ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 51, 70, and 71
[FRL- ]
Operating Permits Program and
Federal Operating Permits Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The EPA is today proposing new streamlined
procedures for revising stationary source operating permits
issued by State and local permitting authorities or EPA
under title V of the Clean Air Act (Act). This proposal is
a supplement to actions published in the Federal Register on
August 29, 1994 and on April 27, 1995 as they relate to
permit revisions. In addition, today's notice proposes
changes to the certification that responsible officials of
permitted sources are required to submit and the emergency
defense available for violations of permit terms. It also
clarifies the application of title I and title V permitting
requirements to non-major research and development (R&D)
facilities that are located with sources that are major
under the Act. Finally, it proposes to revise the
procedural requirements applicable to minor new source
review (NSR) permitting under title I of the Act to clarify
the flexibility States possess in providing adequate process
for minor NSR actions.
Several concerns over complexity and burden of the
previously proposed permit revision system were raised in
response to these notices. As a result, the Agency today is
proposing to establish a system for revising operating
permits that is simpler, more flexible, and easier to
implement than that proposed in the prior notices.
Implementation of today's proposal would benefit the
environment primarily through enhanced implementation of,
and compliance with, air quality control requirements. The
extent of benefit would be nationwide and could potentially
include all requirements of the Act applicable to part 70
sources.
DATES: Comments on the proposed regulatory changes must be
received by [60 days from the date of publication], 1995.
Comments on the revised Information Collection Request (ICR)
for the revised part 70 must be received by [60 days from
the date of publication], 1995.
ADDRESSES: Comments on the proposed revisions to 40 CFR
part 70 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.
Comments regarding the 40 CFR part 71 Federal operating
permits program must be mailed to the same address, Attn:
Docket No. A-93-51. Please identify comments as pertaining
to today's proposal notice by date and FR cite. Comments on
the draft ICR for the revised part 70 are to be submitted as
per instructions in Section VI. E., Paperwork Reduction Act,
of this preamble.
Docket: Supporting information used in developing the
proposed regulatory revisions to part 70 and part 71 are
contained in Docket Nos. A-93-50 and A-93-51 respectively,
at the preceding 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: Regarding proposed
revisions to part 70, Michael Trutna (919/541-5345), Ray
Vogel (919/541-3153), or Roger Powell (919/541-5331), mail
drop 12, United States Environmental Protection Agency,
Office of Air Quality Planning and Standards, Information
Transfer and Program Integration Division, Research Triangle
Park, North Carolina 27711. Regarding proposed revisions to
part 71, Candace Carraway (919/541-3189) or Kirt Cox
(919/541-5399) at the same address.
SUPPLEMENTARY INFORMATION:
Today's proposal reflects the principles articulated in
the President's and the Vice President's March 16, 1995
report, "Reinventing Environmental Regulation." That report
establishes as goals for environmental regulation building
partnerships between EPA and State and local agencies,
minimizing costs, providing flexibility in implementing
programs, tailoring solutions to the problem, and shifting
responsibilities to State and local agencies. The Agency
believes that the proposal in today's notice meets the goals
of the report.
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. Please identify comments as pertaining to
today's proposal notice by date and FR cite.
Table of Contents
The contents of today's preamble are in the following
format:
I. Background
A. Operating Permits Regulations
B. Proposed Permit Revision System
C. Other Proposed Revisions in Today's Notice
D. Environmental Benefits
E. August 1994 Proposed Revisions
II. Alternative Proposal for Part 70 Permit Revision System
A. Overview
B. When is a Permit Revision Required
C. Automatic Incorporation for Changes Subject to State
Review Programs
D. Incorporation of Changes Not Subject to State Review
Programs
E. Opportunity for EPA to Object and Permit Shield
F. Flexible Permits
G. Title I Modifications
H. EPA Issuance of PSD Permits
I. Rulemaking Under Section 302(j)
J. Revisions to 51.161
K. Incorporation of MACT Standards
L. Clarification for Section 112(r)
M. Solicitation of Input
III. Part 70 Program Revisions
IV. Proposal for the Federal Operating Permits Program
A. Overview
B. Changes Subject to State Review Programs
C. Changes Not Subject to State Review Programs
D. Combination Changes
E. Opportunity for EPA to Object and Permit Shield
F. Other Part 71 Changes
V. Other Changes and Clarifications
A. Rationale for Proposed Exemption for Non-major R&D
Activities
B. Emergency Defense
C. Certification Language
D. Provisions Related to Tribal Programs
VI. Administrative Requirements
A. Public Hearing
B. Docket
C. Office of Management and Budget Review
D. Regulatory Flexibility Act Compliance
E. Paperwork Reduction Act
F. Unfunded Mandates
I. Background
A. Operating Permits Regulations
Title V requires that EPA develop regulations which set
minimum standards for State operating permits programs.
Those regulations, codified in part 70 of chapter I of
title 40 of the Code of Federal Regulations, were originally
promulgated on July 21, 1992 (57 FR 32250). On August 29,
1994, EPA proposed a number of revisions to the part 70
regulations as a result of negotiations with litigants who
petitioned for review of part 70 after its promulgation.
The August 1994 proposal included new provisions governing
permit revision processes. Today's proposal supplements
that part of the August 1994 proposal and defines a simpler
approach to revising permits designed to build upon existing
State permitting programs.
Title V also requires that States submit their
operating permit programs for EPA approval and that EPA
promulgate and administer a Federal operating permits
program for States that have not obtained EPA approval by
November 15, 1995. The EPA's proposed regulations, to be
codified at part 71, for the Federal operating permits
program were published on April 27, 1995 (60 FR 20804). In
large part the proposed regulations were modeled on the
original part 70. However, the permit revision procedures
for proposed part 71 were based on the August 1994 proposal
for part 70 permit revisions. Today EPA is proposing an
alternative permit revision process for part 71 that is
based on today's proposal for part 70 permit revision
procedures.
B. Proposed Permit Revision System
The August 1994 notice proposed to revise 70.7 of
part 70 to set out a four-track system for revising
operating permits. Comments received at the October 19,
1994 public hearing and comments submitted to the docket
indicate that the proposed four-track system was widely
perceived as too complicated, prescriptive, and disruptive
to existing State programs. In response to those concerns,
EPA sought further input from representatives of State and
local permitting agencies, industry, and environmental
groups to learn more directly of their implementation
concerns. The EPA received thoughtful ideas from these
groups about how the process for permit revisions might be
accomplished in a more streamlined fashion. The docket for
today's action contains some specific alternative permit
revision approaches recommended by these commenters.
Representatives of the various groups were in general
agreement on a number of issues. First, any permit revision
system would need to be far simpler to implement than that
laid out in the August 1994 proposal. Second, it should be
as streamlined and expeditious as possible so as not to
impede unduly a source's ability to respond to changes in
market conditions. Third, it should provide public process
commensurate with the environmental significance of the
change. Fourth, for changes subject to a State
preconstruction review program established pursuant to the
Act (e.g., NSR), public, affected State, and EPA review of
the more environmentally significant changes should occur
during the underlying process, instead of a subsequent
part 70 permit revision process. Finally, the process
should maximize State and local agency flexibility.
As discussed in Section II of this preamble, today's
alternative proposal satisfies all of these criteria by
building on underlying State review programs. After
considering comments received on today's proposal, EPA
intends to promulgate final rules regarding permit revisions
along with the other issues addressed in the August 1994 and
April 1995 proposals.
C. Other Proposed Revisions in Today's Notice
Today's notice also proposes additional rule revisions
to address other issues raised by litigants in their
petitions for review of part 70. These issues involve the
current rule's provisions regarding responsible official
certifications, the emergency defense for violations of some
types of permit terms, section 302(j) rulemaking regarding
inclusion of fugitive emissions in the definition of major
source, and the definition of title I modification. It also
proposes to clarify the public review requirements of
title I and title V applicable to minor NSR permits and
their subsequent incorporation into part 70 permits. The
EPA currently expects to complete rulemaking on these issues
at the same time it takes final action on the other issues
addressed in the August 1994 proposal. Proposed actions
regarding responsible official certifications, the emergency
defense, and the definitions of major source and title I
modification are also included in today's notice with
respect to the part 71 Federal operating permits program
provisions.
Finally, in today's notice EPA is clarifying that non-
major R&D activities located with a source that is major
under sections 112 or 302(j) of the Act or parts C or D of
title I of the Act need not be considered part of that major
source. Depending on the extent to which a non-major R&D
facility contributes to the activity of the major source,
the R&D facility need not be subject to permitting under
title I or title V.
A number of revisions to the definitions in 70.2 are
included in today's notice to be consistent with the
proposed revisions. Other definitions are proposed to be
added where needed for clarity.
D. Environmental Benefits
The operating permits program provides a uniform
vehicle for State and local agencies to administer other
titles of the Act; not only the requirements for attainment
and maintenance of the national ambient air quality
standards (NAAQS) but of other provisions such as those to
protect the public from harmful effects of HAPs. It is
through an efficient permit program that many of the
environmental benefits of these programs are realized.
Part 70 helps achieve these benefits by giving company
officials the opportunity to be fully knowledgeable about
their compliance obligations and creates strong incentives
for assuring that compliance is maintained. This will in
turn result in improved air quality for the public, and
States will not have to adopt new regulations to meet air
quality standards to make up for noncompliance with existing
rules. In the process of developing permit applications for
part 70 programs, companies have discovered new uncontrolled
emission points or air pollution requirements that applied
to them but of which they were not previously aware. As a
result, these facilities are taking steps to comply with
those requirements. The vast majority of businesses in this
country want to comply with environmental regulations. The
part 70 program clarifies their obligations while avoiding
possibly costly litigation.
Implementation of today's proposal will facilitate
accomplishing the described environmental benefits. The
proposed revisions would focus public and EPA review on, and
ensure that resources will be targeted to reviewing, changes
with the most environmentally significant impacts. In
addition, the proposed streamlined permit revision system
assures that permits are speedily revised to include all Act
obligations for a source while avoiding unnecessary
procedural delays and opportunity costs. This will assure
certainty of compliance obligations for all parties.
Implementation of today's proposal also will help
achieve environmental benefits through its requirements for
flexible permits. In particular, the flexible permit
provisions of today's proposal would allow more options for
sources in designing their title V permits to meet
environmental obligations. This increased flexibility would
allow sources to rely on emissions trading to meet pollution
control requirements and to use pollution prevention
approaches which can achieve additional emissions
reductions.
E. August 1994 Proposed Revisions
The August 1994 proposal is not being withdrawn, but is
instead being supplemented by today's proposal. Today's
proposal primarily addresses provisions in 70.7 for
revising permits, which was also the primary focus of the
August 1994 notice. There were, however, many proposed
revisions to part 70 in the August 1994 notice that
addressed other portions of part 70. These proposed
changes, which are described in the next several paragraphs,
are still being considered for promulgation after review of
comments. The period of comment has closed for the August
1994 notice; however, EPA will consider additional comments
on any of the August 1994 proposed provisions to the extent
they would be affected by the proposed revisions in today's
notice.
In 70.2, revisions were proposed in the August 1994
notice for the definitions of "Applicable requirement,"
"Major source," "Potential to emit," and "Responsible
official." The notice proposed new definitions for "Major
NSR" and "Minor NSR" and proposed to delete the definition
of "Section 502(b)(10) changes." Proposed revisions to
70.3 would exempt sources from part 70 applicability if
they were subject solely because of being major for a
section 112(r)-only pollutant and would add to the list of
sources subject to part 70 those sources subject to parts C
and D of the Act.
Proposed revisions to 70.4 included consolidating
provisions for program modification in paragraph (i)(1),
changing the maximum period for judicial review from 90 days
to 125 days, changing the time period for acting on early
reductions permits from 9 to 12 months, revising the interim
approval criteria for part 70 programs, and adding a
provision that EPA can continue to issue phase II acid rain
permits.
For 70.5, the August 1994 proposal included
provisions for deleting the 12-month deferral for permit
application submittals except for new major sources,
provisions for flexibility in submitting acid rain permit
applications, clarification of the information needed for a
permit application to be deemed complete, clarification that
emissions may not be discounted when determining major
source status, and addition of the requirement for
applications to identify units eligible for emissions
trading.
Section 70.6 was proposed to be revised to add
provisions for defining "prompt" with respect to reporting
deviations from the permit and for defining "upset
conditions" and to require weekly reporting if the source
switched to a new alternative scenario unless the type of
monitoring indicated the switch.
Changes proposed to 70.7 other than for permit
revisions included provisions for accommodating changes that
occur during permit issuance, changing the time period for
acting on early reductions permits from 9 months to 12
months, and adding a provision for notifying the public of
sources covered under general permits.
Section 70.8 was proposed to be revised to include a
provision that the public would be notified of the end of
EPA's 45-day review period. A clarification was proposed
for 70.9 that periodic updates of the permit fee
demonstration were necessary as required by EPA. Section
70.10 was proposed to be revised to specify the application
of sanctions for failure to submit a program or obtain
program approval and operation of a Federal program.
Finally, 70.11 was proposed to be revised to allow mental
state to be considered for penalties assessed above $10,000.
II. Alternative Proposal for Part 70 Permit Revision System
A. Overview
Pursuant to the Act, States have adopted programs for
reviewing and potentially regulating the air quality impacts
of constructing or modifying sources of air pollution (e.g.,
NSR). States will also adopt programs for reviewing changes
to sources of toxic air emissions prior to their operation
under certain circumstances. (For the sake of brevity,
these programs will be generally referred to as "State
review programs.")
Today's proposal for revising part 70 permits builds on
these State review programs by providing for automatic
incorporation into part 70 permits of all changes subject to
those programs. It makes use of the procedural requirements
already applicable to those programs to provide adequate
public review of the part 70 permit revisions occasioned by
those changes. For the more environmentally significant
changes reviewed by State programs, the public, affected
States, and EPA would have a 30-day review opportunity
during the State review process. For all other changes
subject to a State review program, States would have broad
discretion to use procedures that are commensurate with the
environmental significance of the change. De minimis
changes (as defined by the State and approved by EPA in the
State's part 70 program) could be processed without public,
affected State, or EPA review. Further, changes subject to
an applicable requirement that do not conflict with existing
permit terms could generally be made immediately upon notice
of the change by the source.
Since most State preconstruction review programs govern
nearly all source changes requiring a part 70 permit
revision, EPA expects the vast majority of changes would
qualify for this automatic incorporation process. However,
for changes that are not subject to a State review program,
the proposal would provide for a separate part 70 process.
The more significant changes of this type would get public
process consistent with the procedures required for initial
permit issuance. For other changes, States would have
discretion to devise procedures that match the amount and
timing of public process to the environmental significance
of the change. Changes that a State defines and EPA
approves as de minimis could be processed without public,
affected State, or EPA review. Indeed, certain changes that
render a source subject to a newly applicable requirement
could be incorporated into the part 70 permit by means of a
notice submitted by the permittee, so long as the change did
not conflict with existing permit terms and no source-
specific determinations need be made in applying the
requirement to the source. States would have to provide for
periodic notification to the public of all part 70 permit
revisions and for public access to decisions.
The Agency's opportunity to object to a permit revision
would generally be limited to the relatively small group of
more environmentally significant changes. Even for these
changes, EPA would be required to object before the State
took final action on the proposed change for all defects
that are reasonably apparent at that time. For de minimis
changes, EPA would waive its opportunity to object until
permit renewal. For all other less environmentally
significant changes, EPA would waive its opportunity to
object for a 5-year period after approval of a program
except in response to a citizen's meritorious petition where
the error in the permit revision would have a significant
adverse environmental effect. During this 5-year period,
EPA would audit State program implementation to ascertain
whether its waiver of its review should be suspended or
extended for one or more States.
The fundamental premise of this proposal is that the
section 502(b)(6) requirement for adequate, streamlined, and
reasonable permit revision procedures is best met by
building on State review programs established pursuant to
the Act. The Federal regulations governing these underlying
State programs address most of the procedural requirements
of title V. For example, Federal NSR regulations generally
address the need for, and extent of, opportunities for
public participation in NSR permitting ( 51.160-161).
(The EPA is also proposing revisions to its NSR regulations
to clarify the extent of States' discretion in providing
public process for minor NSR permit actions.) Section
502(b)(6) does not require more public process than the
regulations governing these programs require. To the extent
a State program meets the requirements of applicable Federal
regulations, the public procedures afforded by the State
program are sufficient for title V purposes as well.
In those few instances where the applicable Federal
regulations or the State programs themselves do not address
title V requirements (such as those in 70.6 requiring
sufficient permit conditions to assure compliance with all
applicable requirements), States would have to augment
either their underlying program or their part 70 program so
as to avoid the need for a part 70 revision process
subsequent to the State review process. By building on
State review programs in this way, title V permit revision
procedures would be more streamlined than those afforded by
the current part 70 rule and at the same time provide public
review of the more significant changes prior to the change
being made, when public comments can have the most effect.
Only where a change is not subject to a State review program
would the proposal call for a separate title V process to be
provided.
Another central tenet of today's proposal is that EPA
should not prescribe for State part 70 programs detailed
revision procedures for all or even most potential source
changes. As a result of States' differing circumstances,
State air programs vary widely in scope and the type and
stringency of controls they impose. The diversity of State
requirements is not susceptible to precise or simple
categorization, so nationally prescribed procedures run the
risk of being complicated and/or ill-suited to at least some
types of changes. The Agency therefore believes that States
should be afforded broad discretion to determine permit
revision procedures, including the amount and timing of
public review, for all but the most significant changes.
While today's proposal does specify minimum
requirements for permit revision procedures, it also
provides that States may obtain part 70 program approval by
adopting substantially equivalent alternative procedures.
States would thus have additional flexibility to craft
procedures that vary somewhat from the specified minima but
that achieve substantially equivalent results.
B. When is a Permit Revision Required?
As a starting point, it is necessary to know when a
permit revision is needed. In the August 1994 notice, EPA
proposed to amend the regulations to make clear that permit
revisions are needed for changes that (1) cannot be operated
without violating the existing part 70 permit or (2) render
the source newly subject to an applicable requirement.
Today's proposal maintains that approach to defining when a
permit revision is needed.
The Agency would like to reiterate that the applicable
requirements resulting from minor or major NSR are the terms
and conditions of an NSR permit. Simply triggering NSR at a
source with an existing part 70 permit does not in and of
itself require a part 70 permit revision. A part 70 permit
revision would be necessary only to add any new or different
NSR permit terms that result from the review and any
additional provisions to assure compliance with them.
Even changes that would result in application of a
minor NSR or other requirement might not require a permit
revision to the extent the permit has been crafted to
accommodate the change. For example, a State may create an
"advance" NSR provision or include a minor NSR standard
exemption in a source's part 70 permit. Both of these
provisions would define the minor NSR requirement applicable
to a particular change or changes such that the source could
undertake the changes without an approval process, provided
that the terms of the advance NSR provisions were met. In
essence, the change would already be authorized by the
permit as long as it met the requirements (including any
necessary conditions) already in the permit. A change
meeting these conditions, therefore, would not trigger a
part 70 permit revision unless the change contravened a
permit term or triggered some other applicable requirement
not provided for in the permit.
As another example, if a source installs a piece of
equipment that is subject to a reasonably available control
technology (RACT) requirement, the installation would not
require a permit revision if the RACT requirement was
already adequately described in the permit. A permit
revision would be needed only if the installation would
contravene the permit or trigger some other applicable
requirement not addressed by the permit. The source would,
however, likely need to provide notice to the permitting
authority describing the equipment being installed and the
applicable requirement to which it is subject.
The August 1994 notice proposed to narrow, but not
eliminate, the current rule's "off-permit" provisions.
Under those provisions, a change that a source can operate
without violating its permit but that renders the source
newly subject to an applicable requirement may be
incorporated into the part 70 permit after the change is
operated, if the State's program provides the off-permit
mechanism. Today's proposal, however, would require a
permit revision by the time the change is operated. Since
under today's proposal all changes that undergo a State
review program would be immediately incorporated into the
part 70 permit on completion of that review, the need for
the off-permit mechanism would be substantially reduced.
For changes that do not undergo such review but are subject
to applicable requirements the terms of which do not vary
from source to source, today's proposal would allow the
source to revise the permit, and thus operate the change,
upon notifying the permitting authority, provided the change
can be operated without violating any existing permit terms.
(See Section II. D. of this preamble, Incorporation of
Changes Not Subject to State Review Programs.) Today's
proposed approach would thus ensure that the part 70 permit
is a contemporaneous and comprehensive summary of all
applicable Act requirements, an approach most consistent
with the statutory purposes of title V and favored by many
State permitting authorities. Consequently, EPA is
proposing to eliminate the off-permit provision of the
current rule if it adopts today's proposed permit revision
system.
At the same time, the Agency is interested in receiving
comment on whether changes that are expressly exempted from
minor NSR but are nevertheless subject to an applicable
requirement such as new source performance standards (NSPS)
or RACT should be allowed to remain off-permit until permit
renewal. As explained elsewhere in today's notice, EPA is
proposing a streamlined means of incorporating such
requirements into permits that would maintain the
comprehensiveness of the permit. The Agency solicits
comment on whether its proposed revision procedures
appropriately balance the need for source flexibility and a
comprehensive permit with regard to these changes or whether
these changes should only be incorporated into the permit at
permit renewal.
It is worth pointing out that today's notice also
supplements the August 1994 notice's proposed revisions of
the part 70 regulations implementing section 502(b)(10) of
the Act. Under the August 1994 proposal, part 70 would
implement section 502(b)(10) by providing for the
establishment of emissions caps in part 70 permits and for
emissions trading under such caps. Today's notice provides
a further explanation in 70.2 and 70.4 of the utility of
emissions caps and how such caps may be implemented. It
further proposes regulatory changes to codify relevant
definitions and program elements.
C. Automatic Incorporation for Changes Subject to State
Review Programs
1. Scope
As indicated above, today's proposal would establish
two basic categories of changes for permit revision
purposes. The first category would include all changes that
are subject to State review programs established pursuant to
the Act. These changes would be automatically incorporated
into a part 70 permit upon completion of that review or,
where the State review program does not require prior
permitting authority review and approval, upon submission by
the source of a notice describing the change and identifying
the requirement applicable to the change. The second
category would include all other changes that require a
permit revision, and States would have broad discretion to
design a part 70 permit review process for these changes.
Under today's proposal, the first category of changes
would include all changes that are subject to major or minor
NSR or regulations implementing section 112(g) and changes
that entail a source-specific revision of the State's
implementation plan (SIP). The process afforded by these
State review programs would (1) have to include an adequate
opportunity for public participation and affected State and
EPA review, and (2) have to define revisions needed to the
part 70 permit as a result of the change.
Under some State minor NSR programs, not all changes
subject to minor NSR requirements get case-by-case
permitting authority review and approval. Instead, some
types of changes are subject to general rules, and the
source may make such a change without prior permitting
authority approval so long as it complies with the
applicable requirements. These changes would be included in
the first category even though they individually do not
receive affirmative permitting authority review and
approval. In the case of such changes, the State has
determined that particular categories of changes do not
require case-by-case review and may be adequately controlled
by application of general requirements. (Changes subject to
general rules are typically changes that occur frequently
enough and are defined and understood well enough that a
generic approach to their control is both efficient and
effective.) Presumably there would also be no need for
permitting authority review upon incorporation of the change
into the part 70 permit, unless the change would require
revision of an existing part 70 permit term. The Agency
thus believes that part 70 permits may be revised to reflect
such changes by means of a notice submitted by the source
describing the change and the Act requirements newly
applicable to the source as a result of the change, provided
the change can be made without violating an existing part 70
permit term. As explained further below, a permit revision
made in this way (i.e., without prior permitting authority
review and approval) would not shield a source against
enforcement action for failing to comply with the
requirements actually applicable to change.
As also described in more detail below, what
constitutes an adequate opportunity for public participation
and affected State and EPA review would vary with the
environmental significance of the change. Briefly, for the
more environmentally significant changes, the full process
required by the Federal regulations applicable to the State
review program would be required. For instance, for changes
subject to major NSR, a 30-day prior public comment period
would be required ( 51.160-166). For less environmentally
significant changes, States would have discretion to vary
the amount and timing of public process provided with the
environmental significance of the change. The State could
exempt those de minimis categories of changes subject to
minor NSR from prior public, affected State, and EPA review
altogether based on its determination approved by EPA that
subjecting such changes to review would yield a gain of
trivial or no value (Alabama Power Co. v. Costle, 626 F. 2d
323 (D.C.Cir. 1979). As EPA is making clear in today's
proposed revisions to the regulations governing NSR, States
already have discretion to provide public review for minor
NSR actions commensurate with the environmental impact of
the change, including exempting de minimis changes from
public process entirely.
Process aside, part 70 includes permit content
requirements not all of which are necessarily addressed by
current State programs. To gain part 70 program approval,
States would have to impose these requirements pursuant to
State regulations governing either the underlying program(s)
or the part 70 program.
Changes subject to a State review program may affect a
part 70 permit limit not governed by the review program or
render a source subject to Act requirements in addition to
those imposed by the review program itself. For example, a
change subject to minor NSR may also render the source
subject to a maximum achievable control technology (MACT)
standard. For such "combination changes" the question
arises as to what revision process applies. With the
exception of establishing new monitoring approaches, the
general rule would be that a combination change (i.e., a
change that renders a source subject to two or more
applicable requirements, not all of which are imposed
pursuant to a State review program) can be processed
together using the automatic incorporation process, provided
the change receives public or EPA review in the State
process as appropriate for the different applicable
requirements triggered. For example, where an emissions
increase is subject to minor NSR and section 112(j) of the
Act, the change could be processed using the State's minor
NSR program, but the process provided would have to meet the
procedural requirements applicable to section 112(j)
determinations. As explained in Section II. D. of this
preamble regarding changes not reviewed under a State review
program, section 112(j) determinations would be included in
the category of more environmentally significant changes and
would thus be subject to a required 30-day opportunity for
prior public, affected State, and EPA review.
Under today's proposal, a change would be included in
the first category of changes and be automatically
incorporated into a part 70 permit if it is subject to a
State review program. Several groups have suggested that
RACT and MACT requirements that do not entail source-
specific determinations be eligible for automatic
incorporation even if the change triggering the RACT or MACT
requirement is not subject to a State review program. The
EPA agrees with the basic premise of this suggestion that
incorporation of such requirements into part 70 permits
warrants little or no review, provided they do not conflict
with any existing part 70 permit term. Where RACT and MACT
are so specifically defined that little or no judgement need
be exercised in applying the requirement to the source,
there is little to be gained from reviewing the source's
judgement that the requirement applies. Instead, it should
be enough for the source to submit a notice to the
permitting authority upon making the change stating that the
source is consequently subject to the MACT or RACT
requirement and that the notice is attached to the source's
permit. Under such a process, the source would not be
shielded from enforcement action if it were mistaken as to
the scope or nature of the Act requirements applicable to
the change.
The EPA is proposing that such requirements, when
triggered by a change that is not subject to a State review
program, be included in the second category of changes but
nevertheless get the benefit of an automatic incorporation
process (see Section II. D. of this preamble). Eligible
requirements would be those that do not require
interpretation as to applicability and do not require
creation of source-specific permit terms or conditions. The
justification for automatic incorporation of these types of
requirements is that their application is so straightforward
that little is to be gained from additional process.
The EPA is proposing to place these requirements in the
second category. However, the Agency is not now in a
position to say that no RACT or MACT requirement warrants
additional process or to catalog which requirements warrant
additional process and which do not. While most RACT
requirements and some MACT requirements now appear
candidates for automatic incorporation, a determination
would have to be made for specific requirements whether
further process is warranted. In the case of MACT, EPA
could make that determination when it issues new MACT
standards, and as the Agency indicated in the August 1994
proposal, MACT compliance schedules could be automatically
incorporated into a permit. As for RACT and other SIP
requirements, States are in the best position to judge
whether specific requirements are appropriate for automatic
incorporation. States could make such judgments for SIP-
based requirements and provide for automatic incorporation
of those it deemed appropriate, as well as for those MACT
requirements that EPA has determined are eligible for
automatic incorporation.
To the extent they must be incorporated into part 70
permits at all, title VI requirements (relating to
stratospheric ozone protection) may also be candidates for
automatic incorporation where they entail few if any source-
specific determinations. The Agency solicits comment on
what title VI requirements would be appropriately processed
in this way.
2. Automatic Incorporation Process
For changes that are reviewed by a State review
program, the permitting authority would automatically
incorporate the change into the part 70 permit immediately
on completion of the review. The permitting authority could
accomplish this by simply attaching the results of the
review to the part 70 permit. The source could operate the
change upon completion of the review process. For changes
regulated by a State review program through a general rule,
the source would submit a notice describing the change and
the applicable requirements that attach as a result of the
change. As part of the notice, the source would have to
certify that it could operate the change without violating
any existing permit terms and supply any additional permit
terms required by part 70 (i.e., periodic reporting
requirements). The source could operate the change upon
submitting the notice.
Preconstruction permits in many cases impose new
applicable requirements or alter existing ones. These new
or altered requirements and other terms and conditions of
the new preconstruction permit would be applicable
requirements for incorporation into the part 70 permit. Any
existing terms and conditions of the part 70 permit that no
longer applied or were revised as a result of the
preconstruction permitting action would need to be either
replaced by the new terms and conditions, declared no longer
applicable, or revised as part of the permit issued pursuant
to preconstruction review. The permitting authority would
then attach this permit upon issuance to the part 70 permit.
Under the proposed system, it would be important for
the permitting authority to identify during the
preconstruction review process which terms of the existing
part 70 permit would be changed or eliminated because they
would no longer be relevant. For instance, during
consideration of a minor NSR permit for a replacement
emissions unit, the public notice would need to include
information about any part 70 permit terms affected by the
change. The permitting authority would also have to specify
in the final NSR action which terms and conditions of the
operating permit were being revised by the automatic
incorporation process. One way for the permitting authority
to do this would be to prepare an attachment to the permit
identifying which terms of the part 70 permit were replaced
or revised.
The mechanism for automatically incorporating a change
would also have to ensure that the part 70 permit content
requirements of 70.6(a) and (c) of the current rule are
addressed. Many of these requirements could be included in
the original part 70 permit as boilerplate conditions, so as
to cover any subsequent permit revisions. Requirements
relating to reporting, annual certification, and inspection
and entry should translate well to boilerplate conditions.
Since new requirements established in a prior review could
be attached to the part 70 permit, the original part 70
permit would have to ensure that the boilerplate conditions
applied to any new requirements attached to the permit as
well. On the other hand, some requirements are often
created or revised on a unit-by-unit basis. In such cases,
these requirements would have to be explicitly addressed by
the State pursuant to its review program. The permitting
authority would also have to approve as part of that review
the adequacy of any associated changes to previously
approved conditions.
Under a unitary permit program permitting authorities
need not attach new or different applicable requirements to
the permit, provided the unitary permit has already
incorporated them and contains sufficient terms or
conditions to assure compliance with any new or different
applicable requirements consistent with 70.6. For
purposes of part 70, a unitary permit means a single permit
which contains all terms and conditions needed to meet the
requirements of part 70 and the requirements of major or
minor NSR or actions requiring review under regulations
implementing section 112(g) of the Act.
3. Criteria for State Review Programs
Background. As noted earlier, State review programs
are generally governed by Federal regulations. These
regulations address procedural requirements, including the
provision of an opportunity for public participation. In
the case of major NSR, EPA believes that all State programs
meet the applicable Federal procedural requirements, which
call for prior public notice and a 30-day public comment
period. Regulations governing section 112(g) are not yet
final, but States will presumably establish programs that
comply with the requirements of those regulations.
Under the applicable Federal regulations, States have
broad discretion to determine the scope of their minor NSR
programs as needed to attain and maintain the national
ambient air quality standards. Indeed, States may exempt
categories of changes from minor NSR altogether on de
minimis grounds (i.e., the change is trivial in size and of
no importance in safeguarding ambient standards). States
have exercised this discretion to subject some or many, but
generally not all, minor source changes to their minor NSR
programs. The EPA does not intend to revisit the scope of
State minor NSR programs as part of the review process for
approving State part 70 programs.
Just as States may exclude some categories of sources
or changes from minor NSR, they have also exempted at least
some from public procedures. The EPA recognizes that States
may also structure their minor NSR program to limit the
public process afforded during preconstruction review
consistent with the environmental significance of the
change. Elsewhere in today's notice, EPA is proposing to
revise the Federal regulations governing minor NSR at
51.161 to clarify the scope of State discretion in
affording public process for minor NSR actions.
As discussed in the August 1994 preamble (59 FR 44478-
79), the circumstances surrounding some of the exemptions
from public process in minor NSR programs may have changed
since they were adopted and thus the basis for these
exemptions warrant review. The EPA, however, believes that
the majority of State minor NSR programs generally afford
adequate public process for the less environmentally
significant changes, as EPA is proposing to define them in
today's notice, for both title I and title V purposes.
Indeed, EPA is proposing to revise 51.161 to make clear
the considerable flexibility States have to fashion public
participation requirements to the environmental significance
of changes subject to minor NSR. The Agency also believes
that States are in the best position to make an initial
assessment of the continuing adequacy of their procedures.
As further explained subsequently in this preamble, if a
State's procedures should be found in need of some changes,
the changes could be accomplished through revisions of
either the State's minor NSR program or its part 70 program.
States would thus have flexibility to make changes in the
context they found most appropriate.
Beyond public process requirements, State programs do
not necessarily address all of part 70's permit content
requirements, since some of those requirements are not found
in the Federal regulations governing the State
preconstruction programs. Thus, for States to provide
automatic incorporation for changes that undergo a State
review program, States may need to revise their regulations
governing either their part 70 program or preconstruction
review programs, to ensure that all of part 70's permit
content requirements are addressed.
More Environmentally Significant Changes Reviewed by
States. For purposes of establishing the adequacy of a
State review program, today's proposal would divide changes
subject to such review into two categories, those that are
more environmentally significant and those that are less
environmentally significant. The Agency proposes to include
in the category of changes that are more environmentally
significant the following:
o Any change subject to major NSR;
o Any physical change or change in the method of
operation of a part 70 source associated with a project
where the prospective emissions increases from such
changes, considered by themselves, would be a
significant emissions increase of any pollutant subject
to regulation under part C or D of the Act;
o Any change subject to review as a modification under
the regulations implementing section 112(g) of the Act;
and
o Any other change determined by the permitting
authority to have a similarly significant environmental
impact.
The Agency has identified the types of changes listed
above as being more environmentally significant because they
either have been specifically identified in the Act for
preconstruction or pre-operation review (i.e., major NSR
under parts C and D or prior review under section 112(g) of
the Act) or involve difficult judgments which affect whether
construction activity would be subject to one or more of the
reviews prescribed by Congress (i.e., minor NSR governing
net-outs).
While all major NSR actions have been included in the
category of more environmentally significant changes, EPA
recognizes that in an extreme ozone nonattainment area any
change at a major stationary source which results in any
increase in emissions of nitrogen oxides (NOx) or volatile
organic compounds (VOC) from a discrete operation, unit, or
other pollutant emitting activity is a modification subject
to major NSR. In the South Coast Air Quality Management
District (SCAQMD) of California, the only extreme ozone
nonattainment area, potentially several hundred, if not
several thousand, major modifications can occur each year
under applicable definitions of major source (10 tons per
year (tpy)) and major modification (any increase, as
described above). As a comparison, in most areas of the
country, a major modification does not occur unless there is
an increase of 40 tpy or more of VOC.
Today's proposal would require that all changes in the
more environmentally significant category meet the full
public process requirements specified by the Federal
regulations governing the underlying State review program.
Thus, for all major NSR changes, including major
modifications, the State permitting authority would have to
provide (as is currently required) prior public notice and a
30-day public comment period. The Agency is concerned,
however, that full NSR procedures may be unworkable for
extreme ozone nonattainment areas in light of the "any
increase" threshold for triggering major NSR for
modifications in those areas. Some relief from the full NSR
procedural requirements may thus be appropriate for smaller
major NSR actions in extreme nonattainment areas. The
Agency is considering a proposal to revise the Federal major
NSR requirements to allow States to devise more streamlined
public procedures for smaller actions in extreme ozone
nonattainment areas, and it solicits comment on whether and
how to provide such relief.
The Agency is proposing to include one category of
minor NSR changes, i.e., certain net outs, in the more
environmentally significant category. Net-outs are minor
NSR actions which allow a source to avoid major NSR where
the prospective emissions increases from changes associated
with a project considered by themselves would require major
NSR except that the source makes a contemporaneous emissions
decrease at the same site sufficient to keep the net
increase below the major NSR applicability threshold.
Netting transactions often involve some of the most
complicated analyses undertaken by permitting authorities.
They are also among the most important minor NSR decisions
permitting authorities make, since they shield changes which
significantly increase emissions from the control
requirements of major NSR. The EPA is concerned about the
number of net-outs that might be subject to today's proposal
and the possible burden of requiring 30-day public review.
The Agency solicits information from States on the number of
net-outs that would fall within the proposed category of
net-outs and the relative difficulty and complexity these
net-out determinations would typically require. The EPA is
also interested in learning from the experience of States
and industry as to what percentage of net-outs involve a
project where the prospective emissions increase from a
single physical change or change in the method of operation
is greater than the significance levels (as opposed to
projects comprised of small changes that individually do not
exceed the significance level but do exceed the levels when
summed).
In including net-out transactions in the more
environmentally significant category, EPA proposes to cover
those changes where emissions increases from changes
associated with a project, considered by themselves, would
exceed major source thresholds or modification levels before
including decreases at the source. In a moderate ozone
nonattainment area, for example, where the major
modification threshold is 40 tpy for VOC, a 50 tpy VOC
increase that is offset by an 11 tpy decrease (net 39 tpy
increase) would be classified as a more environmentally
significant change, but a 35 tpy increase would not. In
keeping with section 182(c)(6) of the Act, the definition of
covered net outs would also include individual changes whose
emission increases exceed cumulative major NSR applicability
thresholds (e.g., 25 tpy over 5 years in severe and serious
ozone nonattainment areas).
The Agency considered including in the category of more
environmentally significant changes minor NSR limits that a
source undertakes to keep its potential emissions below
major NSR thresholds. These limits on emissions which
create so-called "synthetic minor" sources or modifications
account for many minor NSR permit actions, and play a
critical role in shielding large sources or source
modifications from major NSR.
The types of controls used to establish synthetic
minors vary widely among States and sources. Many are
straightforward in terms of the limit's effect on emissions
and its enforceability. However, others are unique to a
source and involve assessments of source-specific
operational limits. Synthetic minor controls also vary in
terms of their net effect on a source's emissions.
The Agency has decided not to propose inclusion of
synthetic minor actions in the category of more
environmentally significant changes, largely because of the
difficulty of formulating a national definition of those
synthetic minors that merit full public review procedures.
Instead, it is proposing to include all synthetic minors in
the less environmentally significant category of changes
that undergo prior review. As subsequently explained in
more detail, States have broad discretion to fashion
revision procedures for this category that match public
process to the environmental significance of the change. In
light of the potential environmental significance of
synthetic minor controls, however, EPA expects each State to
identify the more significant types of synthetic minor
actions it issues and afford these a substantial opportunity
for public and affected State review prior to the State's
final action in the minor NSR process.
Several factors would be relevant in identifying the
more significant synthetic minors. One is the size of the
source or modification before the synthetic minor control is
applied. In some cases, the source or modification far
exceeds the applicable major NSR threshold without the
control. Another is the use of synthetic minor controls to
reduce a source's emissions to just below the applicable
major NSR threshold. In these cases, the control leaves
little margin for error. A third factor to consider is
whether the synthetic minor control entails the application
of technology or other control measures whose effect on
emissions is not well or easily established. In these
situations, the permitting authority is required to exercise
considerable judgment in determining the efficacy of the
control. Depending on a State's situation and experience,
synthetic minor actions meeting any one of these criteria
may warrant providing prior public review. Where an action
meets more than one of the criteria, e.g., where the source
without controls is very large and the effect of proposed
controls is not well established, an increased opportunity
for prior public review and comment may be in order.
Finally, EPA is proposing that States have discretion
to designate other types of actions for inclusion in the
more environmentally significant category. As explained
earlier, minor NSR controls vary by State in scope, type,
stringency, and significance, and States may thus find it
appropriate to include other types of minor NSR actions in
the more environmentally significant category.
Adequate Review for the More Environmentally
Significant Changes. For the more environmentally
significant changes, permitting actions by a State would
have to follow the full public procedures required by
existing regulations (or in the case of section 112(g) of
the Act, those defined in EPA's final implementing
regulations) with respect to public (including affected
States) and EPA notice and opportunity to comment. (As
discussed earlier, for smaller major NSR changes in extreme
ozone nonattainment areas, EPA is considering the need to
revise the Federal NSR regulations to provide for less than
full process for such changes.) In the case of minor NSR,
the Agency is today proposing changes to the Federal
regulations governing that program to clarify States'
discretion in affording adequate public process. For net-
outs, the only category of minor NSR changes that would be
included in the more environmentally significant category,
the proposed revisions of 51.161 would clarify that such
actions are subject to the full procedures set forth in the
existing regulations.
The public process requirements for the more
environmentally significant changes would include prior
notice and a 30-day opportunity to comment on the permitting
authority's proposed action on the source's application for
the change. Affected States and EPA would also have to be
notified and afforded the same opportunity to comment.
Because the State review process would have to address any
part 70 permit revision, the public notice of the change
would have to contain draft part 70 permit terms as needed
to revise the existing part 70 permit and to meet the
part 70 permit content requirements of 70.6(a) and (c).
Finally, EPA recognizes that in some situations part 70
permit terms based on decisions made in the preconstruction
review process may require revision before the source can
operate the change. In many of these instances, such
changes arise from a shakedown period which the source
undergoes prior to full scale operation. The Agency
believes that, in general, shakedown changes are being
adequately addressed in the day-to-day implementation of
State NSR programs, and that the State procedures afforded
these changes should typically suffice for part 70 permit
revision purposes. As with the change before shakedown,
EPA would expect States to match the type and amount of
additional review to the significance of the shakedown
change. Only where a second major NSR process is necessary
to review the change (i.e., the change would involve
substantially new emissions or represent a fundamental
departure from the previously approved project) would a full
opportunity for public, affected State, and EPA review of
the change be required.
Less Environmentally Significant Changes Subject to a
State Review Program. All changes that are subject to a
State review program other than those designated more
environmentally significant would be included in a second
("less environmentally significant") category. The changes
in this second category would range from significant
synthetic minor actions that shield sources from major NSR
requirements to changes with minimal environmental impact.
States would have the flexibility to vary the process
provided for the changes in this second category with the
relative environmental significance of the change. A State
may designate certain categories of minor NSR changes,
subject to EPA approval, as de minimis based upon its
determination approved by EPA that meets the test prescribed
by the Alabama Power case. For changes that fall in these
de minimis categories, the State may forego prior public,
affected State, or EPA review altogether.
As noted previously, most States already exempt at
least some minor NSR actions from public process. In
evaluating what changes may be considered de minimis, many
factors are potentially relevant and will vary to some
extent with States' varying situations. The scope of the de
minimis category is properly determined on a State-by-State
basis as permitting authorities develop program revisions to
meet the revised part 70 requirements. In determining the
coverage of the de minimis category, the State should
examine the relevant factors in the context of the State's
situation, subject its proposed findings to public review,
and base its final determination on the relevant record.
The State may accomplish this as part of the rulemaking to
revise its program to conform with EPA's revised part 70
rule or in a separate rulemaking.
The most important factor for States to consider in
identifying de minimis changes is the air quality in an
area. Changes that are important in a nonattainment area
may be of considerably less interest to the public (or EPA)
in an attainment area. Due to differences in the nature of
the air quality problems in different nonattainment areas,
the need for or appropriateness of EPA and public
involvement may also vary.
Another important factor is the emissions impact of the
types of changes being considered for the de minimis
category. In this context, the size of any emissions
increase and the type of emissions involved are relevant.
Smaller increases of relatively less harmful pollutants are
more likely candidates for de minimis categorization.
Also relevant is the nature of applicable controls.
Changes which are typically addressed by the application of
well established control technology are not likely to
require public scrutiny. Registration requirements pursuant
to which sources must report, but not necessarily mitigate,
emission increases below a specified threshold would in many
States warrant an exemption from public review. On the
other hand, public review may be appropriate for changes
which require unfamiliar control technologies or source-
specific determinations of control levels.
A State's prior experience with public interest in
permitting decisions for particular types of changes is
another factor the State may weigh. A State which does not
now provide public notice and opportunity to comment on
permit revisions for many or all changes could not use the
lack of past public involvement in the permitting actions
for those changes to establish a lack of public interest in
them. On the other hand, if a State's experience shows the
public does not comment or express interest in certain types
of changes, the State could well conclude that such changes
are de minimis. The public's response to the State's
rulemaking to determine the scope of the de minimis category
is similarly pertinent. The general compliance status of
sources in the relevant jurisdiction may also suggest that
more or less public oversight of permitting actions would be
appropriate.
The factors described above are not mutually exclusive;
for example, the size, complexity, and track record of
particular types of changes, when considered together, may
establish that de minimis categorization is or is not
appropriate. The Agency further recognizes that other
factors may also be relevant, and solicits comment on
whether other circumstances should also be considered by
States in determining the scope of the de minimis category.
In view of the nature and number of the factors
described above, EPA anticipates that States' determination
of de minimis changes will justifiably differ, even to a
significant extent. In States with relatively extensive
minor NSR programs, EPA would expect that the de minimis
category could be established such that the majority of
changes would be processed as de minimis but the bulk of
total emission increases governed by minor NSR would be
subject to public review. This is because, in the case of
extensive programs, many or even most minor NSR changes
typically involve very small emissions increases. The
Agency is aware of one State, for example, in which 90 per
cent of minor NSR changes involve emissions units of less
than 5 tpy, and those changes together account for only
about 10 per cent of total emissions increases governed by
the program. In this State, defining a de minimis category
at or below 5 tpy would mean that only 10 per cent of the
changes by number would go through public and affected State
review, but that review would cover 90 per cent of total
emissions increases. Such an approach would be acceptable
under today's proposal and would be an appropriate way to
minimize the burden of the permitting program on sources and
permitting authorities without compromising citizens'
opportunity to participate in decisionmaking regarding the
bulk of emissions increases.
By providing the above example, EPA does not mean to
suggest that States need conduct the type of analysis
described to determine an appropriate de minimis category.
It is merely one example of an acceptable approach to
defining de minimis changes. The Agency expects States to
consider their particular situations and make determinations
that are appropriate for their situations, in light of the
relevant factors. In States with less extensive minor NSR
programs and less significant air quality problems, for
example, de minimis changes might be appropriately defined
to include changes that increase emissions by as much as 25
tons. The Agency believes States are in the best position
to weigh the relevant factors in determining what changes
may be exempt from public review. A de minimis change
category developed based on the factors discussed above
would be granted substantial deference in EPA's review of
States' part 70 program revisions.
Adequate Process for Less Environmentally Significant
Changes. For minor NSR actions not in the more
environmentally significant category, States would have
considerable discretion to match the amount and timing of
process to the environmental significance of the change. In
reviewing State programs, EPA would recognize States' need
for flexibility in devising procedures that take into
account the relevant factors for a particular State,
including existing air quality levels and the scope and
complexity of its minor NSR controls. States would have to
afford an adequate opportunity for public participation for
all changes other than de minimis changes, but could use
various methods including prior or after-the-fact notice and
comment periods, batch processing, and the use of general
permits or permits by rule. For the least significant
changes, States could provide little public process beyond a
notice in some manner to the public, which could be after
the change occurred. Notice could be given by means other
than newspapers where alternative methods, such as State
registers or computer bulletin boards, are generally
accessible by interested persons. States should require
prior notice and comment where actions involve larger
emissions that warrant greater scrutiny because of their
environmental significance, although comment periods need
not be 30 days where a shorter period such as 15 days or
less would likely be sufficient in view of the significance
or complexity of the change.
All minor NSR actions (including those de minimis
changes exempted from public and EPA review) would have to
be reviewed by the permitting authority to assure that the
change met all applicable requirements and the part 70
permit requirements of 70.6(a) and (c). In particular,
changes to monitoring methods in part 70 permits would have
to be specifically approved by the permitting authority as
adequate for determining compliance with applicable
requirements and part 70 permit terms prior to revising the
permit.
Program Revisions for NSR Changes. States could revise
their regulations as needed to provide for adequate review
of minor NSR changes in two ways: (1) revise their minor
NSR regulations as necessary to meet the requirements
outlined above, or (2) revise their part 70 program
regulations to provide that those requirements be met in the
context of the NSR review process. Either approach would
ensure that adequate process is provided, so a State may be
given the flexibility to decide which approach would be most
suitable for it.
Comparison of Proposed Approach and Current Part 70 for
Minor NSR Changes. Before describing the proposed approach
for changes not subject to a State review program, the
Agency would like to compare its treatment under today's
proposal of minor NSR changes to what is currently required
under part 70. The minor NSR process is the origin of the
vast majority of changes occurring at part 70 sources which
cause the need for a part 70 permit revision. It is
therefore helpful to compare these two regulatory approaches
to understand the relative effectiveness of the proposal in
accomplishing streamlining. This discussion addresses, in
order, minor NSR changes that would be considered more
environmentally significant, synthetic minors, other minor
NSR changes that conflict with the part 70 permit, and
finally other minor NSR changes that do not conflict with
the part 70 permit.
For minor NSR changes which would be classified as more
environmentally significant changes under today's proposal
(i.e., major net-outs), both the current and proposed
part 70 would subject the change to a full public and EPA
review process involving a 30-day public comment period.
Today's proposal, however, would impose this requirement in
conjunction with the otherwise occurring State minor NSR
process. This is a much faster and more efficient process
than under the current part 70 where the sequential
significant permit modification process would be imposed
(possibly for up to 18 months) after the NSR process has
been completed (unless the State chooses to enhance its
minor NSR process).
Whereas part 70 imposes the significant permit
modification process for synthetic minors, these would be
considered in the less environmentally significant category
and subject under today's proposal to a more streamlined
combined process matched to the environmentally significance
of the changes. In addition to shortening greatly the time
to complete permit revisions via combination of the part 70
process with other State review processes, today's proposal
would also limit EPA's review role for less environmentally
significant changes during the first 5 years after program
approval. This would add greater certainty to the critical
initial implementation of the program.
Other types of minor NSR changes that conflict with the
terms of the part 70 permit would be required to be adopted
as a permit revision before operation under both today's
proposal and the current part 70. Under today's proposal,
EPA expects States to treat these either as de minimis, for
which no public or EPA review would be required, or as being
within the category of less environmentally significant
changes for which process would be matched to environmental
significance of the change. For the least significant of
these changes (other than de minimis), States could provide
little public process beyond a notice in some manner to the
public, which could be after the change occurred. The only
EPA review for any of the less environmentally significant
changes over the first 5 years after program approval would
be in the event of a citizen petition. Under the current
part 70, most of these changes, (including those considered
de minimis under today's proposal), would be processed as
minor permit modifications. For minor permit modifications,
even though the change may be made immediately upon sending
a notice to the permitting authority and there is no public
review, the uncertainty resulting from EPA's 45-day review
period and possible objection after-the-fact is a
significant concern to sources making changes under this
process. Thus, under today's proposal, a key benefit for
these changes is the 5-year waiver of EPA's objection
(except in response to citizen's petitions) and the
exclusion of public, affected State, and EPA review for de
minimis changes.
Today's proposal does not differentiate between those
minor NSR changes that conflict with the terms of the
part 70 permit and those that do not. The current part 70
does allow States to make this distinction. Specifically,
source changes reviewed under minor NSR that do not conflict
with the terms of an existing part 70 permit may be treated
under the current part 70 as off-permit, meaning the terms
and conditions of any resulting minor NSR permits need not
be incorporated into the part 70 permit until renewal. For
changes that qualify for off-permit treatment, the source
must provide contemporaneous notice to both EPA and the
permitting authority. This notice requirement is in
addition to the review process required under the State's
minor NSR program. The requirements of 70.6 would of
course not attach until the off-permit change is
incorporated into the part 70 permit at renewal. A change
that is not off-permit (either because it conflicts with the
existing part 70 permit or because the State has chosen not
to allow for off-permit) and that is neither a net-out nor a
synthetic minor could be treated as a minor permit
modification.
D. Incorporation of Changes Not Subject to State Review
Programs
The EPA expects that the great majority of changes
requiring a part 70 permit revision would qualify for
automatic incorporation because they are subject to a State
program such as minor NSR. However, for changes that are
not subject to such review, States would have to provide for
a revision process at the part 70 permitting stage.
Depending on the scope of the State's minor NSR program,
such processing would be needed for changes that trigger
RACT, MACT, or other applicable Act requirements but not
minor NSR, or for changes to terms that were established
only through the part 70 permit process. As for changes
that are subject to State review programs as previously
described, full public, affected State, and EPA review would
be required only for the more environmentally significant of
these changes. For less environmentally significant changes
that are not subject to State review programs, States could
develop revision procedures that match the process to the
environmental significance of the change.
More Environmentally Significant Changes Not Subject to
State Review Programs. Under today's proposal, opportunity
for public, affected State, and EPA review equivalent to
that provided for permit issuance or renewal must be
afforded for the more environmentally significant changes
before the part 70 permit is revised and the change is
operated. For changes that are not subject to State review
programs, EPA proposes to define the more environmentally
significant category as including the establishment or
revision of the following:
(1) MACT determinations made under section 112(j) of
the Act;
(2) Alternative emission limits to meet section
112(i)(5) of the Act (early reductions);
(3) Alternative limits established pursuant to
70.6(a)(1)(iii) including any to implement RACT as
authorized by the SIP or any substitute section 112
standards established pursuant to a program approved by
EPA under section 112(l) of the Act;
(4) New or alternative monitoring methods that have not
been authorized for adequacy under major or minor NSR
or under regulations implementing section 112(g) of the
Act;
(5) (Establishment only) Emissions limits restricting
the potential to emit (PTE) of an entire source,
including the establishment of any plantwide
applicability limit (PAL) for defining applicability of
NSR or of regulations implementing section 112(g) of
the Act.
In revising part 70 permits to establish or change
(except for PTE limits) any of the above permit conditions,
the State's part 70 program would have to provide public,
affected State, and EPA process focused on the change
equivalent to that afforded for initial permit issuance.
The permitting authority would also have to design and
implement this process so as to complete review of the
majority of these types of permit revisions within 6 months
of receipt of an application for such a revision. The
requested change could only be made as allowed by the
underlying applicable requirement(s). The EPA is proposing
to reduce the processing time for the majority of these
changes from the 9-month period specified in the current
rule to 6 months to promote necessary streamlining and to
minimize undue delays. The Agency, however, solicits
comment on the feasibility of a 6-month turn-around time and
on other time periods which might better accomplish these
objectives.
The proposed list of the more environmentally
significant changes not otherwise subject to State review
focusses the most extensive review procedures on a
relatively manageable number of changes that involve actions
that have, or potentially have, the greatest environmental
consequences. Congress clearly intended that the limits
associated with section 112(j) MACT decisions and early
reductions be determined in the context of the title V
program. Section 112(j) targets implementation after the
effective date of the title V program, requires applicable
sources to file a permit application, and requires the MACT
limit be placed in a title V permit. Similarly, Congress in
section 112(i)(5) required the title V permitting authority
to establish in a title V permit an enforceable emissions
limitation for hazardous air pollutants (HAPs) reflecting
the early reduction which qualifies the source for an
alternative emission limitation exemption from MACT.
The EPA is also proposing to include in the more
environmentally significant list alternative emission limits
as authorized by an approved SIP or program under section
112(l) of the Act. Limits such as alterative RACT or MACT
are analogous to the two preceding types of limits
identified by Congress for title V implementation.
Accordingly, they warrant extensive review to assure that
general criteria contained in a SIP or a plan approved
pursuant to section 112(l) of the Act are applied in a
reasonable and enforceable fashion to a particular source
change. Moreover, as explained subsequently, EPA's
objection opportunity under today's proposal would fully
extend only to the more environmentally significant
categories of changes. Since under section 110 of the Act
EPA must be able to object to alternative SIP limits for
them to qualify as such, it is important to include
alternative SIP limits in the more environmentally
significant category of changes. The EPA solicits comment
on whether full public, affected State, and EPA review are
necessary for alternative MACT standards established under a
section 112(l) program or whether a lesser degree of public,
affected State, and EPA review would be adequate.
The establishment of limits on the PTE for an entire
source or plantwide emissions caps (see below) also warrants
a similarly high level of review. Development of such
limits involves a comprehensive review of a source's
emissions to restrict a source's emissions to below major
source thresholds. Because of the extensive nature of these
reviews, the Agency believes that a 30-day public review
period is warranted for establishing such caps. While
proposing these actions as being more environmentally
significant, the Agency does solicit comment as to whether
the establishment of (as well as revisions to) PTE limits
can be classified as less environmentally significant,
particularly for limits related to the applicability of
minor NSR.
Finally, the Agency believes that changes involving
shifts to new or alternative monitoring approaches not
otherwise matched to the source (e.g., through a prior
review) can often have potentially large environmental
impacts, because a new or different monitoring regime could
inadvertently allow emissions to increase without causing a
violation of the applicable requirements. The process
reserved for more environmentally significant changes is
appropriate to safeguard the integrity of the compliance
conditions of the permit unless another prior review serves
this function (e.g., major or minor NSR under today's
proposal). Permitting authorities could approve such
changes only where the new or alternative monitoring or
recordkeeping method was determined adequate to assure
compliance with the applicable requirement.
The EPA solicits comment on whether any other changes
not subject to State review programs should be designated
for inclusion in the more environmentally significant
category.
Other Changes Not Subject to State Review Programs.
For all other categories of changes for which a part 70
permit revision is required but that are not otherwise
subject to State review, a State could develop a process
that matches the review to the environmental significance of
the change. These categories of changes include, but are
not limited to:
(1) Revisions to emission limits restricting the PTE
of an entire source or any emissions unit, including
any PALs for defining applicability of NSR, or of
regulations implementing section 112(g) of the Act;
(2) Restrictions on the PTE of any emissions unit;
(3) Unique limits designed to meet an applicable
requirement;
(4) New alternative operating scenarios;
(5) Changes within the same monitoring method, or
"intra-monitoring changes;"
(6) Incorporation of MACT compliance details, including
applicability and compliance parameter level decisions;
and
(7) Emissions averaging restrictions made pursuant to
a standard under section 112(d) of the Act.
For these changes, States again might use various
methods to provide adequate public participation, including
prior or after-the-fact notice and comment periods. As
noted earlier, sources often take limits on the PTE of an
entire source to avoid being subject to more stringent
requirements that otherwise apply. Sources even more
frequently take limits on an emissions unit at the source to
keep the unit below major modification thresholds. Revising
plantwide caps or establishing or revising PTE limits for an
emissions unit involve making judgments regarding the
sufficiency and practical enforceability of a limit on
maximum allowable emissions which, if exceeded, would
trigger the applicability of more environmentally
significant requirements. For this reason and as with
significant synthetic minor NSR actions, EPA would expect
States to provide relatively more public process for
significant changes to PTE limits or caps. It would make
little sense to require full process to establish such
plantwide limits or caps if they could be revised with
little or no process. Also, the relative environmental
significance of MACT applicability and compliance parameter
decisions can vary with the particular MACT standard
involved. The EPA, in promulgating individual MACT
standards, will provide guidance whenever it believes States
should provide public or EPA review during the permit
process.
For those categories of changes that are determined by
the permitting authority to be de minimis, States may
incorporate these changes into part 70 permits without prior
review by the public, affected States, or EPA or an
opportunity for EPA objection or for citizens to petition
EPA to object. The previously described considerations
relevant to identifying de minimis changes subject to State
review programs are also relevant in determining that
categories of changes not otherwise subject to State review
are de minimis. States could also exempt from public and
EPA review on de minimis grounds changes that qualify for
administrative amendment treatment under section 70.7(d) of
the current part 70 rule. These include changes which
correct typographical errors, require more frequent
monitoring or reporting by the permittee, or alter ownership
or operational control of a source. The State could also
identify other inconsequential changes as de minimis and
submit a list of those changes to EPA when submitting part
70 program revisions for approval. Either the permittee or
the permitting authority could initiate the incorporation of
any such change into the permit by issuing a notice
describing what information in the part 70 permit is
affected and sending the notice to the permitting authority
or the permittee as appropriate. The notice would identify
the terms of the existing part 70 permit being changed and
any new terms needed to meet part 70 permit content
requirements. The notice would revise the permit upon its
mailing by the source to the permitting authority through
certified mail. No affirmative authorization by the
permitting authority would be required if the permittee
initiates the change.
Under today's proposal, the State part 70 program could
also provide that changes need not undergo State, EPA, or
public review before they are incorporated into the part 70
permit, provided that (1) they can be operated in compliance
with all applicable requirements and the federally-
enforceable terms of the existing part 70 permit, and (2)
the applicable requirements they trigger do not entail
source-specific determinations in applying the requirement
to the source.
As previously noted, many minor NSR programs exempt
from minor NSR altogether changes that do not increase
emissions above a certain amount, or that are of a
particular type or category. These changes may nonetheless
still be subject to applicable requirements such as NSPS or
SIP requirements. A small storage tank, for example, may be
exempt from NSR in certain States, but still may be subject
to RACT or NSPS requirements.
To the extent these changes do not conflict with the
part 70 permit and do not trigger requirements that entail
source-specific tailoring, EPA is proposing that they may be
exempt from any additional public, affected State, or EPA
review in the part 70 process. The State part 70 program
could provide that the source may operate the change upon
submitting a notice, provided that the change can be
operated in compliance with the existing part 70 permit. In
the notice, the source would describe the change, describe
any new permit terms needed to assure compliance with all
applicable requirements and relevant part 70 requirements,
and certify that the change is eligible for this process.
The part 70 permit would be revised upon mailing of the
notice by the source to the permitting authority by
certified mail. No permit shield would attach to changes so
incorporated into permits, since not even the permitting
authority would have reviewed whether the source correctly
identified all of the Act requirements applicable to the
change.
E. Opportunity for EPA to Object and Permit Shield
Under section 505 of the Act, the Administrator is to
receive and review copies of permit applications, including
applications for permit revisions, and to object to the
issuance of any permit which contains provisions that are
determined by the Administrator as not in compliance with
the applicable requirements of the Act, including title V
requirements. If the Administrator does not object to a
permit within the 45-day review period specified by the
statute, any person may petition the Administrator to do so
within 60 days of the expiration of the 45-day review
period. Under the Act, the Administrator may waive the
requirements for receipt and review of permits for any
category of sources covered by the part 70 program other
than major sources.
In fulfilling its review role with respect to permit
revisions, EPA will consider whether (1) all applicable
requirements and part 70 requirements to which the source is
subject as a result of the change are contained in the
permit revision, (2) the new or revised permit terms and
conditions are enforceable as a practical matter, and (3)
significant procedural requirements relating to adequate
public participation and development of a supporting record
have been met.
At the same time, EPA wants to minimize the potential
for Agency review to lengthen unduly the permit revision
process. The Agency is thus proposing to limit its review
and objection opportunity in several ways that will focus
EPA's limited resources on providing a timely reaction to
the more environmentally significant permit revisions.
First, for the more environmentally significant changes
(including those that are subject to a State review program
and those that are not), EPA is proposing that the Agency
would be required prior to the permitting authority taking
final action on the change to raise any objections to the
proposed change for any defect that was reasonably apparent
during the public review period. Failure by the Agency to
raise a timely objection would bar it from objecting to
issuance of the permit revision, except in response to a
citizen's petition under section 505(c). The Agency could
still reopen the permit for cause under section 505(e) of
the Act and 70.7(g) of the current rule.
Second, changes which the State proposed and EPA
approved as de minimis under the Alabama Power test would
not be subject to any EPA review or objection opportunity or
citizen petition opportunity prior to renewal of the part 70
permit. Changes which meet the Alabama Power de minimis
test are by definition environmentally insignificant, and
EPA is therefore proposing to exercise its inherent
administrative authority to exempt such changes from the
public, affected State, and EPA review and objection
opportunities that otherwise apply prior to permit renewal.
To the extent de minimis changes are improperly made or
incorporated into the permit, corrections can be made by
reopening the permit or when the permit is renewed with
little or no cost to the environment, provided the changes
are in fact de minimis.
Third, for the less environmentally significant changes
that do not qualify as de minimis, EPA is proposing to limit
its review and objection opportunities for at least the
first 5 years following program approval. For such changes,
EPA would object to a change only in response to a citizen's
meritorious petition under section 505(c) where the permit
revision at issue would likely lead to significant adverse
environmental consequences. During the 5-year period, the
Agency would rely on consultation with State officials and
audits of State programs to assist and monitor
implementation of the permit revision process with respect
to changes in the less environmentally significant category.
Depending on what the audits reveal, the Agency would revise
as appropriate the time period or scope of the above-
described limit on its objection authority. The EPA
contemplates extending the waiver in States where the audit
reveals no significant problems due to the waiver, and
reinstating the objection opportunity in States where the
audit shows otherwise.
For changes in the more environmentally significant
category, EPA would maintain its full authority to review
and object to permits on its own and in response to a
citizen's petition. While the Agency does not plan to
routinely review all or even most of these changes, EPA
believes it should retain its authority to do so in light of
the potentially large emission increases such changes
entail.
The Agency believes today's proposed approach to
exercising its review and objection authority would
facilitate efficient implementation of the proposed changes
to the part 70 permit revision process. Other aspects of
today's proposal would improve the integrity of part 70
permit revisions by ensuring public participation
commensurate with the environmental significance of the
change and public access to all permit revision decisions.
To the extent that potential public involvement increases,
there is less need for regular EPA oversight. The Agency
also recognizes that the first years of implementing any new
or revised program are the most challenging. States will
need time and flexibility to work through the many new
issues that will inevitably arise as they begin to implement
a revised permit revision system. States are more apt to
seek out EPA's help in addressing difficult issues of first
impression if EPA is in the role of colleague rather than
overseer.
Beyond that, EPA's own resources are limited. The
Agency believes that its resources would be best used to
focus on the more environmentally significant changes and to
assist and audit States' implementation of their programs.
The Agency could, as an exercise of its enforcement
discretion, simply refrain from objecting to less
environmentally significant changes. The Agency believes,
however, that to realize the full benefits of its proposed
approach to exercising its objection authority, a regulatory
limit is necessary. Regulations specifying EPA's role in
the permit revision process would best inform the public,
States, and sources as to what to expect and allow them to
plan accordingly. Particularly in the first critical years
of program implementation, a regulatory limit would provide
an important measure of certainty and stability at a time
when all affected groups are learning the new system.
The EPA is proposing a limit on its authority that
would coincide with States' early efforts to implement the
revised program. The limit on its authority would start
upon approval of each revised State program that implements
these revisions to part 70 and would continue for 5 years.
During the 5-year period, EPA would work with States to
facilitate a smooth transition to the revised program. Once
State program revisions were up and running, the Agency
would also conduct audits to determine States' performance
in meeting minimum program requirements. In conducting its
audits, EPA would make use of the applications for permit
revisions that States are required by section 505(a) of the
Act and 70.8 of the current rule to send to EPA. Based on
the results of these audits, EPA would decide whether to
revise the regulations to suspend or extend the limit on its
objection authority for particular States or States in
general.
An important safeguard in EPA's proposed approach is
the ability of citizens to petition the Agency to object to
a permit revision under section 505(c). If a citizen's
petition brings to EPA's attention a permit revision that
allegedly fails to fully or accurately incorporate all
applicable requirements, including title V requirements, or
for which required opportunities for public review were not
provided, the Agency would review the revision for possible
objection. Where its review revealed an environmentally
significant error in the permit revision, EPA would object.
For instance, an EPA objection would be warranted in the
case of a permit revision that purported to establish or
revise limits on a source's potential to emit to avoid
application of major NSR if the permit revision would in
fact allow increases above major NSR thresholds. On the
other hand, errors that did not have an adverse
environmental effect would not warrant an EPA objection.
Correction of such errors could await permit renewal with
little or no cost to the environment and with significant
potential savings to the source.
As a further safeguard, a permit shield would not be
available for permit revisions to incorporate changes in the
less environmentally significant category unless they were
revised and approved by EPA in response to a citizen's
petition. In other words, if EPA were to find that a source
was not complying with an Act requirement that became
applicable to the source as a result of such a change, the
Agency could take enforcement action against the source for
its non-compliance. The chance that a permit revision would
somehow incorrectly incorporate applicable requirements due
to a lack of EPA review would thus be offset by the prospect
of EPA enforcement of underlying applicable requirements.
In summary, EPA believes that the benefits of limiting
its objection authority with respect to the less
environmentally significant changes outweigh the potential
risk of the limitations, particularly in view of citizens'
petition opportunity. The Agency solicits comment on its
proposed limitations and on its legal authority to establish
them.
Several parties have asked EPA to clarify how it would
implement EPA's objection opportunity for changes that have
previously undergone major NSR or minor NSR where a citizen
petitions for an EPA objection and the alleged error would
have a significant environmental affect. Section 505(b) of
the Act provides for an objection if the permit "contains
provisions . . . not in compliance with the applicable
requirements of this Act, including the requirements of an
applicable implementation plan." To assure that the permit
contains provisions that are in compliance with all
applicable requirements of the Act, including SIP
requirements, EPA would review a change resulting from a NSR
action to see if the terms of the NSR permit were properly
incorporated into the part 70 permit, if the terms are
enforceable, and if the applicable substantive and
procedural requirements for public review and development of
supporting documentation were followed. For major NSR, EPA
would review the process followed by the permitting
authority in determining best available control technology
(BACT) or lowest achievable emission rate (LAER) to assure
that the required SIP procedures (including public
participation opportunities) were substantially met and
that any determination by the permitting authority was
properly supported, described in enforceable terms, and
consistent with all applicable requirements.
The EPA's purpose in reviewing whether an NSR action
was consistent with all applicable requirements would be to
assure that any BACT requirements were at least as stringent
as any other applicable requirements such as an NSPS and
that any minimum control requirements specifically
articulated in the SIP were met. The EPA would not second-
guess case-by-case technology determinations that meet the
minimum criteria set forth above. For more environmentally
significant changes subject to minor NSR, EPA would also
examine the calculations used to base any decision that
minor rather than major NSR was applicable to the change.
At the discretion of the permitting authority, the
permit shield would be available for changes in the more
environmentally significant category, in view of the public,
affected State, and EPA review opportunities provided for
those changes. For all other changes, the permit shield
would be available only for terms that are reviewed,
revised, or added by EPA in response to a citizen's
petition.
For permit revisions other than those for de minimis
changes, citizens would have 60 days after the expiration of
any EPA opportunity to object, or from the time the
permitting authority notified the public as to its approval
of the permit revision, to petition the Administrator to
make such objection. As in the current part 70, any
petition would (1) have to be based only on objections to
the permit which were raised with reasonable specificity
during any prior opportunity for public comment (unless the
petitioner demonstrates that it was impractical to raise
such objections at that time); (2) have to be based on
germane and non-frivolous grounds; and (3) have to raise
issues related to the incorporation of or correctness of
applicable requirements, enforceability, or procedural
requirements concerning public review consistent with EPA's
ability to object.
The EPA would like to avoid unnecessary petitions
wherever possible. Accordingly, the Agency suggests that
concerned citizens work with EPA early on in the process to
resolve as many concerns as possible before they rise to the
level of a formal petition.
The Agency is aware of industry concerns that
uncertainty is created by allowing citizens to petition EPA
to object to less environmentally significant changes.
Because such changes by their nature are less
environmentally significant, industry has suggested that the
opportunity for citizens' petitions be postponed until
permit renewal. The EPA believes that such postponement
conflicts with the explicit provisions of section 505(b)(2).
Moreover, as explained previously, at least some type of
changes in the less environmentally significant category
have large potential environmental consequences because they
shield a source from more stringent environmental controls.
The Agency has attempted to address industry concerns by
allowing States to notify the public of permit revisions on
a batched basis where sources must make changes frequently
(see following Section II. F. Flexible Permits). The EPA
also solicits comment on whether there is a legal basis for
postponing the opportunity for citizen petitions on less
environmentally significant changes until permit renewal.
F. Flexible Permits
Aside from providing streamlined permit revision
procedures, a permit system can promote source flexibility
by providing opportunities to design a permit which will
minimize the need for permit revisions. Many ways have been
identified to achieve this, including use of worst case
limits and alternative scenarios (56 FR 21748-49, May 10,
1991). In addition, as the July 21, 1992 preamble to the
final part 70 rulemaking stated, there are no limitations on
changes which do not trigger any applicable requirements and
which are not prohibited or addressed by the permit.
Section 502(b)(10) of the Act requires States to design
their title V programs to allow changes to be made at a
source without revising the source's title V permit so long
as the change does not exceed the emissions allowable under
the permit and does not constitute a "modification under any
provision of [title I of the Act]." The current rule
implements section 502(b)(10) by providing sources with a
potential means of establishing emissions caps in part 70
permits. Caps may be designed such that changes can be made
at a source without triggering reviews which can produce
additional applicable requirements (e.g., NSR or section
112(g) requirements), and thus the need for a permit
revision, provided emissions do not exceed the cap. The
current rule further provides that sources granted such a
cap may comply with the cap through emissions trading as
provided by the terms of the cap.
As discussed in the August 1994 proposal, EPA believes
that the flexibility afforded by section 502(b)(10) is a
mandatory minimum element of State permit programs. In that
notice, the Agency proposed to revise the current rule to
require States to establish a cap in a source's permit at
the source's request, so long as the source proposed a cap
that met the terms of section 502(b)(10) (as well as the
enforceability requirements set forth in 70.6). In
addition, the Agency proposal would require the permit
applicant to 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 could be established
only in a full permit issuance process. The permitting
authority would not be required to include in the cap or
emissions trading provisions any emissions units where the
permitting authority determined that the emissions were not
quantifiable or where it determined that there were no
replicable procedures or practical means to enforce the
emissions trades. The permit shield described in 70.6(f)
could extend to terms and conditions that allowed such
increases and decreases in emissions.
As discussed in the July 1992 preamble (57 FR 32267-8)
and in the August 1994 preamble (59 FR 44471-2), EPA
encourages the development of trading provisions in part 70
permits consistent with section 502(b)(10). As allowed in
the SIP, the Agency believes that an important option for
flexibility can be established through part 70 trading
conditions which are specific enough so that any source
authorized to use them has a clear method of demonstrating
compliance through the trading program without the need for
a permit revision. As described in more detail in the July
1992 preamble, the trading procedures approved into the SIP
must assure that each trade is quantifiable, accountable,
enforceable, and based on replicable procedures and meets
the underlying requirements. One example of the type of
trading program which could provide such flexibility is the
open market trading system proposed on August 3, 1995
(60 FR 39668). Under this approach, EPA intends to allow
sources to engage in trading of "discrete emissions
reductions" to achieve compliance with those applicable
requirements authorized for such compliance in the SIP and
in the permit. Another example would be the "emissions
budget" program, such as the acid rain program for sulfur
dioxide, under which sources can use allowances to meet the
underlying requirements. It is currently envisioned that
the part 70 permit need only contain a generic trading
provision requiring that sufficient discrete emissions
reductions be held to meet those applicable requirements
which are open for trading. Permit revisions would not be
needed to implement any trades, but the trading rule may
mandate that the part 70 permit contain certain reporting
and recordkeeping obligations to assure the integrity of the
trades themselves.
Another option for flexibility described in the August
1994 proposal allows the part 70 permit to contain "advance
NSR" provisions to the extent compatible with State NSR
requirements. Such advance NSR provisions provide for
including the result of the preconstruction review process
up front in the operating permit, including any part 70
permit terms needed to address such future change(s). Such
a provision, however, must be compatible with the
constraints of the applicable requirements (e.g., limits on
the term of a BACT determination) and be developed with its
implications of those requirements in mind (e.g., possible
consumption of the PSD increment). Many States should
immediately be able to rely on this provision to avoid the
need for a separate NSR permit or an operating permit
revision to be issued when the source actually makes the
change. Even where the issuance of a preconstruction permit
is required, the need for a part 70 permit revision can
still be avoided unless the NSR process results in new or
different terms that must be placed in the part 70 permit.
Several questions have arisen regarding the
practicality of such caps and advance NSR provisions.
Concerns have been raised that these opportunities would be
severely limited by section 502(b)(10) of the Act. While
allowing certain changes at a source to occur without a
permit revision, this provision excludes title I
modifications from this relief and subjects eligible changes
to a 7-day advance notification requirement.
The EPA believes that section 502(b)(10) was enacted by
Congress to provide additional flexibility to sources and
not to restrict any flexibility that already may be
available under the regulations governing applicable
requirements. For example, section 502(b)(10) would not
preclude the incorporation into a part 70 permit of an NSR
permit which defines how future changes at a source could
occur in a manner that would meet the relevant NSR
requirement. The part 70 permit itself may also define the
scope of future NSR obligations for the source so long as
this is allowed under the State's permitting program. No
NSR requirements are circumvented under such an approach.
Rather, compliance is determined beforehand so that the
source may operate the pre-approved change without first
obtaining a permit revision. The source would effectively
have a blueprint analogous to a type of alternative scenario
under which to operate if any of the pre-approved NSR
changes were to occur.
The exact design of an emissions cap to meet
70.4(b)(12)(i) of the August 1994 proposal and section
502(b)(10) will depend on the nature of the prospective
source operation and the scope of the relevant applicable
requirements, including the State's NSR programs and of
regulations implementing section 112(g). For example, in
one State it may be possible to define a PAL (or series of
PALs) which defines when such requirements would be
triggered. In other situations (e.g., where minor NSR
applies and requires a case-by-case technology review
whenever new capacity would be established), the PAL or
series of PALs would need to be coupled with an advance NSR
provision to address all NSR situations including those
requiring an advance technology review of any changes for
which pre-authorization was sought under the PAL.
Concerns have been raised that the 7-day advance notice
provision of section 502(b)(10) could hinder a source's
ability to respond quickly to changing market conditions by
making changes already authorized under a cap. The Agency
believes that the section 502(b)(10) notification
requirement can be met by a generic notice describing a
class of trades authorized by the permit and the source's
intent to engage in such trades during a specified period of
time. This notice must be sent at least 7 days prior to
initiating trading of emissions under the cap, which
incidentally could require notification during permit
issuance where a facility intends to trade as soon as it
receives its permit.
Concerns have also been raised that caps created
pursuant to the regulations at 70.4(b)(12) implementing
section 502(b)(10) would be severely limited if the Agency
were to interpret the title I modification limitation in
502(b)(10) to include changes subject to minor NSR. As
discussed in the next section of this preamble, (see Section
II. G. Title I Modifications), the Agency is proposing to
add regulatory language that defines the scope of title I
modification to clearly exclude modifications subject to
States' minor NSR programs. This action would directly
resolve these concerns. Thus, under today's proposal, this
definition of title I modification will enhance the ability
of sources to design emissions cap permits pursuant to
section 502(b)(10).
To promote greater certainty in implementing caps under
section 502(b)(10), the Agency proposes to codify into the
part 70 regulations the previous clarifications regarding
emissions caps and advance NSR provisions. Under today's
proposal, EPA would build upon its August 1994 proposal by
defining in 70.2 advance NSR, alternative scenarios,
emissions cap permits, and PALs. The Agency further
proposes to add to 70.4(b)(3) the obligation to issue
emissions cap permits pursuant to 70.4(b)(12)(i)
(regarding the mandatory nature of emissions caps) as the
Agency proposed to revise it in the August 1994 proposal.
This would require a permitting authority to accept
enforceable permit conditions proposed by a part 70 source
that (1) establish limits that keep the source from being
subject to requirements that apply above the limit and (2)
assure compliance with requirements applicable to future
operations in which the source may engage so as to avoid
permit revisions. These conditions would be established
during permit issuance or permit revision procedures for the
more environmentally significant changes.
To illustrate the type of flexibility that is available
using a part 70 created cap incorporating advance NSR, the
Agency refers readers to a draft permit providing a plant-
wide emission limit for a semiconductor facility. A copy of
this permit is available in the docket for this rulemaking.
This permit, when final, will include terms that allow the
source to undertake process changes without a permit
revision by combining an emissions cap on HAPs that renders
the source a synthetic minor and an emissions cap on
criteria pollutants with an advance NSR provision
authorizing certain types of changes involving VOCs and
specific exemptions for insignificant activities and
emissions. Under this draft permit, the source's routine
changes will not trigger a part 70 permit revision
obligation so long as: (1) each change complies with
applicable RACT and SIP requirements; (2) each change
triggers no newly applicable requirement; and (3) total
emissions do not exceed an aggregate emission limit for
VOCs. This permit also incorporates additional conditions
for pollution prevention planning, reporting, and training
to assure compliance with the emissions cap. The final
permit will also contain monitoring and other conditions
sufficient to demonstrate compliance with the VOC emission
limit.
While this permit is not yet final, EPA considers the
basic approach used in this permit as acceptable and
appropriate under part 70 and anticipates that it will serve
as a useful model which offers operational flexibility in an
environmentally protective framework. When a final decision
is made on the specific permit, it will be placed in the
docket for today's rulemaking.
The EPA encourages the use of the approach employed in
the draft permit by permitting authorities seeking to
minimize administrative burdens and maximize the flexibility
of regulated facilities, particularly those which make
frequent process changes that have a relatively small impact
on emissions. The EPA does note, however, that the terms
and conditions needed to meet minor NSR in advance may well
vary from State to State. In particular, States with case-
by-case control requirements approved as part of their minor
NSR programs may require more specific conditions to allow
sources to qualify for advance NSR. The EPA solicits
comment on the acceptability and effectiveness of this
approach.
Concerns have also been raised regarding the vast
quantity of trivial changes that can occur each year at
certain sources, including those in the electronics sector.
These changes are peripheral to the core processes of a
source and often do not affect emissions. In these cases,
other types of advance NSR conditions are potentially
useful. In particular, the part 70 permit can define in
advance a list of activities which the permitting authority
acknowledges are not physical changes or changes in the
method of operation and therefore do not trigger minor NSR.
Such changes when they subsequently occur would not
precipitate the need for a part 70 permit revision, since
they would not trigger minor NSR. The list of these
activities developed by the Oregon Department of
Environmental Quality which EPA has placed in the docket
serves as an example of what might be defined in individual
permits.
Finally, the Agency would like to clarify that NSR
registration provisions under an EPA-approved minor NSR
program that only require reporting of changes in emissions
levels, provided total emissions stay below certain
prescribed limits, could often be treated in the part 70
permit as a generic requirement which requires any necessary
reporting or notification by the source to the permitting
authority but does not require a revision to the permit.
Alternatively, implementation of such NSR registration rules
would be eligible for permit revision by source notice (see
the previous discussion, Other Changes Not Otherwise
Reviewed by States) where the applicable requirement itself
allows for updating the permit through a notification
procedure. Where neither of these approaches to SIP-
required NSR registration can be implemented (e.g., State
requires individual permit revisions for each transaction),
the Agency solicits comment on the ability to allow
permitting authorities to collect and batch process changes
over a month's time period and conduct one part 70 permit
revision at that time. This option would be available only
for those changes that were defined by the program as being
individually eligible for this treatment and that did not
conflict with the part 70 permit.
G. Title I Modification
The meaning of the section 502(b)(10) limitation,
"modifications under any provision of title I," has been
disputed since the rule's promulgation. In its proposed
rule to revise the criteria for granting State programs
interim approval (59 FR 44572 (August 29, 1994)), EPA
proposed that the phrase "modifications under any provision
of title I" would include not only changes subject to the
major NSR requirements of parts C and D of title I but also
those subject to minor NSR programs established by the
States pursuant to section 110(a)(2)(C), which is also in
title I. Based on that reading, EPA in August 1994 proposed
in part to interpret the title I modification language of
the current rule (which is found in the provisions governing
minor permit modification procedures and off-permit as well
as those implementing section 502(b)(10)) to include minor
as well as major NSR.
In response to the August 1994 proposal, EPA received
many comments from industry and States strongly contending
that the proper interpretation of the title I modification
limitation of the current rule should be read to exclude
minor NSR. These commenters noted that EPA had itself
effectively defined the term to exclude minor NSR in the
preamble to the May 1991 proposed rule (56 FR 21746-47 and
footnote 6). They argued that commenters on the May 1991
proposed rule relied on that definition, that EPA did not
change the definition in promulgating the final rule in July
1992, and therefore that EPA was not free to change its
interpretation without undertaking further rulemaking. Many
comments also pointed out that EPA's August 1994 proposal to
include minor NSR in the scope of title I modifications
would have the effect of greatly reducing, and in some cases
virtually eliminating, the relief that Congress sought to
provide sources under section 502(b)(10) (i.e., to avoid
permit revisions for changes that do not increase allowable
emissions and are not title I modifications).
Most small changes at sources, if they are subject to
any Act requirements, are subject to minor NSR. Conversely,
if they are not subject to minor NSR, they are generally not
subject to any other Act requirements. Since changes that
are not subject to any Act requirement and not otherwise
barred by the permit may be made without revising the
permit, limiting the scope of section 502(b)(10) to changes
that are not subject to either minor or major NSR or section
112(g) would limit the relief provided by that section to a
relatively small number of changes in most States. Only
changes below the threshold for minor NSR set by the State
would be eligible as a section 502(b)(10) change. In States
with extensive minor NSR programs (e.g., those with low
thresholds or those where any increase in emissions is
considered a modification and therefore subject to minor
NSR), virtually no changes would be eligible for section
502(b)(10) treatment. Depending on the State, interpreting
title I modifications to include minor NSR would thus mean
that few if any source changes could be accomplished under
section 502(b)(10), and would thereby frustrate Congress's
intent in enacting section 502(b)(10) to minimize the need
for a permit revision.
Many commenters to the August 1994 proposal suggested
that in using the phrase "a modification under any
provision" of title I Congress was referring to those
modifications which title I itself defines, generally by
means of an emissions level above which specified control
requirements apply. Parts C and D of title I and section
112(g) all specifically define the term "modification" for
purposes of those provisions. By contrast, section
110(a)(2)(C), the basis for State minor NSR programs, does
not define the term "modification." What constitutes a
modification for minor NSR purposes is a matter for each
State to decide in fashioning its minor NSR program, and
under the statute and applicable regulations, States have
broad authority to determine the scope of their minor NSR
programs. Many commenters contended that Congress, by
limiting the scope of section 502(b)(10) to changes that are
not title I modifications, intended to establish size
thresholds for those changes that could be made using the
flexibility afforded by that section and that the intended
size thresholds are those contained in the provisions of
title I itself.
The EPA believes that the term title I modification
should be read in the context of section 502(b)(10) as not
including minor NSR. While the statutory term,
"modifications under any provision of title I," is arguably
broad on its face, giving the term its broadest meaning
would largely (and in the case of some States, almost
entirely) frustrate Congress' clear intent that sources be
afforded flexibility under States' title V programs to make
some changes that do not require a permit revision. As
commenters noted, virtually no changes would be eligible for
section 502(b)(10) treatment in States with extensive minor
NSR programs if EPA adopted the broadest interpretation.
The House Report on the Clean Air Act Amendments of
1990 indicates that the drafters of title V were interested
in establishing minimum criteria for State programs to
afford some measure of national uniformity in title V
permitting. H.R. Report 101-490, 103 Cong., 1st Sess., p
343. Those minimum criteria are spelled out in section
502(b), including in section 502(b)(10). In light of the
legislative history, EPA believes that it would be
inappropriate to define the title I modification limitation
on the flexibility afforded by section 502(b)(10) in a way
that could and does vary widely, depending on the scope of a
State's minor NSR program. The obvious sizing purpose of
the title I modification limitation also strongly suggests
that Congress had in mind the thresholds it established
elsewhere in title I, not the thresholds that States are
free to set in fashioning their minor NSR programs.
To interpret the title I modification limitation to
include minor NSR might also have the counterproductive
effect of creating an incentive for States to scale back the
scope of their minor NSR programs. If title I modification
were interpreted to include minor NSR, States interested in
allowing their sources to take more advantage of the
flexibility offered by section 502(b)(10) might find it
necessary to narrow the scope of their minor NSR programs
(e.g., set higher threshold levels) so that more changes
would escape being classified a title I modification. But
the 1990 Amendments to the Act are Congress' testament that
more, not less, needs to be done to clean up the nation's
air. States with extensive minor NSR programs are generally
those States which face the stiffest challenge in meeting
and maintaining national air quality standards. It would be
counterproductive if States were pressured to cut back their
air pollution control programs for new or modified sources
to take advantage of title V permitting flexibility when
those programs are needed more than ever to achieve clean
air.
As previously noted, the issue of the proper
interpretation of the term title I modification is also
relevant to the scope of the current rule's minor permit
modification provisions. Those provisions allow any change
that meets specified criteria, including not being "a
modification under any provision of title I," to be
incorporated into a title V permit using streamlined
procedures which do not include an opportunity for public
participation. In the case of these provisions, the title I
modification criterion is not derived from the statute but
was promulgated by EPA as a means of sizing changes eligible
for minor permit modification procedures. Here, too, the
phrase used by the Agency to describe the limitation is
broad on its face. However, EPA acknowledges that it
effectively characterized the scope of that term in its
explanation in the May 1991 proposed rulemaking preamble and
that States and sources have relied on that explanation.
The Agency thus believes that the term should be interpreted
in that manner for purposes of the current rule.
Today's notice is a proposal, and EPA thus intends to
codify in regulatory language the interpretation of title I
modification described above at the same time it takes final
action on the other issues it is addressing in this and the
August 29th proposal to revise the part 70 rule. As
indicated above, the Agency believes that the term title I
modification as it appears in section 502(b)(10) and the
current rule should be read to exclude changes subject to
minor NSR. Consequently, EPA intends to promulgate the
regulatory language defining title I modification as
proposed in the August 1994 Federal Register, except that
the definition would not include the reference to section
110(a)(2) of the Act.
H. EPA Issuance of PSD Permits
Under today's proposal, the permitting authority would
be required to revise immediately the part 70 permit upon
issuance of a PSD permit to accomplish the streamlining
intended for changes with prior process. In States that do
not have a PSD program approved into the SIP, however, the
previous discussion regarding the automatic incorporation
into part 70 permits of changes with State review requires
clarification in States without approved PSD programs,
several situations are possible: (1) EPA issues the PSD
permit as the issuing agency, (2) EPA signs the PSD permit
in a PSD program partially delegated to the State, or (3)
the State issues the permit acting as EPA's agent under a
fully delegated, but not SIP-approved, PSD program.
A State with an approved part 70 program should always
be able to enforce a PSD permit that is attached to a
part 70 permit (even if the EPA issues the PSD permit).
Where the PSD permit does not meet the requirements of
part 70, the State may need to create a separate part 70
permit revision (EPA cannot revise the part 70 permit
because it is not the part 70 permitting authority) to
supply the terms necessary to meet the requirements of
70.6(a) and (c). Other applicable requirements (e.g.,
MACT standards) that apply to the source but that are not
included in the PSD permit would need to be included as well
in the part 70 permit revision. Close coordination between
the State and EPA could allow the part 70 permit revision
and the PSD permit to be issued using the same public and
EPA review process, if that is desired. Once the PSD permit
is issued by EPA and the supplemental part 70 revision is
completed by the State, the State would automatically
incorporate both the PSD permit and the part 70 permit
revision into the existing part 70 permit by attaching them
to the existing part 70 permit.
In the case where the State permitting authority must
also issue its own preconstruction approval under minor NSR
(e.g., to cover additional pollutants and/or requirements)
before construction of a PSD source or modification can
proceed, the permitting authority would have to develop any
additional part 70 permit terms to meet part 70 and place
these into the minor NSR permit. Most often, the minor NSR
permit should also contain the provisions of the part 70
revision (previously described). Upon issuance, the State
NSR permit could be automatically incorporated along with
any independent PSD permit into the existing part 70 permit
although the incorporation of these documents does not
necessarily have to occur simultaneously.
The Agency solicits comment on this approach to
accomplishing streamlined permit revisions for incorporation
of PSD permits. In particular, EPA solicits comment on
whether permitting authorities which do not have adequate
authority to issue PSD permits directly should be afforded
additional time to incorporate those permits satisfactorily
into relevant part 70 permits.
I. Rulemaking Under Section 302(j)
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 category is subject to a standard
promulgated under section 111 or 112 of the Act, regardless
of when the standard was established. As discussed in the
August 1994 proposal notice, EPA agrees that it did not
follow the procedural steps necessary under section 302(j)
to expand the scope of source categories in the current part
70 regulations for which fugitives must be counted in making
NSR major source determinations (59 FR 44514). In that
notice, EPA proposed to 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 promulgated as of 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. The EPA no longer believes that revising this
category as was proposed is the appropriate approach.
Rather, EPA believes that this paragraph needs to be revised
to allow for future affirmative actions under section 302(j)
to avoid the need for subsequent revisions to State part 70
programs and to be consistent with the NSR program.
In a notice of proposed rulemaking to revise NSR
regulations implementing parts C and D of title I of the Act
that will be published in the near future, the Agency will
solicit comment on amending the listed source categories for
which fugitive emissions must be counted in determining
whether a source is major. This rulemaking action is being
taken to satisfy the requirements of section 302(j) which
requires that fugitive emissions be included in major source
determinations only ". . . as determined by rule by the
Administrator."
Under EPA's longstanding interpretation, section 302(j)
involves a two-step rulemaking process. The EPA will
propose to list a source category if emissions from that
category have a potential for significant air quality
deterioration, and will make a final listing unless
commenters demonstrate that the social and economic costs of
regulation would be unreasonable in comparison to the
benefits (see e.g., 49 FR 43202, 43208 (1984)). The EPA's
interpretation has been upheld on judicial review (NRDC v.
EPA, 937 F.2d 641, 643 (D.C. Cir. 1991)).
Because EPA will be undertaking the future section
302(j) rulemaking, EPA no longer believes that it would be
appropriate for parts 70 and 71 to definitely refer to the
August 7, 1980 date provided in the August 1994 part 70
proposal and the April 1995 part 71 proposal. Until EPA
promulgates this future section 302(j) rulemaking, EPA
believes that fugitives should not be counted for source
categories subject to section 111 or 112 standards
promulgated after August 7, 1980. Consequently, to
facilitate ongoing consistency with whatever affirmative
section 302(j) determination the Administrator has made at
any point in time, EPA proposes to revise parts 70 and 71 to
require that fugitive emissions be included for source
categories subject to standards promulgated under
sections 111 or 112 for which the Administrator has made an
affirmative determination under section 302(j).
The result of this approach would be that source
categories currently subject to section 111 or 112 standards
promulgated after August 7, 1980 would not have to count
fugitives unless and until EPA completes this section 302(j)
rulemaking to require that fugitives for these source
categories be counted. Moreover, once this section 302(j)
rulemaking has been completed, this approach would result in
fugitive emissions from any source categories listed through
a section 302(j) determination being counted for purposes of
the title V definition of major source as well.
Finally, when new section 111 or 112 standards are
promulgated and contain affirmative section 302(j)
determinations, those determinations would carry over for
purposes of title V. This approach would ultimately avoid
any need to revise parts 70 and 71 every time a new
section 302(j) rulemaking is conducted and would relieve
State and local agencies from having to submit revised
part 70 programs for EPA approval solely because the
Administrator has made an affirmative section 302(j)
determination. The EPA solicits comment on this approach.
In addition, EPA is proposing to delete the language in
paragraph (2)(xxvii) of the major source definition in the
current part 70 regulations, the August 1994 part 70
proposal, and the April 1995 part 71 proposal which reads:
". . . but only with respect to those air pollutants that
have been regulated for that category; . . ." The EPA
believes that this revision is necessary to make the
parts 70 and 71 definitions of major source consistent with
the definitions of major source in parts 51 and 52. While
the corresponding language in the NSR rules would require
that sources in these categories consider fugitive emissions
of all air pollutants in determining whether they are major,
the current part 70 regulations, the August 1994 part 70
proposal, and the April 1995 part 71 proposal would exclude
emissions not directly regulated by the 111 or 112 standard
for that category. This could result in sources being major
for purposes of NSR, but not being major for purposes of
title V. This is inconsistent with the section 501(2)
definition of major source which requires any stationary
source to be considered major under title V if it is a major
source under section 112 or a major stationary source under
section 302 or part D of title I.
Finally, EPA proposes to modify paragraph (2)(viii) of
the major source definition in the current part 70
regulations, the August 1994 part 70 proposal, and the
April 1995 part 71 proposal which reads: "Municipal
incinerators capable of charging more than 250 tons of
refuse per day; . . ." This paragraph needs to be modified
to read: "Municipal incinerators (or combinations thereof)
capable of charging more than 50 tons of refuse per
day; . . ." This correction needs to be made to be
consistent with the NSPS for incinerators promulgated at
60.50 in 1977 and which applies to incinerators with a
charge rate of more than 50 tons per day. This proposed
revision is also consistent with the list of major
stationary sources in section 169(1) of the Act.
The EPA proposes to clarify that, for municipal
incinerators, the capacity threshold for tons of refuse
fired per day is for the combination of all municipal
incinerator units at a source. For example, a municipal
incinerator source which has two incinerator units, each
unit capable of firing 40 tons of refuse per day, has a
total firing capability at the source of 80 tons of refuse
per day, which is more than the 50 tons per day capacity
threshold.
J. Revisions to 51.161
Several States have asked whether the public
participation requirements for minor NSR as codified at
51.160-161 would also meet the title V public
participation requirements set forth in today's proposal.
For the reasons subsequently described, EPA believes that
they would. Today's proposed part 70 permit revision
procedures are intended to meet the requirements of section
502(b)(6) of the Act that such procedures be adequate,
streamlined, and reasonable. The proposal presumes that the
public participation process required for specified types of
minor NSR changes by the regulations governing those changes
is sufficient for title V purposes as well.
Application of public participation procedures to new
and modified sources under minor NSR programs must be
consistent with the statutory and regulatory purposes of
those programs, and EPA believes that tailoring this
application to the environmental significance of new or
modified sources on a categorical or individual basis is
consistent with these purposes. To demonstrate this, the
purposes of minor NSR programs are set forth below, followed
by a discussion of the tailoring issue.
Section 110(a)(2)(C) of the Act requires every SIP to
"include a program for the . . . regulation of the
modification and construction of any stationary source
within the areas covered by the plan as necessary to assure
that national ambient air quality standards are achieved."
The EPA's regulations now codified at 51.160-164 have
since the early 1970s required a NSR program, and one is
included in every SIP. This requirement predates and is
separate from the requirement also set forth in section
110(a)(2)(C) (as well as 165(a)(1) and 172(a)(5)) that
States have "major" NSR permitting programs under part C
(PSD) and part D (nonattainment NSR) of title I.
In their early years, the original NSR programs served
primarily as a means to insure that new source growth would
be consistent with maintenance of the NAAQS. In response to
a lawsuit challenging the adequacy of the original round of
SIP's approved by EPA in 1972, EPA determined that the
original NSR program and other SIP measures were inadequate
to maintain air quality. Consequently, EPA expanded the NSR
regulations in 1973 to require public participation and to
require that States explain the basis for any exemptions
from the program (38 FR 15834, 15836 (1973) (citing NRDC v.
EPA, No. 72-1522 (D.C. Cir.)); 38 FR 6279 (1973)). The 1973
regulations are substantively unchanged today. They do not
on their face distinguish between major and minor sources,
nor did the Clean Air Act prior to 1977.
With the adoption in the 1977 Amendments of parts C and
D applicable to "major" new and modified sources, Congress
created significant economic incentives for sources to take
steps to be classified as minor and therefore avoid these
more stringent major source requirements. Consequently,
after 1977, a principal focus of States' pre-existing (now
referred to as "minor") NSR programs became the use of
limitations on hours of operation and rates of production,
short-term emission limits, and (following the decision in
Alabama Power Co. v. Costle, 636 F.2d 323 (D.C. Cir. 1979))
pollution control equipment that restricted sources'
potential to emit to levels below applicable major source
thresholds. Different terms are used to describe the
various forms that these restrictions can take. Since by
definition a major new or modified source that fails to
undergo NSR under part C or D would threaten the achievement
of air quality goals, a "necessary" purpose of minor NSR
programs that are used as a federally-enforceable mechanism
to avoid major status is that they function in a way that
reasonably assures that synthetic minor sources and netting
transactions will in fact restrict potential to emit to
minor source levels.
Section 51.160(e) requires States in their NSR programs
to identify types and sizes of facilities, buildings,
structures, or installations which will be subject to
preconstruction review, and requires the State to discuss in
its SIP submission the basis for that determination of the
program scope. States may exempt from minor NSR those
changes that are not environmentally significant, consistent
with the de minimis exemption criteria set forth in Alabama
Power. Given their environmental significance, however, EPA
believes that it is unlikely that synthetic minor sources
and netting transactions could qualify as de minimis
changes. Since States may exempt de minimis changes from
minor NSR altogether, it follows that they may provide a
partial or full exemption from the full public process
requirements of 51.160(e), consistent with the
environmental significance of the change.
As previously explained, the statutory purposes of
section 502(b)(6) are met with respect to changes reviewed
by State programs governed by Federal regulations by
compliance with the procedural requirements set forth in
those regulations. For minor NSR, that means compliance
with the regulations at 51.160-161. For the reasons
stated above, EPA believes that the NSR regulations allow
the tailoring of public participation process as envisioned
by today's proposal for less environmentally significant
changes, consistent with de minimis exemption criteria.
Thus, procedural requirements for less environmentally
significant changes can be the same for minor NSR and
part 70 programs, allowing their consolidation. Of course,
tailoring of process under either program must be reasonable
and adequate for the purpose of the program.
To codify these understandings, EPA proposes to revise
51.161 to reserve its current 30-day public notice and
comment requirements for any construction or modification
that is subject to major NSR or section 112(g) and for any
minor NSR action (including establishment of a PAL) that
would allow a part 70 source to net out of major NSR. A new
paragraph (c) consistent with 70.7(e)(2)(vi) is proposed
at 51.161 to clarify that, for other minor NSR
transactions at part 70 sources, the permitting authority
may match the public participation process to the
environmental significance of the changes.
As discussed earlier in this notice, certain minor NSR
actions are more environmentally significant because they
allow a part 70 source to net-out of major NSR controls.
They thus warrant a 30-day prior opportunity for public
comment. Other minor NSR actions create synthetic minor
sources or modifications which also have the effect of
shielding the source or modification from major NSR
controls. Actions creating synthetic minors can be
environmentally significant, and States must consider the
factors discussed earlier in identifying those types of
synthetic minors that present greater risks of potentially
allowing emission increases in excess of major source or
modification thresholds. For these actions, a substantial
opportunity for prior public participation is warranted.
Other types of synthetic minors may be relatively less
significant and a lesser degree of public participation
would be acceptable. The permitting authority may also
designate certain categories of changes, subject to EPA
approval, as de minimis based upon its determination
approved by EPA that meets the test prescribed by the
Alabama power case. For these categories of changes, the
State may forego altogether prior review by the public and
EPA.
Paragraph (d) of 51.161 is proposed to require
availability of the public notice, rather than copies, to be
provided to EPA and affected States. This change is
intended to allow the permitting authority the opportunity
to provide the required information through other avenues
such as computer bulletin boards instead of solely by hard
copy.
A new 51.161(e) would be added to confirm that a
State could, as needed to meet the public participation
requirements for minor NSR changes at part 70 sources,
either revise its NSR or part 70 program to include those
provisions.
In addition, today's proposal would delete an obsolete
grandfathering provision at 51.161(c) applicable in
limited circumstances. It enabled States to adopt a comment
period shorter than would otherwise be required to be
consistent with requirements in State programs for acting on
requests for permission to construct. That provision was
adopted in 1973 to avoid undue disruption to existing State
programs. The EPA is not aware of any State program that
currently falls within the scope of the grandfathering
provision. Beyond that, given the changed purposes of minor
NSR programs since that time and the flexibility under
today's proposal to enable States to match public process
with environmental significance, including the use of public
comment periods less than 30 days where appropriate, EPA
believes it is no longer necessary or appropriate to retain
this grandfathering provision.
Finally, a new 51.160(e) clarifies that all of the
terms used in 51.160 - 164 have the same meaning as
provided elsewhere in subpart I of part 51, or in the Act.
None of the terms in these sections have meanings different
from those used in other sections of the NSR regulations or
in the Act, and it is simpler to clarify this through a
single cross-referencing provision rather than to repeat
those terms here.
K. Incorporation of MACT Standards
The EPA proposed in the August 1994 notice to allow
States to incorporate MACT standards into operating permits
using a 2-step process. The first step provided for
administrative incorporation of certain conditions into the
permit at the time a source submits the initial notification
that it is subject to the MACT standard. These conditions
would outline the steps which the source would take to
demonstrate compliance with the MACT standard. In the case
of newly issued MACT standards, this first step would be in
lieu of the reopening procedures otherwise applicable, which
require full public and EPA review. The second step would
require use of the proposed minor permit revision procedures
to define final compliance parameter limits and unit
applicability decisions, unless the source chose options
such as emissions averaging, in which case significant
permit revision procedures would be required.
Today's proposal would provide an analogous system but
would afford States more discretion in providing adequate
process for the second step of MACT incorporation. The
first step of incorporating the MACT compliance plan could
occur upon the permitting authority's receipt of a notice
from the source that the source is subject to the MACT
standard. The second step of defining source-specific
compliance details would occur through the permit revision
process for changes that do not undergo a State review
program. As described previously, States would have broad
discretion to determine the process for such changes which
do not meet the proposed definition of more environmentally
significant changes. The EPA is proposing not to include
decisions regarding MACT compliance terms in the more
environmentally significant category; States would thus have
flexibility in providing process for these determinations in
conjunction with State review programs, if the State so
desires.
At the same time, as the author of MACT standards, EPA
is in a particularly good position to judge the extent to
which it would be appropriate to provide for public
participation in decisionmaking about particular MACT
compliance terms. The Agency thus expects to provide
guidance to States in this regard, probably in the context
of promulgating the MACT standards themselves. As a general
matter, though, States should provide more public process
for decisions regarding MACT compliance terms that entail
the exercise of substantial discretion or judgment by the
permitting authority or that could have a large impact on
allowable emissions. Emissions averaging customized to the
source, for example, should be subject to a substantial
opportunity for prior public review.
It should be noted that not all MACT standards will
require a two-step process for incorporating them into
part 70 permits. As explained earlier in this notice, for
MACT standards whose application does not vary from source
to source in any significant way, the State may provide for
incorporation without any permitting authority or public
review.
If EPA adopts this proposed approach in the final
part 70 rule, States will be faced with a transition period
during which State rules adopted pursuant to the current EPA
rule require reopening using the same process as required
for issuance of the initial permit. At this same time, the
State would be in the process of developing and submitting
for EPA approval a revision to their part 70 program
responding to the revised EPA rule which would allow for a
more streamlined process. Some States have requested EPA to
allow States to use the more streamlined 2-step process for
incorporating MACT standards during this transition period.
In response, EPA solicits comment on whether permits
could be issued containing standard conditions pertaining to
specific MACT standards in such a way as to avoid the first
step of reopening. Under this approach, a permit issued
prior to promulgation of a MACT standard would contain the
conditions which outline the steps a source must take to
demonstrate compliance (i.e., step one conditions) with the
MACT standard promulgated subsequently. That is, analogous
to the first of the two steps proposed on August 29, 1994
for incorporating MACT standards, the requisite compliance
schedule would be initially established in the permit.
The EPA recognizes that for this approach to work, a
minimum amount of information would need to be known at the
time of permit issuance. Enough information would need to
be known to satisfy the requirements of 70.7(e)(5) of the
August 1994 proposal. Those requirements include a
statement of whether the section 112 requirement is an
applicable requirement, a schedule of compliance, a
requirement to submit reports required under the standard,
and a requirement to apply for a subsequent permit revision
by the deadline for the compliance statement under the MACT
standard. To the extent these permit conditions can be
expressed as standard conditions (e.g., "compliance shall be
achieved no later than 3 years after promulgation of the
section 112 standard"), this approach may eliminate the need
to revise the permit before the second step in the proposed
MACT incorporation process. The EPA solicits comments,
especially from States, as to whether such an approach would
be effective in addressing their transition concerns and how
it could best be implemented. In addition, the Agency
solicits comment on the legal ability for States to issue
such standard conditions before undergoing a rule adoption
and/or delegation process to acquire any necessary
additional legal authority.
L. Clarification for Section 112(r)
On March 13, 1995, EPA published a supplemental
proposal on the requirements of section 112(r) of the Act,
including how these requirements would be implemented in
title V permits. In part, the proposal set forth standard
part 70 permit conditions concerning the development and
implementation of the risk management plan required under
section 112(r)(7). The EPA indicated in the March 13 notice
that permits issued with such conditions would satisfy the
part 70 requirement to "assure compliance" with all
applicable requirements.
During development of that proposal, several States
commented that EPA should propose a narrower definition of
the term "applicable requirement" in part 70. This
suggestion was intended to reduce potential liabilities of
permitting authorities and sources that might result from a
more expansive reading of part 70 to require more with
respect to permit content than that required under proposed
40 CFR part 68 to implement section 112(r).
In considering these comments, EPA recognizes the need
to clarify part 70 to limit the potential for reading in
unintended requirements. The Agency therefore proposes to
add a paragraph (iv) to 70.6(a)(1), which would state:
"(W)ith respect to applicable requirements under section
112(r)(7) of the Act, the inclusion of permit conditions in
accordance with regulations promulgated under section 112(r)
shall satisfy the requirements of paragraph (a)(1) of this
section." This would clarify that permits containing the
standard permit conditions that EPA expects to promulgate
under part 68 would be considered in compliance with the
requirements of 70.6(a)(1), and that no other obligations
on the source or the permitting authority with respect to
requirements of 112(r) are to be implied from this language
of part 70.
The August 1994 proposal responded to various concerns
over the relevance of section 112(r) to the part 70 program
by proposing a change to 70.3(a). That proposal would
have provided that a source would be exempted from the
requirement to obtain a part 70 permit if it would be
classified as major solely on the basis of its emissions of
a section 112(r) pollutant. Based on the public comment and
further analysis of this issue, EPA is today proposing a
revision to the definition of "regulated air pollutant"
contained in 70.2 that deletes being listed pursuant to
section 112(r) as a criterion for conferring the status of
regulated air pollutant. This action should be more
effective in meeting the goals of the proposal, while being
more consistent with the general applicability structure of
title V.
Because of its central role in Act implementation, the
title V program addresses a wide range of air pollutants
regulated by the programs within the Act. For example, in
rewriting section 112, the 1990 Act amendments assign the
title V permit program a key implementation role.
Accordingly, the definition of regulated air pollutant,
which governs some core program functions such as which
pollutant emissions are addressed by the permit application,
is an important one. With these goals in mind, EPA
promulgated a definition of regulated air pollutant that
encompassed all pollutants regulated under section 112,
including substances listed pursuant to section 112(r).
The section 112(r) program governs the prevention of
accidental releases, and had no predecessor in the Act.
Although this program does not expressly apply to the
routine emissions of air pollutants, EPA elected not to
prejudge its relevance to air quality management issues.
Accordingly, EPA promulgated a definition of regulated air
pollutant that included the substances listed pursuant to
section 112(r)(3). It should be noted that
section 112(r)(3), in mandating that EPA develop this list
of substances, specified several compounds for inclusion on
this list. Most of these substances are pollutants that
could be of concern to air quality management programs at
some time and several of them are also classified as HAPs
pursuant to section 112(b).
Since that time, EPA has proceeded with developing the
section 112(r) program requirements, such as the risk
management plan provisions of section 112(r)(7). The EPA
has also promulgated a considerable list of substances
pursuant to section 112(r)(3), including the explosive
substances listed by the Department of Transportation as
Division 1.1 in 49 CFR 172.101. Although this list includes
a wide range of substances, some of which might eventually
be addressed by air pollution control requirements, the list
contains many other substances. Examples of the latter
group include dynamite and nuclear warheads; substances of
obvious interest to the risk management program, but equally
obviously not an aspect of air quality management programs.
The development of the section 112(r) risk management
program confirms that the focus of this program is not the
regulation of "emissions" of "air pollutants" and that its
requirements, although important to public safety, are not
significantly relevant to the broader issues of air quality
management.
Some significant benefits arise from today's action.
Because the section 112(r) pollutants at issue are generally
not subject to air pollution control program requirements,
there is only limited expertise available for evaluating
their emissions from industrial facilities. Several parties
have expressed concern that it would be quite difficult,
technically, for businesses to meet the part 70 requirement
that permit applicants describe their emissions of the
section 112(r) pollutants. As a result of today's proposal,
permit applicants would no longer be required to consider
the broad class of substances listed pursuant to
section 112(r) in preparing their emissions estimations. It
should also be noted that this action is consistent with the
section 112(r)(7)(f) provision that sources not be made
subject to the requirement to apply for a part 70 permit
solely because they are subject to section 112(r).
The following points should be understood in
implementing this provision. First, it must be stressed
that this action would solely address how part 70
requirements are implemented; it would in no way affect
section 112(r) program provisions or the fact that
section 112(r) is an applicable requirement of the Act for
part 70 purposes. Second, because today's action means that
the listing of a substance pursuant to section 112(r) would
no longer have any relevance to the definition of regulated
air pollutant, it should be clear that the inclusion of a
pollutant on the section 112(r) list in no way affects the
status of a pollutant that is classified as a regulated air
pollutant because of its regulation pursuant to other
programs. Finally, today's action does not affect the
approvability or continuing adequacy of State part 70 permit
fee programs.
M. Solicitation of Input
The Agency solicits comment on all aspects of today's
proposal to accomplish permit revisions in a streamlined and
more efficient manner. It is also interested in receiving
comment on the final structure of the regulatory revisions
and how they might be improved and/or how States might
develop substantially equivalent provisions.
III. Part 70 Program Revisions
Title V and the current rule require States and local
agencies to submit operating permit programs for EPA
approval by November 15, 1993. This deadline has not
changed and is not affected by the Agency's proposals to
revise part 70. Most States and local agencies have
submitted programs for approval, and EPA has proposed or
taken final action on many of them. Until EPA promulgates
final part 70 revisions, State program development and EPA
approval will continue to be governed by the current rule.
States that have yet to submit a program or receive program
approval should thus be aware that their programs will be
judged against the current rule until the revised rule is in
place. As EPA explained in the August 1994 proposal, the
Agency intends to provide a transition period following the
promulgation of the part 70 revisions during which States
may choose which rule EPA is to apply in reviewing the State
program, the originally promulgated rule or the rule as
revised.
Once EPA promulgates final part 70 revisions, States
that receive program approval under the originally
promulgated rule will be required to revise their programs
as needed to comply with the revised rule. Under the
current rule, States have at least 180 days from EPA's
promulgation to make conforming changes to their programs or
as much as 2 years if State legislation is needed to
authorize the changes. At the same time, many State
programs are being approved on an interim basis under the
current rule. Title V and the current rule authorize EPA to
grant a State program interim approval if it largely, but
not entirely, meets the requirements for full approval.
Under the statute and rule, however, States receiving
interim approval must revise their programs as needed in
time to gain full approval within 2 years of receiving
interim approval. Consequently, States that receive interim
approval may be faced with having to undertake two rounds of
program revisions, the first to gain full approval and the
second to comply with a revised part 70.
Depending on when it receives interim approval and when
EPA promulgates final part 70 revisions, a State may be able
to revise its program by means of a single rulemaking in the
time frames allowed by the current rule. The Agency is very
concerned, however, that the timing of these events for many
and even most States will not be so fortuitous, consigning
States to multiple rounds of rulemaking. More generally,
EPA wants to minimize the potential disruption to State
programs that rule revisions cause. The Agency is thus
proposing to provide more time for States to submit program
revisions. The Agency is also interested in extending the
time period under which States may operate programs that
have received interim approval to enable all States to
revise their part 70 programs once instead of twice.
As noted above, the current rule calls for State
program revisions in response to EPA rule revisions within
specified time frames that vary according to whether State
legislation is required. The Agency then has up to 1 year
to approve States' submissions. The August 1994 notice
proposed to revise 70.4(i) of the current rule to specify
that States would have 12 months to revise their programs if
regulatory changes were needed. It further proposed to
allow the Administrator to vary the time period provided for
State program revisions as the Administrator deemed
appropriate (proposed 70.4(i)(1)(iv)).
The Agency is today proposing to exercise its
discretion under proposed 70.4(i)(1)(iv) to provide States
2 years to submit program revisions in response to the
proposed part 70 revisions, regardless of whether State
regulatory or legislative changes are required. The Agency
believes this would be an appropriate exercise of its
discretion in light of the fact that these part 70 revisions
will be promulgated in the beginning years of most State
part 70 programs. In these early years, the demands on
States will be particularly heavy. The statute and
regulations require States to complete the task of issuing
permits to all sources subject to the program within 3 years
of program approval. At the same time, States will have to
address the many implementation issues that invariably arise
when a new program is inaugurated. In light of the
challenges States already face, EPA believes it is only fair
and appropriate to provide them with 2 full years to submit
program revisions.
The Agency further recognizes the possibility that some
States may find it difficult to make all of the changes
required by the part 70 revisions within the 2-year time
period. In particular, today's proposal calls for States to
rely on State preconstruction permitting programs to provide
public review and certain permit content provisions for
purposes of part 70. To the extent that these State review
programs require supplementation to account for title V
process and permit content requirements, EPA would allow
States to revise either their part 70 regulations or the
regulations governing their underlying programs. The Agency
is aware, however, that supplementing the process of
existing State programs may pose additional implementation
issues. To minimize any disruption of underlying State
programs EPA is proposing to amend the current rule at
70.4(d)(3)(iv) to allow the Agency to grant interim
approval to State program submittals even if they do not
meet the public participation requirements of the revised
rule with respect to changes processed pursuant to State
review programs.
States receiving interim approval would have an
additional 2 years to make the changes needed to gain full
EPA approval of their programs. In total, States would have
up to 5 years from promulgation of the final part 70
revisions to put in place any additional procedures in
conjunction with State review programs as needed to gain
full approval of their part 70 programs (i.e., 2 years to
submit program revisions sufficient to gain interim
approval, 1 year for EPA to grant interim approval, and 2
years to gain full approval).
As previously noted, many States will have received
interim approval of their part 70 programs under the current
rule by the time these revisions are promulgated. The EPA
is concerned about the potentially adverse effects of the
part 70 revisions on these States, particularly those which
submitted their part 70 programs by, or close to, the
statutory submittal date (November 15, 1993) and therefore
received the earliest interim approvals for their programs.
Under the current rule, States granted interim approval for
their programs must submit program revisions necessary to
receive full approval at least 6 months prior to expiration
of the interim approval. Under section 502(g), an interim
approval can be granted for a period not to exceed 2 years
and cannot be extended.
States which received the earliest interim approval may
have less than 1 year after promulgation of the final
part 70 revisions to develop and submit combined program
revisions addressing both the deficiencies which caused
interim approval as well as EPA's revisions to part 70.
Many States have indicated that it would be extremely
burdensome to undertake multiple program revisions,
especially where legislative action would be necessary.
Moreover, States might well be compelled to do multiple
corrections for the same area of deficiency, once to correct
the problem for which they received interim approval under
the current part 70 and again to correct it in accordance
with the revisions to part 70. This would be a seemingly
pointless diversion of resources which are otherwise
critically needed to issue permits under the approved
program in such States. In addition, it would be confusing
to permitting authorities, sources, and others involved in
the implementation of the part 70 program to deal with
"moving targets."
One approach for providing relief would be to require
States to correct program deficiencies identified in the
interim approval under the current part 70 only in those
areas which are not proposed to be revised. That is, EPA
would not require program revisions in areas of deficiency
affected by the part 70 revisions, but would require them on
the timeframe provided to respond to the part 70 revisions.
This would provide relief by reducing the scope of the
corrective actions needed by the State in response to EPA's
interim approval actions. The relief, however, would be
only partial to the extent that there are significant
program deficiencies that are not affected by the part 70
revisions.
Instead, EPA believes that States with early interim
approvals should be allowed more time to submit program
correction revisions needed to receive full approval,
regardless of what program provisions were determined to be
deficient in the interim approval notice. That is, these
States should be allowed to delay the submittal of any
program revisions to address program deficiencies previously
listed in their notice of interim approval until the
deadline to submit other changes required by the proposed
revisions to part 70. To accommodate this extension of the
period to submit program revisions to address interim
approval deficiencies, the duration of the interim approval
granted to these States should be extended as necessary.
The Agency believes that such a policy is necessary to
avoid penalizing those States which submitted their part 70
program on a more timely basis, while rewarding States with
late submittals who would have considerably more time to
synchronize their future program revisions. In light of the
inequities which would result, the Agency believes that
providing such a transition period is appropriate. The
Agency solicits comment on the appropriate legal basis for
granting such relief.
IV. Proposal for the Federal Operating Permits Program
A. Overview
In today's notice, EPA proposes a new system for
part 71 for revising permits which is modeled after the
system proposed today for part 70 permit revisions. This
action is intended to supplement the April 27, 1995 proposal
on part 71 regulations in this regard. Although proposed
regulations to implement the new system have not been
developed, EPA proposes to promulgate regulations to
finalize the part 71 rulemaking that are consistent with the
concepts and procedures discussed in today's proposal. The
Agency believes that the subsequent discussion in today's
preamble describes the new system with sufficient detail to
allow the public to understand and offer informed comments
on the proposal.
To the extent possible, EPA intends to model part 71
permit revision procedures after those proposed for part 70
to ensure that sources are not faced with substantially
different programs when EPA, as opposed to a State, is the
permitting authority. Since most part 71 programs are
likely to be of limited duration, consistency with part 70
will enable smooth transition between Federal and State
programs, encourage States to take delegation of
administration of part 71 programs, help States that have
not obtained part 70 approval to phase into the title V
program, promote uniformity in public and affected State
participation, and provide greater certainty and consistency
for sources.
Following proposed part 70, today's part 71 proposal
would establish two basic categories of changes for permit
revision purposes. The first category would include all
changes that are subject to State review programs
established pursuant to the Act which review the change for
title V purposes as well. Qualifying changes would be
automatically incorporated into a title V permit (i.e., a
part 70 or part 71 permit, as applicable) under a part 71
program upon completion of that review. The second category
would include all other changes that are not subject to
State review programs, and today's proposal describes a
part 71 permit review process for these changes.
B. Changes Subject to State Review Programs
Applicability. As in the case of the part 70 program,
today's proposal notice for revising part 71 permits builds
on existing State review programs to provide for automatic
incorporation into part 71 permits for all changes subject
to the State review program which are also evaluated for
title V purposes in this review. There are two criteria for
a change to qualify. The first is that the State permitting
authority must have reviewed the change and provided an
adequate opportunity for public participation and affected
State and EPA review commensurate with the environmental
significance of the change (see footnote number 1). For the
more environmentally significant changes as defined under
proposed part 70 (i.e., major NSR, 112(g), and net-outs) a
30-day prior public comment period and a 45-day opportunity
for EPA review and objection must be required in the State
review process for it to qualify. If a State review program
did not provide a 30-day public review period or an adequate
EPA review opportunity for these changes, EPA (or the
delegate agency) would provide them as needed in a part 71
process as the part 71 permitting authority before issuing
the part 71 permit.
Under part 70, EPA would give a State discretion, for
the less environmentally significant changes, to match the
amount of public review to the environmental significance of
the change. Under today's proposal for part 71, EPA would
accept the amount and timing of public process under the
State's current NSR program, at least during the first 5
years following the effective date of a part 71 program in a
State. The EPA expects no part 71 programs for States to
last for more than this time duration. This approach is
consistent with EPA's approach for reviewing minor NSR
programs set forth in today's part 70 proposal. Under
part 70, a State would be given interim approval even if its
program did not meet the public participation requirements
of the proposed part 70 for changes subject to State review
programs (see section III of today's preamble).
The second criterion for inclusion in the first
category requires that the change subject to the State
review process would need to address the permit content
requirements of proposed 71.6. The EPA believes that many
of these requirements could be included in the original
title V permit as boilerplate or standard conditions, and
would not require much additional effort to address part 71
permit content requirements for subsequent permit revisions.
For example, the existing title V permit would already
contain requirements regarding permit fees, periodic
reporting, annual certification, and inspection and entry.
If the existing title V permit ensures that these
boilerplate conditions apply to the requirements attached to
the permit (e.g., the revised NSR permit or 112(g)
determination), it would not be necessary to revisit these
requirements when the title V permit is revised.
Consistent with these criteria, the first category of
changes would include changes that are subject to major or
minor NSR or regulations implementing section 112(g) and
changes that entail a source-specific revision of the SIP.
The Agency is also proposing that certain changes
subject to a State review program could qualify even though
they do not receive prior permitting authority review and
approval. Under some State minor NSR programs, for examle,
not all changes subject to minor NSR requirements get case-
by-case State review and approval. Instead, some types of
changes are subject to general rules, and the source may
make such a change without prior State approval so long as
it complies with the applicable requirements (i.e., the
general rules). These changes would still be included in
the first category.
As set forth under proposed 70.7(e)(2)(viii), EPA is
proposing that such requirements, when triggered by a change
that is subject to specified requirements, but is not
required to receive affirmative State approval under the
State's review program, be included in the first category
(i.e., changes subject to a State review program) for
part 71 purposes and get the benefit of an automatic
incorporation process (see Section II. C. of this preamble).
Eligible requirements would be those that do not conflict
with the existing title V permit, do not require
interpretation as to applicability, and do not require
creation of source-specific permit terms or conditions.
These would include general rules or general permits. The
justification for automatic incorporation of these types of
requirements is the same as under part 70 (i.e., their
application is so straightforward that little is to be
gained from additional process).
Any change which was subject to a State review process
which was inadequate from a title V standpoint must be
processed as a minor or significant permit revision (see
discussion below), depending on the environmental
significance of the change. More environmentally
significant changes require the significant permit revision
process while less environmentally significant changes could
be processed as minor permit revisions. The Agency,
however, is concerned that parts of the prior State review
process in some circumstances might unnecessarily be
repeated under such an approach and solicits comment on how
the part 71 permit revision process might be authorized to
add only the elements missing from the State review process,
rather than repeat all the elements of the prior State
review process.
Automatic Incorporation Process. All changes that are
subject to a qualifying State review program (except for
those qualifying under a general rule approach), the part 71
permitting authority (either EPA or the delegate agency)
would automatically incorporate the change into the title V
permit immediately on completion of the State review
process. The source could operate the change upon
completion of the State review process and the automatic
incorporation. As proposed today for part 70, EPA would
similarly waive for part 71 purposes its objection
opportunity for less environmentally significant changes
subject to State review programs for at least 5 years.
To accomplish the permit revision, the permitting
authority would not generate a new permit but would attach
the document from the State review process, such as the
revised NSR permit or the 112(g) MACT determination, to the
existing title V permit. This process could be used
provided all of the applicable requirements triggered by the
change were addressed in the document attached to the
permit.
For part 71, the permitting authority would use the
same procedure for incorporating the results of the State
review process into the title V permit as States would use
under today's proposal for part 70. Since a new title V
permit would not be issued under this process, the
permitting authority would prepare an errata sheet
identifying which terms of the title V permit were being
replaced by which terms of the State permit or which terms
were being removed as no longer relevant.
Where the change involved adding new applicable
requirements to the title V permit, but did not require
changing existing terms or conditions of the permit, the
permit revision would be accomplished by attaching to a
source's title V permit a copy of the State preconstruction
permit or section 112(g) determination or the documentation
containing the new requirement and permit terms that reflect
the change.
Process for Incorporating Changes Subject to General
Rules. As in the case of proposed part 70, for changes
regulated by a State review program through a general rule,
the source would submit a notice describing the change and
the applicable requirements that attach as a result of the
change. As part of the notice, the source would have to
certify that it could operate the change without violating
any existing permit terms and supply any additional permit
terms required by title V (i.e., periodic reporting
requirements). The title V permit would be revised and the
source could operate the change upon submitting the notice.
C. Changes Not Subject To State Review Programs
Under today's proposal, the second basic category of
changes for permit revision purposes includes all changes
not subject to adequate State review programs.
Notice-and-Go. Part 71 would follow part 70 in
proposing that changes that render a source subject to a
newly applicable requirement but that are not subject to a
State review program could be incorporated into the title V
permit by means of a notice submitted by the permittee,
provided that the change would not conflict with existing
permit terms and no source-specific determination would need
to be made in applying the requirement to the source. The
justification for automatic incorporation of such revisions
is the same as for part 70. The new applicable requirements
to which these changes are subject should not require any
interpretation regarding the applicability of the new
requirements, or any case-by-case determination of source-
specific permit terms or conditions. When EPA implements a
part 71 program in a State, it will work with the State to
determine which requirements for which changes can qualify
for the notice-and-go procedure. For each such State, EPA
will publish an informational notice that communicates to
the regulated community and the general public the outcome
of the EPA/State discussions. During implementation of the
part 71 program, as States would do for part 70, EPA would
provide quarterly notification to the public of such permit
revisions and would provide a file accessible to the public
containing information about the revisions.
In light of the general eligibility criteria described
above, the EPA expects that many types of changes could be
eligible for incorporation into the title V permit by means
of a notice. Applicability of most NSPS and national
emission standards for hazardous air pollutants (NESHAP)
requirements, such as the application of a numerical
emission limit to a boiler, would be straightforward and
thus would be eligible. Many straightforward SIP
requirements, such as source category-specific RACT
requirements, would be eligible. Generically applicable
requirements (e.g., those that apply identically to all
units at a source such as opacity limits), would also be
eligible for incorporation via this process, although a
permit revision may not be necessary at all to apply such a
requirement if such requirements are already addressed in
the source's permit and apply prospectively to all future
changes that would be subject to the requirement. The EPA
may also determine that certain MACT standards are eligible
for this process if they do not require the establishment of
source-specific requirements (e.g., emissions averaging or
setting of compliance parameters). Incorporation of MACT
compliance schedules would also be eligible.
Finally, as provided in part 70, part 71 would provide
that the source may operate the change upon mailing a
notice, provided that the change can be operated in
compliance with the existing title V permit. In the notice,
the source would describe the change, describe any new
permit terms needed to assure compliance with all applicable
requirements and relevant part 71 requirements, and certify
that the change is eligible for this process. The title V
permit would be revised upon mailing of the notice to EPA.
Similarly, EPA would adopt provisions like that in
proposed 70.7(f)(2)(v)(A)(1)-(5) and (B). Thus, part 71
would provide that the source may operate certain
administrative changes upon mailing a notice, provided that
the change can be operated in compliance with the existing
title V permit. These changes described in proposed
70.7(f)(2)(v)(A)(1)-(5) include correcting typographical
errors, allowing for certain changes in ownership or
operational control of a source, and making minor
administrative changes. The proposed procedures of
70.7(f)(2)(v)(B) would also be used in part 71 allowing
either the permitting authority or the source to revise the
title V permit by issuing a notice.
Significant Permit Revisions. Changes not subject to
State review programs and that are more environmentally
significant as defined under 70.7(f)(1) of today's part 70
proposal would be processed as significant permit revisions.
The significant permit revision process would also be used
if a more environmentally significant change subject to a
State review program was not eligible for automatic
incorporation (i.e., the change had not previously been
subject to an adequate opportunity for public comment and a
public hearing, affected State review, and EPA review or the
part 71 permit content requirements had not been adequately
addressed by a State review program).
The significant permit revision process would utilize
the same procedures as required for initial permit issuance,
i.e., an opportunity for public comment and a public
hearing, review by affected States, and review by EPA (for
delegated programs). Under part 71, a majority of these
significant permit revisions would be completed within 6
months. The EPA expects that if the change had undergone a
State review process that provided adequate input from the
public, affected States, and EPA with respect to
preconstruction requirements, but the preconstruction permit
failed to appropriately address part 71 content
requirements, then the permitting authority could in several
instances process the part 71 permit revision in a much
shorter timeframe than 6 months.
Part 71 Process for Other Less Environmentally
Significant Changes. The EPA is not today proposing any
specific part 71 permit revision process for less
environmentally significant changes (as defined in today's
proposed part 70) which do not qualify for notice-and-go
treatment. The types of changes which represent this group
are defined in proposed 70.7(f)(1)(ii). With the possible
exception of intra-monitoring approach changes, EPA does not
expect the number of changes from this group to be
significant, particularly in light of frequent options to
combine such changes (see following discussion). The
Agency, however, does solicit comment on the need to provide
for a more expeditious permit revision procedure than the
significant permit revision process to address less
environmentally significant changes which do not qualify for
notice-and-go or automatic incorporation. Where commenters
do believe such a need exists, EPA solicits their
suggestions for designing any appropriate change to the
proposed permit revision system for part 71.
D. Combination Changes
"Combination changes" under part 71 would be handled
the same way as EPA proposes to handle them for part 70 (see
proposed 70.7(f)(3)). The general rule would be that a
combination change can be processed using the process for
automatic incorporation of changes subject to State review
programs, provided the change receives any necessary public,
affected State, and EPA review in the State review process
and address all part 71 permit content requirements. For
example, where an emissions increase is subject to minor
NSR, but the source also wants to incorporate a PAL into the
title V permit, the change could be automatically
incorporated into the title V permit after undergoing review
under the State's minor NSR program, provided the State
review process meets the procedural requirements applicable
to the establishment of a PAL (i.e., a 30-day opportunity
for prior public, affected State, and EPA review). This
review may be provided on a permit-by-permit basis. In
addition, where a State takes delegation of a part 71
program, it could process minor NSR changes and section
112(g) or (j) actions as combination changes. The Agency
believes this is appropriate because upon delegation of a
part 71 program, delegate States should also be able to
receive delegation to implement sections 112(g) and (j),
provided they have adequate authority under State law to do
so.
E. Opportunity for EPA to Object and Permit Shield
The opportunity for EPA review of proposed title V
permit revisions and the corresponding availability of the
permit shield will vary with the part 71 permit revision
procedure employed and will partially depend on whether EPA
or the State is the part 71 permitting authority. In
general, the permit shield may be granted by the part 71
permitting authority if the permit revision is approved
pursuant to a process which affords an adequate opportunity
for public and affected State review and for EPA to object
to the issuance of the permit revision. The scope of EPA's
review where provided would be the same as under today's
proposal for part 70, i.e., such review would extend to
whether the appropriate procedures were followed with
respect to the State review process determination or
delegate agency permitting decision (including requirements
for public participation opportunities), whether the
decision is properly supported, and whether the terms of the
permit are enforceable and consistent with all applicable
requirements.
Delegated Programs. For changes not subject to an
adequate State review program which must be processed as
either significant or minor permit revisions, EPA proposes
to continue the requirement in 71.10 of the April 27, 1995
notice that EPA be given a 45-day opportunity to object
before issuance of the part 71 permit revision. Since both
the proposed significant permit revision and the minor
permit revision procedures contain adequate public
participation and EPA review requirements, EPA believes that
the part 71 permitting authority may in such cases grant a
permit shield to apply to the changes. On the other hand,
changes which qualify for a "notice and go" process would
not contain review procedures sufficient to warrant the
availability of the permit shield prior to permit renewal,
at which point adequate public and EPA review opportunities
would be provided for such changes.
More environmentally significant changes which are
subject to a State review program which reviews these
changes for title V purposes as well could be awarded the
permit shield upon their automatic incorporation into the
title V permit. As previously mentioned, EPA and the public
must have been provided their review opportunity to review
the adequacy of the change (including adequacy for title V
purposes) in the State review process. For less
environmentally significant changes subject to a State
review program, EPA would depart from its April 27, 1995
proposal and follow today's proposed revisions for part 70
by not including an EPA review and objection opportunity for
at least the first 5 years of the part 71 program for a
particular State. Consequently, no permit shield would be
available for the automatic incorporation of these changes.
However, the part 71 permitting authority could at the
source's request process the change as a minor permit
revision, thus subjecting the change to public and EPA
review, in order to establish a shield.
Non-Delegated Programs. For all changes not subject to
a State review program and therefore processed by EPA under
the minor or significant permit revision procedures, the
Agency would have the option of granting the permit shield.
Again, changes subject to a notice and go process with its
abbreviated review procedures would not afford EPA the
opportunity to grant a permit shield.
For changes subject to an adequate State review program
which also reviews the changes for title V purposes, the
preceding discussion regarding the availability of the
permit shield under delegated part 71 programs would also
apply (i.e., the permit shield is available for more
environmentally significant changes). Where granted, EPA
would incorporate the permit shield upon the automatic
incorporation of the State review document addressing the
approved change.
The EPA solicits comment on whether the revision
processes outlined above are adequate and generally
compatible with proposed part 70 and existing State permit
revision procedures.
F. Other Part 71 Changes
For purposes of the part 71 program, EPA proposes to
follow the approach of today's proposal for part 70 with
respect to the definition of major source. For example,
part 71 would take the same approach as part 70 with respect
to non-major R&D activities at major sources (see discussion
in Section V. A. of this preamble). The EPA believes that
it is important to use a consistent definition of "major
source" to assure that R&D facilities are not faced with
substantially different applicability requirements when EPA
is the permitting authority. The EPA also proposes for
part 71 that the definition of "major source" would require
that fugitive emissions be included in determining major
source applicability consistent with the definition proposed
today for part 70.
Also for purposes of part 71, EPA proposes to provide
an emergency defense for exceedances of technology-based
limits established in title V permits as described in
Section V. B. of this preamble, but does not intend to
expand the concept of emergency defense to include start-up,
shut-down, and preventive maintenance conditions. The EPA
solicits comment on the proper scope of the affirmative
defense provided by part 71. Also, EPA solicits comment on
whether part 71 should authorize permitting authorities to
grant a source temporary authorization to make a change
without revising the permit, as needed to protect public
health or welfare in emergencies, and whether part 71 should
adopt the same approach as part 70 adopts regarding the
scope, terms, and procedural safeguards for such
authorization. Finally, EPA proposes to adopt for the
part 71 program the standard certification language that is
proposed for part 70 (discussed in Section V. C. of this
preamble) to be used by responsible officials. The Agency
believes that the same standard for preparing certifications
should apply to the part 70 and part 71 programs.
With respect to the treatment of section 112(r)
pollutants, part 71 would follow today's proposal for
part 70. Accordingly, the definition of "regulated air
pollutant" would be revised to delete the reference to
section 112(r). Further, EPA would add a paragraph
analogous to proposed 70.6(a)(1)(iv) to clarify that
part 71 permits containing the standard permit conditions
that EPA expects to promulgate under part 68 would be
considered in compliance with the requirement that permits
contain terms that assure compliance with all applicable
requirements. In addition, consistent with EPA's current
interpretation of title I modification, (discussed at length
in Section II. H. of this preamble), EPA intends to
promulgate the definition of title I modification as
proposed in the April 27, 1995 Federal Register except that
the definition would not include the reference to section
110(a)(2) of the Act. This would result in changes that are
processed through State minor NSR programs being excluded
from the definition.
Also, EPA proposes that part 71 follow today's proposal
for part 70 with respect to EPA's interpretation of section
502(b)(10) of the Act, as discussed in Section II. G. of
this preamble. Thus, all permitting authorities, including
EPA under part 71 programs, would be subject to the same
requirement to issue permits containing emissions caps under
which sources could trade certain emissions increases and
decreases without seeking permit revisions, consistent with
applicable requirements. Therefore, EPA proposes to
incorporate the changes proposed today to 70.4(b)(12)(i)
into the corresponding section of part 71 on operational
flexibility, proposed 71.6(p)(1). The EPA further
proposes to adopt definitions for part 71 that are
consistent with the definitions contained in proposed 70.2
with respect to the following terms: advance NSR,
alternative scenarios, emissions cap permit, plantwide
applicability limit, and State review program.
In addition, EPA today proposes three changes to EPA's
prior proposal relating to permit fees under the part 71
program. First, EPA proposes that delegation agreements be
required to include a condition that the delegate agency
have sufficient resources to administer the part 71 program.
Initially, EPA believed that it would be required to provide
funds to delegate agencies to enable them to carry out the
responsibilities outlined in the delegation agreements.
This remains the case in many States, and for those States,
the delegation agreement would acknowledge that EPA would
impose fees on permitted sources sufficient to cover program
costs. However, EPA has become aware that there are several
States that have authority under existing State law to
charge permit fees that EPA believes may be sufficient to
fund a part 71 program. In the context of delegating
part 71 administration to any specific State, EPA intends to
assess the adequacy of the State's existing fee authority to
determine whether it is sufficient to cover costs of running
a part 71 program. If the delegate agency has adequate fee
revenue from sources subject to title V to fund a fully-
delegated part 71 program, EPA would grant delegation and
would thereafter incur no program costs. However, EPA's
decision to delegate and its assessment of the State's fee
authority would in no way constitute EPA approval of the
State's fee structure for purposes of part 70, or in any way
prejudge EPA's evaluation of a State's submitted part 70
program. To provide sources in such States with relief from
part 71 fee requirements, EPA proposes to revise
71.9(c)(2) to provide that when EPA has fully delegated a
part 71 program to a State that had adequate fee authority
to receive delegation and EPA incurs no program costs to
administer the program, sources would not be subject to the
fee requirements of part 71. In situations where sources
are already paying fees to the delegate agency that are
adequate to fund the part 71 program, EPA believes that it
would be inequitable to require sources to pay fees to EPA
as well.
When a State seeks delegation of only a portion of the
part 71 program, sources would not be relieved from the
part 71 fee requirements because EPA would incur some costs
in administering the portion of the program that was not
delegated. In such a case, EPA would determine whether the
fee structures provided in proposed 71.9(c)(1)-(4) would
reflect the costs of administering the part 71 program. If
not, EPA would need to set appropriate fees through a
separate rulemaking, as per proposed 71.9(c)(7).
Second, the EPA proposes to eliminate the $3 per ton
surcharge for delegated and contractor administered programs
from the fee formula in proposed 71.9(c)(3) because EPA
believes that for purposes of title V permit fees, the cost
of EPA's oversight of State-administered programs should be
treated the same regardless of whether the program has been
delegated under part 71 or approved under part 70. The
EPA's oversight costs of State part 70 programs are not
covered by State permit fees and are not passed along to
industry. The part 71 rule as proposed today would treat
EPA oversight costs in delegated part 71 and approved
part 70 programs consistently. For similar reasons, the
cost of preparing guidance for the part 71 program would be
deleted from the list of activities that comprise "program
costs" in proposed 71.9(b).
Third, EPA proposes to reduce the per ton fee amount in
proposed 71.9(c)(1) and 71.9(c)(3) from $45 to $38, to
reflect EPA's lower program costs resulting from the
streamlined permit revision procedures proposed today. The
data supporting the lower estimate of program costs are
contained in a document entitled "Supplement to the Federal
Operating Permits Program Fees and Cost Analysis" which is
contained in the docket for this rulemaking.
The EPA solicits comments on whether the approach taken
in the fee provisions proposed today is appropriate and
would result in adequate revenue being generated to offset
program costs, and whether, in general, the fee provisions
of proposed part 71 could be structured in a manner that
more closely reflects the true costs of administering the
part 71 program.
V. Other Changes and Clarifications
A. Rationale for Proposed Exemption for Non-major R&D
Activities
The Agency is today clarifying the reasoning behind its
July 21, 1992 preamble discussion regarding R&D activities,
and is proposing changes to the definition of "major source"
in part 70 that better reflect this intent. As explained
below, States have flexibility under part 70 regarding
whether to consider R&D operations as part of the source
with which it is sited for purposes of determining whether a
major source is present.
The part 70 major source definition requires
aggregation of "all of the pollutant-emitting activities
which belong to the same industrial grouping, are located on
one or more contiguous or adjacent properties, and are under
the control of the same person (or persons under common
control)." Following NSR/PSD precedent, EPA chose the major
(2-digit) Standard Industrial Classification (SIC) code
categories established by the U.S. Department of Commerce to
delineate an "industrial grouping."
In response to comments requesting exemption of R&D
activities from title V, EPA stated in the preamble to the
final part 70 rule that, "in many cases States will have the
flexibility to treat an R&D facility . . . as though it were
a separate source, and [the R&D facility] would then be
required to have a title V permit only if the R&D facility
itself would be a major source" (57 FR 32264 and 32269,
July 21, 1992). Read consistently with the "major source"
definition in the rule, however, this statement could be
read as meaning that separate source treatment would occur
only in situations where the R&D portion of a source has its
own two-digit SIC code and is not a support facility.
In light of the uncertain meaning of the July 21, 1992
preamble statement, industry representatives have continued
to express concerns over the permitting of R&D operations.
The EPA recognizes that R&D operations typically entail the
use of small quantities of chemicals manipulated and
released in a highly variable manner, and that these
attributes are present at R&D operations to a degree that
distinguishes them from other source categories. The EPA
further recognizes that, because of these unique
combinations of attributes, bringing collocated non-major
R&D facilities into part 70 permitting could potentially
lead to difficult exercises in emissions estimating and
tracking and impose additional monitoring and recordkeeping
requirements (where the R&D operation is subject to an Act
requirement).
In response to these continuing concerns, EPA is today
offering a more detailed explanation of the SIC code
approach as it affects R&D operations. In addition, EPA is
proposing revisions to the part 70 major source definition
to resolve any ambiguities that may derive from the SIC code
manual, and to ensure that the same result obtains for
purposes of section 112 if the changes to the major source
definition proposed on August 29, 1994 are carried to
finality. The EPA recognizes that parallel rule revisions
would be required for part 63 (the section 112 General
Provisions) and parts 51 and 52 (NSR and PSD). These other
rules would be revised through a separate rulemaking action.
At the time of the July 1992 promulgation, EPA believed
that R&D was not specifically addressed by the SIC code
manual in any way. It would have followed that the question
of whether and how R&D should be considered part of a source
would be answered in light of the rules traditionally
applied to determine the extent to which activities at a
site are functionally integrated.
In general, to be considered a functional part of an
industrial activity, a facility must contribute to that
activity in a material, rather than merely conceptual,
manner. The EPA believes that operations as proposed for
definition in 70.2 do not contribute to the product or
service rendered at an industrial site in any relevant
sense. By definition, the product of an R&D operation is
information potentially useful to create a new industrial
process or to improve the process ongoing at the facility,
but not to directly support the process in which the
industrial activity is currently engaged or capable of
engaging in any significant commercial fashion. It follows
that R&D would not be considered part of the industrial
activity with which it is located, despite its location, and
must therefore be treated as if it were a separate source
belonging to a separate 2-digit SIC code.
Under the Agency's support facility test, even where
neighboring, commonly controlled sources have different 2-
digit SIC codes, they should be aggregated to determine
whether a major source is present if the output of one is
more than 50 per cent devoted to support of another.
However, EPA believes that R&D operations should not
generally be considered support facilities, since the
"support" provided is directed towards development of new
processes or products and not to current production.
The limits of this interpretation should be self-
evident. To the extent an activity bears some resemblance
to R&D but in fact contributes to the ongoing product
produced or service rendered at a facility in a more than de
minimis manner, those activities should be considered part
of the source. Pilot plants often present instances of
activities that are conducted on a trial basis, but which
are nevertheless dedicated to producing a product for
commerce to a more than de minimis extent, and so would not
be considered R&D. The EPA has spoken directly to the types
of processes that qualify as R&D in the context of certain
section 112 MACT standards. These descriptive statements
address the question of whether R&D should be included in
particular MACT source categories, rather than major source
applicability, and so are not relevant to the principles
discussed in this notice.
Since the July 1992 promulgation, EPA has learned that
the SIC code manual itself presents an obstacle to this
interpretation, because it provides that R&D should
generally be grouped with the four-digit code activity with
which it is most closely associated. Because this contrasts
with EPA's understanding at the time of promulgation of
part 70, EPA believes it appropriate to continue to
implement the current rule to allow for separate
consideration of R&D as described above. At the same time,
EPA is today proposing to revise the major source definition
to clarify that R&D should be treated as having its own
industrial grouping for purposes of the title I and section
302(j) elements of the major source definition.
A parallel rule revision is also being proposed for the
section 112 element. This is because the August 1994
proposal would change the part 70 definition to conform to
the section 112 General Provisions, which do not use the SIC
code approach to source aggregation. Today's notice
proposes to establish a narrow exception for R&D facilities.
Because the major source definitions used under title V must
be consistent with other Act programs, EPA plans to follow
this revision to part 70 with conforming revisions to the
major source definition in the section 112 General
Provisions and other section 112 rules. In addition, a new
definition for "research and development activities" is
proposed for 70.2.
The EPA's authority for this part 70 revision is the
same as that which supported its adoption of the 2-digit SIC
code limitation in parts C and D of title I and thus in
title V. As EPA stated in its 1980 promulgation of PSD
regulations, the 2-digit SIC code grouping embodies a common
sense notion of a "plant" that is appropriate for the PSD
program (45 FR 52694 (August 7, 1980)). For title I and
section 302(j) purposes, the establishment of a separate
industrial grouping for R&D simply represents a further
refinement to that common sense approach.
The EPA chose not to adopt the SIC code approach in the
section 112 context because it concluded that a definition
that encompassed the entire contiguous commonly owned
facility would be more consistent with the overall intent of
section 112. However, the statutory language of section
112(a)(1), which refers to "any stationary source or group
of stationary sources" (emphasis added), leaves EPA
discretion to separate out discrete groups of stationary
sources that are located together only for administrative
convenience, rather than because they contribute to other
activities at the site. That this same language appears in
the various nonattainment "major source" definitions added
by the 1990 Act Amendments, where EPA's historical practice
has been to allow disaggregation by major industrial
grouping, further supports this interpretation. The EPA now
believes that a disaggregation of R&D operations makes sense
in the context of section 112, as well as title I and thus
in title V, because (1) they are operations which by
definition could stand alone, but which are located with
other sources primarily for administrative convenience, and
(2) the inherent changeability of these operations.
The reasonableness of this separate treatment is
further supported by section 112(c)(7), which states that,
for section 112 purposes, "the Administrator shall establish
a separate category covering research or laboratory
facilities, as necessary to assure the equitable treatment
of such facilities." Although this provision addresses
source categorization for promulgation of standards rather
than applicability, it clearly evidences a concern that R&D
operations not be grouped with other types of operations in
a way that overlooks the particular challenges associated
with their regulation.
The EPA wishes to emphasize that R&D operations present
a unique case under section 112. As noted above, EPA, after
studying the matter, has concluded that R&D is unique in
terms of the variability and unpredictability of processes.
Also, as previously discussed, R&D operations are inherently
divorced from the primary activity at a facility. While
other types of activities may or may not support the primary
activity depending upon the configuration at a particular
site, R&D activities categorically do not (except, as the
definition would provide, in a de minimis manner).
Today's notice does not define the term "de minimis" as
used in the definition of R&D. The EPA solicits comment on
whether it should attempt to further define de minimis in
the final rule, and if so, what criteria would be
appropriate. For instance, de minimis might be defined in
absolute terms, in terms of the amount of the R&D product
that is offered to the industrial activity relative to the
total product from the R&D operation, or in terms of the
amount of support from the R&D operation relative to the
magnitude of that activity.
The EPA also solicits comment on whether the special
treatment afforded by this proposal should be extended to
laboratory activities that are not R&D. The proposal would
exclude such laboratory activities. The reasoning is that
other laboratory activities fall outside of the rationale
supporting special treatment, since they are likely to be
more predictable in their operations and to be functionally
integrated with on-site industrial activities. The Agency
solicits comment on whether there are other categories of
laboratory activities for which this is typically not the
case.
As noted above, several States interpreted the July
1992 preamble discussion of R&D activities as authorizing
the creation of a separate applicability category for R&D,
apart from the 2-digit SIC code approach. Most of these
provisions have been identified as grounds for interim
approval. The EPA notes that while these programs aim for a
similar result, they are not uniform in their specifics.
For instance, definitions of R&D may differ from EPA's
definition or may be absent altogether. For this reason,
EPA is not today commenting on whether the clarification in
today's notice merits a change in the approval status of any
of these programs, but instead plans to address this on a
case-by-case basis.
Notwithstanding the preceding approach which provides
for separate treatment of the majority of R&D activities,
two issues remain related to when such R&D activities would
independently be considered to be major under part 70.
Specifically, one issue concerns the effect of a facility
that supports the R&D activity on the status of the R&D
activity and the other issue concerns how the PTE for R&D
activities is to be determined.
Industry has expressed concern about a stand-alone R&D
activity (i.e., not located with a manufacturing facility)
which is supported by another activity (e.g., a boiler)
which on its own may exceed major source thresholds. This
issue is not addressed by placing the R&D activity in a
separate SIC category, which would only cause the R&D
activity to be treated separately. The boiler would be
considered part of the stand-alone R&D activity if it was
functionally integrated with the R&D activity. The R&D
activity together with the boiler would then be considered
major. Industry has recommended that boilers and other
support facilities not be considered part of an R&D
activity.
The EPA recognizes that disparate treatment may result
if an R&D activity at a major manufacturing facility would
be considered separate and non-major, while another R&D
activity of the same size standing alone would be considered
a major source only because of its support facilities. The
Agency, therefore, believes an R&D activity should be
considered separate from major support facilities just as it
would be separate from a major manufacturing source, and
solicits comment on whether it should provide an exemption
from major source determination rules in the case of
facilities that support R&D activities. The EPA, however,
recognizes the potential for this approach to apply in many
other circumstances with a possible erosion of the concept
of a source as the sum of functionally integrated parts, a
result the Agency does not support. The Agency therefore
suggests commenters provide rationale as to how the approach
can be limited to R&D activities.
As noted, a source must calculate PTE from an R&D
operation to determine whether it is major. In light of the
previously mentioned difficulty of performing emission
calculations, and the data gathered by EPA to date
(discussed in footnote 6 above), which indicates that even
large R&D facilities tend to have very low actual emissions,
EPA considers it of little benefit to require R&D facilities
to go through extensive efforts in calculating PTE.
Permitting authorities will bear primary responsibility for
determining the PTE of individual R&D facilities, and EPA
intends to generally defer to these judgments. Given the
small likelihood that any R&D operation will be major, EPA
believes permitting authorities should accept methods of
calculating PTE from R&D operations that are not unduly
burdensome on the source.
Some have claimed that deriving a numerical PTE
calculation from an R&D activity is simply not possible,
because experiments are typically performed only once or a
few times, meaning that past emissions are at best a poor
indicator of the future. The EPA is unsure whether this
renders PTE calculations strictly impossible, but
acknowledges a high degree of difficulty. The EPA believes
R&D may present a case suitable for a de minimis exception
from the statutory requirement to calculate PTE, because
emissions are so low as to yield a gain of trivial or no
value compared to the difficulty associated with their
measurement. Comment is solicited on whether such an
exception would be appropriate, and more generally on the
availability of cost-effective means of calculating PTE from
R&D activities.
B. Emergency Defense
Section 70.6(g) sets forth the terms of an emergency
defense that States may include in part 70 permits at their
discretion. It is available for violations of technology-
based emission limits that are unavoidably caused by "any
situation arising from sudden and reasonably unforeseeable
events beyond the control of the source, including acts of
God. . ."
In the preamble to the final rule, EPA explained that
it modeled the part 70 defense after the NPDES permit upset
provision at 40 CFR 122.41. The NPDES provision was
promulgated in response to several cases under the Clean
Water Act (CWA) that held that EPA must provide an upset
defense for technology-based effluent limits to take account
of the fact that even properly operated technology can
unexpectedly fail (Marathon Oil v. EPA, 564 F.2d 1253 (9th
Cir. 1977)). The Agency extended the reasoning of these
cases to technology-based air pollution control standards in
promulgating an emergency defense in part 70. At the same
time, EPA noted that other courts had ruled that EPA was not
required to provide such a defense but could instead rely on
the exercise of enforcement discretion to address violations
caused by emergencies.
The part 70 emergency defense was challenged by State
and local government, environmental group, and industry
petitioners in CAIP v. EPA. The governmental and
environmental petitioners were concerned that the rule
required States to provide the defense, despite the
existence of potentially different State defenses. They
also questioned EPA's legal authority to promulgate an
across-the-board defense for violations of limits that may
have been set in a manner that took into account the
possibility of emergencies or upsets. Industry, on the
other hand, objected to the narrowness of the defense and
urged that the defense be made available for violations that
may occur as a result of plant start-up, shut-down,
malfunction, or preventative maintenance. Some industry
petitioners also urged EPA to make the defense available to
violations of limits based in whole or in part on health
protection.
At the outset, EPA wants to make clear that the part 70
rule does not require that States adopt the emergency
defense. A State may include such a defense in its part 70
program to the extent it finds appropriate, although it may
not adopt an emergency defense less stringent than that set
forth at section 70.6(g). As noted above, the part 70
defense is modeled on the NPDES upset provision, which
States may omit if they desire to establish a more stringent
water pollution control program than federal law requires
(40 CFR 123.25(a)(12); Sierra Club v. Union Oil Co. of
California, 813 F.2d 1480, 1484 (9th Cir. 1987)). Like the
CWA, the Act in sections 116 and 506(a) authorizes States to
establish additional or more stringent air pollution control
or permitting requirements. Consistent with that, States
may decide to provide an emergency defense that is narrower
in scope or more stringent in application than 70.6(g) or
no defense at all. Consistent with 70.11(b), States may
also provide for any affirmative defense that would be
available in an enforcement action brought pursuant to
section 113 of the Act.
The Agency has reviewed the legal basis for the
70.6(g) defense. As noted above, the relevant CWA case
law is split. While Marathon Oil and several other courts
have required EPA to provide an upset defense, either
through a permit program or in the underlying substantive
requirement, to address the fallibility of technology, other
courts have not out of concern that such a defense was
inconsistent with Congress' intent that technology-based
effluent limits force technological development and that
enforcement of such limits be "swift and direct" (Corn
Refiners Ass'n, Inc. v. Costle, 594 F.2d 1223, 1226 (8th
Cir. 1979), Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1057
(D.C. Cir. 1978)). Other courts have ruled that no upset
provision is required or appropriate where EPA took the
fallibility of technology into account in setting the
technology-based standard for which an upset defense was
sought (CPC Int'l, Inc. v. Train, 540 F.2d 1329, 1336-38
(8th Cir. 1976), American Petroleum Inst. v. EPA, 540 F.2d
1023, 1035-36 (10th Cir. 1976)). These cases counsel
caution in the application of a uniform emergency defense to
standards which were previously established under several
different Act provisions. To determine the extent to which
the part 70 defense may be appropriately applied, it is
necessary to examine the basis and terms of the different
Act technology-based standards to which it would apply.
New source performance standards are established by EPA
under section 111 of the Act based on the best system of
emission reduction, considering costs and other relevant
factors, that has been adequately demonstrated. The
regulations that generally govern the implementation of NSPS
provide that exceedances of NSPS during periods of start-up,
shut-down, and malfunction are not violations of the
applicable limit unless otherwise specified in the
applicable standard ( 60.8(c)). In other words, sources
are not obligated to meet NSPS when starting up, shutting
down, or experiencing malfunctions except to the extent EPA
has required otherwise in setting a particular NSPS. There
is thus no need for an affirmative defense for exceedances
that occur under those circumstances. The NSPS general
provisions do not address the availability of a defense for
violations caused by emergencies, as defined in part 70, and
the Agency has relied on enforcement discretion to address
such situations.
National emission standards for hazardous air
pollutants were established by EPA under section 112 of the
Act prior to the 1990 Act amendments. Section 112 prior to
the 1990 amendments required EPA to set NESHAP at the level
which provides an ample margin of safety to protect the
public health from the HAP being regulated. In promulgating
NESHAP, EPA did not provide for affirmative defenses, since
the standards were formulated largely without regard to the
limits of technology. The Agency did not extend the part 70
emergency defense to NESHAP for the same reason.
The 1990 amendments to the Act changed the basis for
setting standards for HAPs. Section 112 now requires the
Agency to promulgate standards for more than 180 HAPs based
on the maximum achievable control technology, taking into
account costs and other relevant factors. The Agency has
promulgated general provisions governing implementation of
the so-called MACT standards, and those provisions, like the
NSPS general provisions, do not require sources to comply
with MACT standards when starting up or shutting down or
when malfunctions occur (40 CFR 63.6(f)). Like NSPS, there
is thus no need for a defense for exceedances that occur
under those circumstances. Again like the NSPS regulations,
the MACT general provisions do not address the availability
of a defense for violations of MACT standards that occur as
a result of an emergency.
States also establish technology-based limits pursuant
to their SIP's, including those set pursuant to major and
minor NSR programs. Many States' SIP's provide an
affirmative defense for violations of SIP technology-based
limits. The EPA has approved these where consistent with
its 1983 SIP policy. The terms of these defenses vary
somewhat with the State, but they are generally available
for violations that occur as a result of malfunctions, and,
for certain types of limits, for start-up and shut-down as
well. In any event, States may be presumed to set
technology-based limits with any approved SIP defenses in
mind.
The foregoing description of the Act's major
technology-based standards raises several questions about
the appropriateness and terms of any part 70 defense.
First, since at least most of these standards provide either
an exemption from compliance or an affirmative defense for
exceedances caused by start-up, shut-down, and malfunction
conditions, a part 70 defense covering these conditions
would be largely redundant. Second, to the extent that some
NSPS or MACT standards do not provide relief for these
conditions, it is because EPA has made a decision not to
provide it (in the case of health-based standards) or, in
case of many technology-based limits, because EPA has taken
account of the failures of technology in setting the
numerical emissions limit. Similarly, to the extent a
technology-based limit established by a State does not
provide an affirmative defense for start-up, shut-down, or
malfunctions, it may be because the State judged that such a
defense was unnecessary or unwise. Under these
circumstances, it would appear inappropriate for the Agency
to allow a generic emergency defense because it could have
the effect of decreasing the stringency of the previously
established standard or undercutting a technology-forcing or
enforcement strategy undertaken by the Agency or a State in
establishing the standard.
As EPA has previously explained, the primary purpose of
title V is to create for each covered source a permit that
documents in one place all the Act requirements that apply
to the source. Title V itself does not authorize changes to
requirements established pursuant to other Act provisions.
Section 504 requires that permits contain provisions as
needed to assure the enforceability of the limits codified
in the permit, but that does not authorize changes in the
stringency of those limits. In keeping with the
codification purpose of title V, EPA believes that its
authority under title V to provide for affirmative defenses
for violations of permit terms is limited. Where the
rulemaking establishing a limit addresses the need for and
terms of any affirmative defense, there is no basis for
providing additional or different defenses under title V.
While the foregoing description of technology-based
standards indicates there is little or no basis for
providing a start-up, shut-down, preventative maintenance,
or malfunction defense, the question still remains whether
part 70 can and should provide an emergency defense. As
noted above, the NSPS and MACT general provisions and
apparently most SIP's do not provide an emergency defense
per se. It is not entirely clear why that is the case.
Most likely, prosecutorial discretion was considered an
adequate and even preferable mechanism for addressing
violations caused by emergencies. Several CWA cases also
suggest that upset or emergency defenses could be
unnecessary where standards were set taking into account the
possibility of emergencies and could have the effect of
slowing the development of technology or making enforcement
slower and less sure.
The EPA is reluctant to retain a generally applicable
emergency defense without completing further review of the
appropriateness of such a defense for the different Federal
technology-based standards in light of the concerns with
such a defense raised in the CWA cases. A review of the
bases for setting these standards is necessary to ensure
that the standards do not already take into account the
possibility of emergencies. Beyond that, EPA wants to
further consider the consequences of such a defense on the
different types of federal technology-based standards for
technology-forcing and enforcement.
For similar reasons, EPA also is concerned about
establishing a generic emergency defense that would apply to
State-established limits. The appropriateness of providing
a defense is best judged by a State in light of its
standard-setting methodologies and environmental and
enforcement goals. As currently provided in 70.6(g)(5),
the emergency defense is in addition to any defense provided
for in an applicable requirement. This includes any defense
appropriately provided for in a technology-based SIP limit.
Beyond that, an EPA decision not to retain an emergency
defense in part 70 would not preclude a State from adopting
a defense in its SIP for technology-based SIP limits
consistent with its standard-setting methodologies. The
SIP-based defense could then be referenced in the State's
part 70 permits as appropriate.
The EPA has not reached a firm conclusion on whether to
limit the availability of the emergency defense to part 70-
only provisions. The Agency solicits comment on whether
such a limitation is appropriate in light of EPA's goal of
providing States flexibility in implementing their part 70
programs. The EPA's final decision on this issue will be
based on the record developed through this proposal.
It may nevertheless be appropriate for EPA to provide
relief under title V authority for exceedances of
technology-based limits uniquely established in part 70
permits. Part 70 permitting will be the forum for
establishing limits pursuant to section 112(j) and
112(i)(5); alternative limits pursuant to 70.6(a)(1)(iii),
including any substitute section 112 standards set under a
program approved by EPA under section 112(l); and limits to
a source's potential to emit for purposes of avoiding
otherwise applicable Act requirements. Of these, at least
section 112(j) limits will, and alternative limits under
70.6.(a)(l)(iii) and section 112(l) programs may, be
technology-based. The EPA believes that in setting
technology-based limits as part of title V permitting,
States should have discretion to afford sources relief from
exceedances that may occur as a result of start up, shut
down, and malfunctions as appropriate in view of the state's
standard-setting methodology.
The EPA is considering using the start-up, shut-down,
malfunction provisions of the MACT general provisions as the
model for a part 70 counterpart. As noted earlier, the MACT
(and NSPS) general provisions provide that those standards
need not be met during periods of start-up, shut-down, and
malfunction, as opposed to providing a defense to violations
of the standards under those conditions. While EPA does not
believe an outright exemption such as this would be
appropriate in part 70, the Agency solicits comment on
whether part 70 should authorize States to provide an
affirmative defense for compliance with part 70-only
technology-based limits under start-up, shut-down, and
malfunction conditions. The EPA believes it appropriate to
condition the availability of such relief on the submittal
of and adherence to a plan like that required in
63.6(e)(3), establishing a protocol for the source during
those periods.
The Agency also believes that States should have
discretion to provide an emergency defense for violations of
part 70-only technology-based limits similar to that set
forth in the current rule. Suggestions have been made that
the Agency adopt a definition of emergency identical to that
of "upset" under the NPDES regulations ( 122.41(n)). The
Agency notes that the current rule's definition of emergency
was drafted to avoid any implication that emergencies could
include start-up, shut-down, and preventative maintenance
conditions. Since EPA is considering addressing those
conditions with an exemption from compliance as described
above, it is inclined to retain the current rule's
definition of "emergency." The Agency solicits comment on
the advantages and disadvantages of a uniform definition of
upset or emergency across the water and air permitting
programs.
Several States have also raised the question of whether
part 70 should authorize permitting authorities to grant a
source temporary authorization to make a change without
revising permits as needed to protect public health or
welfare in emergencies, such as natural disasters. The
South Coast [California] Air Quality Management District
(SCAQMD) has pointed out that local governments operating
essential public services have had to respond to emergencies
such as earthquakes, fires, and civil disturbances in ways
that applicable permit terms might not have allowed. The
State of New York has similarly noted instances when sources
have needed to make changes on short notice to respond to
emergencies such as severe winter storms. Both
jurisdictions have available as a matter of State law a
mechanism for granting sources temporary authorizations to
make changes without revising the source's permit under
specified circumstances and in accordance with prescribed
procedures. See SCAQMD's breakdown rule (Rule 430) and
State law provisions regarding variances (Health & Saf. Code
42350-42364, particularly 42352), and New York's
regulations at Title 6 Section 621.12.
The Agency solicits comment on the need for a part 70
provision authorizing States to provide the kind of
emergency authorizations described above. States could rely
on the exercise of enforcement discretion to avoid
penalizing sources for permit violations incurred as a
result of State-sanctioned actions taken to safeguard the
public from serious harm in times of emergencies. However,
under title V and part 70, citizens may bring enforcement
actions for violations of permit terms. While it would seem
doubtful that anyone would seek to prosecute a violation
caused by a source's actions to respond to a public health
crisis, States and sources may well prefer that sources be
relieved from the risk of liability under such
circumstances.
The Agency also solicits comment on the proper scope
and terms of any such authorization provision. The SCAQMD
has limited its concerns to essential public services
operated by local governments, while New York's regulations
authorize changes at sources regardless of whether they are
publicly or privately owned. For New York the only
essential criterion is whether the change is needed to
respond to an emergency, which its regulations define as "an
event which presents an immediate threat to life, health,
property, or natural resources." New York's regulations
also limit the duration of such authorizations to at most
two 30-day terms.
Procedural safeguards are important to the exercise of
any such authority. New York's regulations require prior
notification of a change by the source requesting emergency
authorization unless prior notification is not possible.
The regulations also require that the State permitting
authority, prior to issuing an emergency authority, make a
finding of an emergency, stating why immediate action is
needed and the consequences if the action is not immediately
taken. The permitting authority must also determine that
the change is being made in a manner that will cause the
least change, modification, or adverse impact to life,
health, property, or natural resources. The permitting
authority is authorized to attach such conditions to the
authorization as it deems appropriate. If the permitting
authority finds that the change is no longer immediately
necessary to protect life, health, property, or natural
resources, it may issue an order requiring the source to
immediately cease the action it has taken pursuant to the
emergency authorization.
New York's regulations provide one potential model for
a part 70 provision authorizing States to provide emergency
authorizations. The extent of New York's procedural
safeguards, however, may well be linked to the relatively
broad scope of its emergency authorization, which, as noted
earlier, extends to private as well as public sources and
broadly defines emergency. More narrowly tailored emergency
provisions would presumably require fewer procedural
safeguards. The Agency requests that commenters addressing
the proper scope of an emergency authorization also consider
what procedural safeguards would be appropriate in light of
the suggested scope. The Agency believes that providing
after-the-fact public notification of changes made pursuant
to an emergency authorization provision would be
appropriate.
C. Certification Language
Section 70.5(d) of the current rule requires that any
part 70 application form, report, or compliance
certification contain a certification by a responsible
official of the truth, accuracy, and completeness of the
submission. It further requires that any certification
required under part 70 state that, "based on information and
belief formed after reasonable inquiry, the statements and
information in the document are true, accurate, and
complete." The text of 70.5(d) was adopted unchanged from
the proposal. In the preamble to the proposed rule, EPA
explained that the required statement regarding the truth,
accuracy, and completeness of the submission was modeled
after Rule 11 of the Federal Rules of Civil Procedure.
Rule 11 provides that by presenting pleadings, motions, or
other documents to Federal courts, a lawyer "is certifying
that to the best of the person's knowledge, information, and
belief, formed after an inquiry reasonable under the
circumstances" that the documents are not presented for an
improper purpose (e.g., to harass or cause delay); the
claims made are warranted by existing law or by a non-
frivolous argument for the extension, modification, or
reversal of established law or the establishment of new law;
and that allegations or factual contentions have or are
likely to have reasonable evidentiary support.
Among the issues raised by several State and local
governments in their petitions for review of part 70 was the
appropriateness of the certification language adopted by
EPA. The governmental petitioners were concerned that EPA
was requiring certification language different from that
required by the National Pollutant Discharge Elimination
System (NPDES) under the CWA. The NPDES regulations at
122.22(d) require the following certification language:
I certify under penalty of law that this document and
all attachments were prepared under my direction or
supervision in accordance with a system designed to
assure that qualified personnel properly gather and
evaluate the information submitted. Based on my
inquiry of the person or persons who manage the system,
or those persons directly responsible for gathering the
information, the information submitted is, to the best
of my knowledge and belief, true, accurate, and
complete. I am aware that there are significant
penalties for submitting false information, including
the possibility of fine and imprisonment for knowing
violations.
In light of the NPDES certification language, State and
local government petitioners read the part 70 certification
language as potentially establishing a less rigorous
standard for the inquiries on which certifications were to
be based, and they believed their reading was confirmed by
EPA's reference to Rule 11 as the model for the part 70
language. Beyond that, they noted that the meaning of the
NPDES language had been well established over the years of
its use, and were concerned that the meaning of the
different part 70 language would not be clear until it had
been decided by the courts. The State and local petitioners
therefore suggested that EPA revise its part 70
certification to be identical to the NPDES certification
language.
The Agency agrees that Rule 11 is not an appropriate
analog to the certification requirements of a permitting
program. Rule 11 effectively requires lawyers to make a
reasonable inquiry into the relevant facts and law so they
may assess whether the claims or arguments they raise in
court have a reasonable chance of success. Since courts'
interpretation of the law can evolve as a result of a
compelling factual case or argument, Rule 11 accords lawyers
wide latitude in bringing cases. By contrast, an inquiry
into the truth, accuracy, and completeness of a factual
submission should typically be a more straightforward
exercise. The official signing the certification is being
asked to take reasonable steps to ensure that what he or she
signs is true, accurate, and complete, not whether it
provides a sufficient basis for a court to decide a question
of law in the official's favor. The Agency thus no longer
believes that the part 70 certification language should be
modeled on Rule 11.
In place of the current rule's certification language,
EPA proposes to require the certification language found in
the acid rain rule promulgated under title IV of the Act at
40 CFR 72.21(b)(2) and in the proposed enhanced monitoring
rule at 58 FR 54689, col. 1 (proposed 64.5(c)). Those
provisions provide in relevant part:
The responsible official shall certify, by his or her
signature, the following statement: "I certify under
penalty of law that I above personally examined, and am
familiar with, the statements and information submitted
in this document and all of its attachments. Based on
my inquiry of those individuals with primary
responsibility for obtaining the information, I certify
that the statements and information are to the best of
my knowledge and belief true, accurate, and complete.
I am aware that there are significant penalties for
submitting false statements and information or omitting
required statement and information, including the
possibility of fine or imprisonment."
This language is modeled on the NPDES language quoted
above, but does not expressly require that there be a system
designed to assure that qualified personnel properly gather
and evaluate the submitted information. The Agency believes
it is not necessary to include that express requirement,
since EPA expects that certifying officials will establish
such systems where needed to assure the adequacy and
reasonableness of their inquiry.
In addition, there is an economy in requiring use of
the same certification language in the three Act programs.
As the State and local petitioners pointed out, differences
in language imply differences in meaning. The Agency has no
reason to think that a different standard for preparing
certifications should apply to the part 70 program than
applies in the acid rain program. It thus proposes to adopt
for the part 70 program the language now found in the acid
rain rule.
D. Provisions Related to Tribal Programs
On August 25, 1994 (59 FR 43956), EPA proposed
regulations specifying those provisions of the Act for which
it is appropriate to treat Indian Tribes as States. Therein
(59 FR 43971-72) EPA described expectations for Tribal
programs in implementing various aspects of the part 70
program and how they might differ from those expected for
State part 70 programs. Today's proposal contains part 70
rule changes needed to conform part 70 to the August 25
proposal.
The reader should refer to the August 25, 1994 proposal
for a more detailed description of the part 70 regulatory
revisions proposed today to address Tribal programs
(59 FR 43966-68, 43970-72, 43980-82). The EPA has received
many comments on the August 25, 1994 proposed rules and EPA
may make changes to the proposal that in turn necessitate
conforming changes to the part 70 revisions proposed today.
In today's action, EPA solicits comment on the limited issue
of whether EPA has accurately proposed to implement the
changes to part 70 previously described in the August 25,
1994 proposal. Comments addressing whether and how EPA
should allow Indian Tribes to administer part 70 programs
are outside the scope of today's action and should have been
submitted in response to EPA's August 25, 1994 proposal.
VI. Administrative Requirements
A. Public Hearing
No public hearing will be held to discuss this
supplemental proposal unless a hearing is requested in
writing and sufficient reason for a hearing is included in
the written request. The EPA has already engaged all
interested groups in extensive public discussions on these
topics and hopes to expedite the issuance of final
regulatory revisions. If a public hearing is held, it will
take place on the last day of the comment period. Persons
wishing to attend a hearing, if held, should call (919) 541-
5281 to determine if a hearing will be held and to obtain
the time and location. Persons wishing to request a public
hearing must submit a written request to EPA during the
first 15 days of the comment period at the address given in
the ADDRESSES section of this preamble.
B. Docket
The docket for this regulatory action pertaining to
part 71 is A-93-50. For actions pertaining to part 71, the
docket is A-93-51. 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 dockets for today's notice are
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, or the
principles set forth in E.O. 12866.
Pursuant to the terms of Executive Order 12866, OMB and
EPA consider this and other actions related to part 70 and
part 71 permit revisions a "significant regulatory action"
within the meaning of the Executive Order. The EPA has
submitted this supplemental rulemaking proposal 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 for
part 70 changes and Docket A-93-51 for part 71 actions.
To facilitate OMB review of the August 1994 proposed
rulemaking, EPA prepared an analysis showing the marginal
impacts of the proposed revisions to part 70. That analysis
would also bound the costs associated with the supplemental
proposal contained herein. As stated in the August 1994
notice, the Agency is also in the process of updating the
current ICR for part 70 which will be a comprehensive
analysis of the final revised part 70. A draft of that
revised ICR is in docket A-93-50. As noted under the DATES
section of this notice, there is a 60-day comment period for
the draft ICR.
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 which would result from today's
action will be less than both the current RIA and the
estimate provided for the August 1994 proposal. The
estimates of the savings beyond the costs projected for the
August 1994 proposal and the current rule are provided in
the unfunded mandates section (Section V. F.) of this
preamble. The final estimate would ultimately depend in
part on how States would use the additional flexibility
provided to them in today's proposal. However, considerable
savings will occur as the State merges its preconstruction
review program to also meet part 70 requirements. This will
allow subsequent permit revisions needed to incorporate such
changes to occur administratively instead of through the
more costly de minimis, minor, or even significant permit
revision tracks described in the August 1994 proposal.
Analogous processes will be used under a part 71 program.
Savings will depend on its duration and how the Agency will
work with States to implement any Federal permit program
that is required.
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 the August 1994 proposal
and of today's supplemental proposal for both part 70 and
part 71 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 and part 71 will not have a significant
and disproportionate impact on small entities. The EPA,
however, solicits any information or data which might affect
these proposed certifications. The EPA will reexamine this
issue and perform any subsequent analysis deemed necessary.
Any subsequent analysis will be available in the respective
dockets for part 70 and part 71 and will be taken into
account before promulgation.
E. Paperwork Reduction Act
The 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. S.W., Washington D.C. 20460, (202) 260-2740.
The screening analysis for the revisions to part 70
indicates a need to revise the current burden estimate and,
in addition, the current ICR is due to be updated since it
was only for a period of 3 years after promulgation of
part 70. However, EPA is preparing an ICR for the entire
part 70 rule to reflect part 70 at the time the proposed
revisions to part 70 are promulgated. This ICR will
supersede or replace the update of the original part 70 ICR
upon promulgation of the revisions to part 70. The draft
ICR for the proposed part 71 rule will be amended as
necessary upon promulgation of the part 71 rule. The draft
ICR for the revised part 70 is in docket A-93-50 and subject
to a 60-day comment period.
Send comments regarding the burden estimate in the
draft ICR or any other aspect of this collection of
information, including suggestions for reducing this burden
by [60 DAYS AFTER PUBLICATION] to: Chief, Information
Policy Branch (2136), U.S. Environmental Protection Agency,
401 M Street, S.W., Washington, D.C. 20460; and to the
Office of Information and Regulatory Affairs, Office of
Management and Budget, Washington, D.C. 20503, marked
"Attention: Desk Officer for EPA." The final rule
revisions will respond to any OMB or public comments on the
information collection requirements contained in this
proposal.
F. Unfunded Mandates
Section 202 of the Unfunded Mandates Reform Act of 1995
("Unfunded Mandates Act") (signed into law on March 22,
1995) requires that the Agency prepare a budgetary impact
statement before promulgating a rule that includes a Federal
mandate that may result in expenditure by State, local, and
tribal governments, in the aggregate, or by the private
sector, of $100 million or more in any one year.
Section 203 of the Unfunded Mandates Act provides that
if any small governments may be significantly or uniquely
impacted by the rule, the agency must establish a plan for
obtaining input from and informing, educating, and advising
any such potentially affected small governments.
Under section 205 of the Unfunded Mandates Act, the
Agency must identify and consider a reasonable number of
regulatory alternatives before promulgating a rule for which
a budgetary impact statement must be prepared. The Agency
must select from those alternatives the least costly, most
cost-effective, or least burdensome alternative for State,
local, and tribal governments and the private sector, that
achieves the objectives of the rule, unless the Agency
explains why this alternative is not selected or unless the
selection of this alternative is inconsistent with law.
The costs of implementing the system for revising
operating permits in today's proposal were estimated to
determine the burden on permitting authorities and industry
of complying with the requirements. Since the regulatory
revisions to part 70 would replace requirements now in
place, however, the actual impact of promulgating today's
proposed revisions should be viewed in terms of the
difference in costs of implementing the current part 70 vs.
the proposed requirements.
Costs were estimated in terms of the administrative
burden on permitting authorities, EPA, and permitted
sources. Administrative cost includes a range of costs
which cover the source's preparing an application through
EPA's and the permitting authority's effort to complete the
process. The administrative costs of implementing today's
proposed revisions to part 70 are estimated to be
approximately $33 million per year. In comparison, EPA
estimates the administrative costs associated with
implementing the current part 70 permit revision system to
be approximately $118 million per year in administrative
burden. The actual impact of implementing the proposed
permit revision system in today's notice, therefore,
represents a reduction in costs of 72 per cent over
implementing the current part 70.
Today's proposal would reduce the overall explicit
costs associated with the part 70 permitting program by 16
per cent from $526 million to $441 million annually. This
reduction in explicit costs does not represent the complete
universe of changes to the 1992 ICR. These changes,
together with additional changes to the part 70 rule
proposed in August 1994 and other more recent information
received from the initial implementation of part 70, will be
incorporated into the ICR update for part 70 due in October
1995.
The ICR for the proposed part 71 incorporated the basic
approach proposed today for part 71 permit revisions. In
this document EPA estimated that the total direct cost of
part 71 implementation to the private sector would be no
more than $72 million in any one year. The estimate of
direct costs to industry includes the costs that are over
and above costs industry would have incurred by complying
with State operating permits programs mandated by the Act,
for which part 71 programs are substitutes. The specific
cost of permit revisions would be only a small percent of
this amount.
The Agency concludes that since the proposed revisions
to part 70 would result in reductions in costs over
implementation of the current part 70, and since the
proposal for part 71 would result in a total cost to
industry of no more than $72 million in any one year, the
requirement for a budgetary impact statement does not apply.
As a result of extensive public comment on the August 1994
proposal, the Agency considered alternatives for a permit
revision system and selected an approach that provides a
streamlined and flexible system that is the most cost-
effective and least burdensome while continuing to meet the
requirements of title V. Because small governments will not
be significantly or uniquely affected by this rule, other
than to reduce costs of operating permit programs they have
opted to administer, the Agency is not required to develop a
plan with regard to small governments.
List of Subjects in 40 CFR Part 70 and Proposed 40 CFR
Part 71
Air pollution control, Prevention of significant
deterioration, New source review, Fugitive emissions,
Particulate matter, Volatile organic compounds, Nitrogen
dioxide, Carbon monoxide, Hydrocarbons, Lead, Operating
permits.
Dated:
(Signature of Administrator)
Administrator
For the reasons set out in the preamble, part 51 of
title 40, chapter I of the Code of Federal Regulations is
proposed to be amended as set forth below.
Part 51 - REQUIREMENTS FOR PREPARATION, ADOPTION, AND
SUBMITTAL OF IMPLEMENTATION PLANS
1. The authority cite for part 51 continues to read as
follows:
Authority: 42 U.S.C. 7410(a)(2), 7475(e), 7502(a) and
(b), 7503, 7601(a)(1), and 7620.
2. Section 51.160 is amended by adding a new paragraph (g)
to read as follows:
51.160 Legally enforceable procedures.
* * * * *
(g) All terms used in 51.160 and 51.164 of this
part shall have the same meaning as set forth elsewhere in
relevant sections of subpart I of this part, or in the Act,
as appropriate.
3. Section 51.161 is amended by adding the words "an
adequate" between the words "provide" and "opportunity" in
the first sentence of paragraph (a); by revising paragraphs
(b), (c) and (d); and by adding a new paragraph (e). The
additions and revisions are set out to read as follows:
51.161 Public availability of information.
* * * * *
(b) The following requirements shall apply for
purposes of paragraph (a) of this section.
(1) Opportunity for public comment as defined in
paragraph (b)(2) of this section shall be provided for:
(i) The construction or modification of any stationary
source that is subject to permitting requirements as a major
source or major modification under part C or part D of
title I; and
(ii) Any physical change or change in the method of
operation of a part 70 source associated with a project
where the prospective emissions increases from such changes,
considered by themselves, would be a significant emissions
increase of any pollutant subject to regulation under part C
or D of the Act.
(2) The opportunity for public comment shall include,
as a minimum:
(i) Availability for public inspection in at least one
location in the area affected of the information submitted
by the owner or operator and of the State or local agency's
analysis of the effect on air quality;
(ii) A 30-day period for submittal of pubic comment;
and
(iii) A notice in the affected area specifying the
location of the relevant source information.
(c) For other construction or modification activities
subject to this section, but not subject to paragraph (b) of
this section, the program may vary the procedures for, and
timing of, public review in light of the environmental
significance of the activity. The permitting authority may
designate, subject to EPA approval under this paragraph or
in the State's part 70 program, certain categories of
changes as being de minimis. For such de minimis changes,
the State may forego altogether review by the public.
(d) Availability of the notice required by paragraph
(b) of this section must also be provided to the
Administrator through the appropriate Regional Office, and
to all other State and local air pollution control agencies
having jurisdiction in the region in which such new or
modified installation will be located. The notice also must
be provided to any other agency in the region having
responsibility for implementing the procedures required
under this subpart.
(e) Notwithstanding the preceding paragraphs in this
section, for changes constituting modification activities at
part 70 sources subject to 51.160 of this part, the
requirements of paragraph (a) of this section shall be
considered to be met for the change if the part 70 permit
for the source is subjected to revision procedures approved
by EPA as meeting the public participation requirements of
40 CFR 70.7(e) of this chapter for the change.
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.
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 by:
a. Adding the words "except that research and
development activities shall be treated as belonging to a
separate industrial grouping" at the end of the last
sentence in the first paragraph of the definition of "Major
source;"
b. Revising the definitions of "Draft permit;"
"Part 70 program or State program;" "Proposed Permit;"
paragraphs (1), (2)(viii), and (2)(xxvii) of the definition
of "Major source;" and paragraph (5) of the definition of
"Regulated air pollutant;" and
c. Adding definitions of "Advance NSR," "Alternative
operating scenarios," "Emissions Cap permit," "Eligible
Indian Tribe," "Indian Tribe," "Plantwide applicability
limit (PAL)," "Research and development activities," "State
review program," and "Title I modification."
Additions and revisions are set out to read as follows:
70.2 Definitions
* * * * *
Advance NSR means terms or conditions in a part 70
permit setting forth requirements applicable to new units or
modifications under applicable major or minor NSR programs
or regulations implementing section 112(g) of the Act, so
that such changes may be operated without having to obtain a
part 70 permit revision.
Alternative operating scenarios means terms or
conditions in a part 70 permit which assure compliance with
different modes of operation for which a different
applicable requirement applies and for which the source is
designed to accommodate.
Draft permit or draft permit revision means the version
of the permit or permit revision for which the permitting
authority offers public participation as provided under
70.7 of this part.
Emissions Cap permit means a part 70 permit that
contains one or more federally-enforceable emissions
limitations that meets the requirement for permit content
contained in 70.4(b)(12) of this part, including a PAL
and/or an advance NSR condition.
Eligible Indian Tribe means an Indian Tribe that EPA
has determined to meet the requirements of section 301(d)(2)
of the Act or 40 CFR part 49. [NOTE TO READER: 40 CFR part
49 are proposed regulations (59 FR 43956 (August 25, 1994))]
* * * * *
Indian Tribe has the meaning defined in section 302(r)
of the Act.
Major 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. Notwithstanding the preceding
sentence:
(A) Emissions from any oil or gas exploration or
production well (with its associated equipment) and
emissions from any pipeline compressor or pump station shall
not be aggregated with emissions from other similar units,
whether or not such units are in a contiguous area or under
common control, to determine whether such units or stations
are major sources; and
(B) Research and development activities may be
considered separately for purposes of determining whether a
major source is present, and need not be aggregated with
collocated stationary sources unless the research and
development activities contribute to the product produced or
service rendered by the collocated sources in a more than de
minimis manner; or
(ii) For radionuclides, "major source" shall have the
meaning specified by the Administrator by rule.
(2) * * *
(viii) Municipal incinerators (or combinations
thereof) capable of charging more than 50 tons of refuse per
day;
* * * * *
(xxvii) Any other stationary source category regulated
under section 111 or 112 of the Act and for which the
Administrator has made an affirmative determination under
section 302(j) of the Act."
* * * * *
Part 70 program, State program, or program means a
program approved by the Administrator under this part.
* * * * *
Plantwide applicability limit (PAL) means a federally-
enforceable emissions limitation established for a source to
limit its potential to emit for a particular pollutant to a
level at or below which a particular applicable requirement
would not apply.
* * * * *
Proposed permit or proposed permit revision means the
version of a permit or permit revision that the permitting
authority proposes to issue and forwards to the
Administrator for review in compliance with 70.8 of this
part.
* * * * *
Regulated air pollutant * * *
(5) Any pollutant subject to a standard promulgated
under section 112 or other requirements established under
section 112 of the Act, including sections 112(g) and (j) of
the Act, including the following:
* * * * *
Research and development activities means activities
conducted to test more efficient production processes or
methods for preventing or reducing adverse environmental
impacts, provided that the activities do not include the
production of an intermediate or final product for sale or
exchange for commercial profit, and activities conducted at
a research or laboratory facility that is operated under the
close supervision of technically trained personnel the
primary purpose of which is to conduct research and
development into new processes and products and that is not
engaged in the manufacture of products for sale or exchange
for commercial profit, except in a de minimis manner.
* * * * *
State review program means a program established under
section 112(g) of the Act, parts C and D of the Act (i.e.,
major NSR), or section 110(a)(2)(C) of the Act (i.e., minor
NSR) and any other State program approved by EPA as such. A
State review program need not entail review and approval of
all source changes subject to the program, but may regulate
categories of source changes by means of general rules or
general permits as appropriate.
* * * * *
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 111(a)(4), 112(a)(5),
or 112(g) of the Act; under regulations promulgated by EPA
thereunder or in 61.07 of part 61 of this chapter; or
under State regulations approved by EPA to meet such
requirements.
* * * * *
3. Section 70.4 is amended by:
a. Revising the heading;
b. Adding introductory text after the heading;
c. Revising paragraphs (b), (b)(3), (b)(3)(x),
(b)(3)(xi), (b)(6), (b)(11)(ii), (b)(12)(i), (d)(1),
(d)(3)(iv), (e), (e)(1), and (e)(2);
d. Adding a new paragraph (b)(3)(xiv);
e. Adding to the end of paragraph (a) the following
sentence, "Indian Tribes are not required to submit part 70
programs to EPA for approval, but may elect to do so.";
f. Adding the phrase ", Tribal," after the words
"copies of all applicable State" in the first sentence of
paragraph (b)(2);
g. Adding the words "or tribal" after the words
"judicial review in State" in the first and second sentences
of paragraph (b)(3)(xi);
h. Adding the words "Except for Tribal programs" to
the beginning of the first sentence in paragraph (b)(12);
i. Deleting paragraphs (b)(12)(iii), (b)(14), and
(b)(15); and
j. Redesignating paragraph (b)(16) as (b)(14).
Additions and revisions are set out to read as follows:
70.4 State and Tribal program submittals and transition.
Eligible Indian Tribes may administer programs meeting
the requirements of this section. Unless otherwise
indicated, references to "States" and "Governors" in this
section shall include, as appropriate, "Tribal programs,"
"Indian Tribes," and "Indian governing bodies."
* * * * *
(b) Elements of the initial program submission. Any
State or Indian Tribe that seeks to administer a program
under this part shall submit to the Administrator a letter
of submittal from the Governor or his or her designee or
from the governing body of an Indian Tribe requesting EPA
approval of the program and at least three copies of a
program submission. The submission shall contain the
following:
* * * * *
(3) A legal opinion from the Attorney General for the
State, the Tribal attorney, or the attorney for those State,
Tribal, local, or interstate air pollution control agencies
that have independent legal counsel, stating that the laws
of the State, locality, Indian Tribe, or interstate compact
provide adequate authority to carry out all aspects of the
program. This statement shall include citations to the
specific statutes, administrative regulations, and, where
appropriate, judicial decisions that demonstrate adequate
authority. State statutes and regulations cited by the
State Attorney General, Tribal attorney, or independent
legal counsel shall be in the form of lawfully adopted State
or Tribal statutes and regulations at the time the statement
is signed and shall be fully effective by the time the
program is approved. To qualify as "independent legal
counsel," the attorney signing the statement required by
this section shall have full authority to independently
represent the State or Tribal agency in court on all matters
pertaining to the State or Tribal program. The legal
opinion shall also include a demonstration of adequate legal
authority to carry out the requirements of this part,
including authority to carry out each of the following:
* * * * *
(x) Provide an opportunity for judicial review in
State or Tribal court of the final permit action by the
applicant, any person who participated in the public
participation process provided pursuant to 70.7 and any
other person who could obtain judicial review of such
actions under State or Tribal laws.
* * * * *
(xiv) Issue emissions cap permits pursuant to
70.4(b)(12)(i) including advance NSR conditions consistent
with all applicable requirements.
* * * * *
(6) A showing of adequate authority and procedures to
determine within 60 days of receipt whether applications
(including renewal applications) are complete, to request
such other information as needed to process the application,
and to take final action on complete applications within 18
months of the date of their submittal, except for initial
permit applications, for which the permitting authority may
take up to 3 years, or up to 5 years for Tribal programs,
from the effective date of the program to take final action
on the application, as provided for in the transition plan.
* * * * *
(11) * * *
(ii) Final action shall be taken on at least one-third
of such applications annually over a period not to exceed 3
years after such effective date, except for Tribal programs
for which the transition period will be for a period agreed
upon jointly by the Tribe and the appropriate EPA Regional
Office not to exceed 5 years;
* * * * *
(12) * * *
(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 emissions
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 70.6(a) and (c) of
this part, 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 only in procedures
for permit issuance, renewal, or permit revision pursuant to
70.7(e)(2)(vi). 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) Under this paragraph (b)(12)(i), the written
notification required by 70.4(b)(12) shall state when the
change will occur and shall describe how increases and
decreases in emissions will comply with the terms and
conditions of the permit. The written notification
requirement for the first and all subsequent changes may be
met by submitting a single notice at least 7 days in advance
of the first change allowed by the terms of the emissions
cap permit.
(B) The permit shield described in 70.6(f) of this
part may extend to terms and conditions that allow such
increases and decreases in emissions.
* * * * *
(d) Interim approval. (1) If a program (including a
partial permit program but not including Tribal programs)
submitted under this part substantially meets the
requirements of this part, but is not fully approvable, the
Administrator may by rule grant the program interim
approval.
* * * * *
(3) * * *
(iv) Public participation. The program must provide
for adequate public notice of and an opportunity for public
participation on draft permits, reopenings for cause, and
revisions as required by 70.7 of this part, except for:
(A) Modifications qualifying for minor permit
modification procedures under 70.7(e) of this part as
promulgated July 21, 1992; and
(B) Permit revisions to incorporate changes subject to
minor NSR processed under 70.7(e)(2) of this part as
promulgated [date of final rulemaking].
(e) EPA review of permit program submittals. Within
1 year after receiving a program submittal, the
Administrator shall approve or disapprove the program, in
whole or in part, by publishing a notice in the FEDERAL
REGISTER, except that no Tribal program will be disapproved.
Prior to such notice, the Administrator shall provide an
opportunity for public comment on such approval or
disapproval. Any EPA action disapproving a program, in
whole or in part, shall include a statement of the revisions
or modifications necessary to obtain full approval. The
Administrator shall approve State programs and programs to
be administered by eligible Indian Tribes that conform to
the requirements of this part.
(1) Within 60 days of receipt by EPA of a State
program submission, EPA will notify the State or Indian
Tribe whether its submission is complete enough to warrant
review by EPA for either full, partial, or interim approval,
except that no Tribal program will be considered for interim
approval. If EPA finds that a State's or Indian Tribe's
submission is complete, the 1-year review period (i.e., the
period of time allotted for formal EPA review of a proposed
State or Tribal program) shall be deemed to have begun on
the date of receipt of the State's or Indian Tribe's
submission. If EPA finds that a State's or Indian Tribe's
submission is incomplete, the 1-year review period shall not
begin until all the necessary information is received by
EPA.
(2) If the State's or Indian Tribe's submission is
materially changed during the 1-year review period, the
Administrator may extend the review period for no more than
1 year following receipt of the revised submission.
* * * * *
3. Section 70.5 is amended by adding the following
language to the end of paragraph (d) to read as follows:
70.5 Permit applications.
* * * * *
(d) * * * The responsible official shall certify, by
his or her signature, the following statement: "I certify
under penalty of law that I above personally examined, and
am familiar with, the statements and information submitted
in this document and all of its attachments. Based on my
inquiry of those individuals with primary responsibility for
obtaining the information, I certify that the statements and
information are to the best of my knowledge and belief true,
accurate, and complete. I am aware that there are
significant penalties for submitting false statements and
information or omitting required statement and information,
including the possibility of fine or imprisonment."
4. Section 70.6 is amended by adding a new paragraph
(a)(1)(iv); by adding the words "Except for Tribal programs"
to the beginning of the first sentence in paragraphs (a)(8),
(a)(9), and (a)(10); and by revising paragraph (g)(2). The
additions are set out to read as follows:
70.6 Permit content.
(a) * * *
(1) * * *
(iv) With respect to applicable requirements under
section 112(r)(7) of the Act, the inclusion of permit
conditions in accordance with regulations promulgated under
section 112(r) shall satisfy the requirements of paragraph
(a)(1) of this section.
* * * * *
(g) * * *
(2) A State may provide for an affirmative defense
available in an action brought for noncompliance with
technology-based emissions limitations established only
in the part 70 permit. Such an affirmative defense may
be available only if the conditions of paragraph (g)(3)
of this section are met.
* * * * *
5. Section 70.7 is amended by redesignating paragraphs
(f), (g), and (h) as paragraphs (i), (j), and (k)
respectively; revising paragraphs (d) and (e); and adding
new paragraphs (f), (g), and (h). The additions and
revisions are set out to read as follows:
70.7 Permit issuance, renewal, reopenings, and
revisions.
* * * * *
(d) General Requirements For Permit Revisions.
(1) Changes requiring permit revision. Changes at a source
requiring a revision of a part 70 permit are those that:
(i) Could not be operated without violating an
existing permit term; or
(ii) Render the source subject to an applicable
requirement to which the source has not been previously
subject.
(2) Program provisions. The program shall provide for
adequate, streamlined, and reasonable procedures for
expeditiously processing permit revisions. The State or
Indian Tribe may meet this obligation by adopting the
procedures set forth in 70.7(e) and (f) of this part or
ones that are approved by EPA as substantially equivalent.
(3) Exemption for acid rain. 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.
(4) Public notice and access. For all part 70 permit
revisions for which an opportunity for public comment is not
provided prior to the change, the program shall provide in a
general manner for periodic notification to the public on at
least a quarterly basis and for public access to the records
regarding such revisions.
(e) Permit revisions for changes subject to a State
review program. (1) Applicability. The following changes
shall be incorporated into part 70 permits using the permit
revision procedures set forth in paragraph (e)(2) of this
section as changes with prior review.
(i) More environmentally significant changes subject
to a State review program. The more environmentally
significant changes subject to a State review program shall
be defined in the program and shall include at a minimum the
following:
(A) Any change subject to major NSR;
(B) Any physical change or change in the method of
operation of a part 70 source associated with a project
where the prospective emissions increases from such changes,
considered by themselves, would be a significant emissions
increase of any pollutant subject to regulation under part C
or D of the Act;
(C) Any change subject to prior public and EPA review
under regulations implementing section 112(g) of the Act;
and
(D) Any other category of changes subject to prior
public and EPA review the permitting authority determines in
its program to have a similarly significant environmental
impact.
(ii) Less environmentally significant changes subject
to a State review program. Less environmentally significant
changes in this category include all changes subject to the
State's minor NSR program (established pursuant to 40 CFR
51.160), except for those changes described in paragraph
(e)(1)(i)(B) of this section, all source-specific SIP
revisions, and any other changes approved by EPA in the
program as such.
(2) Procedures. The program shall provide that for
each change subject to a State review program:
(i) In the context of the State review program, an
adequate opportunity is afforded for review by the public,
EPA, and affected States of any revisions to the part 70
permit.
(ii) Except as provided in paragraph (e)(2)(viii) of
this section, a document or combination of documents is
issued by the permitting authority that describes any new or
different applicable requirement(s) to which the change is
subject and any resulting changes or additions to existing
part 70 permit terms necessary to meet the permit content
requirements of 70.6(a) and (c) of this part.
(iii) The permitting authority shall revise the
part 70 permit upon issuance of any document described in
paragraph (e)(2)(ii) of this section or receipt of any
notice described in paragraph (e)(2)(viii) of this section
by immediately attaching the document to the part 70 permit.
Such document may be any preconstruction permit under minor
or major NSR, any source specific SIP revision, or any
action subject to prior public and EPA review taken under
regulations implementing section 112 (g) of the Act.
(iv) The provisions of paragraph (e)(2)(iii) of this
section do not apply with respect to a unitary permit
program provided the unitary permit has already incorporated
all new or different applicable requirements and contains
sufficient terms or conditions to meet the permit content
requirements of 70.6(a) and (c) of this part. For
purposes of this part, a unitary permit means a single
permit which contains all terms and conditions needed to
meet the requirements of part 70 and the requirements of
major or minor NSR or regulations implementing section
112(g) of the Act.
(v) Except as provided by paragraph (e)(2)(viii) of
this section, the source may not operate a change until the
permitting authority has revised the part 70 permit or
issued a unitary permit, as applicable.
(vi) For the more environmentally significant changes
subject to a State review program, the program shall ensure
that:
(A) The public, EPA, and affected States receive
notice of, and opportunity to comment on, the part 70 permit
revision consistent with the provisions setting forth prior
review to which the change is subject; and
(B) The opportunity for comment extends to the draft
part 70 permit terms as needed to revise existing part 70
permit terms and to meet the permit content requirements of
70.6(a) and (c) of this part.
(vii) For less environmentally significant changes
described under paragraph (e)(1)(ii) of this section, and
for the purpose of determining adequate opportunity for
review for the purpose of paragraph (e)(2)(i) of this
section with respect to such changes, the program may vary
the procedures for, and timing of, public, EPA, and affected
State review in light of the environmental significance of
the change. The permitting authority may designate in its
program certain categories of changes, subject to EPA
approval, as de minimis changes. The permitting authority
may postpone until renewal of the affected part 70 permit
review by the public, EPA, and affected States for such de
minimis changes.
(viii) For those changes which a State review program
allows a source to make in accordance with specified
requirements without obtaining prior permitting authority
review and approval, the source shall submit to the
permitting authority upon operating the change a notice
describing the change and setting forth the applicable
requirement(s) to which the change is subject and the
part 70 permit terms required by 70.6(a) and (c) of this
part. The notice shall also state that the source upon
making the change will meet all applicable requirements and
that the relevant requirements of part 70 have been met.
Upon submitting the notice, the source shall attach a copy
of it to its part 70 permit. This action shall revise the
permit to the extent that operation of the change does not
conflict with any existing permit term. Where a conflict
exists, the source may not revise its permit pursuant to
this provision and may not operate the change until its
permit is revised.
(3) Program provisions. The program may provide for
changes that are reviewed under a State review program to be
processed under the procedures in paragraph (e)(2) of this
section pursuant to regulations implementing either title V
or title I of the Act provided that any procedures under
title V are concurrent with any procedures under title I.
(f) Permit revisions for changes not subject to a
State review program. (1) Applicability. Changes not
otherwise reviewed by a State shall be incorporated into
part 70 permits using the permit revision procedures set
forth in paragraph (f)(2) of this section.
(i) More environmentally significant changes not
subject to a State review program. The more environmentally
significant changes in this category shall be defined in the
program and shall include at a minimum the establishment or
revision of the following if they are not otherwise reviewed
by the State.
(A) MACT determinations made under regulations
implementing section 112(j) of the Act;
(B) Alternative emission limits established under
regulations implementing section 112(i)(5) of the Act;
(C) Alternative requirements established under
70.6(a)(1)(iii) of this part or under substitute section
112 standards established pursuant to a program approved by
EPA for such purpose under section 112(l) of the Act;
(D) (Establishment only) restrictions on the potential
to emit of an entire source including those for the purpose
of establishing minor source status under title I of the
Act; and
(E) Changes involving new or alternative monitoring
methods that have not been authorized as adequate for
measuring compliance under major or minor NSR, under
regulations implementing section 112(g) of the Act, or under
any other equivalent procedures.
(ii) Less environmentally significant changes not
subject to a State review program. Less environmentally
significant changes in this category are those approved by
EPA in the program as such and include as a minimum the
establishment or revision of the following if they are not
subject to a State review program.
(A) Alternative operating scenarios;
(B) Monitoring terms not made or addressed in
association with the processing of changes pursuant to
70.7(e) of this part; and
(C) (Revision only) restrictions on the potential to
emit of an entire source including those for the purpose of
establishing minor source status under title I of the Act;
and
(D) Emissions averaging restrictions to meet a
standard set under section 112(d) of the Act.
(2) Procedures. For changes described in paragraph
(f)(1) of this section, the program shall provide that for
each change not subject to a State review program:
(i) An adequate opportunity occurs for review by the
public, EPA, and affected States to address the change and
any associated revisions to the source's part 70 permit.
(ii) The terms of the permit revision will be
sufficient to assure compliance with all applicable
requirements and the permit content requirements of
70.6(a) and (c) of this part.
(iii) Unless specified otherwise in this paragraph,
the source may not operate the change until the permitting
authority has revised the part 70 permit.
(iv) The more environmentally significant changes
described in paragraph (f)(1)(i) of this section shall be
reviewed pursuant to procedural requirements applicable to
initial permit issuance in paragraph (a)(1) of this section,
except that the permitting authority shall complete review
of the majority of these changes within 6 months after
receipt of a complete application.
(v) For other changes described in paragraph
(f)(1)(ii) of this section, and for the purpose of
determining adequate opportunity for review for the purpose
of paragraph (f)(2)(i) of this section with respect to such
changes, the program may vary the procedures for, and the
timing of, public, EPA, and affected State review in light
of the environmental significance of the change.
(A) The permitting authority may postpone until
renewal of the affected part 70 permit review by the public,
EPA, and affected States for changes that are approved by
EPA in its part 70 program as being de minimis. The
following changes may be incorporated into permits using the
procedures in paragraph (f)(2)(v)(B) of this sections:
(1) Correcting typographical errors;
(2) Making minor administrative changes, such as a
change in the name, address, or phone number of any person
identified in the permit;
(3) Requiring more frequent monitoring, recordkeeping,
or reporting by the permittee;
(4) Allowing 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 permitting responsibility, coverage, and
liability between the current and new permittee has been
submitted to the permitting authority;
(5) Incorporating a compliance schedule from an
applicable requirement with a future compliance date
promulgated after permit issuance; or
(6) Incorporating any other type of change which the
State determines, and the Administrator approves, as de
minimis.
(B) For changes described in paragraph (f)(2)(v)(A) of
this section, the permittee or the permitting authority may
initiate the administrative incorporation into the permit by
issuing a notice describing what information in the part 70
permit is affected by such a change and sending the notice
to the permitting authority or the permittee as appropriate.
(1) Where the source issues a notice, the permit shall
be revised upon mailing of the notice by the source to the
permitting authority by certified mail.
(2) Where the permitting authority issues a notice,
the permit shall be revised upon its attachment to the
permit.
(3) The program may provide that changes described in
paragraph (f)(2)(v)(A) of this section may be implemented
prior to issuance of the notice or revision of the part 70
permit.
(C) For changes which trigger a new or different
applicable requirement but which a source can make without
obtaining permitting authority approval, the program shall
provide that:
(1) The source shall submit to the permitting
authority upon operating the change a notice that:
(A) Describes the change;
(B) Sets forth the applicable requirement(s) to which
the change is subject;
(C) Sets forth the part 70 permit terms necessary to
meet the permit content requirements of 70.6(a) and (c)
of this part; and
(D) States that the source upon making the change will
meet all applicable requirements and that the relevant
requirements of part 70 have been met;
(2) The source's mailing of the notice by certified
mail to the permitting authority shall revise the permit,
provided that operation of the change does not conflict with
any existing permit term. Where a conflict exists, the
permitting authority shall not revise the permit pursuant to
this provision and the source shall not operate the change
until its permit is revised pursuant to applicable
procedures in 70.7(f) of this part.
(3) Combination changes. Notwithstanding the
provisions of paragraph (f)(2) of this section, changes
described in paragraph (f)(1) of this section may be
combined with changes described in paragraph (e)(1) of this
section and processed using the procedures of paragraph
(e)(2) of this section, provided the procedures to which the
changes under paragraph (f)(1) of this section would have
been subject under paragraph (f)(2) of this section are
provided in procedures pursuant to paragraph (e)(2) of this
section.
(g) Permit shield. The permit shield under 70.6(f)
of this part may be granted by the permitting authority
prior to permit renewal only for:
(1) Any change defined pursuant to 70.7(e)(1)(i) or
70.7(f)(1)(i) of this part;
(2) Any change to which the Administrator has objected
as a result of a petition filed under 70.8(d) of this
part, except that the permit shield may be granted only to
permit terms that are revised or added as a result of EPA's
objection; and
(3) Any change defined pursuant to 70.7(e)(1)(ii)
or (f)(1)(ii) for which public and EPA review has occurred.
6. Section 70.8 is amended by revising the title; by
revising paragraphs (a)(1), (b), (c)(1), (c)(2),
(c)(3)(iii), and (d); by adding introductory text to
paragraph (c); by adding new paragraphs (c)(5) and (c)(6);
and by revising the first sentence in paragraph (e). The
additions and revisions are set out to read as follows:
70.8 Permit review by EPA, affected States, and Indian
Tribes.
(a) Transmission of information to the Administrator.
(1) (i) For permits and permit renewals, the part 70
program shall require that the permitting authority provide
to the Administrator a copy of each permit application, each
proposed permit, and each final part 70 permit.
(ii) For permit revisions for changes that are subject
to a State review program and that meet the definition of
more environmentally significant changes under
70.7(e)(1)(i) of this part, the part 70 program shall
require that the permitting authority provide to the
Administrator a copy of each application submitted for
purposes of the State review program and each proposed and
final action under the State review program (including
revisions to the part 70 permit).
(iii) For permit revisions for changes that are not
subject to a State review program and that meet the
definition of more environmentally significant under
70.7(f)(1)(i) of this part, the part 70 program shall
require that the permitting authority provide to the
Administrator a copy of each permit revision application,
and each proposed and final permit revision.
(iv) For permit revisions that are defined as de
minimis under the part 70 program and approved by EPA under
70.7 of this part, no permit applications or permit
revisions are required to be submitted to the Administrator.
(v) For all permit revisions other than those referred
to in paragraphs (ii) through (iv) of this section, the
part 70 program shall require that the permitting authority
provide to the Administrator a copy of each relevant permit
application or summary thereof, and a copy of each final
part 70 permit revision.
(vi) For any permit or permit revision, upon agreement
with the Administrator, the permitting authority may submit
to the Administrator an application summary form and any
relevant portion of the application and compliance plan, in
place of the complete application and compliance plan. To
the extent practicable, information submitted to the
Administrator shall be provided in computer readable format
compatible with EPA's national database management system.
* * * * *
(b) Review by affected States.
Eligible Indian Tribes may be considered affected
States under this paragraph. Indian Tribes are not required
to submit a part 70 program for the limited purpose of being
considered an affected State under this paragraph.
(1) For purposes of paragraph (b) of this section, an
Indian Tribe will be considered an affected State if it
administers a tribal program and otherwise meets the
definition of "affected State" set forth in 70.2 of this
part.
(2) The permit program shall provide that the
permitting authority give notice of each draft permit or
draft permit revision (including any proposed action
pursuant to a prior State review program, as relevant) to
any affected State on or before the time that the permitting
authority provides this notice to the public under 70.7 of
this part. Where 70.7 does not require prior public
notice of a permit revision, the permitting authority shall
give notice of the final permit revision on or before the
time that the permitting authority provides this notice to
the public under 70.7.
(3) The permit program shall provide that the
permitting authority, as part of the submittal of any
proposed permit or proposed permit revision 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
and 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) EPA objection. For purposes of State programs
approved under part 70 as promulgated on July 21, 1992,
70.8(c) of this part as promulgated on July 21, 1992 shall
apply. For purposes of State programs approved under
part 70 as revised on [date of final rulemaking], 70.8(c)
of this part as promulgated on [date of final rulemaking]
shall apply.
(1) Except as provided by paragraphs (c)(5) and (6) of
this section, the Administrator will object to the issuance
of any proposed permit or any permit revision determined by
the Administrator not to be in compliance with applicable
requirements or requirements under this part. No permit or
permit revision for which an application must be transmitted
to the Administrator under paragraph (a) of this section
shall be issued if the Administrator objects to its issuance
in writing during the 45-day period following:
(i) In the case of initial permit issuance, permit
renewals, and permit revisions for changes as defined under
70.7(f)(1)(i) of this part, receipt of the proposed permit
or proposed permit revision and all necessary supporting
information; or
(ii) In the case of permit revisions for changes as
defined under 70.7(e)(1)(i) of this part, the beginning of
the public comment period for such revisions (although the
Administrator may object within 45 days of receipt of the
final permit revision for defects that were not reasonably
apparent in the draft permit submitted for public review).
(2) Any EPA objection under this section shall include
a statement of the Administrator's reasons for objection and
a description of the terms and conditions that the permit
must include to respond to the objections. The
Administrator will provide the permittee a copy of the
objection.
(3) * * *
(iii) Process the permit or permit revision under the
procedures approved to meet 70.7 of this part.
* * * * *
(5) For 5 years following approval of the part 70
program implementing this paragraph, the Administrator shall
not object to a permit revision for a change as defined
under 70.7 (e)(1)(ii) or (f)(1)(ii) of this part except
where it is in response to a petition filed pursuant to
paragraph (d) of this section, and the permit revision
contains an error that would, either alone or in combination
with other similar permit revisions likely to be issued,
likely have a significant adverse environmental effect. A
permit revision would be deemed to have a significant
adverse environmental impact if it were employed as a device
to limit potential to emit below major source or major
modification thresholds (as set forth in title I of the Act)
but in the Administrator's judgment would allow increases
above those thresholds.
(6) The Administrator shall not object to any permit
revision for a change approved by EPA in a part 70 program
as de minimis.
(d) Public petitions to the Administrator. (i) The
program shall provide that, if the Administrator does not
object in writing by the expiration of the applicable 45-day
review period specified in paragraph (c) of this section,
any person may petition the Administrator to make such
objection within 60 days after the expiration of the
applicable review period, or, for all permit revisions for
changes as defined under 70.7(e)(1)(ii) or (f)(1)(ii) of
this part (other than for de minimis changes as defined by
the part 70 program and approved by EPA under 70.7 of this
part), within 60 days of the date the public is notified of
the revision of the part 70 permit. 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 70.7 of this part.
(ii) Any petition shall be based only on objections to
the permit that were raised with reasonable specificity
during any public comment period provided for in 70.7 of
this part, unless the petitioner demonstrates that it was
impracticable to raise such objections within such period,
no public comment period was provided, or the grounds for
such objection arose after such period.
(iii) 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 specified in paragraph (c) of this
section and prior to an EPA objection.
(iv) If the permitting authority has issued a permit
pursuant to the procedures in 70.7(e)(1)(ii) or
(f)(1)(ii) of this part 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 70.7(e)(2) or (f)(2) of this part
as appropriate 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) Prohibition on default issuance. Consistent with
70.4(b)(3)(ix) of this part, for the purposes of Federal
law and title V of the Act, no State program may provide
that a part 70 permit or a part 70 permit revision for a
change as defined under 70.7(e)(1)(i) or 70.7(f)(1)(i)
will issue until affected States and EPA have had an
opportunity to review the permit or permit revision as
required under this section. * * *
8. Section 70.10 is amended by adding a new paragraph
(a)(3) and by revising paragraphs (b)(1) and (c)(1).
Additions and revisions are set out to read as follows:
70.10 Federal oversight and sanctions.
(a) * * *
(3) The requirements of paragraphs (a)(1) and (a)(2)
of this section shall not apply to Indian Tribes and Tribal
programs.
(b) * * *
(1) Whenever the Administrator makes a determination
that a permitting authority is not adequately administering
or enforcing a part 70 program, including a Tribal program,
or any portion thereof, the Administrator will notify the
permitting authority of the determination and the reasons
therefore. The Administrator will publish such notice in
the FEDERAL REGISTER.
* * * * *
(c) Criteria for withdrawal of State or Tribal
programs.
(1) The Administrator may withdraw program approval in
whole or in part whenever the approved program no longer
complies with the requirements of this part and the
permitting authority fails to take corrective action. Such
circumstances, in whole or in part, include any of the
following:
* * * * *
9. Section 70.11 is amended by revising the
introductory text to read as follows:
70.11 Requirements for enforcement authority.
Except for Tribal programs, with respect to criminal
enforcement matters only, under which the Tribe shall enter
into a formal Memorandum of Agreement with EPA to provide
for the timely referral of criminal enforcement matters to
the appropriate EPA Regional Administrator, all programs to
be approved under this part must contain the following
provisions:
* * * * *
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