State constitutional
law, conduct rulemaking to adopt a Federal standard before
incorporating the standard into the permit. Although the time
associated with administrative rulemaking varies among State and local
agencies, the need for this additional step could typically add several
months up front before the permitting authority could issue a draft
permit reflecting the new requirement.
Today's notice proposes a system in a new Sec. 70.7(a)(7) similar
to, though less complex than, that discussed in the July 21, 1992
preamble. The proposal would allow requirements promulgated or approved
by EPA following the issuance of the draft permit to not be
incorporated in the version of the permit that is subsequently issued
and effective. The proposal would place two conditions on this. First,
the permitting authority would have to commence action prior to
issuance of the permit to reopen the permit to incorporate the new
requirements. This reopening process and subsequent reissuance of the
permit would have to be completed within 18 months of approval or
promulgation of the new applicable requirement as required by
Sec. 70.7(i). Second, the permit that is issued must indicate that the
permit is being reopened for this purpose.
The EPA believes this approach is consistent with the Act. Section
504(a) requires that each permit include conditions necessary to assure
compliance with applicable requirements. Today's proposal reduces the
likelihood of delayed issuance of permits. By allowing the issued
permit to address only the requirements that were applicable at the
time of draft permit issuance, these requirements will be reflected in
an effective part 70 permit sooner than would be the case if part 70
procedures had to be repeated to incorporate the new requirements.
This potential for delay is increased for those permitting
authorities that must first conduct rulemaking before procedures to
incorporate the new requirement can begin. Conceivably, this delay
could be repeated numerous times. This clearly would frustrate the
purposes of section 504(a) if the permitting authority's ability to
issue an effective part 70 permit were hampered in this way. By
removing this obstacle, the proposed rule would also further the
purposes of section 502(b)(6), which requires that permit issuance
procedures be ``expeditious,'' as well as section 503(c), which
requires that permit actions be completed within 18 months.
This approach is also consistent with section 502(b)(9) of the Act,
which requires that a permit be reopened to include requirements
promulgated by the EPA ``after the issuance'' of a permit. Although
this could be read to imply that requirements promulgated before permit
issuance must be included in the permit before issuance of an effective
permit may occur, the EPA believes the term ``issuance,'' as used in
this provision, may also be read to refer to issuance of the draft
permit. This reading results in a more rational system for
incorporation of new requirements, and avoids the delays referred to
above that would frustrate the purposes of title V.
An additional benefit of today's proposal is that it is consistent
with an overarching principle of the Act that implementation should
rest primarily with the State and local governments. Today's proposal
would provide a better accommodation between specific part 70
requirements and State constitutional due process concerns.
The EPA notes that permitting authorities may be more stringent
with regard to incorporation of new requirements than this proposal
would provide, and must, pursuant to Sec. 70.5(a)(2), have authority to
request additional information necessary to take final action on the
permit. This latter authority should allow the permitting authority to
require incorporation of newly applicable requirements not reflected in
the permit on a case by case basis.
2. Denial of Permits to Noncomplying Sources
One of the concerns raised by State litigants in the permits case
was the rule's possible effect on a permitting authority's ability to
deny permits to sources that are not in compliance with applicable
requirements. These litigants noted that the rule does not explicitly
authorize permitting authorities to deny permits to noncomplying
sources and might thus be read as not allowing them to do so. They
pointed out that some State and local statutes forbid the issuance of
permits to noncomplying sources and that other permitting authorities
generally have discretion under State or local law to deny permits to
such sources. The ability to deny permits to noncomplying sources, they
argued, was important to the enforcement of clean air rules.
The Agency believes that the current rule does not prohibit or
prevent permitting authorities from exercising their discretion to deny
permits to noncomplying sources. The rule sets forth minimum criteria
governing the issuance of permits, but it does not require that
permitting authorities issue permits when only these requirements are
met. Section 70.7(a) provides that ``[a] permit * * * may be issued
only if all of the following conditions have been met'' (emphasis
added), indicating that the permitting authority has discretion to not
issue a permit even when all of the requisite conditions have been met.
As EPA explained in the preamble to the current rule, one of the
Agency's guiding principles in implementing title V was to build on
State and local programs and not unnecessarily disrupt them. The Agency
is particularly reluctant to reduce existing State or local authority
to take measures to bring sources into compliance with applicable
requirements and believes that the current rule does not affect such
State or local authority. The EPA notes that permitting authorities
following this approach must do so consistent with Federal law. Where a
permitting authority denies an application for a part 70 permit, it is
in effect ordering the source to cease operations or risk an
enforcement action under the Act.
At the same time, EPA believes that one of the benefits of the
permit issuance process is to provide an opportunity for a permitting
authority and a noncomplying source to work out a plan for bringing the
source into compliance. The statute and rule explicitly provide that a
permit application include a source's proposed schedule of compliance,
which the statute defines as a schedule of ``remedial measures''
leading to compliance with applicable requirements. The statute and
rule thus contemplate that permits can and generally will be a vehicle
for bringing sources into compliance. While permitting authorities
retain discretion to deny permits to noncomplying sources, EPA expects
that permitting authorities will generally use permits to provide a
schedule of enforceable measures that will lead to compliance as
opposed to a sanction against noncompliance. The current rule and
statute's provision for compliance schedules in no way limits the
liability of the source under the Act while the violation continues
during the schedule of remedial measures. Obviously, most permits with
a compliance schedule will be accompanied by a settlement of an
enforcement action addressing the violation. The Agency believes that
appropriate exceptions to this approach include where State or local
law prohibits issuing permits to noncomplying sources or where a
source's noncompliance is longstanding or otherwise egregious.
3. Permit Revocation Procedures
State litigants also expressed concern that the current rule may
require that permitting authorities use permit issuance procedures to
revoke permits. They noted that many State or local statutes authorize
the use of faster proceedings to revoke the permits of sources found in
noncompliance and that the availability of such procedures contributes
to the effectiveness of State and local enforcement efforts. They urged
that part 70 not constrain permitting authority ability to use such
faster proceedings.
The Agency believes that part 70 does not address the issue of what
procedures a permitting authority must use when it seeks only to revoke
a permit, as opposed to revoke and revise or reissue a permit. Section
70.7(f)(1) requires that every permit contain provisions specifying
when the permit will be reopened prior to the end of its term,
including when EPA or the permitting authority determines that the
permit must be ``revised or revoked'' to assure compliance with
applicable requirements. Section 70.7(f)(2) provides that proceedings
to ``reopen and issue'' a permit shall follow permit issuance
procedures (emphasis added). Accordingly, although one of the reasons
for permit reopening is revocation, the requirement to use permit
issuance procedures only applies when the permitting authority wants to
reissue the permit. The rule is silent with regard to the procedures
that must be used to only revoke a permit.
Again, EPA's approach to the permits rule has been to avoid
unnecessary interference with the way State and local agencies
implement their air pollution control programs. The Agency believes
there is no reason to require a permitting authority to undertake
permit issuance procedures if its only objective is to revoke a permit.
The Agency expects that permitting authorities will rarely seek to only
revoke and not also reissue a permit, given the consequences of permit
revocation on the source. At the same time, it recognizes that
permitting authorities have legitimate reasons for wanting to retain
the authority they now have to revoke permits using expedited
procedures. The Agency thus believes that the rule is properly read to
leave permitting authorities broad discretion to devise permit
revocation procedures, provided that the affected source is afforded
due process, including prior notice and an opportunity to object.
G. Section 70.8--Permit Review by EPA and Affected States
1. Notification of 45-Day Review
The public has 60 days after the end of EPA's 45-day period for
review of a proposed permit to petition EPA to object to the permit if
EPA did not object. There is no provision in part 70, however, to let
the public know when EPA's 45-day period begins or ends, making it
particularly difficult for the public to exercise this option. The
proposed revision to Sec. 70.8(d) would require that the permitting
authority provide public access to information concerning the beginning
and end of EPA's 45-day review period for permit actions. No specific
means for providing public access are proposed. The permitting
authority would not have to give the public notice, but could provide
public access through a telephone hot line, a computer terminal at the
permitting agency office, a bulletin board, or any other reasonable
means that the public could use to get the information on a timely
basis.
H. Section 70.9--Fee Determination and Certification
1. Periodic Updates to Demonstration
The obligation of the Administrator under section 502(i) of the Act
to assure adequate administration and enforcement of permitting
programs includes assurance that programs are adequately funded on a
continuing basis. The Administrator may, therefore, periodically need
information from the permitting authority that verifies funding is
adequate. Section 70.9(c) requires that the permitting authority
demonstrate fee adequacy; however, the language does not make clear
that periodic information may be required if fee adequacy comes into
question. The proposed revision adds to paragraph (c) language that is
found in paragraph (d), which pertains to demonstrating that required
fees are used solely for purposes of the operating permits program. The
proposal is to add ``(and periodic updates as required by the
Administrator)'' after the requirement for a demonstration.
I. Section 70.10--Federal Oversight and Sanctions
1. Citation Correction
A correction to a paragraph citation is proposed for three places
under paragraph (b). All three citations are for the Administrator's
finding of inadequate program administration and enforcement. The
citations are to paragraph (c)(1) and should be corrected to read
``(b)(1).''
2. Sanctions Provisions
a. Proposed Change.--The Agency proposes to revise Sec. 70.10 to
clarify the conditions under which sanctions would be applied where a
State or local program is disapproved or granted interim approval.
Section 70.10(a)(1) would be revised to be consistent with section
502(d)(2) of the Act to provide expressly that no sanctions would be
applied if a State or local agency submits a timely and complete
program (including one requesting interim approval), to provide that
``failure to submit'' would apply to the corrective submittal for
interim approval, and to make other clarifications. A new paragraph
(a)(2) is proposed to clarify that, for purposes of title V, the
sanctions under section 179(b)(2) for offsets applies only in
nonattainment areas. A clarifying addition to existing paragraph
(a)(2), to be renumbered as paragraph (a)(3), would indicate that a
Federal program would be required by the later of November 15, 1995, if
full approval had not been granted by then, or the expiration of an
interim approval period if EPA had not granted full approval by then.
b. Rationale for Change.--Sections 502(d)(2), (g), and (i)(1)-(3)
of the Act address when and how EPA may and shall apply sanctions
against a permitting authority that does not fulfill part 70 program
requirements. Part 70 as currently promulgated implements these
provisions at Sec. 70.10. The EPA believes that revisions to Sec. 70.10
are needed to clarify EPA's policy for applying sanctions when
permitting authorities fail to submit part 70 permit programs and when
EPA disapproves submitted programs. The EPA also believes that
revisions are needed to clarify how EPA's part 70 sanctions policy
relates to interim program approvals. Revisions are also needed to
conform the regulations to the provisions of the Act.
Section 502(d)(2)(B) of the Act provides that if a permitting
authority does not submit a permit program meeting the requirements of
title V, or if EPA disapproves a submitted program, 18 months after the
date for such submittal or the date of such disapproval, whichever is
the case, EPA shall apply sanctions under section 179(b) of the Act
against the permitting authority in the same manner and subject to the
same deadlines and other conditions as are applicable in the case of a
determination, disapproval, or finding under section 179(a) of the Act
(42 U.S.C. 7661a(d)(2)(B)).28 The available sanctions under
section 179(b) are an EPA-imposed prohibition against the Department of
Transportation approving certain highway projects or awarding grants
for certain projects in States under sanctions, and a requirement that
new or modified sources and emissions units permitted under part D of
title I achieve a ratio of emissions reductions to increased emissions
of at least 2 to 1 when complying with the emissions offset
requirements of section 173 of the Act (42 U.S.C. 7509(b)). In
addition, section 502(d)(2)(A) provides that in such cases of failure
to submit and disapproval, EPA may, prior to the expiration of the 18-
month period, apply any of the sanctions under section 179(b) (42
U.S.C. 7661a(d)(2)(A)). However, section 502(g) of the Act provides
that for the period of an interim approval of a State or local program,
the provisions of section 502(d)(2) are suspended, but will again apply
after the expiration of interim approval (42 U.S.C. 7661a(g)).
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\2\8Section 179(a) of the Act provides that following certain
EPA findings of deficiency regarding operating permits program
submittals, unless such deficiency has been corrected within 18
months after the finding, disapproval, or determination, one of the
sanctions referred to in subsection (b) shall apply, as selected by
the Administrator, until the Administrator determines that the State
has come into compliance, except that if the Administrator finds a
lack of good faith, sanctions under both paragraph (1) and paragraph
(2) of subsection (b) shall apply until the Administrator determines
that the State has come into compliance. If the Administrator has
selected one of such sanctions and the deficiency has not been
corrected within 6 months thereafter, sanctions under both paragraph
(1) and paragraph (2) of subsection (b) shall apply until the
Administrator determines that the State has come into compliance.
(42 U.S.C. 7509(a)). As EPA is doing for purposes of applying
sanctions for State failures under title I of the Act (59 FR 39832,
August 4, 1994). EPA intends through a separate rulemaking to select
a default sequence for the application of title V sanctions so that
mandatory sanctions would apply automatically upon expiration of the
18-month clock without the need for further rulemaking. Like the
title I selection of sanctions rule, the title V selection of
sanctions rule would also address what is required to stop a
sanctions clock once started, and what is required to lift
sanctions. The EPA intends to promulgate this separate rule before
the first date on which mandatory sanctions could possibly be
required (i.e., before May 15, 1995).
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In implementing section 502(d)(2), part 70 currently provides that
EPA's discretionary sanctions authority and mandatory sanctions
obligations arise [i]f a State fails to submit a fully-approvable whole
part 70 program, or a required revision thereto, in conformance with
the provisions of Sec. 70.4, or if an interim approval expires and the
Administrator has not approved a whole part 70 program.
(40 CFR 70.10(a)(1)). The EPA is concerned that this language needs
additional clarification to explain which situations trigger EPA's
sanctions authority and obligations under sections 502(d)(2) and (g) of
the Act.
For example, the language does not explicitly provide that a
failure to submit a complete permit program would be treated as an
absolute failure to submit, for sanctions purposes. Nor does the
language explicitly state that no sanctions authority arises and no
sanctions clock starts if a permitting authority submits a timely and
complete program for interim approval. Moreover, the language does not
explicitly indicate that if a permitting authority granted interim
approval fails to submit a corrective program as required by Sec. 70.4,
the EPA's sanctions authority would arise and the 18-month mandatory
sanctions clock would start for that permitting authority. Finally, the
language does not clearly state that separate sanctions authority
arises and a separate sanctions clock starts when EPA disapproves a
submitted program that had been initially found complete.
The proposed revisions to Sec. 70.10(a)(1) are intended to remedy
the existing rule's lack of clarity on these and other points. First,
in part 70, EPA indicated that before proceeding to evaluate submitted
operating permits programs, EPA would within 60 days of receipt of a
submittal determine whether it is complete enough to warrant review by
EPA for approval (40 CFR 70.4(e)(1)). To ensure that permitting
authorities could not avoid the risk of sanctions merely by submitting
permit programs that are so incomplete that EPA would not be able to go
forward to evaluate the program, EPA believes it is reasonable to treat
a failure to submit a complete program as an absolute failure to
submit, such that the 18-month sanctions clock would run from the date
the complete submittal was due. The EPA believes that the statutory
language of title V is amenable to this approach, as section 502(d)(1)
requires permitting authorities to submit permit programs ``meeting the
requirements of this title'' (42 U.S.C. 7661a(d)(1)), and section
502(d)(2) bases EPA's sanctions authority on a permitting authority's
failure to ``* * * submit a program as required by paragraph (1)'' (42
U.S.C. 7661a(d)(2) (A) and (B)). This language does not speak directly
to whether a permitting authority's failure to submit a complete
program necessarily constitutes an absolute failure to submit.
Consequently, it is within EPA's discretion to interpret the general
language of section 502(d) in fashioning the most reasonable sanctions
policy (see Chevron U.S.A. Inc. v. Natural Resources Defense Council,
467 U.S. 837 (1984)). To give full effect to the deterrent functions of
the sanctions provisions of title V, and to achieve consistency with
EPA's sanctions policy under title I of the Act, EPA believes that it
is necessary to treat failures to submit complete programs as absolute
failures to submit, so that permitting authorities cannot avoid the
risk of sanctions by submitting programs that are so incomplete that
EPA could not evaluate whether they are approvable.
The EPA believes that the phrase ``in conformance with the
provisions of Sec. 70.4'' in Sec. 70.10(a)(1) already provides that, to
avoid sanctions, a permitting authority must submit a program that EPA
finds complete, since the criteria for determining whether a permit
program is complete can be found in Sec. 70.4(b). If a State or local
program submittal fails to address any of the elements listed in
Sec. 70.4(b), such as evidence that regulations comprising the program
were lawfully adopted through proper State or local procedures, it
would be incomplete. However, as long as the submittal addresses all of
the Sec. 70.4(b) elements, even if it does so inadequately such that
the program was not approvable, it would be found complete. To better
link the submittal of an incomplete program with section 502(d)(2)
sanctions authority, the proposed revisions to Sec. 70.10(a)(1) would
explicitly state that a failure to submit a complete program triggers a
permitting authority's risk of falling subject to sanctions. This will
make EPA's sanctions policy under title V more consistent with the
Agency's title I sanctions policy under which failure to submit a
complete SIP is treated as a failure starting the sanctions clock (see
section 179(a)(1) of the Act, 42 U.S.C. 7509(a)(1)).
Second, as discussed above, section 502(g) of the Act requires that
during the period of interim approval of an operating permits program,
EPA's authority to apply sanctions in that State or local area of
jurisdiction shall be suspended (42 U.S.C. 7661a(g)). The EPA believes
that section 502(g)'s suspension of sanctions authority during interim
approval periods requires that section 502(d)(2) be interpreted to not
provide EPA with authority to apply discretionary sanctions and to not
start an 18-month mandatory sanctions clock when a permitting authority
makes a timely and complete submittal of an interim permit program.
Otherwise, a permitting authority would be faced with uncertainty as to
whether it was at risk of being subject to sanctions unless and until
EPA takes final action to grant the program interim approval. The EPA
does not believe that Congress intended for a permitting authority's
potential sanctions liability to depend on the expeditiousness with
which EPA grants interim approval of a complete and timely submittal
for interim approval. Consequently, to give full effect to the
suspension required by section 502(g), EPA would not apply
discretionary sanctions or start the 18-month mandatory sanctions clock
in such situations.
The EPA believes that Sec. 70.10(a)(1) is unclear in addressing
this issue, in providing that EPA's sanctions authority arises whenever
a permitting authority ``* * * fails to submit a fully approvable whole
part 70 program * * * or if an interim approval expires and the
Administrator has not approved a whole part 70 program'' (40 CFR
70.10(a)(1) (emphasis added)). Read literally, the provision might be
interpreted to mean that if either condition is present, a permitting
authority would be subject to risk of sanctions. This result would
clearly conflict with the provisions of section 502(g) of the Act,
since a failure to submit a fully approvable whole program would result
in sanctions notwithstanding the permitting authority having received
interim approval. Moreover, Sec. 70.10(a)(1) does not explicitly state
when a permitting authority whose program was granted interim approval
would have become free from the risk of sanctions. To remedy this
unclarity, the proposed revisions to Sec. 70.10(a)(1) would explicitly
provide that EPA's sanctions authority would not arise where a
permitting authority submits a timely and complete interim part 70
program.
Third, section 502(g) of the Act provides that no interim approval
may last longer than 2 years, may not be renewed, and that a permitting
authority whose program is granted interim approval must make changes
specified by EPA before the program may receive full approval (42
U.S.C. 7661a(g)). In part 70, EPA provided that a permitting authority
whose program is granted interim approval must submit such changes to
the program addressing the deficiencies specified in the interim
approval no later than 6 months prior to the expiration of the interim
approval (40 CFR 70.4(f)(2)). The EPA also provided that if a
permitting authority fails to submit a required revision to a part 70
program, EPA's sanctions authority would arise (40 CFR 70.10(a)(1)).
However, the phrase ``or a required revision thereto'' in
Sec. 70.10(a)(1) follows the phrase ``fully-approvable whole part 70
program,'' and thus does not clearly state that if a permitting
authority fails to submit a required revision to a program granted
interim approval the permitting authority would be at risk of sanctions
(Id). Consequently, Sec. 70.10(a)(1) might be read to effectively
render the program correction submittal requirement under section
502(g) of the Act and Sec. 70.4(f)(2) nugatory. This result is not what
EPA intended in promulgating part 70. To remedy this problem, the
proposed revisions to Sec. 70.10(a)(1) would, consistent with section
502(g) of the Act and Sec. 70.4(f)(2), explicitly provide that if a
permitting authority whose program was granted interim approval failed
to submit a timely revision to correct the deficiencies identified in
the interim approval, EPA's sanctions authority would arise. The EPA
believes that section 502(g) provides the authority to treat the
submittal of such a corrective program as a required submittal under
section 502(d)(1) of the Act that could start an 18-month sanctions
clock upon failure to submit by the permitting authority. Otherwise,
permitting authorities whose programs are granted interim approval and
who never submit corrective programs would not be at risk of sanctions,
unless and until they subsequently abdicated their responsibilities to
administer and enforce permit programs. This result would be unfair to
permitting authorities that had, for example, initially been granted
interim approval, then submitted corrective programs that EPA
disapproved, and became subject to sanctions as a result of the
disapproval.
Fourth, section 502(d)(2) of the Act clearly indicates that even if
a permitting authority submits a part 70 program, if EPA disapproves
the submittal, the permitting authority may become subject to sanctions
(42 U.S.C. 7661a(d)(2) (A) and (B)). In such situations, EPA would be
authorized to impose discretionary sanctions at any time, and would be
required to impose mandatory sanctions after 18 months. Part 70 does
explicitly indicate that 18 months after the date of disapproval of a
State or local operating permits program EPA will apply sanctions (40
CFR 70.10(a)(1)(ii)), but is unclear whether EPA could impose
discretionary sanctions following disapproval but before expiration of
the 18-month clock. In order to remedy this unclarity and more clearly
implement section 502(d)(2)(A) of the Act, the proposed revisions to
part 70 would explicitly provide that separate discretionary and
mandatory sanctions authority would arise in all cases where EPA
disapproves a submitted operating permits program.
Fifth, section 502(d)(2)(C) of the Act provides that the 2-to-1 NSR
offset sanction under section 179(b)(2) of the Act shall not apply in
any area unless the failure to submit or the disapproval referred to in
section 502(d)(2) (A) or (B) relates to an air pollutant for which the
area has been designated a nonattainment area as defined in part D of
title I of the Act (42 U.S.C. 7661a(d)(2)(C)). Part 70 does not
currently implement this section of the Act. The proposed revisions to
Sec. 70.10(a)(2) would explicitly provide for this limitation on EPA's
sanctions authority. As a result, consistent with Congress' intent, for
a State or local agency without areas designated as nonattainment that
became subject to sanctions under title V, the 2-to-1 offset sanction
would not be applied.
Finally, section 502(d)(3) of the Act provides that if a program
meeting the requirements of title V has not been approved in whole for
any State, the Administrator shall, by November 15, 1995, promulgate,
administer, and enforce a program under title V for that State (42
U.S.C. 7661a(d)(3)). However, section 502(g) provides that during an
interim approval period, the obligation of the Administrator to
promulgate a Federal program for a State is suspended, and does not
arise until after the expiration of such interim approval (42 U.S.C.
7661a(g)). In implementing title V, part 70 provided that ``[i]f full
approval of a whole part 70 program has not taken place * * *'' by
November 15, 1995, ``* * * the Administrator will promulgate,
administer, and enforce a whole or a partial program as appropriate for
such State * * *'' (40 CFR 70.10(a)(2)). The EPA believes that this
regulatory language does not give full effect to the Act, particularly
to section 502(g). To be more consistent with the Act, the proposed
revisions to Sec. 70.10(a)(3) would clarify that EPA's duty to
implement a Federal permit program would be suspended during periods of
interim approval and not arise until the end of the interim approval
period if EPA had not granted the program full approval by then.
J. Section 70.11--Requirements for Enforcement Authority
Section 70.11 requires that State and local operating permits
programs provide for civil penalties to be recoverable in a maximum
amount of not less than $10,000 per day per violation and does not
allow mental state as an element of proof. The revision proposed to
Sec. 70.11(a)(3)(i) clarifies that, provided the permitting authority
demonstrates that it has the civil penalty authority to recover up to
$10,000 per day for each violation on a strict liability basis, the
permitting authority is not precluded from having additional civil
penalty authority that imposes mental state as an element of proof.
However, to be approvable by EPA, it must be demonstrated that as a
matter of State or local law any element of mental state required for
proof of a violation would not apply to the authority to impose civil
penalties up to a maximum of $10,000 per day for each violation.
V. Decision-Making Flow Charts
A. Flow Chart for Changes Subject to Major NSR
1. Explanation
The questions in this flow chart are ordered to determine (1) if
the change qualifies as a merged program change eligible for
administrative amendment procedures, and (2) if the change does not
qualify as a merged program change, whether it qualifies for minor
permit revision procedures. Note that this flow chart does not include
questions to determine whether the change requires any permit revision
at all, because major new source review virtually always yields
additional applicable requirements. It is consequently a foregone
conclusion that a change subject to major new source review will
require a permit revision to update the permit.
The flow chart also does not include questions to determine whether
the change may be operated immediately, because changes subject to
major NSR by definition involve an emissions increase. In today's
notice, EPA is proposing off-permit treatment for only changes that do
not increase emissions.
Finally, it is unnecessary for this flow chart to include questions
regarding whether the change involves netting, since the change will
necessarily undergo a 30-day comment period as a result of being
subject to major NSR. The netting-related gatekeepers for the more
streamlined permit revision procedures allow any netting transaction to
be processed using streamlined procedures so long as a 30-day comment
period was provided for the netting transaction.
2. Flow Chart
a. Did the change undergo a merged major NSR/part 70 process (i.e.,
one that (1) addressed both major NSR and part 70 permit application
and content requirements, (2) provided prior notice to EPA and affected
States, and (3) provided a 30-day comment period and, in the case of
PSD NSR, an opportunity for a public hearing)?
--If yes, process as an administrative amendment that is subject to the
procedures for ``merged program'' changes.
--If no, go to b.
b. Does the change require a revision of a part 70 permit limit
established solely through part 70 procedures?
--If yes, process as a significant permit revision.
--If no, go to c.
c. Is the source in compliance with the permit terms it seeks to
change?
--If yes, process as a minor permit revision;
--If no, process as a significant permit revision.
B. Flow Chart for Changes Subject to Minor NSR
1. Explanation
The questions in this flow chart are ordered to determine (1) if
the change may be operated immediately, (2) if the change requires any
permit revision at all, (3) for a change that requires a permit
revision, whether it qualifies for administrative amendment procedures
as a merged program change, (4) for a change that does not qualify for
administrative amendment procedures, whether it qualifies for de
minimis revision procedures, and (5) for a change that does not qualify
for de minimis revision procedures, whether it qualifies for minor
permit revision procedures.
2. Flow Chart
a. Can the source operate the change and still comply with all of
its existing permit terms?
--If yes, go to b.
--If no, go to c.
b. Does the change render the source subject to an applicable
requirement to which it was not previously subject (i.e., a new minor
NSR permit term)?
--If yes, go to c.
--If no, the change can be operated immediately and does not require a
permit revision, unless the change decreases allowable emissions and
the source wants to earn emission reduction credits, in which case go
to question 3 of the flow chart for changes that decrease emissions.
c. Does the change increase emissions of regulated pollutants?
--If yes, go to d.
--If no, the source can operate the change immediately, but it must
apply for a permit revision within six months of commencing operation
of the change; to determine what permit revision procedures to use,
follow the rest of this flow chart.
d. Did the change undergo a merged minor NSR preconstruction/part
70 process (i.e., one that (1) addressed both minor NSR and part 70
permit application and content requirements, (2) provided prior notice
to the public, EPA and affected States, and (3) provided a public
comment period of 30 days (or no less than 15 days\29\ in the case of
minor NSR programs that provided no less than 15 days as of 11/15/93))?
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\29\If the change involves a netting transaction that includes
any single increase that is greater than applicable major
modification significance levels or a sum of increases that is
greater than applicable major source thresholds, it must have
undergone a preconstruction review process that provided a public
comment period of at least 30 days to be processed as an
administrative amendment.
--If yes, process as an administrative amendment that is subject to the
procedures for ``merged program'' changes.
--If no, go to e.
e. Does the change require a revision of a part 70 permit limit
established solely through part 70 procedures?
--If yes, process as a significant permit revision.
--If no, go to f.
f. Is the source in compliance with the permit terms it seeks to
change?
--If yes, go to g.
--If no, process as a significant permit revision.
g. Is the change to a new or existing unit that both before and
after the change emits at no more than the applicable unit-based de
minimis level?
--If yes, go to k.
--If no, go to h.
h. Does the change increase a unit's emissions by no more than
increment-based de minimis amounts?
--If yes, go to i.
--If no, go to l.
i. Is the resulting emission limit expressed in the same form and
unit of measure as the previous limit?
--If yes, go to j.
--If no, go to l.
j. Does the change require a change in the operating parameters or
other monitoring, recordkeeping or reporting requirements prescribed by
the permit that has not been pre-authorized?
--If yes, go to l.
--If no, go to k.
k. Does the existing permit allow for the type of change to be made
through de minimis procedures?
--If yes, process as a de minimis permit revision;
--In no, go to l.
l. Does the change involve a netting transaction for which a 30-day
public comment period was not provided?
--If yes, go to m;
--If no, process as a minor permit revision.
m. Did the netting transaction include any single increase that is
greater than the applicable major modification significance level or a
sum of increases that is greater than the applicable major source
thresholds?
--If yes, process as a significant permit revision;
--If no, process as a minor permit revision.
C. Flow Chart for Section 112(g) Modifications30
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\3\0A 112(g) modification is a physical or operational change at
a major source that increases actual emissions of a HAP by more than
a de minimis amount, or results in emission of more than a de
minimis amount of a HAP not previously emitted, and which is not
offset by an equal or greater decrease in emissions of another HAP
that is deemed more hazardous.
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1. Explanation
The questions in this flow chart are ordered to determine (1) if
the change qualifies as a merged program change eligible for
administrative amendment procedures, and (2) if the change does not
qualify as a merged program change, whether it qualifies for minor
permit revisions procedures. Note that this flow chart does not include
questions to determine whether the change requires any permit revision
at all, because a modification as defined by section 112(g) will always
render the source subject to a new applicable requirement under that
subsection. It is consequently a foregone conclusion that a section
112(g) modification will require a permit revision to update the
permit.
The flow chart also does not include questions to determine whether
the change may be operated immediately, because section 112(g)
modifications by definition involve an emissions increase that is not
offset by an emissions decrease. In today's notice, EPA is proposing
off-permit treatment for only changes that do not increase emissions.
Finally, the flow chart does not include questions regarding
whether the change involves netting, since section 112(g) defines
modifications subject to that subsection in terms of whether the
changes increases emissions on net, and the proposed section 112(g)
preconstruction review procedures take into account the fact that
netting calculations may be involved.
2. Flow Chart
a. Did the modification undergo a merged 112(g) preconstruction
review/part 70 process (i.e., one that (1) addressed both section
112(g) modification and part 70 permit application and content
requirements, (2) provided prior notice to EPA and affected States and
(3) provided a 45-day public comment period)?
--If yes, process as an administrative amendment that is subject to the
procedures for ``merged program'' changes.
--If no, go to b.
b. Does the change require a revision of a part 70 permit limit
established solely through part 70 procedures?
--If yes, process as a significant permit revisions.
--If no, go to c.
c. Is the source in compliance with the permit terms it seeks to
change?
--If yes, process as a minor permit revision.
--If no, process as a significant permit revision.
VI. Administrative Requirements
A. Public Hearing
One public hearing will be held to discuss the proposed regulatory
revisions as indicated in the DATES section of this preamble. Persons
wishing to make oral presentations at the public hearing should contact
EPA at the address given in the ADDRESSES section of this preamble. If
necessary, oral presentations will be limited to 15 minutes each. Any
member of the public may file a written statement with EPA before,
during, or within 30 days after the hearing. Written statements should
be addressed to the Air Docket address given in the ADDRESSES section
of this preamble.
A verbatim transcript of the public hearing and written statements
will be available for public inspection and copying during normal
working hours at EPA's Air Docket in Washington, DC (see ADDRESSES
section of this preamble).
B. Docket
The docket for this regulatory action is A-93-50. The docket is an
organized and complete file of all the information submitted to, or
otherwise considered by, EPA in the development of this proposed
rulemaking. The principal purposes of the docket are: (1) To allow
interested parties a means to identify and locate documents so that
they can effectively participate in the rulemaking process, and (2) to
serve as the record in case of judicial review (except for interagency
review materials) (307(d)(7)(A)). The docket is available for public
inspection at EPA's Air Docket, which is listed under the ADDRESSES
section of this notice.
C. Office of Management and Budget (OMB) Review
Under Executive Order 12866 (E.O. 12866) (58 FR 51735 (October 4,
1993)), section 4(c), EPA is required for significant regulatory
actions to prepare an assessment of the potential costs and benefits
(referred to as a Regulatory Impact Analysis (RIA)) of the regulatory
action. Sections 3(f) (1-4) of E.O. 12866 define ``significant''
regulatory actions as those that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities,31 or the principles set
forth in E.O. 12866.
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\3\1These priorities include economic growth while maintaining
environmental quality, provide opportunities for domestic and
international competitiveness, mitigate the impact of regulations on
the innovation and dissemination of environmental technologies, and
empower minority and poor communities in accordance with the
Administration's primary goal for environmental equity.
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Pursuant to the terms of Executive Order 12866, OMB and EPA
consider this a ``significant regulatory action'' within the meaning of
the Executive Order. The EPA has submitted this action to OMB for
review. Changes made in response to OMB suggestions or recommendations
will be documented in the public record. Any written comments from OMB
to EPA, and any EPA responses to those comments, will be included in
Docket A-93-50.
To facilitate OMB review of this proposed rulemaking, EPA has
prepared an analysis showing the marginal impacts of the proposed
revisions to part 70. The Agency is also in the process of updating the
current Information Collection request for part 70 and will, at that
time, conduct a comprehensive analysis of the regulatory revisions
proposed herein.
After review of the current RIA for part 70, (EPA-450/2-91-011),
the Agency has determined that the effect of the changes to part 70
resulting from today's action will be more than $70 million per year
when compared to the current ICR approved by OMB. However, the
revisions that are included in this action would, primarily through the
revised permit revision process, result in a net decreased impact of
$268 million per year when compared to a baseline of original rule
costs which is adjusted to account for the Agency's revised definition
of title I modification.32
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\3\2The baseline for purposes of assessing whether a significant
impact would occur is the impact level defined in the RIA and ICR.
The EPA believes that this baseline should be adjusted to reflect
the effect of precluding the availability of off-permit status to
minor NSR actions since as title I modifications they would not
qualify for such treatment. The increased costs associated with the
adjustment are principally those relating to accomplishing permit
revisions before renewal of the permit. While OMB has not approved
this adjustment in baseline costs, EPA believes that the current ICR
is understated without including this effect.
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D. Regulatory Flexibility Act Compliance
Under the Regulatory Flexibility Act, whenever an Agency publishes
any proposed or final rule in the Federal Register, it must prepare a
Regulatory Flexibility Analysis (RFA) that describes the impact of the
rule on small entities (i.e., small businesses, organizations, and
governmental jurisdictions).
The EPA has established guidelines which require an RFA to
accompany a rulemaking package. For any rule subject to the Regulatory
Flexibility Act, the Agency's new policy requires a regulatory
flexibility analysis if the rule will have any economic impact, however
small, on any small entities that are subject to the rule, even though
the Agency may not be legally required to do so.
A regulatory flexibility screening analysis of the impacts of the
original part 70 rules revealed that the original rule did not have a
significant and disproportionate adverse impact on small entities. The
resulting administrative costs of today's proposal affect larger part
70 sources which are not typically believed to be small business
entities. Consequently, the Administrator certifies that the proposed
revisions to part 70 will not have a significant and disproportionate
impact on small entities. The EPA, however, solicits any information or
data which might affect this proposed certification. The EPA will
reexamine this issue and perform any subsequent analysis deemed
necessary. Any subsequent analysis will be available in the docket and
taken into account before promulgation.
E. Paperwork Reduction Act
The Information Collection Request (ICR) requirements for the part
70 regulations were submitted for approval to OMB under the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq. The ICR was prepared by EPA in
association with the promulgation of part 70 and a copy may be obtained
from Sandy Farmer, Information Policy Branch (mail code 2136), U.S.
Environmental Protection Agency, 401 M St. SW., Washington, DC 20460,
(202) 260-2740.
The screening analysis done for the original ICR for part 70
indicated the paperwork burden imposed by the rulemaking was not
substantial. The screening analysis for the revisions to part 70
indicates a need to revise that estimate. However, since the original
ICR for part 70 must be revised anyway before it expires in June 1995,
the ICR analysis of today's proposed revisions to part 70 does not
supersede or replace the up-date of the original part 70 ICR. Instead,
the Administrator proposes to revise formally the ICR for the entire
part 70 rule in the June 1995 up-date.
Send comments regarding the burden estimate or any other aspect of
this collection of information, including suggestions for reducing this
burden by October 28, 1994 to: Chief, Information Policy Branch (2136),
U.S. Environmental Protection Agency, 401 M Street, SW., Washington, DC
20460; and to the Office of Information and Regulatory Affairs, Office
of Management and Budget, Washington, DC 20503, marked ``Attention:
Desk Officer for EPA.'' The final rule revisions will respond to any
OMB or public comments on the information collection requirements
contained in this proposal.
List of Subjects in 40 CFR Part 70
Environmental protection, 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.
Dated: July 8, 1994.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, part 70 of title 40,
chapter I of the Code of Federal Regulations is proposed to be amended
as set forth below.
(Note: Material enclosed by double parentheses and designated as
``Option'' sets forth alternative proposal regarding revision of
permit terms that prescribe monitoring or recordkeeping procedures)
PART 70--STATE OPERATING PERMIT PROGRAMS
1. The authority cite for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
2. Section 70.2 is amended as follows:
a. The definition of Affected States is amended by replacing the
word ``modification'' with ``revision'';
b. The definition of Applicable requirement is amended by
redesignating paragraphs (2) through (12) as (3) through (13), adding a
new paragraph (2), and revising the newly redesignated paragraph (12);
c. The definition of Draft permit is amended by revising the cite
``70.7(h)'' to read ``70.7'';
d. The definition of The EPA or the Administrator is revised;
e. The definition of Major new source review is added after the
definition of ``General permit'';
f. The definition of Major source is amended by revising the first
paragraph; by revising the first sentence in paragraph (1)(i) and
revising paragraph (2) introductory text and (2)(xxvii);
g. The definition of Minor new source review is added after the
definition of Major source;
h. The definitions of Permit modification and Section 502(b)(10)
changes are removed;
i. The definition of Permit revision is revised;
j. The definition of Potential to emit is amended by adding the
phrase ``and citizens under the Act'' to the end of the second
sentence;
k. The definition of Responsible official is amended by revising
paragraphs (4) (i) and (ii);
l. The definition of Title I modification is added after the
definition of Stationery source.
Additions and revisions to the section are set out to read as
follows:
Sec. 70.2 Definitions.
* * * * *
Applicable requirement * * *
(2) Any requirement enforceable by the Administrator and by
citizens under the Act that limits emissions for purposes of creating
offset credits or for complying with or avoiding applicability of
applicable requirements;
* * * * *
(12) Any standard or other requirement of the regulations
promulgated to protect stratospheric ozone under sections 608 or 609 of
title VI of the Act, unless the Administrator has determined that such
requirements need not be contained in a part 70 permit, and any
standard or other requirement under any other section(s) of title VI of
the Act that the Administrator determines should be contained in a
title V permit;
* * * * *
The EPA or the Administrator means the Administrator of the EPA or
his or her designee.
* * * * *
Major new source review (major NSR) means a title I program
contained in an EPA-approved or promulgated implementation plan for the
preconstruction review of changes which are subject to review as new
major stationary sources or major modifications under EPA regulations
implementing parts C or D of title I of the Act.
Major source means any stationary source or group of stationary
sources as described in paragraphs (1), (2), and (3) of this
definition. For purposes of paragraphs (2) and (3), major stationary
source includes any group of stationary sources that are located on one
or more contiguous or adjacent properties, and are under common control
of the same person (or persons under common control) belonging to a
single major industrial grouping. For the purposes of defining ``major
source'' in paragraphs (2) or (3) of this definition, a stationary
source or group of stationary sources shall be considered part of a
single industrial grouping if all of the pollutant emitting activities
at such source or group of sources on contiguous or adjacent properties
belong to the same Major Group (i.e., all have the same two-digit code)
as described in the Standard Industrial Classification Manual, 1987. In
addition, for purposes of paragraphs (2) and (3) of this definition,
any stationary source (or group of stationary sources) that supports
another source, where both are under common control of the same person
(or persons under common control) and on contiguous or adjacent
properties, shall be considered a support facility and part of the same
source regardless of the 2-digit SIC code for that support facility. A
stationary source (or group of stationary sources) is considered a
support facility to a source if at least 50 percent of the output of
the support facility is dedicated to the source.
(1) * * *
(i) For pollutants other than radionuclides, any stationary source
or group of stationary sources located within a contiguous area and
under common control that emits or has the potential to emit, in the
aggregate, 10 tons per year (tpy) or more of any hazardous air
pollutant (HAP) (including any fugitive emissions of such pollutant)
which has been listed pursuant to section 112(b) of the Act, 25 tpy or
more of any combination of such hazardous air pollutants (including any
fugitive emissions of such pollutants) or such lesser quantity as the
Administrator may establish by rule. * * *
* * * * *
(2) A major stationary source of air pollutants or any group of
stationary sources, as defined in section 302 of the Act, that directly
emits, or has the potential to emit, 100 tpy or more of any air
pollutant (including any fugitive emissions of any such pollutant, as
determined by rule by the Administrator). The fugitive emissions of a
stationary source shall not be considered in determining whether it is
a major stationary source for the purposes of section 302(j) of the Act
or for the purposes of paragraph (3) of this definition, unless the
source belongs to one of the following categories of stationary source:
* * * * *
(xxvii) All other stationary source categories regulated by a
standard promulgated as of August 7, 1980, under section 111 or 112 of
the Act, but only with respect to those air pollutants that have been
regulated for that category.
* * * * *
Minor new source review (minor NSR) means a title I program
approved by EPA into a State's implementation plan under EPA
regulations implementing section 110(a)(2) of title I of the Act for
the preconstruction review of changes which are subject to review as
new or modified sources and which do not qualify as new major
stationary sources or major modifications under EPA regulations
implementing parts C or D of title I of the Act.
* * * * *
Permit revision means any de minimis permit revision, minor permit
revision, significant permit revision, or administrative permit
amendment.
* * * * *
Responsible official * * *
* * * * *
(4) * * *
(i) The designated representative for all actions, standards,
requirements, or prohibitions under title IV of the Act or the
regulations promulgated thereunder; or
(ii) The designated representative or a person meeting provisions
of paragraphs (1), (2), or (3) of this definition for any other
purposes under part 70.
* * * * *
Title I modification or modification under any provision of title I
of the Act means any modification under parts C and D of title I or
sections 110(a)(2), 111(a)(4), 112(a)(5), or 112(g) of the Act; under
regulations promulgated by EPA thereunder or in Sec. 61.07 of part 61
of this chapter; or under State regulations approved by EPA to meet
such requirements.
* * * * *
3. Section 70.3 is amended by revising paragraphs (a)(1) through
(a)(3); by redesignating paragraphs (a)(4) and (a)(5) as (a)(5) and
(a)(6) respectively; by adding a new paragraph (a)(4); and by revising
paragraph (b)(2) to read as follows:
Sec. 70.3 Applicability.
(a) * * *
(1) Any major source, except that a source is not required to
obtain a permit if it would be classified as a major source solely
because it has the potential to emit major amounts of a pollutant
listed pursuant to section 112(r)(3) of the Act and is not otherwise
required to obtain a permit under this part;
(2) Any source, including an area source (i.e., a nonmajor source),
subject to a standard, limitation, or other requirement under section
111 of the Act;
(3) Any source, including an area source (i.e., a nonmajor source),
subject to a standard or other requirement under section 112 of the
Act, except that a source is not required to obtain a permit solely
because it is subject to regulations or requirements under section
112(r) of the Act;
(4) Any source required to have a permit under parts C or D of
title I of the Act;
* * * * *
(b) * * *
(2) In the case of nonmajor sources subject to a standard or other
requirement under either section 111 or section 112 of the Act
promulgated after July 21, 1992, the Administrator will determine
whether to exempt any or all such sources from the requirement to
obtain a part 70 permit at the time that the new standard is
promulgated.
* * * * *
4. Section 70.4 is amended by:
a. Revising paragraphs (a) and (b)(3)(x);
b. Removing the last sentence from paragraph (b)(3)(xi);
c. Amending paragraph (b)(3)(xii) by replacing ``90'' in the first
and third sentences with ``125'';
d. Amending paragraph (b)(11)(iii) by replacing ``9'' with ``12'';
e. Revising paragraphs (b)(12) through (14), (h), (i) introductory
text and (i)(1);
f. Removing paragraph (b)(15) and redesignating paragraph (b)(16)
as (b)(15);
g. Redesignating paragraphs (j) and (k) as (k) and (l),
respectively; and by adding a new paragraph (j).
Additions and revisions are set out to read as follows:
Sec. 70.4 State program submittals and transition.
(a) Date for submittal. Not later than November 15, 1993, the
Governor of each State shall submit to the Administrator for approval a
proposed part 70 program, under State law or under an interstate
compact, meeting the requirements.
(b) * * *
(3) * * *
(x) Provide an opportunity for judicial review in State court of
the final permit action by the applicant, any person who participated
in the applicable public participation process provided pursuant to
Sec. 70.7 and any other person who could obtain judicial review of such
actions under State laws.
* * * * *
(12) Provisions consistent with paragraphs (b)(12) (i) and (ii) 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 and the permitting authority with
written notification as required below in advance of the proposed
changes, which shall be a minimum of 7 days, unless the permitting
authority provides in its regulations a different time frame for
emergencies. The source, permitting authority, and EPA shall attach
each such notice to their copy of the relevant permit. The following
provisions implement this requirement of an approvable part 70 permit
program:
(i) Trading under permitted emissions caps. The program shall
require the permitting authority to include in a permit an emissions
cap, pursuant to a request submitted by the applicant, consistent with
any specific emission limits or restrictions otherwise required in the
permit by any applicable requirements, and permit terms and conditions
for emissions trading solely for the purposes of complying with that
cap, provided that the permitting authority finds that the request
contains adequate terms and conditions, including all terms required
under Sec. 70.6 (a) and (c), to determine compliance with the cap and
with any emissions trading provisions. The permit shall also contain
terms and conditions to assure compliance with all applicable
requirements. The permit applicant shall include in its application
proposed replicable procedures and permit terms that ensure the
emissions cap is enforceable and trades pursuant to it are quantifiable
and enforceable. Any permit terms and conditions establishing such a
cap or allowing such trading may be established or changed only in a
full permit issuance, renewal, or significant permit revision process.
The permitting authority shall not be required to include in the cap or
emissions trading provisions any emissions units where the permitting
authority determines that the emissions are not quantifiable or where
it determines that there are no replicable procedures or practical
means to enforce the emissions trades.
(A) The written notification required under this paragraph
(b)(12)(i) 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. 70.6(f) may extend to terms
and conditions that allow such increases and decreases in emissions.
(ii) Trading under the implementation plan. The program may provide
for permitted sources to trade increases and decreases in emissions in
the permitted facility, where the applicable implementation plan
provides for such emissions trades without requiring a permit revision
and based on the 7-day notice prescribed in this paragraph (b)(12)(ii).
This provision is available in those cases where the permit does not
already provide for such emissions trading provided the permit
identifies which permit terms may be replaced with the emissions
trading provisions in the implementation plan.
(A) The written notification required under this paragraph
(b)(12)(ii) 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. 70.6(f) shall not extend to
any change made under this paragraph (b)(12)(ii). Compliance with the
permit terms that the source will meet using the emissions trade shall
be determined according to requirements of the applicable
implementation plan authorizing the emissions trade.
(13) Provisions for adequate, streamlined, and reasonable
procedures for expeditious review of permit revisions. The program may
meet this requirement by using procedures that meet the requirements of
Sec. 70.7 (d), (e), (f), (g), and (h) or that are substantially
equivalent to those provided therein.
(14) If a State allows permittees, without first applying for a
permit revision, to make changes that do not result in the source being
in violation of any permit term or condition but render the source
subject to an applicable requirement to which the source was not
previously subject, provisions meeting the requirements of paragraphs
(b)(14) (i) through (vii).
(i)(A) Each change shall meet all applicable requirements and shall
not violate or result in the violation of any existing permit term or
condition.
(B) Each change shall not result in a net increase in the allowable
emissions of any regulated air pollutant at the source.
(C) The change may not be subject to the requirements of title IV
of the Act.
(ii) Sources must provide contemporaneous written notice to the
permitting authority of each such change. Such written notice shall
describe each such change, the date of the change, any change in
emissions, pollutants emitted, and the applicable requirement to which
the source becomes subject as a result of the change.
(iii) The change shall not be eligible for the permit shield under
Sec. 70.6(f) until such time as a permit shield may be granted in a
subsequent permit revision consistent with the provisions of Sec. 70.7
(g) or (h).
(iv) The permittee shall keep a record describing changes made
under this paragraph.
(v) The permittee shall apply for a permit revision by the deadline
set forth in Sec. 70.5(a)(1)(ii), except that if the deadline would
occur after the date on which a renewal application is due, the State
may allow the permittee to include the permit application with the
renewal application.
(vi) The permit shall be revised under the relevant procedures of
Sec. 70.7 (e), (f), (g) or (h) for which the change is eligible, except
that, notwithstanding provisions in those sections, if the change is
processed under minor permit revision or significant permit revision
procedures, and the permitting authority or EPA determines that the
change was ineligible under this paragraph, then the source shall be
liable from the date the change was made for failing to have applied
for a permit revision before the change was made as required under
Sec. 70.7.
(vii) If eligible for the minor permit revision procedures of
Sec. 70.7(g), the following provisions shall apply to changes made
under this paragraph.
(A) The public notice required under Sec. 70.7(g)(3)(ii) shall
state that if no germane and non-frivolous objection is received within
21 days of application, the permitting authority may consider that the
change was eligible for processing under this paragraph without further
opportunity for public objection. In addition to the provisions of
Sec. 70.7(g)(3)(ii), a germane objection is one that objects to the
change on the grounds that the source was ineligible under this
paragraph.
(B) The provisions of Sec. 70.7(g)(5) (i) and (ii) prohibiting the
source from making the change do not apply.
(C) Notwithstanding the provisions of Sec. 70.7(g)(6), the source
must comply with all applicable requirements from the date the change
was made.
* * * * *
(h) Individual permit transition. Upon approval of a State program,
the Administrator shall suspend the issuance of Federal permits for
those activities subject to the approved State program, except that the
Administrator will continue to issue phase I acid rain permits and, to
the extent provided in regulations promulgated pursuant to title IV of
the Act, will issue phase II acid rain permits. After program approval,
EPA shall retain jurisdiction over any permit (including any general
permit) that it has issued unless arrangements have been made with the
State to assume responsibility for these permits. Where EPA retains
jurisdiction, it will continue to process permit appeals and revision
requests, to conduct inspections, and to receive and review monitoring
reports. If any permit appeal or revision request is not finally
resolved when the federally-issued permit expires, EPA may, with the
consent of the State, retain jurisdiction until the matter is resolved.
Upon request by a State, the Administrator may delegate authority to
implement all or part of a permit issued by EPA, if a part 70 program
has been approved for the State. The delegation may include
authorization for the State to collect appropriate fees, consistent
with Sec. 70.9.
(i) Program revisions. Either EPA or a State with an approved
program may initiate a program revision. Program revision may be
necessary when the relevant Federal or State statutes or regulations,
including part 70, are revised, modified, or supplemented. The State
shall keep EPA apprised of any proposed modifications to its basic
statutory or regulatory authority or procedures. If the Administrator
determines pursuant to Sec. 70.10 that a State is not adequately
administering the requirements of this part, or that the State's permit
program is inadequate in any other way, the State shall revise the
program or its means of implementation to correct the inadequacy.
(1) If the program or the means of implementing it must be revised,
fully adopted program revisions shall be submitted to the Administrator
in accordance with the following timeframes, which will commence upon
promulgation of revised requirements under title V of the Act or upon a
finding by the Administrator of inadequate program administration:
(i) Within 180 days if no new statutory authority or regulatory
revisions are necessary;
(ii) Within 12 months if no new statutory authority is needed but
regulatory revisions are necessary;
(iii) Within 2 years if new statutory authority is needed; or
(iv) Notwithstanding paragraphs (i)(1)(i) through (iii) of this
section, any other time period that the Administrator determines is
appropriate to allow for program revision.
* * * * *
(j) Savings provision. Any operating permits program developed and
submitted to the Administrator for approval prior to [DATE 6 MONTHS
AFTER PUBLICATION OF FINAL RULE] must meet the applicable criteria
contained in part 70 as in effect on July 21, 1992 to receive EPA
approval. Notwithstanding the preceding sentence, the Administrator may
review portions or the entirety of such program submittals upon request
of the permitting authority, and will review the entirety of all later
submittals, on the basis of the criteria in part 70 as in effect at the
time of the submittal.
* * * * *
5. Section 70.5 is amended by:
a. Revising paragraph (a)(1)(ii);
b. Redesignating paragraphs (a)(1)(iii) and (a)(1)(iv) as
(a)(1)(iv) and (a)(1)(v) respectively, adding a new paragraph
(a)(1)(iii), and revising the newly redesignated paragraph (a)(1)(v);
c. Revising the second sentence in paragraph (a)(2);
d. Adding a new sentence to paragraph (c) introductory text after
the fifth sentence in that paragraph;
e. Redesignating paragraphs (c)(8), (c)(9), and (c)(10) as
paragraphs (c)(9), (c)(10), and (c)(11) respectively and adding a new
paragraph (c)(8).
Additions and revisions are set out to read as follows:
Sec. 70.5 Permit applications.
(a) * * *
(1) * * *
(ii) For purposes of changes eligible under Sec. 70.4(b)(14), a
timely application is one that is submitted not later than 6 months
after the notice required under Sec. 70.4(b)(14)(ii).
(iii) For purposes of permit revisions other than changes eligible
under Sec. 70.4(b)(14), a timely application is one that is submitted
by the relevant deadlines set forth in Secs. 70.7(e), (f), (g), or (h).
* * * * *
(v) Applications for initial phase II acid rain permits shall be
submitted to the permitting authority by January 1, 1996 for sulfur
dioxide, and by January 1, 1998 for nitrogen oxides or by such other
deadlines established under title IV of the Act and the regulations
promulgated thereunder.
(2) * * * To be found complete, an application must provide all
information required pursuant to paragraph (c) of this section
sufficient to allow the permitting authority to begin processing the
application, except that applications for permit revision need supply
such information only if it is related to the proposed change. * * *
* * * * *
(c) * * * No activity or emissions unit of a source may be exempted
when determining whether a source is major. * * *
* * * * *
(8) Identification of those emissions units eligible for emissions
trading under Sec. 70.6(a)(10) and those emissions units at which
changes may be processed under de minimis permit revision procedures
contained in Sec. 70.7(f) of this part.
6. Section 70.6 is amended by:
a. Revising paragraphs (a)(3)(ii) introductory text,
(a)(3)(iii)(B), (a)(4) introductory text, (a)(8), (a)(9)(i), (a)(10)
introductory text, (c)(1), (d)(2), and (f)(3)(i);
b. Adding a new paragraph (d)(3);
c. Amending paragraphs (a)(1)(iii), (a)(6)(i), and (a)(6)(iii) by
replacing the word ``modification'' with ``revision'';
d. Amending paragraph (a)(4)(ii) by replacing the word ``source''
with ``unit'';
e. Amending paragraphs (c)(3) and (c)(4) by revising references to
``Sec. 70.5(c)(8)'' to read ``Sec. 70.5(c)(9)'';
f. Amending paragraph (d)(1) by revising references to
``Sec. 70.7(h)'' to read ``Sec. 70.7(k).''
The additions and revisions read as follows:
Sec. 70.6 Permit content.
(a) * * *
(3) * * *
(ii) With respect to recordkeeping, the permit shall incorporate
all applicable recordkeeping requirements and require the following:
* * * * *
(iii) * * *
(B) Prompt reporting of deviations from permit requirements,
including those attributable to upset conditions, the probable cause of
such deviations, and any corrective actions or preventive measures
taken. The permitting authority shall define ``prompt'' in its part 70
program regulations for each situation which is not already defined in
the underlying applicable requirement, and do so in relation to the
degree and type of deviation likely to occur and the applicable
requirements. Upset conditions shall be defined in the permit.
(4) For affected sources, a permit condition prohibiting any
affected unit from emitting SO2 in excess of any allowances that
the affected unit lawfully holds under title IV of the Act or the
regulations promulgated thereunder.
* * * * *
(8) Emissions trading. A provision stating that no permit revision
shall be required, under any economic incentives, marketable permits,
emissions trading and other similar programs or processes approved in
an implementation plan or other applicable requirement authorizing such
changes to be provided for in the permit and where the permit provides
for such changes.
(9) * * *
(i) Shall require the source, contemporaneously with making a
change from one operating scenario to another, to record in a log at
the permitted facility a record of the scenario under which it is
operating. Provided that each of the alternative scenarios available
for a particular unit is monitored in a way that yields objective,
contemporaneous measurement and recordation of relevant emissions or
parameters and that the means of measurement are sufficiently different
for each of the scenarios that the contemporaneous record reveals the
scenario under which the source was operating when the record was made,
no further notice to the permitting authority is required. Otherwise,
the permit shall require that when any change is made between
alternative scenarios, the permittee at the beginning of the following
week shall place in regular mail to the permitting authority notice of
such change(s) between scenarios, which could consist of a copy of the
relevant portion of the on-site log indicating the scenario(s) under
which the source operated during the previous week;
* * * * *
(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
any emissions trade. Such terms and conditions:
* * * * *
(c) * * *
(1) Consistent with paragraph (a)(3) of this section, testing,
monitoring, recordkeeping, reporting, and compliance certification
requirements sufficient to assure compliance with the terms and
conditions of the permit. Any document (including reports) required to
be submitted by a part 70 permit shall contain a certification by a
responsible official that meets the requirements of Sec. 70.5(d).
* * * * *
(d) * * *
(2) Part 70 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 70 permit consistent with
Sec. 70.5. The permitting authority may, in the general permit, provide
for applications which deviate from the requirements of Sec. 70.5,
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. 70.7(k), the permitting authority may grant a source's request for
authorization to operate under a general permit, and such a grant shall
be a final permit action for purposes of judicial review.
(3) The permitting authority shall provide timely notice to the
public of any authorization given to a source to operate under the
terms of a general permit. Such notice may be made on a monthly,
summarized basis covering all sources receiving authorization since the
time of the last notice.
* * * * *
(f) * * *
(3) * * *
(i) The provisions of sections 112(r)(9) and 303 of the Act
(emergency orders), including the authority of the Administrator under
those sections;
* * * * *
7. Section 70.7 is amended by:
a. Revising paragraphs (a)(1) introductory text, (a)(1)(i),
(a)(1)(ii), (a)(1)(iv), (a)(1)(v), (a)(2), and (a)(4);
b. Adding a new paragraph (a)(7);
c. Revising paragraph (b);
d. Redesignating paragraphs (f), (g), and (h) as paragraphs (i),
(j), and (k);
e. Redesignating paragraph (e)(2) as a new paragraph (g) and
revising it, and redesignating paragraph (e)(4) as paragraph (h)
introductory text, and paragraphs (e)(4) (i) and (ii) as paragraphs
(h)(1) and (h)(2);
f. Removing paragraphs (e) introductory text and (e) (1) and (3);
redesignating paragraph (d) as paragraph (e) and revising it;
g. Adding new paragraphs (d) and (f)
h. Revising newly redesignated paragraph (h)(1), and amending newly
redesignated paragraph (h)(2) by revising the word ``modifications'' to
read ``revisions'';
k. Revising the newly redesignated paragraphs (i)(2) and (i)(3);
l. Amending the newly redesignated paragraph (j)(1) by replacing
the citation ``paragraph (f)'' to read ``paragraph (i)'';
m. Amending the newly redesignated paragraph (j)(5) introductory
text by revising the citations to ``paragraph (g)(2)'' and ``paragraph
(g)(4)'' to read ``paragraph (j)(2)'' and ``paragraph (j)(4)''
respectively;
n. Amending the newly redesignated paragraph (j)(5)(i) by revising
the citation ``paragraphs (g) (1) through (4)'' to read ``paragraphs
(j) (1) through (4)'';
o. Revising the newly redesignated paragraph (k) introductory text;
p. Amending the newly redesignated paragraph (k)(2) by revising the
word ``modification'' to read ``revision'';
q. Amending the newly redesignated paragraph (k)(5) by adding the
words ``or her'' after the words ``the Administrator may fulfill his''.
The additions and revisions read as follows:
Sec. 70.7 Permit issuance, renewal, reopenings, and revisions.
(a) Action on Application. (1) A permit, permit revision, or
renewal may be issued only if all of the following conditions have been
met:
(i) The permitting authority has received a complete application
for a permit, permit revision, or permit renewal, except that a
complete application need not be received before issuance of a general
permit under Sec. 70.6(d) of this part;
(ii) The permitting authority has complied with the applicable
requirements for public participation under this section;
* * * * *
(iv) Except as provided in paragraph (a)(7) of this section, the
conditions of the permit provide for compliance with all applicable
requirements and the requirements of this part; and
(v) Except for revisions qualifying for de minimis permit revision
procedures under paragraph (f) of this section or for administrative
amendment procedures under paragraphs (e)(1) (i) through (v) of this
section, the Administrator has received a copy of the proposed permit
and any notices required under Sec. 70.8 (a) and (b), and has not
objected to issuance of the permit under Sec. 70.8(c) within the time
period specified therein.
(2) Except as provided under the initial transition plan provided
for under Sec. 70.4(b)(11) or under regulations promulgated under title
IV or title V of the Act for the permitting of affected sources under
the acid rain program, the program shall provide that the permitting
authority take final action on each permit application (including a
request for permit revision or renewal) within 18 months, or such
lesser time approved by the Administrator, after receiving a complete
application. However, the permitting authority shall take final action
within 12 months on any complete permit application containing an early
reductions demonstration.
* * * * *
(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 application shall be deemed complete. For revisions
that qualify for and are processed through the procedures of paragraphs
(e), (f), or (g) of this section, the State program need not require a
completeness determination.
* * * * *
(7) Any new applicable requirement approved or promulgated by EPA
that becomes applicable to a source prior to issuance of a draft permit
(whether during issuance or renewal) shall be included in the draft
permit. If any new applicable requirement becomes applicable after
issuance of a draft permit, and the requirement is not reflected in the
draft permit, the permit may be issued without incorporating the new
applicable requirement, provided that the permitting authority
institutes proceedings no later than the date of permit issuance to
reopen the permit consistent with paragraph (i) of this section to
incorporate the new applicable requirement and that the permit contains
a statement that it is being reopened for this purpose.
(b) Requirement for a permit. Except as provided in the following
sentence and paragraphs (e), (f), and (g) of this section, no part 70
source may operate after the time that it is required to submit a
timely and complete application under an approved permit program,
except in compliance with a permit issued under a part 70 program.
* * * * *
(d) Permit revisions. Changes requiring a revision of a part 70
permit are those that could not be operated without violating an
existing permit term or rendering the source subject to an applicable
requirement to which the source has not been previously subject. The
State shall provide adequate, streamlined, and reasonable procedures
for expeditiously processing permit revisions. The State may meet this
obligation by adopting the procedures set forth in paragraphs (e), (f),
(g), and (h) of this section and in Sec. 70.4(b)(14) or ones
substantially equivalent. The State may also develop different
procedures for different types of revisions depending on the
significance and complexity of the requested revision, but EPA will not
approve a part 70 program that has permit revision procedures that
provide for less permitting authority, EPA, or affected State review or
public participation than is provided for in this part. A permit
revision for purposes of the acid rain portion of the permit shall be
governed by regulations promulgated under title IV of the Act.
(e) Administrative permit amendments.--(1) An ``administrative
permit amendment'' is a permit revision that:
(i) Corrects typographical errors;
(ii) Identifies a change in the name, address, or phone number of
any person identified in the permit, or provides a similar minor
administrative change;
(iii) Requires more frequent testing, monitoring, recordkeeping, or
reporting;
(iv) Allows for a change in ownership or operational control of a
source where 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 any other type of change which the Administrator
has determined as part of the approved part 70 program to be similar to
those in paragraphs (e)(1)(i) through (iv) of this section;
(vi) Incorporates the requirements of a minor NSR or major NSR
preconstruction permit or decision or a section 112(g) determination,
provided that such permit or determination was issued in accordance
with procedural requirements substantially equivalent to the
requirements of paragraph (e)(4) of this section and contains
compliance requirements substantially equivalent to those required
under Sec. 70.6.
(vii) Notwithstanding the provisions of paragraph (e)(1)(vi) of
this section, incorporates a standard promulgated after permit issuance
pursuant to section 112 of the Act.
(2) Administrative permit amendments for purposes of the acid rain
portion of the permit shall be governed by regulations promulgated
under title IV of the Act.
(3) Administrative permit amendment procedures for changes meeting
the criteria under Sec. 70.7(e)(1)(i) through (v). Changes meeting the
criteria set forth in paragraphs (e)(1)(i) through (v) of this section
may be made to a permit using the following procedures:
(i) The source shall submit to the permitting authority an
application containing a proposed addendum to the source's part 70
permit. The application shall demonstrate how the proposed change meets
one of the criteria for administrative amendments set forth in
paragraphs (e)(1)(i) through (v) of this section, and include
certification by the responsible official consistent with Sec. 70.5(d)
of this part that the change is eligible for administrative amendment
procedures. The addendum shall:
(A) Identify the terms of the existing part 70 permit that it
proposes to change;
(B) Propose new permit terms consistent with the provisions of this
part applicable to the change;
(C) Designate the addendum as having been processed under the
procedures of this paragraph; and
(D) Specify that the addendum will be effective 60 days from the
date of permitting authority receipt unless the permitting authority
disapproves the change within such period.
(ii) The permitting authority may allow the source to implement the
requested change immediately upon making all required submittals,
including the proposed addendum.
(iii) The proposed addendum may become effective 60 days after the
permitting authority receives the submittal, provided the permitting
authority has not disapproved the request in writing before the end of
the 60-day period. The permitting authority shall record the change by
attaching a copy of the addendum to the existing part 70 permit and
shall provide the Administrator with a copy of the addendum.
(iv) If the permitting authority disapproves the change, it shall
notify the source of its reasons for disapproving the change in a
timely manner. Upon receiving such notice, the source shall comply with
the terms of the permit that it had proposed to change, and thereafter
the proposed addendum shall not take effect. The permitting authority
may approve a permit addendum for an administrative permit amendment
that varies from the source's application without rendering the source
liable for violating its existing permit if the permitting authority's
revisions are not necessary to make the request eligible for
administrative amendment procedures and do not change the applicant's
proposed determination of which applicable requirements of the Act
apply to the source as a result of the requested change and if the
source demonstrates to the satisfaction of the permitting authority its
compliance with the applicable requirement to which it is subject as a
result of the change. However, the source would remain liable for any
violations of the requirements which are applicable as a result of the
change and the source's proposed permit revision.
(v) The process in paragraph (e)(3) of this section may also be
used for changes initiated by the permitting authority that meet the
criteria under paragraphs (e)(1)(i), (ii), and (iv) of this section.
For such changes, the permitting authority shall notify the source of
the proposed change and its effective date, and shall attach a copy of
the change to the existing permit. On the effective date of the
proposed change, the source shall comply with the provisions of the
proposed change.
(vi) The permit shield under Sec. 70.6(f) of this part may not
extend to administrative amendments processed under this paragraph
(e)(3).
(4) Administrative amendment procedures for changes meeting the
criteria under Sec. 70.7(e)(1)(vi). A change meeting the criteria of
Sec. 70.7(e)(1)(vi) may be made to a permit using the procedures in the
following paragraphs (e)(4)(i) through (v) of this section.
(i) An applicant shall submit prior to construction (including
modification), a permit application meeting the requirements for
applications of minor NSR, major NSR, section 112(g) determinations
under the Act, and paragraph (e)(3)(i) of this section. The application
must:
(A) Specify draft permit terms governing construction of any
proposed new or modified emissions unit or combination thereof,
including all applicable requirements;
(B) Inform the permitting authority that the source is requesting
to modify the part 70 permit using the process under this paragraph;
(C) Include a proposed addendum to the part 70 permit that
identifies the terms of the existing part 70 permit that will change
and the draft terms and conditions which will govern operation of the
new or modified unit consistent with part 70 (including compliance
requirements consistent with Sec. 70.6) and any notice requirements
contained in paragraph (e)(4)(ii) of this section, and that
incorporates relevant terms and conditions from the proposed minor NSR
or major NSR or section 112(g) action.
(D) Include an affidavit signed by a responsible official stating
that the source accepts all liability of making the requested change
prior to final permitting authority action to revise the source's
permit.
(ii) For any minor NSR or major NSR or section 112(g) action and
part 70 permit addendum proposed for approval under this paragraph
(e)(4), the permitting authority shall:
(A) Provide a comment period for the public and affected States
prior to construction of the change of at least 30 days or, in the case
of minor NSR, as many days as required by the approved implementation
plan as of November 15, 1993, but not less than 15 days. Where a minor
NSR action includes a netting transaction involving either a single
emissions increase above applicable title I modification significance
levels or a sum of increases above applicable major source thresholds,
a public comment period of at least 30 days must be provided for a
change to qualify for processing under this paragraph;
(B) Provide notice and a copy of the application filed pursuant to
paragraph (e)(4)(i) of this section to EPA by the beginning of the
public comment period;
(C) Issue a minor NSR or major NSR permit or determination or issue
a section 112(g) determination and an addendum to the part 70 permit
for the operation of the change if it determines the requirements of
the applicable minor NSR, major NSR, or section 112(g) review program
and part 70 have been met; and
(D) Provide an opportunity for EPA objection consistent with the
provisions of Sec. 70.8(c), starting either upon receipt of the notice
described under paragraphs (e)(4)(ii)(D) (1) or (2) of this section as
applicable or from the date the permitting authority made its final
minor NSR, major NSR, or section 112(g) determination, whichever is
later.
(1) For changes approved by the permitting authority under major
NSR or section 112(g) review, the source shall provide a notice to EPA
and the permitting authority which must be postmarked at least 21 days
before the anticipated date of initial startup of the new or modified
source. For such changes, the source may commence operation at the end
of the 21-day period, unless EPA objects in writing to the proposed
change within the 21-day period. Upon notification of such objection,
the source may not operate such a change and must comply with the terms
and conditions of the permit that it sought to change.
(2) For changes approved by the permitting authority under minor
NSR, the source shall notify EPA and the permitting authority of the
anticipated date for startup of the change. The source may commence
operation of such a change upon postmark of such notice.
(iii) The proposed part 70 permit addendum may become effective 45
days after EPA receives notice under paragraph (e)(4)(ii)(D) of this
section or 45 days from the date the permitting authority makes its
final preconstruction determination, whichever is later, provided that
by the end of such period EPA has not objected to the change.
(iv) If EPA objects to the change, EPA shall notify the permitting
authority and the source of its reasons for objecting to the change.
Upon receiving such notice, the source shall comply with the terms of
the permit that it had proposed to change, and thereafter the proposed
addendum shall not take effect. If, subsequent to source implementation
of the requested change, EPA objects to the change, the source shall be
liable for having operated in violation of its existing permit from the
time it implemented the change. Notwithstanding the preceding sentence,
the permitting authority may revise a proposed addendum making an
administrative permit amendment in response to an EPA objection without
rendering the source liable for violating its existing permit if the
permitting authority's revisions are not necessary to make the change
eligible for administrative amendment procedures and do not change the
applicant's proposed determination of which applicable requirements
apply to the source as a result of the requested change and if the
source demonstrates to the satisfaction of the permitting authority its
compliance with the applicable requirement to which it is subject as a
result of the change. However, the source would remain liable for any
violations of the requirements which are applicable as a result of the
change and the source's proposed permit revision.
(v) The permitting authority may provide a permit shield consistent
with the provisions of Sec. 70.6(f).
(5) Administrative permit amendment procedures for changes meeting
the criteria under Sec. 70.7(e)(1)(vii). Changes meeting the criteria
set forth in paragraphs (e)(1)(vii) of this section may be made to a
permit using the following procedures:
(i) After receipt of the initial notification required under the
section 112 standard, the permitting authority shall prepare a proposed
addendum to the source's part 70 permit. The addendum shall contain the
following:
(A) A statement that the section 112 standard is an applicable
requirement for the permitted source.
(B) A schedule of compliance, consistent with Sec. 70.5(c)(9).
(C) A requirement to submit any implementation plan or report
required under the standard.
(D) A requirement to apply for a minor permit revision by the
deadline for the compliance statement, unless the source is exempted
from this requirement by the rulemaking promulgating the applicable
section 112 standard. If the source is utilizing an alternative
requiring case-by-case approval, such as emissions averaging, the
source shall apply for a significant permit revision in lieu of the
minor permit revision required in the preceding sentence. If the
compliance statement deadline is within 6 months of the end of the
permit term, the source may incorporate its application for the
revisions into its application for permit renewal, in lieu of applying
for revisions by the compliance statement deadline.
(E) Any other provisions required to be incorporated into the
permit by the applicable section 112 standard.
(ii) The permitting authority shall make available for public
review and comment for at least 30 days a list of sources whose permits
are reopened under this paragraph. Notice of the availability of the
list shall be given by such time as to assure that any additional
administrative amendments for sources subject to the standard and not
on the list take effect within 18 months after promulgation of the
section 112 standard. If after considering public comment, the
permitting authority determines that permits for other sources must be
reopened to incorporate section 112 standards, it shall notify such
sources of its intent to do so at least 30 days before reopening the
permit, and may use the provisions of this paragraph.
(iii) The proposed addendum shall become effective not later than
18 months after promulgation of the section 112 standard. The
permitting authority shall attach a copy of the addendum to the
existing part 70 permit and shall provide the Administrator with a
copy.
(iv) The permitting authority shall, as soon as practicable, place
all information required to be submitted by the permit with respect to
the section 112 standard in a docket accessible to the public.
(v) The permit shield under Sec. 70.6(f) of this part may not
extend to administrative amendments processed under this paragraph
(e)(5).
(f) De minimis permit revisions. (1) A de minimis permit revision
may be made by the permitting authority to a part 70 permit provided
that the permit contains a term or condition authorizing the source to
make use of de minimis permit revision procedures for qualifying
changes at the applicable unit and such term or condition was
established during permit issuance or renewal, or under permit revision
procedures contained in paragraph (h) of this section, and provided the
action taken meets the criteria and procedures specified in this
paragraph (f).
(2) Criteria. For the change to be considered eligible for de
minimis permit revision procedures, the conditions in paragraph
(f)(2)(i) of this section and the applicable conditions and limits in
paragraphs (f)(2) (ii) and (iii) of this section must be met. The
limits in paragraphs (f)(2) (ii) and (iii) of this section are on a
single pollutant basis except where a combination of hazardous air
pollutants is indicated.
(i) Conditions limiting de minimis changes. (A) The source must not
be in violation of the part 70 permit terms and conditions it seeks to
change.
(B) In the case of existing units, the need for a permit revision
must result from a physical or operational change. (OPTION: ADD TO END
OF SENTENCE: , unless the permit revision solely involves monitoring or
recordkeeping requirements.)
(C) (OPTION: ADD TO BEGINNING OF SENTENCE: Except for permit
revisions solely involving monitoring or recordkeeping requirements,)
The change may not involve a permit term or condition established to
limit emissions which is federally enforceable only as a part 70 permit
term or condition.
(D) De minimis emission threshold levels cannot be met by
offsetting emission increases with emission decreases at the same
source.
(OPTION: ADD NEW PARAGRAPHS (f)(2)(i) (E) and (F): (E) The change
may not involve a change to monitoring or recordkeeping requirements
unless, prior to the source's submission of a de minimis permit
revision application, the permitting authority affirmatively determines
that the monitoring or recordkeeping change has been demonstrated by
the source:
(1) To not affect the capability of the method to measure emission
results as precisely, accurately, and timely as is provided by the
existing monitoring or recordkeeping method;
(2) To only affect a single source or facility; and
(3) To not constitute a new or alternative monitoring method or
represent a new operating level of the method.
(F) The criteria for all demonstrations required under paragraph
(f)(2)(i)(E) of this section shall include, in addition to the
requirements of paragraph (f)(3)(i)(C) of this section, an analysis
conducted in accordance with 40 CFR 64.4(b)(5) and 64.4(c) utilizing
appendices A, B, C and D, and related appendices' procedures of 40 CFR
part 64.))
(ii) Unit-based change limits. For a change at any emissions unit
to qualify as a unit-based de minimis permit revision, the total
emissions of an entirely new unit and the total emissions at an
existing unit after the change (i.e., the sum of the existing emissions
before the change plus the emissions increase that results from the
change) may not exceed:
(A) For criteria pollutants:
ALTERNATIVE 1:
The following emissions over the life of the permit:
(1) 4 tons of CO;
(2) ton of NOX;
(3) 1.6 tons of SO2;
(4) .6 tons of PM-10;
(5) 1 ton of VOC;
ALTERNATIVE 2:
20% of the applicable major source threshold, or 5 tpy of VOC or
NOx, whichever is greater, but in no event no more than 15 tpy PM-
10 or 0.6 tpy lead;
ALTERNATIVE 3:
5 tpy;
ALTERNATIVE 4:
30% of the applicable major source threshold or 5 tpy, whichever is
greater;
OR
A unit size established by a State for use within that State, where
the State can show that, of the estimated annual emissions of units
subject to minor and major NSR in the State, 80% or more of the
emissions of those units would be from units above that level.
(B) For HAP's:
ALTERNATIVE 1:
0 tpy.
ALTERNATIVE 2:
20% of the section 112 major source thresholds or 50% of the
section 112(g) de minimis levels, whichever is less.
ALTERNATIVE 3:
75% of section 112(g) de minimis levels.
(C) For other pollutants regulated only under section 111 of the
Act, the significance levels in Sec. 52.21(b)(23)(i) of part 52 of this
chapter.
(iii) Increment-based change limits. A change at any emissions unit
not qualifying for a unit-based change may still qualify as a de
minimis permit revision if the following criteria are met:
(A) Additional conditions: (1) Any resulting emissions limit must
be expressed in the same form and units of measure as the previous
emissions limit;
(2) Any associated re-calibration of continuous emissions monitors
(CEM) or operational parameters must be undertaken in accordance with
emission rates-to-CEM or operational parameter ratios established in
the operating permit program, in the source's permit, or through permit
issuance procedures providing at least as much permitting authority,
EPA, and affected State review and public participation as minor permit
revision procedures; (OPTION: DELETE PREVIOUS PARAGRAPH (f)(2)(iii) (A)
(2).)
(B) Size restrictions on individual change. No emissions increase
at any unit may exceed:
(1) For criteria pollutants:
ALTERNATIVE 1:
The following emissions over the life of the permit:
(1) 4 tons of CO;
(2) 1 ton of NOX;
(3) 1.6 tons of SO2;
(4) .6 tons of PM-10;
(5) 1 ton of VOC;
ALTERNATIVE 2:
20% of the applicable major source threshold, 10% of the limit
applicable to the unit undergoing the change, or 15 tpy VOC or
NOX, whichever is less but in no event less than (2-5) tpy VOC or
NOX or greater than 15 tpy PM-10 or 0.6 tpy lead;
ALTERNATIVE 3:
30% of applicable major source thresholds, or 15% of the limit
applicable to the unit undergoing the change, whichever is less, but in
no event less than 5 tpy for VOC or NOX;
OR
A specified incremental amount established by a State for use
within that State, where the State can show that, of the estimated
annual emissions increases subject to minor and major NSR in the State,
80% or more would be above that level.
(2) For HAP's:
ALTERNATIVE 1:
0 tpy.
ALTERNATIVE 2:
20% of the section 112 major source thresholds, 50% of the de
minimis levels set pursuant to section 112(g) of the Act, or 10% of the
limit applicable to the unit undergoing change, whichever is less.
ALTERNATIVE 3:
75% of section 112(g) de minimis levels.
(3) For other pollutants regulated only under section 111 of the
Act, the significance levels in Sec. 52.21(b)(23)(i) of part 52 of this
chapter.
(3) De minimis permit revision procedures. (i) Application. A
source may submit an application to the permitting authority requesting
the use of de minimis permit revision procedures provided that the
permit contains a term or condition that authorizes the source to make
use of the de minimis permit revision procedures for qualifying
changes, the application meets the requirements of Sec. 70.5(c) of this
part, and the permit application includes the following:
(A) A description of the change, the emissions resulting from the
change, and any new applicable requirements that will apply if the
change occurs;
(B) An addendum containing the terms and conditions of the source's
suggested draft permit revision;
(C) A demonstration that the proposed change meets the criteria for
a de minimis permit revision; and
(D) Certification by a responsible official consistent with
Sec. 70.5(c) of this part that:
(1) The source is in compliance with any permit terms or conditions
it seeks to modify;
(2) The proposed modification meets the criteria for use of de
minimis permit revision procedures; and
(3) The source accepts all liability of making the requested change
prior to final permitting authority action to revise the source's
permit.
(OPTION: ADD NEW PARAGRAPH: (E) A summary of any required
demonstration performed in accordance with paragraphs (f)(2)(i) (E) and
(F) of this section, and verification of such demonstration's
affirmative approval by the permitting authority.)
(ii) The permitting authority may allow the source to implement the
requested change 7 days after the permitting authority's receipt of the
source's de minimis permit revision application. At its discretion, the
permitting authority may grant a request by the source to implement the
change after less than 7 days.
(iii) Public notification. Public notice shall be given of de
minimis permit revision applications received by the permitting
authority on a monthly, batched basis. (OPTION: ADD TO END OF
PARAGRAPH: In addition, for permit revisions involving changes to
monitoring or recordkeeping requirements, the permitting authority
shall also submit to the publicly available docket the complete
demonstration required by paragraphs (f)(2)(i) (E) and (F) of this
section, a summary of the demonstration, and an affirmative statement
of the demonstration's adequacy.)
(iv) Permit amendment. The permit is revised by attaching the
proposed addendum to the permit with the addendum specifying when the
permit revision takes effect consistent with the following provisions.
(A) Where the permitting authority affirmatively approved the
change pursuant to a preconstruction review process that included at
least a 21-day public comment period and the permitting authority
authorized the change to be made under the de minimis permit revision
process, the addendum shall take effect upon submission of a complete
de minimis permit revision application.
(B) Where the permitting authority did not affirmatively approve
the change pursuant to a preconstruction review that provided for at
least a 21-day public comment period, the addendum shall take effect
(30-90) days after the date public notice was given under paragraph
(f)(3)(iii) of this section if the permitting authority does not
disapprove the request within that time period. The permitting
authority shall retain the authority to disapprove such a change made
through the de minimis permit revision process for a period of (30-90)
days following the date public notice was given under paragraph
(f)(3)(iii) of this section.
(v) EPA and affected State notification. The permitting authority
shall send a copy of the addendum to the permit to EPA and any affected
State within 7 days of the date the addendum takes effect.
(vi) Public request for disapproval. (A) Within (15-45) days of the
date public notification was given, any person may request that the
permitting authority disapprove the change if the permitting authority
retained authority to disapprove the de minimis permit revision as
described under paragraph (f)(3)(iv)(B) of this section.
(B) Where the permitting authority was not required to retain
authority to disapprove the de minimis permit revision, the public may
petition the permitting authority to revoke the permit revision
allowing the change.
(vii) Petitions to EPA. The public may petition EPA to object to
the change within 60 days after the end of the (30-90) day disapproval
period as described in paragraph (f)(3)(iv)(B) of this section where
the permitting authority does not grant a request to disapprove the
change.
(4) Source liability. If, after a source makes the requested
change, the permitting authority disapproves the change or EPA objects
to the change, the source shall be liable for having operated in
violation of its existing permit from the time at which the source made
the change. Notwithstanding the preceding sentence, the permitting
authority may issue a permit addendum that varies from the source's
proposed addendum without rendering the source liable for violating its
existing permit if the proposed addendum includes enforcement terms
sufficient to support an enforcement action and the permitting
authority's revisions are not necessary to make the change eligible for
de minimis permit revision procedures and do not change the applicant's
determination of which requirements of the Act apply to the source as a
result of the requested change. The source would remain liable for any
violations of the requirements which are applicable as a result of the
change and the source's proposed permit revision.
(5) The permit shield under Sec. 70.6(f) may not extend to de
minimis permit revisions.
(g) Minor permit revision procedures.
(1) Criteria.
(i) Minor permit revision procedures may be used only for those
permit revisions that:
(A) Do not affect permit terms or conditions that the source is
violating.
(B) Do not involve changes to existing monitoring, reporting, or
recordkeeping requirements in the permit, unless such changes are
necessary to implement other changes that qualify for minor permit
revision procedures;
(OPTION: REPLACE PARAGRAPH (j)(l)(i)(B) WITH THE FOLLOWING: (B)
Involve changes to monitoring or recordkeeping requirements that are:
(1) Changes in the enforceable operating level of the method that,
prior to the source's submission of a minor permit revision
application, the permitting authority has affirmatively determined the
source has demonstrated to be correlated to the source's existing or
proposed compliance emissions rate, but such changes may not involve a
switch to a new or alternative monitoring or recordkeeping operating
parameter;
(2) Changes to a monitoring or recordkeeping method that affect the
measurement sensitivity of the method and representativeness of the
data (e.g., precision, accuracy, measurement location, or averaging
time) such that there may be a measurable effect in relation to the
relevant source compliance emissions rate; changes that affect the
scope and intent of the existing monitoring method (e.g., modified
sample conditioning system, upgraded detector, upgraded data management
system); or changes that may be generally applicable to similar
monitoring methods in the same or other source categories (e.g.,
equipment modification for interference avoidance). Such changes may
not involve a switch to new or alternative monitoring methods. Prior to
the source's submission of a minor permit revision application, the
permitting authority shall have affirmatively determined that the
monitoring or recordkeeping change has been demonstrated by the source
to have a known relationship and ability to determine compliance with
the applicable source compliance emissions rate; or
(3) Changes to monitoring or recordkeeping methods that have been
approved pursuant to major or minor NSR and that are demonstrated
therein to have a known relationship and ability to determine
compliance with the applicable source compliance emissions rate. The
application for the minor permit revision must include supporting
documentation from the major or minor NSR permit approval, information
regarding the demonstration and approval of the requested monitoring or
recordkeeping method, and information in accordance with
Sec. 70.7(g)(2) of this part as related to the monitoring change.)
(C) Do not involve or depend on netting transactions undertaken to
avoid being subject to preconstruction review under parts C or D of
title I of the Act unless such emissions reductions:
(1) Have been approved pursuant to a minor NSR process for which a
30-day public comment period was provided; or
(2) Do not involve any single emissions increase that exceeds the
applicable threshold for being a major modification under parts C or D
of title I of the Act, and the sum of all the contemporaneous increases
does not exceed the applicable threshold for determining whether the
change is major;
(D) Do not involve offsets or modifications under section 112(g) of
the Act, unless the change has been approved pursuant to a section
112(g) review process;
(E) Are not modifications subject to parts C or D of title I of the
Act, unless the change has been approved pursuant to major NSR and
would incorporate all applicable requirements determined therein into
the part 70 permit;
(F) (OPTION: ADD TO BEGINNING OF SENTENCE: Except for permit
revisions solely involving monitoring or recordkeeping requirements,)
Do not seek to establish or change a permit term or condition
established to limit emissions which is federally enforceable only as a
part 70 permit term or condition. Such terms and conditions include,
but are not limited to:
(1) A federally-enforceable emissions cap assumed in the part 70
permit to avoid classification as a modification under any provision of
title I of the Act; and
(2) An alternative emission limit established under the provisions
of Sec. 70.6(a)(1)(iii) equivalent to a requirement contained in an
applicable implementation plan.
(3) An alternative emissions limit established in the part 70
permit pursuant to regulations promulgated under section 112(i)(5) of
the Act;
(4) An emissions limit established in the part 70 permit pursuant
to regulations promulgated under section 112(j) of the Act; and
(5) Any other term or condition for which there is no corresponding
underlying applicable requirement and the establishment of which allows
the source to avoid an applicable requirement to which the source would
otherwise be subject.
(G) Are not required by the State program to be processed as a
significant permit revision.
(ii) Notwithstanding paragraph (g)(1)(i) of this section, minor
permit revision procedures may be used for permit revisions involving
the use of economic incentives, marketable permits, emissions trading,
and other similar approaches, to the extent that such minor permit
revision procedures are explicitly provided for in an applicable
implementation plan or in applicable requirements promulgated by EPA.
(OPTION: ADD NEW PARAGRAPH: (iii) Any demonstration required by
paragraph (g)(1)(i)(B) of this section shall include an analysis
conducted in accordance with 40 CFR 64.4(b)(5) and 64.4(c) utilizing
appendices A, B, C, and D and related appendices of 40 CFR part 64.)
(2) Application. An application requesting the use of minor permit
revision procedures shall meet the requirements of Sec. 70.5(c) of this
part and shall include the following:
(i) A description of the change, the emissions resulting from the
change, and any new applicable requirements that will apply if the
change occurs;
(ii) An addendum containing the terms and conditions of the
source's suggested draft permit revision;
(iii) A demonstration that the proposed change is eligible to be
processed as a minor permit revision;
(iv) Certification by a responsible official, consistent with
Sec. 70.5(d) of this part, that:
(A) The proposed change meets the criteria for use of minor permit
revision procedures;
(B) The source is in compliance with the permit terms or conditions
it seeks to modify;
(C) Public notice of the proposed revision has been provided
pursuant to paragraph (g)(3) of this section; and
(D) Notice to the Administrator and affected States of the proposed
revision has been provided pursuant to paragraph (g)(4) of this
section; and
(v) An affidavit signed by a responsible official stating that the
source accepts all legal risks of making the requested change prior to
final permitting authority action to revise the source's permit.
(OPTION: ADD NEW PARAGRAPH: (vi) For a change involving changes to
monitoring or recordkeeping requirements, a summary of any
demonstration required by paragraph (g)(1)(i)(B) and performed in
accordance with paragraph (g)(1)(iii) of this section and verification
of its approval by the permitting authority. If in approving the
demonstration the permitting authority determines that subsequent
verification testing of the change is necessary, the permitting
authority may establish a compliance schedule for performing
verification testing to further demonstrate, consistent with paragraph
(g)(1)(iii) of this section, the adequacy of the change. Such
compliance schedule, after approval by the permitting authority, shall
be attached to the addendum described in paragraph (g)(2)(ii) of this
section and be processed as a permit term and shall not allow the
source to begin verification testing in advance of the time when the
source would be allowed to implement the minor permit revision
requested change. The approved compliance schedule shall include a
commitment by the source to provide the results of the verification
testing to the permitting authority within 90 days of submittal of the
minor permit revision application. Upon receipt of the verification
testing results, the permitting authority shall determine whether the
results demonstrate the adequacy of the change consistent with
paragraph (g)(1)(iii) of this section. The permitting authority shall
promptly notify the source in writing of its determination, and place a
copy of such notice in the public docket. The permit shield under
section 70.6(f) of this part may extend to minor permit revisions
involving monitoring or recordkeeping changes only after any required
further verification testing of the change has been completed.))
(3) Public notification. (i) Immediately upon filing an application
for a minor permit revision, the source shall provide notice to the
public of the requested minor permit revision by:
(A) Publication of a notice in a newspaper of general circulation
in the area where the source is located or in a State publication
designed to give the general public notice; and
(B) Sending a letter to persons on a mailing list developed by the
permitting authority, including those who previously participated in
any public comment process provided for the source's permit and those
who request to be placed on a list to receive notification of permit
issuance, revision, reopening, or renewal requests.
(ii) In addition to the elements required under Sec. 70.7(k)(2) of
this part, the public notice shall describe the requested change and
state that if no germane and non-frivolous objection to the requested
change is received by the permitting authority within 21 days of
publication of the notice, the source may implement the change without
the permitting authority providing further opportunity for public
participation. For purposes of this paragraph, a germane objection is
one that objects to the use of minor permit revision procedures for the
requested change on the grounds that the source has failed to comply
with the procedural and notification requirements of paragraphs (g)(3)
and (g)(4) of this section or that the requested change is ineligible
for the use of minor permit revision procedures under paragraph
(g)(1)(i) of this section. For purposes of this paragraph, a non-
frivolous objection must specify the basis for its objection and
present factual or other relevant information in support of its
objection.
(iii) The permitting authority shall place a copy of the minor
permit revision request in a public docket. (OPTION: ADD A NEW
SENTENCE: The permitting authority shall also place in the docket any
complete demonstration required by Sec. 70.7(g)(1)(i)(B) of this part,
a summary of the demonstration, the permitting authority's analysis of
the demonstration, and an affirmative statement of the demonstration's
adequacy.)
(4) EPA and affected State notification. Immediately upon filing an
application for a minor permit revision the source shall notify the
Administrator and affected States of the requested permit revision in
the same manner and subject to the same conditions required of
permitting authorities under Sec. 70.8(a) (1) and (b)(1). Such
notification shall relieve the permitting authority of the requirement
to provide notice to the Administrator and affected States of the
requested minor permit revision under Sec. 70.8 (a)(1) and (b)(1), but
shall not relieve the permitting authority of the requirement to
promptly send to the Administrator any notice under Sec. 70.8(b)(2).
(5) Timetable for issuance. Upon receipt of an application for a
minor permit revision, the permitting authority shall provide at least
21 days for public comment on the requested change, and shall keep a
record of the commenters and the issues raised during the public
comment period so that the Administrator may fulfill his or her
obligation under Sec. 70.8(d) to determine whether a citizen petition
may be granted. Such records shall be made available to the public. The
minor permit revision shall occur according to the following
procedures:
(i) If the permitting authority receives no public objection to the
requested change within 21 days of publication of the public notice,
the source may implement the requested change on the 22nd day after
publication of the public notice, provided that:
(A) The permitting authority has neither denied the minor permit
revision application nor determined that the requested revision does
not meet the minor permit revision criteria and should be reviewed
under significant permit revision procedures; and
(B) The Administrator has not objected to the proposed minor permit
revision.
(ii) If the permitting authority receives a public objection to the
requested change within 21 days after publication of the public notice,
the permitting authority must determine within 28 days of publication
of the public notice whether the objection is germane and non-
frivolous, and proceed according to the following procedures:
(A) If the permitting authority within 28 days after public
notification finds the public objection to be either frivolous or not
germane, the permitting authority may respond to the public objection
in the course of processing the minor permit revision request as a
minor permit revision application, and the source may implement the
requested change on the 29th day after publication of the public notice
or upon notification from the permitting authority that the permitting
authority has determined the public objection to be frivolous or not
germane, whichever is first, provided that:
(1) The permitting authority has neither denied the minor permit
revision application nor determined that the request fails to meet the
minor permit revision criteria and should be reviewed under significant
permit revision procedures; and
(2) The Administrator has not objected to the proposed minor permit
revision;
(B) If the permitting authority fails to determine within 28 days
after publication of the public notice of the request for a minor
permit revision whether a public objection submitted within 21 days of
such notice is germane and non-frivolous, the source may implement the
requested change on the 29th day after publication of the public
notice, provided that:
(1) The permitting authority has neither denied the minor permit
revision application nor determined that the request fails to meet the
minor permit revision criteria and should be reviewed under significant
permit revision procedures; or
(2) The Administrator has not objected to the proposed minor permit
revision; and
(C) If the permitting authority finds the public objection to be
germane and non-frivolous, the permitting authority shall not issue a
final minor permit revision for the change, and shall either deny the
minor permit revision application or determine that the requested
change does not meet the minor permit revision criteria and should be
reviewed under significant permit revision procedures. If the
permitting authority continues to process the requested change under
significant permit revision procedures, public notice of the proposed
change must be provided in the manner required for significant permit
revisions under Sec. 70.7(k) of this part. Such notice shall provide at
least 30 days for public comment on the requested change, shall
identify the time and place of any hearing that may be held, and shall
include a statement of procedures to request a hearing if a hearing has
not already been scheduled. For purposes of this paragraph, such a
hearing may be held as soon as 14 days after publication of a notice
that the requested change is being processed as a significant permit
revision. The source shall not implement the requested change unless
and until the permitting authority approves it as a significant permit
revision.
(iii) Any person who filed a public objection pursuant to this
paragraph that the permitting authority within 28 days of public
notification does not determine to be germane and non-frivolous may
bring suit in State court to compel action by the permitting authority
and, in accordance with applicable standards for obtaining such relief
under State law, seek an injunction in State court prohibiting the
source from implementing the requested change.
(iv) Where the minor permit revision has not been denied or
required to be reviewed under significant permit revision procedures,
the permitting authority may issue a final minor permit revision after
EPA's 45-day review period has elapsed provided the Administrator has
not objected to the requested change, or after EPA has notified the
permitting authority after the close of the public comment period that
EPA will not object to issuance of the minor permit revision, whichever
is first, provided that the final minor permit revision does not differ
from the draft permit except to the extent any changes to the draft
permit qualify for administrative permit amendment procedures under
Sec. 70.7(e) of this part.
(v) Within 60 days after the permitting authority's receipt of an
application for a minor permit revision or 15 days after the expiration
of EPA's 45-day review period, whichever is later, the permitting
authority shall:
(A) Issue the minor permit revision as proposed;
(B) Deny the minor permit revision application;
(C) Determine that the requested revision does not meet the minor
permit revision criteria and should be reviewed under significant
permit revision procedures; or
(D) Revise the draft minor permit revision and, if such revision
includes any changes that do not qualify for processing as
administrative permit amendments under Sec. 70.7(e) of this part,
transmit to the Administrator the new proposed permit revision as
required by Sec. 70.8(a).
(vi) Any person who objected to a minor permit revision request
during the public comment period shall be notified by the permitting
authority upon final approval of the request. The permitting authority
shall also place a copy of its final approval decision in the public
docket in which it places minor permit revision requests when received
or provide a substantially equivalent means of public access to its
final decision.
(6) Source's ability to make change. The State program may allow
the source to make the change proposed in its minor permit revision
application in accordance with paragraph (g)(5) of this section. After
the source makes the change allowed by the preceding sentence, and
until the permitting authority takes any of the actions specified in
paragraphs (g)(5)(v)(A) through (D) of this section, the source must
comply with both the applicable requirements governing the change and
the proposed permit terms and conditions. During this time period, the
source need not comply with the existing permit terms and conditions it
seeks to 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.
(7) Source liability. If, after a source makes the requested change
but prior to a permitting authority's final action to approve the
change and revise the permit, the Administrator objects to the proposed
minor permit revision or the permitting authority either denies the
minor permit revision or determines that the requested revision does
not meet the minor permit revision criteria and should be reviewed
under significant permit revision procedures, the source shall be
liable for having operated in violation of its existing permit from the
time at which it implemented the requested change. Notwithstanding the
preceding sentence, the permitting authority may issue a permit
revision that varies from the source's application without rendering
the source liable for violating its existing permit if the permitting
authority's revisions are not necessary to make the change eligible for
minor permit revision procedures and do not change the applicant's
proposed determination of which requirements of the Act apply to the
source as a result of the requested change and if the source
demonstrates to the satisfaction of the permitting authority its
compliance with the applicable requirement to which it is subject as a
result of the change. However, the source would remain liable for any
violations of the requirements of the Act applicable as a result of the
change and the source's proposed permit revision. (OPTION: ADD NEW
SENTENCE: If, after the permitting authority's final action to revise
the permit, any verification testing of the new operating level or
revised monitoring approach as required by paragraph (g)(2)(vi)
demonstrates that the new operating level or revised monitoring
approach fails to demonstrate compliance, the source then shall comply
with the monitoring and recordkeeping permit terms and conditions that
applied to the source before the minor permit revision, the minor
permit revision shall be null and void and cease to have effect, and
the source shall be liable for operating in violation of its permit
from the time it implemented the change.)
(8) Permit shield. The permit shield under Sec. 70.6(f) of this
part may extend to minor permit revisions, provided that the permitting
authority has taken final action to issue the minor permit revision as
a permit revision.
(h) Significant permit revision procedures.
(1) Criteria. Significant permit revision procedures shall be used
for applications requesting permit revisions that do not qualify as
administrative amendments, de minimis permit revisions, or minor permit
revisions. The State program shall contain criteria for determining
whether a change is significant. At a minimum, every significant change
in existing monitoring permit terms or conditions and every relaxation
of reporting or recordkeeping permit terms or conditions shall be
considered significant. (OPTION: DELETE PRECEDING SENTENCE) Nothing
herein shall be construed to preclude the permittee from making changes
consistent with this part that would render existing permit compliance
terms and conditions irrelevant.
* * * * *
(OPTION: ADD NEW PARAGRAPH (h)(3): (3) Changes involving new or
alternative monitoring methods that have not been approved pursuant to
major or minor NSR under criteria equivalent to those contained in this
paragraph shall be processed as significant permit revisions.
Permitting authorities may approve such changes only where the new or
alternative monitoring or recordkeeping method is demonstrated to have
a known relationship and ability to determine compliance with the
applicable standard. Such demonstration shall include an analysis
conducted in accordance with 40 CFR 64.4(b)(5) and 64.4(e) utilizing
appendices A, B, C, and D, and related appendices' procedures of 40 CFR
part 64. The permitting authority shall include the demonstration and
written evidence of the permitting authority's evaluation of the
demonstration in the proposed permit it sends to EPA for review as
required by Sec. 70.8.)
(i) * * *
(2) Proceedings to reopen and issue a permit shall follow the same
procedures as apply to initial permit issuance, shall affect only those
parts of the permit for which cause to reopen exists, and shall be made
as expeditiously as practicable. Notwithstanding the preceding
sentence, proceedings to reopen for section 112 standards may use the
following procedures:
(i) Where the section 112 standard is promulgated after permit
issuance, administrative amendment procedures under Sec. 70.7(e)(5) may
be used.
(ii) Where the section 112 standard is promulgated before permit
issuance and a compliance statement required under the section 112
standard is due after permit issuance, the source shall apply for a
minor permit revision by the compliance statement deadline to
incorporate requirements necessary to assure compliance with the
standard, unless the source is exempted from this requirement under
paragraph (iii) of this section or under the rulemaking promulgating
the section 112 standard. If the source is utilizing alternatives
requiring case-by-case approval, such as emissions averaging, or if
required under the rulemaking promulgating the section 112 standard,
the source shall apply for a significant permit revision by the
compliance statement deadline, in lieu of the requirement in the
preceding sentence to apply for a minor permit revision.
(iii) Sources subject to the following section 112 standards
promulgated as of [DATE OF PUBLICATION OF FINAL RULE] are exempt from
the requirements in (ii) to apply for a minor permit revision: NESHAP
for Industrial Process Cooling Towers.
(3) Reopenings under paragraph (i)(1) of this section shall not be
initiated before a notice of such intent is provided to the part 70
source by the permitting authority at least 30 days in advance of the
date that the permit is to be reopened, except that the permitting
authority may provide a shorter time period in the case of an
emergency. Where reopening for section 112 standards requiring initial
notification by the source, and where the source has provided such
notification to the permitting authority by the applicable date, the
permitting authority need not provide the notice required by the
preceding sentence.
* * * * *
(k) Public participation. Except for revisions qualifying for minor
permit revision procedures, de minimis revision procedures, or
administrative amendments, all permit proceedings, including initial
permit issuance, significant permit revisions, reopenings, and
renewals, shall provide adequate procedures for public notice including
offering an opportunity for public comment and a hearing on the draft
permit in accordance with this paragraph (k) of this section. These
procedures shall include the following:
* * * * *
8. Section 70.8 is amended by:
a. Amending paragraphs (a)(1) and (e) by replacing the word
``modification'' with ``revision''
b. Revising paragraphs (b)(1), (b)(2), (c)(3)(iii), and (d);
c. Amending paragraph (c)(1) by adding the phrase ``Except as
provided in Sec. 70.7(a)(7),'' to the beginning of the paragraph;
d. Adding a sentence to the end of paragraph (e).
Additions and revisions are set out to read as follows:
Sec. 70.8 Permit review by EPA and affected States.
* * * * *
(b) Review by affected States. (1) The permit program shall provide
that the permitting authority give notice of each draft permit to any
affected State on or before the time that the permitting authority
provides this notice to the public under Sec. 70.7 (e), (f), (g), and
(k).
(2) The permit program shall provide that the permitting authority,
as part of the submittal of the proposed permit to the Administrator
shall notify the Administrator and 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.
(c) * * *
(3) * * *
(iii) Process the permit under the procedures approved to meet the
requirements of Sec. 70.7.
* * * * *
(d) Public petitions to the Administrator. The program shall
provide that, if the Administrator does not object in writing under
paragraph (c) of this section, any person may petition the
Administrator within 60 days after the expiration of the
Administrator's 45-day review period to make such objection. The
program shall also provide that the public have access to information
concerning the beginning and expiration of EPA's 45-day review period
as required for permit issuance, revisions, reopenings, and renewals
pursuant to Sec. 70.7. Any petition shall be based only on objections
to the permit that were raised with reasonable specificity during the
public comment period provided for in Sec. 70.7 (e), (f), (g), or (k),
whichever is applicable, unless the petitioner demonstrates that it was
impracticable to raise such objections within such period, or unless
the grounds for such objection arose after such period. If the
Administrator objects to the permit as a result of a petition filed
under this paragraph, the permitting authority shall not issue the
permit until EPA's objection has been resolved, except that a petition
for review does not stay the effectiveness of a permit or its
requirements if the permit was issued after the end of the 45-day
review period and prior to an EPA objection. If the permitting
authority has issued a permit prior to receipt of an EPA objection
under this paragraph, the Administrator will modify, terminate, or
revoke such permit, and shall do so consistent with the procedures in
Sec. 70.7 (j)(4) or (j)(5) (i) and (ii) except in unusual
circumstances, and the permitting authority may thereafter issue only a
revised permit that satisfies EPA's objection. In any case, the source
will not be in violation of the requirement to have submitted a timely
and complete application.
(e) * * * Notwithstanding this prohibition on default permit
issuance, permits may be revised on a default basis consistent with the
procedures in Sec. 70.7 (e) and (f).
9. Section 70.9 is amended by revising paragraph (c) to read as
follows:
Sec. 70.9 Fee determination and certification.
* * * * *
(c) Fee demonstration. The permitting authority shall provide a
demonstration (and periodic updates as required by the Administrator)
that the fee schedule selected will result in the collection and
retention of fees in an amount sufficient to meet the requirements of
this section.
* * * * *
10. Section 70.10 is amended by:
a. Revising paragraph (a)(1), by redesignating paragraph (a)(2) as
(a)(3) and revising it, and by adding a new paragraph (a)(2);
b. Amending paragraphs (b)(2) and (b)(3) by revising the citations
to ``paragraph (c)(1)'' to read ``paragraph (b)(1)''; and
c. Amending paragraph (c)(1)(ii)(C) by removing the parenthetical
``(h)''.
The additions and revisions are set out to read as follows:
Sec. 70.10 Federal oversight and sanctions.
(a) Failure to submit an approvable program. (1) If a State fails
to submit a complete part 70 program in a timely manner, or a required
revision thereto (including revisions to correct deficiencies of a
program that the Administrator had granted interim approval), in
conformance with the provisions of Sec. 70.4, or if the Administrator
disapproves a submitted program:
(i) The Administrator may, prior to the expiration of the 18-month
period referred to in paragraph (a)(1)(ii) of this section, apply any
one of the sanctions specified in section 179(b) of the Act; and
(ii) Eighteen months after the date required for submittal or 18
months after the date of disapproval, whichever is applicable, the
Administrator will apply sanctions under section 179(b) of the Act in
the same manner and subject to the same deadlines and other conditions
as are applicable in the case of a determination, disapproval, or
finding under section 179(a) of the Act.
(2) The sanctions under section 179(b)(2) of the Act shall not
apply pursuant to paragraph (a)(1) of this section in any area unless
the area has been designated a nonattainment under part D of title I of
the Act.
(3) The Administrator will promulgate, administer, and enforce a
whole program, or a partial program as appropriate, for such State
when:
(i) Full approval of a whole part 70 program has not been granted
by November 15, 1995, except for programs granted interim approval; or
(ii) For programs granted interim approval, that approval has
expired after November 15, 1995 and EPA has not granted full approval
of a whole part 70 program.
* * * * *
11. Section 70.11 is amended by revising the last sentence in
paragraph (a)(3)(i) to read as follows:
Sec. 70.11 Requirements for enforcement authority.
* * * * *
(a) * * *
(3) * * *
(i) * * * State law shall not include mental state as an element of
proof for civil violations for which penalties up to $10,000 per day
per violation are recoverable.
* * * * *
[FR Doc. 94-20497 Filed 8-26-94; 8:45 am]
BILLING CODE 6560-50-P
