ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 55 and 71
[FRL - ]
Federal Operating Permits Program
AGENCY: Environmental Protection Agency (EPA)
ACTION: Proposed rule; notice of opportunity for public
hearing.
SUMMARY: The EPA is proposing a new part containing
regulations setting forth the procedures and terms under
which the Administrator will administer programs for issuing
operating permits to covered stationary sources, pursuant to
title V of the Clean Air Act as amended in 1990 (the Act).
Although the primary responsibility for issuing operating
permits to such sources rests with State, local, and Tribal
air agencies, EPA will remedy gaps in air quality protection
by administering a Federal operating permits program in
areas lacking an EPA-approved or adequately administered
operating permits program. Federally issued permits will
clarify which requirements apply to sources and will enhance
understanding of and compliance with air quality
regulations.
DATES: Comments. Comments on the proposed regulations must
be received by EPA's Air Docket on or before
_______________________ [60 days after publication in the
Federal Register].
Public Hearing. A public hearing is scheduled for
10:00 a.m., on ____________________ [30 days after
publication in the Federal Register] at the address listed
below. Requests to present oral testimony must be received
by _____________________ [15 days after publication in the
Federal Register], and the hearing may be canceled if no
speakers have requested time to present their comments by
that date. Written comments in lieu of, or in addition to,
testimony are encouraged.
Docket. Supporting information used in developing the
proposed rules is contained in Docket No. A-93-51.
Supporting information used in developing 40 CFR part 70 is
contained in Dockets No. A-90-33 and No. A-93-50. These
dockets are available for public inspection and copying
between 8:30 a.m. and 3:30 p.m. Monday through Friday, at
EPA's Air Docket, Room M-1500, Waterside Mall, 401 M Street
SW, Washington, D.C. 20460. A reasonable fee may be charged
for copying.
ADDRESSES: Comments should be mailed (in duplicate if
possible) to: EPA Air Docket (Mail Code 6102), Attn: Docket
No. A-93-51, Room M-1500, Waterside Mall, 401 M Street SW,
Washington, DC 20460. The public hearing will be held in
the Waterside Mall auditorium at the U. S. Environmental
Protection Agency, 401 M Street SW, Washington, DC 20460.
FOR FURTHER INFORMATION CONTACT: Candace Carraway
(telephone 919/541-3189) or Kirt Cox (telephone
919/541-5399), U. S. Environmental Protection Agency, Office
of Air Quality Planning and Standards, Information Transfer
and Program Integration Division, Mail Drop 12, Research
Triangle Park, North Carolina 27711. Persons interested in
attending the hearing or wishing to present oral testimony
should contact Ms. Susan Curtis in writing at the U.S.
Environmental Protection Agency, Office of Air Quality
Planning and Standards, Information Transfer and Program
Integration Division, Mail Drop 12, Research Triangle Park,
North Carolina 27711.
SUPPLEMENTARY INFORMATION:
Comments. The EPA is unlikely to be able to extend the
public comment period. Two paper copies of each set of
comments are requested. If possible, comments should be
sent in both paper and computerized form. Comments
generated on computer should be sent on an IBM-compatible
diskette and clearly labeled. Computer files created with
the WordPerfect 5.1 software package should be sent as is.
Files created on other software packages should be saved in
an "unformatted" mode for easy retrieval into WordPerfect.
Comments should refer to specific page numbers of today's
proposal whenever possible.
Outline. The contents of today's preamble are listed
in the following outline:
I. Background and Purpose
II. Proposal Summary
III. Detailed Discussion of Key Aspects of the
Proposed Regulations
A. Section 71.2 - Definitions
B. Section 71.3 - Sources Subject to Permitting
Requirements
C. Section 71.4 - Program Implementation
D. Section 71.5 - Permit Applications
E. Section 71.6 - Permit Content
F. Section 71.7 - Permit Review, Issuance, Renewal,
Reopenings, and Revisions
G. Section 71.8 - Affected State Review
H. Section 71.9 - Permit Fees
I. Section 71.10 - Delegation of Part 71 Program
J. Section 71.11 - Administrative Record, Public
Participation, and Administrative Review
K. Section 71.12 - Prohibited Acts
IV. Administrative Requirements
A. Reference Documents
B. Office of Management and Budget (OMB) Review
C. Regulatory Flexibility Act Compliance
D. Paperwork Reduction Act
I. Background and Purpose
Title V of the Act as amended in 1990 (42 U.S.C.
7661 et seq.) imposes on States the duty to develop,
administer, and enforce operating permits programs that
comply with the requirements of title V (section 502(d)(l)).
The EPA has 1 year to approve or disapprove a submitted
program (section 502(d)(l)). Once EPA has approved a State
program, the covered sources within that program's scope
have 1 year to submit permit applications to the permitting
authority (section 503(c)) unless the permitting authority
establishes an earlier date. Within the first 3 years of
the program, the permitting authority must act on all
applications submitted in the first year of the program
(section 503(c)), and EPA must have an opportunity to object
to the proposed permit if it does not comply with the Act's
requirements (section 505(b)). Once the permitting
authority issues a source its permit, the source may not
violate any requirement of its permit or operate except in
compliance with it (section 502(a)).
Title V also requires that EPA stand ready to issue
Federal operating permits when States default in their duty
to develop and administer part 70 programs. Section 502(b)
of the Act requires that EPA promulgate regulations setting
forth provisions under which States will develop operating
permits programs and submit them to EPA for approval.
Pursuant to this section, EPA promulgated 40 CFR part 70 on
July 21, 1992 (57 FR 32250), which specifies the minimum
elements of State operating permits programs.
The operating permits program's potential consequences
for air pollution control and for sources' ability to meet
changing market demands have made the process of developing
and implementing the program complex and controversial.
Indeed, nearly 20 entities, including State and local
governments, environmental groups, and industry
associations, petitioned for judicial review of the part 70
regulations. Subsequently, EPA decided to propose revisions
to part 70. See 59 FR 44460 (Aug. 29, 1994). In light of
ongoing discussions with petitioners, EPA may propose
additional revisions to part 70 in the future that may also
necessitate supplementing the part 71 provisions proposed
today.
The EPA intends that proposed part 71 generally follow
the approach taken in 40 CFR part 70, including the recently
proposed revisions to part 70. Differences between part 70
and part 71 are noted in the discussion of each section of
the proposed rule. Where possible and appropriate,
provisions of part 71 are consistent with part 70. Some of
the differences between the provisions of part 71 and
part 70 reflect the fact that part 71 programs are expected
to be of limited duration. The EPA expects that States (and
many Tribes) will revise their programs so that they become
approvable, and responsibility for the permits program will
be transferred back to the State or Tribe.
The Agency is aware that many parties have already
submitted comments expressing both their concerns about and
their support for the proposed revisions and that these
parties are interested in the final Agency decisions on many
of the issues raised in the part 70 rulemaking. This
proposal for part 71 is not intended in any way to prejudge
the Agency's decisions in the part 70 rulemaking, but rather
simply parallels the proposed part 70 revisions in order to
be consistent with that proposal.
The primary purpose of the proposed rule is to provide
the mechanism by which EPA can assume responsibility to
issue permits in situations where the State, local, or
Tribal agency has not developed, administered, or enforced
an acceptable permits program or has not issued permits that
comply with the applicable requirements of the Act.
Secondarily, the proposed rule provides for delegation of
certain duties that may provide for a smoother program
transition when State programs are approved. For both of
these reasons, the proposed rule should strengthen
implementation of the Act and enhance air quality planning
and control.
Additional benefits of the proposed rule are much the
same as those of the part 70 State operating permits rule.
For example, permits issued under part 71 will clarify which
requirements apply to a source. This clarification should
enhance compliance with the requirements of the Act. The
part 71 program will enable the sources, EPA, and the public
to better understand the requirements to which the source is
subject and whether the source is meeting those
requirements. Part 71 permits also provide the vehicle for
implementing air toxics programs under section 112.
The comment period for the proposed revisions to
part 70 will end prior to the comment period for today's
rulemaking proposal. It would therefore be of limited value
for commenters to suggest in response to today's rulemaking
proposal their concerns with those aspects of the part 70
proposed revisions on which proposed part 71 is based.
Rather, EPA solicits comments on whether there are any
provisions in proposed part 71 for which EPA has
inappropriately proposed consistency with part 70 or its
proposed revisions or has inappropriately departed from
part 70 or its proposed revisions.
The rationale for today's proposal and many of the
issues addressed in this proposal are discussed in greater
detail in a document entitled "Supplementary Information for
Proposed Federal Operating Permits Rule" (Supplementary
Information Document) which is contained in the docket for
this proposal (Docket No. A-93-51).
This preamble makes frequent use of the term "State,"
usually meaning the State air pollution control agency that
would be the permitting authority for a part 70 permit
program. The reader should assume that use of "State" may
also include reference to a local air pollution agency. In
some cases, the term "permitting authority" is used and can
refer to State, local, and Tribal agencies. The term may
also apply to EPA, where the Agency is the permitting
authority of record.
II. Proposal Summary
Sections 502(d)(3) and 502(i)(4) of the Act require EPA
to promulgate a Federal operating permits program when a
State has defaulted on its obligation to submit an
approvable program within the timeframe set by title V or on
its obligation to adequately administer and enforce an
approved program. The rule proposed in this action would
establish a national template for a Federal operating
permits program that EPA may administer and enforce in a
State. In addition, the proposed rule would establish the
procedures for issuing Federal permits to sources for which
States do not have jurisdiction (i.e., OCS sources outside
of State jurisdictions and sources located in Tribal areas).
Finally, the proposed rule would establish the procedures
used when EPA must take action on a permit that has been
proposed or issued by a State or local agency or Indian
Tribe having an approved part 70 program and that EPA
determines is not in compliance with the applicable
requirements of the Act.
Like part 70, part 71 requires: (1) the use of a
standard permit application form; (2) that sources subject
to permitting requirements pay permit fees that assure
adequate program resources and funding; and (3) permit
issuance, appeal, and renewal procedures that ensure that
each regulated source can obtain a permit that will assure
compliance with all of its applicable requirements under the
Act. Part 71 sources must obtain an operating permit
addressing all applicable pollution control obligations
under the State implementation plan (SIP), Federal
implementation plan (FIP), or Tribal implementation plan
(TIP); the acid rain program; the air toxics program under
section 112; and other applicable provisions of the Act.
Sources must also submit periodic reports to EPA concerning
the extent of their compliance with permit obligations.
When EPA implements a part 71 program, it will cover
only the geographic area that is not covered by an approved
State, local, or Tribal program. For example, if a local
agency within a State has an approved program but the entire
State is not covered by an approved program, EPA's
implementation of a part 71 program for the State would not
affect the area subject to the approved local program.
In appropriate circumstances, EPA may delegate to a
State, local, or Tribal permitting authority some or all of
its authority to administer a part 71 program. The
responsibilities of EPA and the delegate agency will be set
forth in a Delegation of Authority Agreement.
The EPA will generally cease implementation of a
part 71 program subsequent to approval of a State operating
permits program.
III. Detailed Discussion of Key Aspects of the
Proposed Regulations
A. Section 71.2 - Definitions
Generally, the proposed definitions in part 71 would
follow the definitions in currently promulgated part 70 and
its proposed revisions, as appropriate. However, some of
the definitions used in 40 CFR part 70 would be modified for
use in this part. The key part 71 definitions (including
some which would be defined differently than in part 70) are
discussed in this section. Others are discussed in the
preamble sections describing the program areas where they
are primarily used. Still others are defined in other
titles of the Act and the regulations promulgated
thereunder.
1. Affected State
The definition of "affected State" for purposes of
proposed 71.8 would include lands within the exterior
boundaries of an Indian reservation or other areas over
which an Indian Tribe has jurisdiction (hereafter "Tribal
area"). If EPA administers a part 71 program for such an
area, EPA would consider the Indian Tribe to be an affected
State and would provide the Tribe notice of draft permits,
permit renewals, permit reopenings, and permit revisions.
Such notice would also be provided when a part 71 program is
implemented outside of a Tribal area and an applicant source
is within 50 miles of the Tribal area, or is in an area that
is contiguous to the Tribal area and may affect the air
quality in that area, provided the Indian Tribe meets the
eligibility criteria for being treated in the same manner as
a State for programs under the Act. See 59 FR 43956
(Aug. 25, 1994).
The definition of "affected State" for purposes of
proposed 71.8 would also include the State or Tribal area
and the area within the jurisdiction of the air pollution
control agency in which the part 71 permit, permit revision,
or permit renewal is being proposed. EPA believes this
provision is necessary for part 71, while not for part 70.
In some cases under a part 71 program, the title V
permitting authority (EPA) would not be the same as the
governmental body with general jurisdiction over the area
(i.e., the State, Tribe, or local air pollution control
agency). When EPA is the permitting authority, EPA believes
it is necessary to notify the States, Tribal authorities,
and local agencies with jurisdiction over the areas in which
EPA's action is proposed. Otherwise, these authorities
would be less apprised of EPA's actions than the neighboring
areas that do not have jurisdiction over these areas and are
less likely to be impacted by EPA's actions. The EPA
solicits comment on this expansion of the term "affected
State," and on whether other mechanisms might adequately
serve to apprise "host" jurisdictions of EPA part 71
actions.
2. Applicable Requirements
An "applicable requirement" is any standard or other
requirement that applies to a source. This includes any
relevant requirement in an approved SIP or preconstruction
permit. It also includes any pertinent standard or other
requirement imposed pursuant to any title of the Act, such
as sections 111, 112, 114(a)(3), 129, 183(e), 183(f), 328,
504(b), 504(e), 608, or 609. However, EPA does not believe
that the provisions of sections 604 through 606 and 610
through 612 of title VI of the Act must be considered as
applicable requirements for title V and included in title V
permits. The rationale for this determination can be found
in the preamble to the proposed revision of the part 70
regulations, at IV.A.1(b). See 59 FR 44460 (Aug. 29, 1994).
For purposes of part 71, EPA today incorporates that
rationale by reference. The EPA also incorporates by
reference that notice's rationale for adding to the list of
applicable requirements any requirements that create offsets
or limit emissions for the purpose of complying with, or
avoiding applicable requirements. The proposed addition to
the part 70 list and today's proposal for part 71 would add
as an applicable requirement any emissions-limiting
requirement that is enforceable by citizens or EPA under the
Act and that is placed on a source for purposes of creating
an offset credit or avoiding the applicability of applicable
requirements.
3. Tribal Areas
The EPA has published a proposed rule, pursuant to
section 301(d)(2), specifying the provisions of the Act for
which EPA believes it is appropriate to treat Indian Tribes
in the same manner as States. See 59 FR 43956 (Aug. 25,
1994) ("Indian Tribes: Air Quality Planning and
Management," hereafter "proposed Tribal rule"). The
proposed Tribal rule also addresses the criteria a Tribe
must meet in order to be eligible for treatment in the same
manner as a State for the specified provisions of the Act.
For a Tribe to be eligible for treatment in the same
manner as a State, it must be Federally recognized
(section 302(r)) and must meet the three criteria set forth
in section 301(d)(2)(A)-(C). Briefly, these criteria
consist of the following: (1) the Tribe must have a
governing body carrying out substantial governmental duties
and powers; (2) the functions to be exercised by the Tribe
must pertain to the management and protection of air
resources within the exterior boundaries of the reservation
or other areas within the Tribe's jurisdiction; and (3) the
Tribe must be capable of carrying out the functions to be
exercised consistent with the terms and purposes of the Act
and applicable regulations. These criteria and EPA's
streamlined process for determining compliance with these
criteria are described in detail in the Tribal rule
(59 FR 43961-43964).
In the Tribal rule, EPA proposes to interpret the Act
as granting, to Tribes approved by EPA to administer
programs under the Act in the same manner as States,
authority over all air resources within the exterior
boundaries of an Indian reservation. This would enable
Tribal-approved programs under the Act to address conduct on
all lands, including non-Indian owned fee lands, within the
exterior boundaries of a reservation. The proposed Tribal
rule would also authorize an eligible Tribe to develop and
implement programs under the Act for off-reservation lands
that are determined to be within a Tribe's inherent
sovereign authority to regulate. The rationale for this
proposed interpretation of Tribal jurisdiction under
programs under the Act is set out in detail in the proposed
Tribal rule, and is incorporated here by reference. See
59 FR 43958-43961.
EPA's final interpretation of Tribal jurisdiction under
this Act may affect the scope of a part 71 program
administered by EPA for Tribes. When, pursuant to Federal
implementation authority, EPA is acting in the place of a
State or Tribe under the Act, all of the rights and duties
that would otherwise fall to the State or Tribe accrue
instead to EPA. See Central Arizona Water Conservation
Dist. v. EPA, 990 F.2d 1531, 1541 (9th Cir. 1993), cert.
denied, 114 S.Ct. 94 (1993). Therefore, the scope of Tribal
authority under the Act may inform EPA's authority in
administering a part 71 program for Tribes.
More specifically, EPA would have authority to
implement a Tribal part 71 program for any lands within the
exterior boundaries of a reservation and any off-reservation
land over which a Tribe has inherent sovereign authority.
Tribes determined eligible to be treated in the same manner
as a State under the Act would be given notice under
proposed 71.8 and 71.10 of certain permit actions. All
land within the exterior boundaries of a reservation and any
other lands over which a Tribe has demonstrated inherent
authority would be considered in providing notice to a
Tribe. Further, the proposed part 71 rules provide that, in
all instances, the Tribe for the area in which a part 71
permit program is being administered will receive notice.
The EPA's proposed Tribal rule is subject to public
comment and may be modified before it is issued in final
form. The EPA may need to make conforming changes to the
part 71 rules proposed today to reflect any relevant
revisions made to the Tribal rule.
4. Major Source
The EPA is proposing to utilize the same approaches to
defining "major source" as were used for 40 CFR parts 63 and
70, except that today's proposal, like the recently proposed
revisions to part 70, would change the definition of major
source to conform to the definition in section 112(a) of the
Act and to implementing regulations governing hazardous air
pollutants (HAP) sources recently promulgated in 40 CFR
part 63. Section 501(2) of the Act provides, in relevant
part, that the term "major source" means "any stationary
source (or any group of stationary sources located within a
contiguous area and under common control)" that would be a
major source under section 112 or a major stationary source
under section 302 or part D of title I of the Act. Other
conditions and requirements relevant to the major source
definition are:
a. Section 302 and Part D Sources. Except for sources
qualifying as support facilities (see paragraph (c) of this
section), stationary sources can only be aggregated to
determine whether they constitute a major stationary source
subject to section 302 or part D of the Act if they are in
the same industrial grouping, as determined by their 2-digit
code. These codes can be found in the Standard Industrial
Classification Manual, 1987.
b. Section 112 Sources. Stationary sources of HAP
must be aggregated for the purpose of determining whether
they are major sources subject to section 112 without regard
to their industrial grouping.
c. Support Facilities. The EPA proposes to include in
the definition of a major source pursuant to section 302 or
part D of title I of the Act, any facility or emission unit
used to support the main activity of the source, regardless
of its 2-digit code. A support facility must be located on
the same property as the source it supports, or on adjacent
property, and be under the control of the same entity.
Also, at least 50 percent of the support facility's output
must be dedicated to the source.
d. Emission Requirements. To be major, a stationary
source must have the potential to emit pollutants in amounts
at or above the major source threshold, which is determined
by the type of pollutant emitted and by the attainment
status of the area in which the source is located. Thus,
the term "major source" encompasses the following:
(1) Air toxics sources with the potential to emit
10 tons per year (tpy) or more of any HAP listed pursuant to
section 112(b); 25 tpy or more of any combination of HAP
listed pursuant to section 112(b); or a lesser quantity of a
given pollutant, if the Administrator so specifies. And,
once the Administrator promulgates a definition of major
source for radionuclides, a source would be major if it
emits, or has the potential to emit, major amounts of
radionuclides.
(2) Sources of air pollutants, as defined in
section 302 of the Act with the potential to emit 100 tpy or
more of any pollutant.
(3) Except as noted in paragraph (d)(4) of this
section, sources subject to the nonattainment area
provisions of title I, part D, with the potential to emit
pollutants in the following, or greater, amounts:
(a) 50 tpy VOC or NOX in serious ozone nonattainment
areas;
(b) 25 tpy VOC or NOX in severe ozone nonattainment
areas;
(c) 10 tpy VOC or NOX in extreme ozone nonattainment
areas;
(d) 50 tpy VOC in ozone transport regions established
pursuant to section 189 of the Act;
(e) 50 tpy carbon monoxide (CO) in serious CO
nonattainment areas; and
(f) 70 tpy particulate matter (PM-10) in serious
particulate matter nonattainment areas.
(4) The NOX thresholds in paragraph (d)(3) of this
section do not apply in nonattainment areas qualifying for
an exemption under section 182(f) of the Act. This
exemption applies in the case where reducing NOX emissions
would not reduce ozone formation. In those areas, a
stationary source of NOX is not considered a major source
under part D of title I of the Act unless its potential to
emit is 100 tpy or more. In areas not qualifying for this
exemption, NOX sources are subject to the lower thresholds
defined in part D and listed in paragraph (d)(3) of this
section. Whatever its location, any 100 tpy source would be
considered a major source under section 302 of the Act.
Also, the major source threshold for VOC in ozone transport
regions in paragraph (d)(3) of this section does not apply
for NOX. This threshold was created by section 184(b) of
the Act. Because section 182(f) of the Act (which requires
NOX sources to meet the same thresholds as VOC sources) does
not refer to section 184(b) of the Act, the lower threshold
for VOC sources in ozone transport regions does not apply to
NOX sources.
e. Fugitive Emissions. The fugitive emissions from a
stationary source shall be considered in making the
determination as to whether it is a major source when:
(1) The source belongs to one of the source categories
listed in the definition of "major stationary source" at
40 CFR parts 51 and 52 which includes source categories
regulated by a section 111 or section 112 standard as of
August 7, 1980. Thus, proposed part 71 would follow the
proposed revisions to part 70 in that sources in categories
subject to standards set after August 7, 1980, if not
otherwise listed, would be exempted from the requirement to
include fugitive emissions when making their major source
determination until such time as EPA conducts section 302(j)
rulemaking to require that fugitive emissions from those
sources be included.
(2) The air pollutants emitted are HAP or
radionuclides. The EPA believes the Act requires that
fugitive emissions of HAP or radionuclides, to the extent
quantifiable, be counted. Section 112(a)(1) of the Act uses
the term "major source," rather than "major stationary
source," and legislative history indicates an intent by
Congress to treat this definition differently than the
section 302(j) "major stationary source" definition.
Moreover, section 112 of the Act establishes a new program
with a relatively narrow focus; it applies only for specific
HAP at source categories to be determined by EPA. All this
suggests that the section 302(j) rulemaking requirement does
not apply in the context of section 112, and that fugitive
emissions must therefore be included for the purpose of
determining whether a source is major under
section 112(a)(1).
4. New Source Review
The definitions for major and minor NSR have been
included so they can be used to describe the proposed permit
revision procedures. In some cases, the action to revise a
permit will depend on whether the change was subjected to
major or minor NSR before being processed as a part 71
revision.
5. Potential to Emit
In the proposed definition of "potential to emit,"
limitations on a source's potential to emit would be
federally enforceable only if they are enforceable by the
Administrator and citizens under the Act. This differs from
the definition currently in part 70 of this chapter, in that
the part 70 definition only requires that the limitations be
enforceable by the Administrator. This proposal would
follow the definition in the proposed revisions to part 70.
See 59 FR 44460 (Aug. 29, 1994).
6. Responsible Official
The proposed definition of "responsible official" would
follow the definition in the recently proposed revisions to
part 70.
7. Title I Modification
The proposed rule would adopt the definition of
"title I modification" or "modification under any provision
of title I of the Act" that is used in part 70. The
proposed definition parallels a proposed revision to the
regulations at part 70 of this chapter, on which EPA
solicited comment, and the rationale for the definition in
the preamble to the proposed revision to part 70 is
incorporated herein by reference. See 59 CFR 44460 (Aug.
29, 1994).
B. Section 71.3 - Sources Subject to Permitting
Requirements
Section 502(a) of the Act subjects all affected sources
(as provided in title IV), major sources, sources (including
area sources) subject to standards or regulations under
sections 111 or 112, sources required to have permits under
parts C or D of title I, and any other source in a category
designated by EPA, to the permitting requirements of
title V. Section 502(a) also provides the Administrator the
discretion to exempt one or more source categories (in whole
or in part) from the requirement to obtain a permit "if the
Administrator finds that compliance with such requirements
is impracticable, infeasible or unnecessarily burdensome on
such categories." The Act specifies that major sources may
not be exempted from these requirements. This requirement
applies both to sources that are major for criteria
pollutants and those that are major emitters of the HAP
listed at section 112(b). However, section 112(r)(7)(F) of
the Act also provides that sources that are subject solely
to regulations or requirements under section 112(r) of the
Act are not required to obtain a permit under this part.
1. Temporary Exemptions for Nonmajor Sources
Section 70.3(b)(1) of this chapter deferred the
applicability of part 70 to nonmajor sources (except for
affected sources and solid waste incineration sources) that
would otherwise be subject because they are in a source
category that is subject to part 70, such as one regulated
by a section 111 or 112 standard. In the final part 70
rule, EPA stated its intent to propose rulemaking to resolve
the exception status of these nonmajor sources within
5 years following the first full or partial approval of a
State program with a deferral.
The EPA proposes to follow the same approach to
deferrals for purposes of part 71.
2. Permanently Exempted Source Categories
The EPA proposes to exempt permanently two source
categories from the requirement to obtain a part 71 permit:
(1) All sources that would be required to obtain a
permit solely because they are subject to regulation under
the demolition and renovation provisions of the NESHAP for
asbestos (40 CFR 61.145); and
(2) All sources that would be required to obtain a
permit solely because they are subject to regulation under
the NSPS for residential wood heaters (40 CFR 60.530).
These source categories were exempted from permitting
requirements under part 70 because the Administrator
determined that permitting such sources would be
impracticable, infeasible, and unnecessarily burdensome.
This exemption is proposed to be continued for part 71. A
more detailed rationale for this exemption is provided in
the preamble to the part 70 regulations at 57 FR 32263-32264
(July 21, 1992), which EPA today incorporates by reference
for purposes of part 71.
3. Major Section 112 (HAP) Sources
Like the proposed revisions to part 70 of this chapter,
today's proposal would ensure that the definition of major
source in this part matches the definition in section 112(a)
of the Act and in the regulations governing HAP sources
recently promulgated in 40 CFR part 63. Under 40 CFR
Part 63, EPA definition of a major source of HAP is more
inclusive than the definition originally promulgated in
part 70. Unlike part 70, the part 63 definition of major
source does not reference standard industrial classification
(SIC) codes. As defined in part 63, an entire contiguous or
adjacent plant site is considered a single source, rather
than being subdivided according to industrial
classification. See 59 FR 12412 (March 16, 1994). This
definition does not limit the sources (or emission units)
that can be included in a stationary source to those having
the same 2-digit code. One result of this more inclusive
definition is that there will likely be some HAP sources
that are major under part 63 but are not major under
part 70, as originally promulgated. The EPA believes it is
necessary to expand the major source definition in part 70
and part 71 to include all sources that are major for
part 63. Otherwise, those sources subject to a section 112
standard or other requirement will not have to apply for and
obtain a part 71 permit until required to do so by a
specific section 112 standard. Today's proposal, and the
proposed revisions to part 70 of this chapter, reflect the
more inclusive part 63 definition and ensure that HAP
sources are treated consistently under rules promulgated
pursuant to section 112 and title V of the Act.
4. Section 112(r) Pollutants
Section 70.3(a)(3) of this chapter, as originally
promulgated, requires any source subject to a standard or
other requirement under section 112 of the Act to obtain a
part 70 permit unless it would be subject to part 70 solely
because it is subject to regulations or requirements under
section 112(r). Section 112(r)(3) requires EPA to
promulgate a list of regulated substances and thresholds for
the prevention of accidental releases. Section 112(r)(4)
establishes criteria for the development of a list of
regulated substances, focusing on acute effects that result
in serious off-site consequences, rather than chronic
effects. As a result, many of the substances listed in
68.130 of this chapter pursuant to section 112(r)(3)
(59 FR 4478 (January 31, 1994)) are not regulated elsewhere
under the Act.
Questions have been raised as to whether 70.3(a)(1)
of this chapter, which provides that "any major source" is
subject to the permit rule, requires that sources that have
major source levels of section 112(r) pollutants must be
permitted. Setting aside the issues of whether and how
major source status is to be determined for section 112(r)
purposes, section 112(r)(7)(F) exempts from title V
permitting requirements any source that would be subject to
title V only as result of being subject to section 112(r)
requirements. That section provides that "(n)otwithstanding
the provisions of title V or this section, no stationary
source shall be required to apply for, or operate pursuant
to, a permit issued under such title solely because such
source is subject to regulations or requirements under this
subsection." Thus, it is clear that even if a source could
be considered a "major source" for section 112(r) purposes,
it would not be subject to title V permitting on that basis
alone. The EPA's proposed revisions to 40 CFR part 70 would
revise 70.3(a) of this chapter to clarify this point.
Similarly, proposed 71.3(a) reflects this approach.
C. Section 71.4 - Program Implementation
Proposed section 71.4(a) describes the circumstances in
which EPA would establish a full or partial Federal
operating permits program for a State, excluding Tribal
areas. Section 502(d)(3) of the Act requires EPA to
promulgate, administer, and enforce a program for a State if
an operating permits program for the State has not been
approved in whole by November 15, 1995. However, the
requirement that EPA establish a Federal program by November
15, 1995 for States lacking a fully approved program is
suspended if a State program is granted interim approval.
The duty to implement a Federal program then reapplies upon
expiration of an interim approval, if the State has not
received full approval by that time.
As provided in proposed 71.4(a)(3), EPA would have
the authority to establish a partial part 71 program in
limited geographical areas of a State if EPA has approved a
part 70 program (or combination of part 70 programs) for the
remaining areas of the State. This should avoid unnecessary
disruption of partial programs that have been approved
within a State and avoid intruding into the State's
administration of its air program where only certain
jurisdictions have failed to implement an approvable part 70
program.
The proposed rule also provides for EPA implementation
of part 71 programs to ensure coverage of Tribal areas. The
proposed Tribal rule generally describes EPA's authority for
implementing programs under the Act to protect Tribal air
quality. 59 FR 43960-43961. That discussion is
incorporated here by reference.
In broad overview, the Act authorizes EPA to protect
air quality on lands over which Indian Tribes have
jurisdiction. The overarching purpose of the Act is "to
protect and enhance the quality of the Nation's air
resources so as to promote the public health and welfare and
the productive capacity of its population."
section 101(b)(1). The members of the public residing on
lands over which Tribes have jurisdiction are equally
entitled to air quality protection as those residing
elsewhere.
Several provisions of the Act evince Congressional
intent to authorize EPA to directly implement programs under
the Act where there are voids in program coverage (e.g.,
sections 110(c)(1), 301 (d)(4) and 502 (d)(3), (i)(4)).
Federal implementation of Clean Air Act programs on Indian
lands is particularly appropriate where Federal action will
prevent a "vacuum of authority" in air quality protection.
See Phillips Petroleum Co. v. EPA, 803 F.2d 545, 555-56
(10 Cir. 1986) (affirming EPA's authority to directly
implement Safe Drinking Water Act Underground Injection
Control program on Indian lands where concluding otherwise
would contradict the meaning and purpose of the Act by
creating "a vacuum of authority over underground injections
on Indian lands, leaving vast areas of the nation devoid of
protection from groundwater contamination"). Based on the
proposed interpretation of Tribal jurisdiction under the Act
in EPA's Tribal rule, discussed previously, EPA would have
authority under today's proposed rules to implement part 71
programs for all areas within the exterior boundaries of an
Indian reservation and other areas over which an Indian
Tribe has jurisdiction.
If finalized as proposed, the Tribal rule will
authorize Tribes to develop and submit title V operating
permit programs to EPA for approval. The EPA's principal
objective would be to assist Tribes in developing and
administering their own title V operating permit programs,
similar to the manner in which EPA has assisted States. The
EPA recognizes that ultimately Tribes are best situated to
provide primary protection of Tribal air resources. To
these ends, EPA's proposed Tribal rule provides the
following:
It is EPA's policy to assist Tribes in developing
comprehensive and effective air quality management
programs to insure that Tribal air quality management
programs will be implemented to the extent necessary on
Indian reservations. EPA will do this by, among other
things, providing technical advice and assistance to
Indian Tribes on air quality issues. EPA intends to
consult with Tribes to identify their particular needs
for air program development assistance and to provide
on-going assistance as necessary.
59 FR 43961.
However, EPA also intends to be prepared to implement
title V programs in the event Tribes do not. To avoid gaps
in title V permits program coverage, the rules proposed
today authorize EPA to implement a title V operating permits
program for Tribes that do not develop their own programs.
The more difficult issue is when EPA should implement
title V programs for Tribes. EPA believes it is reasonable
to give Tribes some opportunity to develop their own title V
programs, assuming EPA's final Tribal rule authorizes them
to do so, before EPA directly implements title V programs.
The part 71 rules propose to authorize EPA to implement
the title V permit program for Tribes if a Tribal program
has not been fully approved by November 15, 1997. Within
the first two years of the program, the permitting authority
would be required to take action on all applications
submitted in the first year of the program. Nothing in
today's proposal would prevent EPA from implementing a
part 71 program for a Tribal area subsequent to November 15,
1995 but prior to November 15, 1997. It may be appropriate,
particularly where the absence of an operating permits
program would create a gap in coverage, for EPA to implement
part 71 programs in advance of the effective date set by the
rule. The EPA would discuss early implementation with the
affected Tribe before adopting an earlier effective date.
In such a case, the program would become effective when the
Administrator provides written notice to the Tribal
chairperson or analogous Tribal leader.
The EPA considered several factors in addressing this
issue including: the opportunity for the development of
Tribal programs that would render Federal implementation
unnecessary; the importance of title V coverage, whether
Tribal or Federal, in protecting Tribal air quality; and,
the need to treat the potentially affected regulated
community fairly and to facilitate certainty in business
planning. The EPA solicits comments on whether the EPA's
proposed approach to the effective date of the program is
appropriate and whether the two-year deadline for taking
action on permit applications is appropriate and feasible.
The proposed Tribal rule describes an administrative
procedure by which EPA would resolve jurisdictional issues
affecting Tribes. See 59 FR 43962-43963 (Aug. 25, 1994).
That discussion is incorporated here by reference.
Generally, EPA expects these issues to involve the precise
boundary of the reservation in question and, less
frequently, competing claims of jurisdiction over land which
is outside of the exterior boundaries of a reservation.
Briefly summarized, the proposed Tribal rule would
require EPA to notify the appropriate governmental entities
regarding the Tribe's assertion of jurisdiction. Those
entities would have fifteen days following receipt of EPA's
notification to provide formal comments to EPA regarding any
dispute they might have with the Tribe's assertion of
jurisdiction. Where the dispute concerns jurisdiction over
off-reservation lands, appropriate governmental entities may
request a one-time fifteen-day extension to the comment
period. In all cases, comments from appropriate
governmental entities would have to be offered in a timely
manner and be limited to the Tribe's jurisdictional
assertion. Where no timely comments are presented, EPA
would conclude there is no objection to the Tribe's
assertion. To raise a competing or conflicting claim, a
commenter would be required to clearly explain the
substance, basis, and extent of its objections. Finally,
where EPA receives timely notification of a dispute, it
could obtain such additional information and documentation
as it believes appropriate and, at its option, consult with
the Department of the Interior.
For purposes of identifying the Tribal area for which a
part 71 program is implemented, EPA proposes to follow the
approach to resolving jurisdictional issues taken in the
Tribal air rule. If the Tribal rule is finalized as
proposed, EPA would notify appropriate governmental entities
of the boundary of the Tribal area for a part 71 program at
least 90 days prior to the effective date of the program.
Those entities would then have an opportunity to provide
formal comments prior to the program's effective date, as
discussed above. Where no timely comments are presented,
EPA would make a determination that the boundary for the
part 71 program would be as proposed in the notice.
Subsequently, EPA would publish a notice in the Federal
Register which describes the precise boundaries of the part
71 program.
Where EPA identifies a jurisdictional dispute, it may
obtain additional information and documentation and consult
with the Department of the Interior prior to making a
determination. The EPA would subsequently publish a notice
in the Federal Register which describes the precise
boundaries of the part 71 program. If the dispute cannot be
resolved promptly, EPA would retain the option of
implementing the part 71 program in the areas that are
clearly shown to be part of the reservation (or are
otherwise within the Tribe's jurisdiction). This will allow
EPA to implement a part 71 program that covers all
undisputed areas, while withholding action on the portion
that addresses areas where a jurisdictional issue has not
been satisfactorily resolved.
As proposed in 71.4(c), EPA would promulgate a
part 71 program for a permitting authority (including an
eligible Tribe) if EPA determines that an approved program
is not adequately administered or enforced and the
permitting authority fails to correct the deficiencies that
precipitated EPA's finding. Where the acid rain portion of
an operating permits program is not adequately administered,
EPA could withdraw either the entire program or just the
acid rain portion of the program. If EPA finds that the
nonacid rain portion of the operating permits program is
being adequately administered, EPA would generally withdraw
only the acid rain portion. In such a case, EPA would issue
the acid rain portion of the source's permit using the
procedures set forth in 40 CFR part 72, and the State would
continue to issue the remaining portion of the operating
permits and would issue all permits to sources other than
acid rain sources.
When EPA determines that a State is not adequately
administering its program, EPA would provide notice to the
State as required by 40 CFR 70.10(b)(l). The State would
then have 90 days in which to take significant action to
assure adequate administration and enforcement of the
program. Where EPA determines that the State has not taken
such significant action within the specified time, EPA could
begin implementing a Federal program immediately.
Otherwise, if the State had not fully corrected the
deficiency that prompted EPA's determination of failure to
administer or enforce within 18 months of the determination,
EPA would begin implementing a Federal program 2 years after
the date of the determination. This framework is identical
to that which EPA promulgated in part 70 at 40 CFR
70.10(b)(2) and (4).
The EPA acknowledges that its intent to retain the
option of withdrawing only the acid rain portion of a
program in appropriate situations is a change of position
from EPA's statement in the preamble to the final part 70
rule (see 57 FR 32260) that should a State fail to
adequately administer phase II of the acid rain program, EPA
will take back the entire operating permits program. There,
EPA stated that in such a situation EPA would implement
part 71, as supplemented by Federal acid rain permit
issuance procedures, and would issue permits to acid rain
sources within the State. The EPA notes that this
discussion was not reflected in regulatory language in the
finally promulgated part 70 rule, which instead provided EPA
discretion to withdraw program approval in whole or in part.
See 40 CFR 70.10(c)(l). Moreover, EPA explained in a
May 21, 1993 guidance document entitled "Title IV-Title V
Interface Guidance for States," that if EPA finds that a
part 70 program is not being properly administered or
enforced for title IV purposes, EPA will publish a notice in
the Federal Register making this announcement and noting
where permit applications are to be delivered. When
publishing such a Federal Register notice, EPA may elect to
withdraw approval for an entire part 70 program submittal or
only the acid rain portion of it and may apply appropriate
sanctions under section 179(b) of the Act.
Under part 71, EPA would retain the option of
withdrawing only the acid rain portion of the program and
issuing a phase II acid rain permit, rather than withdrawing
the entire part 70 program and issuing a comprehensive
part 71 operating permit. The EPA believes that it is
reasonable and appropriate to depart from the policy stated
in the preamble to the final part 70 rule regarding
withdrawal of phase II acid rain authority because EPA
believes that deficiencies with respect to the acid rain
portion of a State program would generally not adversely
affect the remaining portions of the State program. By
withdrawing approval of just the acid rain portion, EPA
would minimize disruption of otherwise adequate State air
programs. It should be noted that the acid rain portion of
a source's operating permit contains discreet requirements
that are not intertwined with the remaining provisions of
the permit. For example, phase II acid rain permits
generally contain a requirement that a source hold
sufficient allowances to cover emissions, specify
requirements for NOX emissions and provide for continuous
emissions monitoring in accordance with 40 CFR part 75.
Amendments and revisions to such provisions are subject to a
different set of procedures as specified in 40 CFR part 72.
Thus, separate Federal administration of the acid rain
permitting program in a State that fails to adequately
administer the acid rain portion of its operating permits
program would be a logical step where the remainder of the
part 70 program was being adequately administered by the
State.
The EPA solicits comment on this approach, and on
whether this approach is consistent with the requirements of
title V. The EPA stresses that section 502(i)(l) of the Act
allows EPA to determine that only a portion of an approved
State program is not being adequately administered and
enforced. While section 502(i)(1) does not explicitly
provide that where a State fails to correct an identified
deficiency in a finding under section 502(i)(4), EPA may
promulgate, administer, and enforce only the relevant
portion of the program, EPA believes that Congress could not
have intended for EPA to be compelled to withdraw and take
over entire part 70 programs where only discrete portions of
the program are deficient. Such a result would be
unnecessarily disruptive of State air programs and would
require much greater Federal intrusion into the State's air
program than may be necessary to correct the faulty portion.
Section 71.4(d) addresses the circumstances in which
EPA proposes to issue permits to OCS sources (sources
located in offshore waters of the United States) pursuant to
the requirements of section 328(a) of the Act. Section 328
of the Act transferred from the Department of the Interior
to EPA the authority to regulate air pollution from sources
located on the OCS off of the Atlantic, Arctic, and Pacific
coasts and in the Gulf of Mexico east of 87.5 degrees
longitude. In today's notice, which proposes revisions to
40 CFR part 55 in addition to the proposed Federal operating
permit rules, EPA is proposing to require an OCS source to
comply with the requirements of part 71 if the source is
located beyond 25 miles of States' seaward boundaries or if
the source is located within 25 miles of a State's seaward
boundary and the requirements of part 71 are in effect in
the corresponding onshore area (COA). Section 328 requires
that EPA establish requirements for sources located within
25 miles of a State's seaward boundary that are the same as
would be applicable if the source were located in the COA.
Part 71 permits would be issued to OCS sources by the
Administrator or a State or local agency that has been
delegated the OCS program in accordance with part 55 of this
chapter. As OCS sources beyond 25 miles of States' seaward
boundaries would become subject to part 71 immediately upon
the effective date of promulgation of part 71, they would be
required to submit part 71 permit applications within 1 year
of becoming subject to this part.
Proposed 71.4(e) describes how EPA would take action
on objectionable permits that have already been proposed or
issued by a permitting authority. Section 505(b) of the Act
and 40 CFR 70.8(c) and (d) require EPA to object to the
issuance of any permit that EPA determines is not in
compliance with the applicable requirements of the Act. If
the permitting authority does not take appropriate action in
response to EPA's objection, EPA shall revise, terminate, or
revoke the permit if it has been issued and shall correct
and issue the permit if it has not been issued.
As provided in 40 CFR 70.7(g) ( 70.7(j) in the
proposed revisions to part 70), if EPA finds that a State-
issued permit must be reopened to correct an error or add
newly applicable requirements, EPA will notify the
permitting authority. If the permitting authority does not
take appropriate action, EPA will revise and reissue the
permit under part 71.
As provided at 40 CFR 70.8(c)(l), EPA will object to
the issuance of any proposed permit that EPA determines is
not in compliance with the applicable requirements of the
Act or the requirements of part 70. If EPA objects within
45 days of receipt of a copy of the proposed permit, the
permitting authority may not issue the proposed permit to
the source. The EPA's objection, as required by 40 CFR
70.8(c)(2), shall include a statement of EPA's reasons for
objecting and a description of the permit terms that the
permit must include to respond to the objection. Moreover,
under 40 CFR 70.8(c)(3), failure of the permitting authority
to: (1) comply with requirements in 40 CFR 70.8(a) and (b)
to notify EPA and affected States, (2) submit to EPA any
information necessary to adequately review the proposed
permit, or (3) process the permit under procedures approved
to meet the public participation requirements of part 70
would also constitute grounds for EPA objection to a
proposed permit.
Under 40 CFR 70.8(c)(4), if the permitting authority
fails within 90 days after EPA's objection to revise and
submit to EPA a new proposed permit responding to the
objection, EPA will issue or deny the permit. Proposed
71.4(e)(1) would establish the authority for EPA's permit
issuance or denial in these situations.
Likewise, proposed 71.4(e)(1) would establish the
authority for EPA to revise, terminate, or revoke a permit
in response to a citizen petition filed under
40 CFR 70.8(d). The EPA's action to revise, terminate or
revoke a permit would then occur consistent with
40 CFR 70.7(g)(4) or (5)(i) and (ii) ( 70.7(j)(4) or
(5)(i) and (ii) of the proposed revisions to part 70),
except in unusual circumstances, such as where there is a
substantial and imminent threat to the public health and
safety resulting from the deficiencies in the permit.
Usually, the permitting authority would have 90 days from
receipt of EPA's objection in response to a citizen petition
to resolve the objection and terminate, revise, or revoke
and reissue the permit in accordance with EPA's objection.
See 40 CFR 70.7(g)(4), 70.7(j)(4) of the proposed
revisions to part 70. If the permitting authority failed to
resolve the objection, EPA would terminate, revise, or
revoke and reissue the permit, after providing at least
30 days notice to the permittee in writing of the reasons
for such action (which may be given at any time during the
time period after EPA objects to the permit) and providing
the permittee an opportunity for comment on EPA's proposed
actions and an opportunity for a hearing. See 40 CFR
70.7(g)(5)(i) and (ii) and 70.7(j)(5)(i) and (ii) of the
proposed revisions to part 70. Proposed 71.4(e)(2) would
provide the authority for EPA to take such action.
Section 71.4(f) of the proposed rule would authorize
EPA to use part 71 in its entirety or any portion of the
regulations, as needed. For example, EPA could use the
provisions for permitting OCS sources without permitting any
other types of sources. Similarly, EPA could use only
portions of the regulations to correct and issue a State
permit without, for example, requiring an entirely new
application. Proposed 71.4(f) would also authorize EPA to
exercise its discretion in designing a part 71 program. The
EPA would be able to, through rulemaking, modify the
national template by adopting appropriate portions of a
State's program as part of the Federal program for that
State, provided the resulting program is consistent with the
requirements of title V.
The EPA believes it is reasonable and appropriate to
provide this flexibility in implementing a part 71 program.
First, such flexibility would enable EPA to intervene in the
administration and enforcement of an operating permits
program only to the extent necessary to correct
deficiencies. Second, it would provide EPA, after notice
and comment rulemaking, the ability to appropriately tailor
part 71 to the State in which it would be implemented, thus
resulting in less disruption of the State air program and
the daily operations of covered sources than might otherwise
occur. While EPA believes that part 71 as proposed today
should not result in unnecessary disruption, the Agency
recognizes that further State-specific tailoring may be
appropriate.
Proposed 71.4(g) clarifies that EPA would publish a
notice of the effective dates of part 71 programs. The EPA
would publish such notice in the Federal Register and would,
to the extent practicable, publish notice in a newspaper of
general circulation in the area affected by the part 71
program. The EPA would also publish such notice for
delegations of part 71 programs. Finally, in addition to
notices in the Federal Register and newspapers of general
circulation, EPA would send a letter to the Governor (or his
or her designee) or the Tribal governing body for the
affected area informing him or her of when the part 71
program or its delegation would become effective.
Section 71.4(h) proposes that EPA would be authorized
to promulgate and administer a part 71 program in its
entirety even if only limited deficiencies exist in a State
or Tribal program. The EPA believes that such authority is
necessary because limited deficiencies could have wide-
ranging impacts within a program. For example, if a State
program failed to provide adequate opportunities for public
or affected State participation in permitting actions, the
integrity of permit content could become suspect, the public
and affected States would be excluded from administrative
and judicial review of permit actions, and EPA oversight of
such actions could suffer, as a result of citizens not
having standing to petition EPA to object to permits.
Section 71.4(i) of the proposed rule describes how EPA
would take action on the initial part 71 permits in the
event that a full or partial part 71 program becomes
effective in a State or Tribal area prior to the permitting
authority issuing part 70 permits to all subject sources.
The EPA proposes to utilize a 3-year transition plan similar
to that required of States under 70.4(b)(11)(ii) of this
chapter. Under proposed 71.4(i)(1), any remaining sources
that had not yet received part 70 permits from the
permitting authority would be required to submit
applications to EPA for part 71 permits within 1 year of
becoming subject to the part 71 program. The sources that
had already received part 70 permits, if any, would continue
to operate under those permits, unless EPA had withdrawn
part 70 approval due to the inadequacy of the part 70
permits, in which case those sources would be required to
obtain part 71 permits. After receiving part 71 permit
applications, EPA would act on one-third of those
applications each year for the first 3 years of the part 71
program. As previously issued part 70 permits needed to be
revised or renewed, sources would apply to EPA for such
revisions or renewals under part 71.
As provided in proposed 71.4(j), EPA would have the
discretion to delegate some or all of its authority to
administer a part 71 program to a State or eligible Tribe.
The delegation process is described further in the
discussion of proposed 71.10.
Section 71.(4)(k) of the proposed rule would authorize
EPA to administer and enforce part 70 permits issued by a
permitting authority under a previously-approved part 70
program after EPA has withdrawn approval of such program
until they are replaced by part 71 permits issued by EPA.
Proposed 71.4(l) describes what would happen after
EPA approves a part 70 program for an area in which a
part 71 program has been effective and how the
Administrator, or the new part 70 permitting authority, will
administer and enforce the part 71 permits until they are
replaced by part 70 permits. For a State that submits a
late part 70 submittal to EPA such that EPA has not approved
or disapproved the submittal by November 15, 1995, part 71
becomes automatically effective until the State's part 70
program is approved by EPA. However, sources are not
obligated to submit applications to EPA until 12 months
after they have become subject to an effective part 71
program (unless an earlier submittal date is set by EPA).
Therefore, if the State's part 70 program is approved
shortly after part 71 is effective, it is highly likely that
sources will submit applications to the permitting authority
rather than to EPA. Upon approval of the part 70 program,
EPA will suspend further action on applications for part 71
permits. Where appropriate, applications received by EPA
prior to approval of the part 70 program will be forwarded
to the permitting authority after approval of the part 70
program.
Finally, proposed 71.4(m) provides how EPA would
implement the provision of section 325 of the Act if the
Governor of Guam, American Samoa, the Virgin Islands, or the
Commonwealth of the Northern Mariana Islands petitions the
Administrator to exempt any source or class of sources from
the requirements of title V of the Act.
D. Section 71.5 - Permit Applications
Much of proposed 71.5 is modelled on the provisions
currently promulgated at 40 CFR 70.5, and on the proposed
revisions to that section. See 59 FR 44460 (Aug. 29, 1994).
In this notice, EPA incorporates by reference the rationale
provided for these provisions, to the extent such rationale
apply to a Federal operating permit program as well as to
State permit programs. Copies of the part 70 rule as
promulgated in July 1992 and of the notice proposing
revisions to part 70 have been included in the docket for
this rulemaking. The Supplementary Information Document
contains a general discussion and explanation of the
proposed rule's application requirements. Where proposed
part 71 differs from promulgated part 70 or the proposed
revisions to part 70 the discussion goes into greater detail
describing the part 71 proposal. Where proposed part 71
follows part 70 precedent, shorter general descriptions of
the part 71 proposal are supplied. It should be noted that
the formatting of proposed 71.5 does not correspond to
that of 40 CFR 70.5. In developing proposed part 71, EPA
determined that the formatting of 40 CFR 70.5 could be
improved so that it is easier to follow. The EPA requests
comment on this proposed formatting difference.
1. Insignificant Activities and Emission Levels
Proposed 71.5(g) would allow insignificant activities
or emission levels to be exempt from the application content
requirements of proposed 71.5(f). These exemptions would
reduce the administrative burden on sources by eliminating
the requirement that a source include in its application an
extensive analysis of insignificant activities (or emissions
units) and quantities of emissions. This proposal is based
on the part 70 provisions regarding insignificant activities
and emissions levels, and is supported by the Alabama Power
decision, where the court found that emissions from certain
small modifications and emissions of certain pollutants at
new sources could be exempted from some or all PSD review
requirements on the grounds that such emissions would be de
minimis. See Alabama Power v. Costle, 636 F.2d 323, 360
(D.C. Cir., 1979). In other words, EPA may determine levels
below which there is no practical value in conducting an
extensive review. In general, an agency can create this
exemption where the application of a regulation across all
classes will yield a gain of trivial or no value. A
determination of when a matter can be classified as de
minimis turns on the assessment of particular circumstances
of the individual case. For EPA to establish that an
emissions threshold is trivial and of no consequence, EPA
must consider the size of the particular emissions threshold
relative to the major source threshold applicable in the
various areas where a regulation will be in effect.
In the rulemaking establishing requirements for State
operating permits programs under part 70, many commenters
suggested that EPA create a de minimis exemption level for
regulated air pollutants, and that emissions information not
be required for pollutants below this de minimis level. In
the final part 70 rule, EPA gave States discretion to
develop lists of insignificant activities and to set
insignificant emission levels if certain criteria were met
and subject to EPA review and approval. In the proposed
part 71 rule, EPA has fashioned provisions for insignificant
activities or emission levels that meet the minimum
requirements for States under the part 70 rulemaking, while
taking a unique Federal approach, based on the Agency's
experience in reviewing State provisions for insignificant
activities and emission levels in the course of part 70
operating permits program reviews. The EPA notes, however,
that the part 70 provisions on insignificant activities and
emissions levels are the subject of ongoing litigation
settlement discussions, and that a possible result of these
discussions could be a modification of the part 70
provisions on this issue. To the extent any future proposed
revisions to the part 70 insignificant activities and
emissions level criteria are more stringent than the
provisions proposed for part 71, EPA may have to supplement
this proposal to make the two rules consistent.
In this rulemaking, EPA proposes to exempt all
information required by proposed 71.5(f) concerning
insignificant activities inclusion in the permit
application, while for insignificant emission levels,
application information completeness requirements would vary
from proposed 71.5(f). To ensure that all significant
information is included in the permit application, the
proposed rule includes a provision stating that no
activities or emission levels shall be exempt from proposed
71.5(g) if the information omitted from the application is
needed to determine or impose any applicable requirement, to
determine whether a source is major, to determine whether a
source is subject to the requirement to obtain a part 71
permit, or to calculate the fee amount required under the
fee schedule established pursuant to proposed 71.9. The
proposed prohibition against omitting information from the
application that is relevant to the determination or
imposition of applicable requirements means that an activity
(or emissions unit) that has applicable requirements could
not be considered as an insignificant activity or to have
insignificant emission levels. Applicable requirements in
this context include any standard or requirement as defined
in proposed 71.2. The proposed provision that the
exemption not interfere with the requirement to obtain a
part 71 permit is necessary to insure that all the
requirements of the Act are met, because the requirements of
title V of the Act are not included in the proposed
definition of applicable requirements. An activity or
emission level could not be insignificant if it constitutes
a major source. An activity or emission level could not be
insignificant if omitting the emissions from the application
would prevent the aggregate source emissions from exceeding
the major source threshold or a threshold that would trigger
an applicable requirement, such as a modification under
section 112(g). This proposal would further prohibit these
exemptions from being used by applicants when information
needed to calculate the fee amount required under the fee
schedule would be omitted from the application. Although
the fee schedule provided in proposed 71.9(c)(1) would
exclude insignificant emissions from being counted for fee
purposes, this provision would be retained for instances
where the Administrator promulgates a different fee schedule
for a particular state pursuant to proposed 71.9(c)(7).
Under such a fee schedule, information concerning
insignificant activities or emissions may be needed to
calculate the fee amount.
a. Insignificant Activities. To meet the requirements
of part 70, States submitted rules incorporating a wide
variety of approaches for implementing these provisions.
Many State part 70 program submittals included extensive
lists of insignificant activities. Some of the listed
activities were so broadly defined that it was difficult to
determine if they would interfere with the determination or
imposition of applicable requirements or affect major source
status, seemingly inviting the omission of significant
information. Some were so narrowly defined that industry
would be invited to propose an endless number of additional
listings for inclusion in the rules in future years,
creating an administrative burden on the States. In the
course of EPA's review of part 70 permit program submittals,
it was also clear that there were very few insignificant
activities that are common among the States. The EPA
proposes to include a short list of broadly-defined
insignificant activities that are frequently included in
State part 70 program submittals. These activities commonly
occur in residential settings, are not subject to applicable
requirements (with the possible exception of certain SIP-
based requirements for residential heating sources that are
not commonly adopted on a nation-wide basis), and normally
have small quantities of emissions. Emission units at a
source that are on the list of insignificant activities in
proposed 71.5(g)(1) could not be treated as insignificant
(1) when the activities are subject to an applicable
requirement, including an applicable requirement of a
Federal or Tribal implementation plan, (2) if information
concerning the activities would interfere with any
applicability determination, (3) if the insignificant
activities constitute a major source, (4) if not counting
the emissions from insignificant activities in the total
source emissions would prevent the source from being
determined to be a major source, or (5) if any information
that would otherwise be left off of the permit application
would be needed to calculate the fee amount required under
the fee schedule established under proposed 71.9.
b. Insignificant Emission Levels. The proposal would
further allow emission units or activities with small
emissions to be included in the application in a streamlined
manner, as long as the application did not exclude
information needed to (1) determine or impose applicable
requirements, (2) determine the requirement to obtain a
permit, (3) determine whether the source is a major source,
or (4) calculate the fee amount, and provided the emissions
caps of proposed 71.5(g)(2) were not exceeded. The EPA
believes that this would ensure that enough information will
be provided that the permitting authority can make a quick
assessment of whether the emissions are insignificant.
Nevertheless, to ensure that the rule is being applied
properly by the applicant, the permitting authority could
request additional information if needed. Note that to
qualify as insignificant emissions, the emissions could not
count toward or trigger a unit-based de minimis permit
revision under proposed 71.7(f). The only emissions units
that would have emissions levels qualifying as insignificant
under proposed 71.5(g) would be units that would not be
included in the part 71 permit anyway because they could not
be subject to applicable requirements, contribute to the
triggering of an applicable requirement, or affect a major
status determination. Therefore, for existing units with
insignificant emissions there would not be any permit terms
or conditions to revise and for new units with insignificant
emissions there would not be any permit terms or conditions
to add to the part 71 permit.
The emissions caps of proposed 71.5(g)(2) are
expressed in terms of potential to emit, not actual
emissions. The use of potential to emit is consistent with
how major source thresholds (which were used in developing
the proposed caps) are defined. Furthermore, EPA believes
that basing the caps on potential to emit provides greater
assurance that only truly insignificant levels of emissions
would be eligible for streamlined treatment on the permit
application form.
In commenting on the necessity of de minimis levels to
be established in the part 70 rulemaking, one commenter
suggested the level be set at 5 tpy or 20 percent of the
applicable major source threshold. An examination of these
levels in terms of major source thresholds is necessary to
determine if they are trivial. For example, a 5-ton
emission is 20 percent of the major source threshold for
serious and severe ozone nonattainment areas, but 50 percent
of the major source threshold in extreme ozone nonattainment
areas. A level set at 20 percent of the applicable
threshold would equal 2 tons in extreme ozone nonattainment
areas, but would be 20 tons in moderate nonattainment areas.
It is not clear that emissions of this size could be
characterized as trivial in all areas for all air
pollutants, especially because emissions at these levels may
trigger State major new source review (NSR), thus triggering
applicable requirements.
Therefore, EPA is proposing and soliciting comment on
setting the threshold for insignificant emission levels at
1 tpy for regulated air pollutants, except HAP, in all areas
except extreme ozone nonattainment areas, where the
threshold is proposed to be 1,000 pounds (lb) per year.
These levels would be 1 percent of the major source
threshold in moderate nonattainment areas, 2 percent in
serious ozone nonattainment areas, 4 percent in severe ozone
nonattainment areas, and 5 percent of the threshold in
extreme ozone nonattainment areas. The EPA believes that
these levels are trivial and would not prevent EPA from
collecting any information of a consequential or significant
nature. The lower threshold for extreme ozone nonattainment
areas is necessary due to the increased concern that
permitting authorities would have in such areas. Permitting
authorities in these areas have collected information
pertaining to permitted sources with relatively small
emissions. This level of concern has been necessary in
order to achieve emission reductions sufficient to make
progress towards meeting the NAAQS.
The EPA proposes and solicits comment on setting the
exemption threshold for HAP for any single emissions unit to
be the lesser of 1,000 lb per year or the de minimis levels
established under section 112(g) of the Act. In the part 70
rulemaking, EPA recommended that the emissions levels for
HAP established for the purpose of setting insignificant
emission levels not be less stringent than the levels
established for modifications under section 112(g) of the
Act. Although this was only a recommendation, many States
structured their emissions levels for HAP using these levels
as upper bounds. Note that the provisions of proposed
71.5(g) would prevent a part 71 emissions unit from having
insignificant emissions levels if the unit was subject to
applicable requirements of section 112(g). The EPA also
proposes that the level for HAP should never be higher than
1,000 pounds per year. This is necessary because the major
source threshold is 10 tpy for a single HAP, thus ensuring
that insignificant emissions of HAP will never exceed
5 percent of the major source threshold. The EPA believes
that these levels are trivial and would not prevent EPA from
collecting any information of a consequential or significant
nature.
The EPA proposes and solicits comment on setting the
threshold for insignificant emissions for the aggregate
emissions of any regulated air pollutant, excluding HAP,
from all emission units located at a facility to not exceed
a potential to emit of 10 tpy, except in extreme ozone
nonattainment areas, where potential to emit may not exceed
5 tpy. The EPA further proposes and solicits comment on
setting the threshold for insignificant emissions levels for
the aggregate emissions of all HAP from all emission units
located at a facility to not exceed a potential to emit of
5 tpy or the section 112(g) de minimis levels, whichever is
less. These provisions would provide more certainty to the
permitting authority because no emissions values in terms of
potential or actual emissions would be required to be
included in the application for emissions qualifying as
insignificant, and it is conceivable that large quantities
of emissions could be hidden from scrutiny without such
aggregate emission thresholds. In addition, these
provisions would clarify for applicants that large numbers
of similar sources, such as valves or flanges, that might be
exempt on an individual basis, would have to be described in
detail in the application if the aggregate emissions from
all the units are relevant to the applicability of the Act's
requirements or the determination of major source status.
Minimal information concerning emissions units with
insignificant emissions would have to be provided in a list
in the application. This list would have to describe the
emission units in sufficient detail to identify the source
of emissions and demonstrate that the exemption applies.
For example, the description "space heaters" on a list may
not provide sufficient information because there could be an
unlimited number of units with potentially significant
emissions, but the description, "two propane-fired space
heaters," places a limit on any estimate of emissions and
would provide enough information. Descriptions may need to
specify not only the number of units meeting the
description, when more than one unit is included under a
single description, but in many cases capacity, throughput,
material being processed, combusted, or stored, or other
pertinent information may need to be provided. For example,
"storage tank" would be insufficient, but "250 gallon
underground storage tank storing unleaded gasoline, annual
throughput less than 2,000 gallons," would be sufficient for
quick assessment, because this level of information is
sufficient to demonstrate whether any applicable
requirements apply and that the 1 tpy emissions cap would
most likely not be exceeded.
Emissions units (or activities) with insignificant
emissions that might be logically grouped together on the
list that would be required by proposed 71.5(g)(2) but
that have dissimilar descriptions, including dissimilar
capacities or sizes, would be required to be listed
separately in the application. This is necessary to prevent
large numbers of emissions units from being grouped together
on the list in such a way that the description would be too
broad to provide sufficient information to identify the
emissions units and provide an indication of whether or not
the exemption applies. On the other hand, in certain cases,
large numbers of certain activities could be grouped
together on the list. For example, a complex facility may
have hundreds of valves and flanges where the aggregate
potential to emit of all the valves and flanges does not
exceed the aggregate emissions cap and there are no
applicable requirements that apply to the valves and
flanges. In this case, it would most likely be appropriate
to list all the valves and flanges together as one listed
item, including the number of units meeting the exemption.
The EPA solicits comment on the approach regarding
insignificant activities and emission levels proposed in
this notice, particularly on whether this approach provides
greater clarity than that discussed in promulgated part 70,
and whether the approach proposed in this notice would be
compatible with the approaches developed by States to date.
The EPA also solicits comment regarding whether the approach
proposed today provides adequate safeguards to insure that
part 71 permit applications do not exclude significant
information, especially all information necessary to
determine applicability of Act requirements and major source
status.
2. Cross Referencing Information in the Application
The permitting authority could allow the application to
cross-reference relevant materials where they are current
and clear with respect to information required in the permit
application. Such might be the case where a source is
seeking to update its title V permit based on the same
information used to obtain a NSR permit or where a source is
seeking renewal of its title V permit and no change in
source operation or in the applicable requirements has
occurred. Any cross-referenced documents would have to be
included in the title V application that is sent to the
permitting authority and that is made available as part of
the public docket on the permit action.
3. Application Completeness Determinations
As provided by proposed 71.5(c), a complete
application would be one that the permitting authority has
determined contains all the information needed to begin
processing. The preamble to the proposed revisions to
part 70 discusses two options for providing flexibility when
determining application completeness. The first option
addresses applications for sources with future-effective
compliance dates, and the second option addresses the
submittal of less-detailed applications for sources that are
scheduled to be permitted in the second and third years of
the initial phase-in of a part 70 program. See 59 FR 44460
(Aug. 29, 1994).
Although the regulatory language concerning
completeness determinations in the part 71 proposal is
consistent with the regulatory language in the proposed
part 70 revisions, EPA is not anticipating revising the
proposed part 71 regulatory language to specifically
implement either of the flexibility options discussed in the
preamble to the proposed revisions to part 70. As EPA is
not as familiar with sources as State and local permitting
authorities, EPA is not in a position to adequately quality
assure applications that apply such flexibility options.
Thus, the use of such flexibility options in determining
application completeness could increase the risk of
inappropriate completeness determinations by EPA, as well as
increase EPA's administrative burden. As a result of this
concern, EPA is not proposing to provide for the flexibility
options described in the preamble to the revisions to
part 70, but solicited comment on this position in the part
71 proposal.
E. Section 71.6 - Permit Content
Many of the proposed provisions of 71.6 follow the
provisions of 40 CFR 70.6, which were described and
discussed at length in the proposed and final preambles to
40 CFR part 70, and in the recently proposed revisions to
part 70. This notice incorporates the rationale provided in
the part 70 notices by reference, as appropriate. This
discussion focuses on those provisions that are affected by
the legal challenges to the part 70 rule and those issues
for which the approach proposed to be taken in part 71
differs from that taken in part 70 or the proposed revisions
thereto.
The provisions of proposed 71.6 have been formatted
differently than those in 40 CFR 70.6 to consolidate the
provisions related to compliance and to make the section
easier to follow. The EPA solicits comment on the proposed
formatting change.
1. Prompt Reporting of Deviations
Like part 70, proposed part 71 would require that each
permit contain provisions for prompt notification of
deviations. In both cases, the definition of "deviation" is
consistent with the definition of deviation in the proposed
enhanced monitoring rule. However, part 71 proposes to
define "promptly" for purposes of reporting deviations from
federally-issued permits.
Under this proposal and the proposed enhanced
monitoring rule, deviation means any of the following
conditions: where emissions exceed an emission limitation or
standard; where process or control device parameter values
demonstrate that an emission limitation or standard has not
been met; or where observations or data collected
demonstrates noncompliance with an emission limitation or
standard or any work practice or operating condition
required by the permit. These conditions (except in cases
where provisions that exempt such conditions from being
federally enforceable violations have been promulgated or
approved by the Administrator) would be deemed deviations
from part 71 permit requirements and would require prompt
reporting to the permitting authority.
Part 71 sources would be required to promptly notify
the permitting authority of any deviations. Under part 71,
promptly has more than one meaning. This follows the model
established in part 70. Where the underlying applicable
requirement contains a definition of prompt or otherwise
specifies a time frame for reporting deviations, that
definition or time frame shall govern. Where the underlying
applicable requirement fails to address the time frame for
reporting deviations, prompt is defined differently
depending on the type of pollutant emitted. For deviations
concerning a HAP or toxic air pollutant that exceed a permit
requirement for at least a one hour duration, prompt
reporting would be defined as within 24 hours. Sources
emitting other regulated air pollutants at levels that
exceed permit requirements for at least two hours would be
required to report the deviation within 48 hours.
The EPA recognizes that there are other notification
requirements that have been established under other statutes
that require sources to provide immediate notification of
releases of specific chemicals in reportable quantities to
agencies other than EPA and State permitting authorities.
Generally these notifications apply to a potential emergency
situation such as those requirements in CERCLA and SARA
title III. In addition, pursuant to section 112(r), the
Chemical Safety and Hazards Investigation Board has the
authority to develop regulations for reporting accidental
releases of section 112(r) substances. If a reporting
regulation is established, it would become an applicable
requirement on the source. The EPA stresses that sources
must comply with such notice requirements even if they have
provided notice to the permitting authority pursuant to
proposed 71.6(f)(3). Failure to provide notices required
by these other statutes and their implementing regulations
may result in enforcement actions and penalties.
Because the emissions from sources could cover a very
large spectrum with a wide range of health effects, the
permitting authority may also define in the permit the
concentration and time duration of a deviation that must be
reported promptly and the schedule for such reporting.
Sources may notify the permitting authority of a
deviation by telephone or facsimile within their required
time schedule, and must then submit certified written notice
within ten working days. All deviations would still have to
be included in monitoring reports which would be required to
be submitted at least every 6 months or more frequently if
required by another applicable requirement (e.g., NSPS or
enhanced monitoring).
2. General Permits
Proposed 71.6(l) would implement section 504(d),
which authorizes the permitting authority to issue a
"general permit covering numerous similar sources." The
approach proposed for part 71 would follow that of part 70
and the recently proposed revisions thereto.
In response to the concerns raised in the legal
challenges to the part 70 rule, EPA has reevaluated its
approach to providing for public participation for general
permits.
In the most recent part 70 proposal, the following
items concerning general permits were proposed:
(1) authorization to operate under a general permit is a
final action subject to judicial review; and (2) the
permitting authority is required to notify the public of
sources who have been authorized to operate under a general
permit. The latter action could be done as a monthly
summary. Proposed 71.6 follows the approach of the recent
part 70 proposal for general permits.
3. Emergency Defense
As provided in proposed 71.6(o), part 71 permits
could contain permit terms that provide that a source can
establish an affirmative defense to an enforcement action
based on noncompliance due to an emergency. The affirmative
defense would not apply to permit terms other than
technology-based emission limitations (e.g., MACT standards)
and would not apply unless the source provides appropriate
documentation as specified in proposed 71.6(o)(3). The
emergency defense would be independent of any emergency or
upset provision contained in an applicable requirement.
Although part 71 permits could contain provisions for
an emergency defense, EPA notes that sources that produce,
process, handle or store a listed substance under
section 112(r) or any other extremely hazardous substance
nonetheless have a general duty in the same manner and to
the same extent as section 654, title 29 of the United
States Code, to identify hazards assessment techniques, to
design and maintain a safe facility, and to minimize the
consequences of accidental releases.
The EPA is reevaluating the provisions in parts 70 and
71 relating to the emergency defense in light of concerns
identified in legal challenges to the part 70 rule. The EPA
may propose revisions to the part 70 and part 71 sections
providing for the emergency defense before EPA would
includes such defense in any part 71 permits. In the
interim, to ensure consistency with currently promulgated
part 70, EPA would include in part 71 provisions allowing
permit terms to establish an emergency defense.
4. Operational Flexibility
Section 502(b)(10) of the Act requires that the minimum
elements of an approvable permit program include provisions
to allow changes within a permitted facility without
requiring a permit revision. In the current part 70 rule,
EPA included three different methods for implementing this
mandate. However, in response to concerns raised by
petitioners and State permitting authorities charged with
implementing part 70, EPA recently proposed to revise
part 70 to eliminate one of those methods and clarify the
operation of the others. Today's part 71 proposal adopts
the same approach to operational flexibility as discussed in
the proposed revision to part 70. The rationale for EPA's
position on operational flexibility is set out in the
proposed revisions to part 70 (59 FR 44460 (Aug. 29, 1994)),
which today's notice incorporates by reference.
5. Referencing of Requirements
Petitioners in the part 70 litigation have asked EPA
for clarification on the subject of data that may be
referenced but not includes in the permit.
In the recently proposed revisions to part 70, EPA has
indicated that some referencing might be appropriate, and
has requested comment on whether referencing should be
allowed for: (1) test methods, (2) definitions, (3) startup,
shutdown, or malfunction requirements or plans, and
(4) detailed emission calculation protocols. The EPA
solicits comments on referencing for part 71 permits.
F. Section 71.7 - Permit Review, Issuance, Renewal,
Reopenings, and Revisions
This section of the preamble describes EPA's proposed
regulations governing permit issuance, renewal, reopening,
and revision procedures under part 71. Generally, under a
part 71 program such procedures would follow the procedures
in the currently promulgated part 70 rule, as recently
proposed to be revised. See 40 CFR 70.7 and 59 FR 44460
(Aug. 29, 1994). To the extent part 71 would follow the
procedures in existing part 70 and the proposed revisions
thereto, this notice incorporates the rationale for those
procedures by reference. Where possible, EPA believes it is
appropriate to model part 71 procedures on those required by
part 70, in order to promote national consistency between
the title V permit programs that will be administered
throughout the country. National consistency will ensure
that sources are not faced with substantially different
programs when EPA, as opposed to State agencies, is the
permitting authority. Moreover, as most part 71 programs
are likely to be of limited duration, consistency with part
70 will enable smooth transition between Federal and State
programs, encourage States to take delegation of
administration of part 71 programs, help States that have
been unable to obtain part 70 approval to phase into the
title V program, promote uniformity in public and affected
State participation, and provide a level playing field for
sources.
In certain respects, the procedures under proposed part
71 would vary from the procedures in part 70. This is
usually due to the fact that EPA, as a Federal permitting
authority, will not be implementing State air programs in
general when it assumes title V responsibilities.
Consequently, certain opportunities under part 70, such as
new source review merged with title V permit revision
procedures, would not be available where EPA is the
permitting authority. However, where a State takes
delegation of the administration of a part 71 program, some
of these opportunities would be available. These variations
are discussed in the relevant sections of the discussion
below. In other cases, where part 70 and the proposed
revisions thereto provide States with flexibility to decide
among alternative approaches or define specific elements of
permit program procedures in developing their State
programs, part 71 would decide these issues in the
regulation itself, rather than rely upon further program
development. Moreover, in today's notice EPA proposes
detailed procedures for permitting actions, similar to those
found at 40 CFR part 124 governing other permit programs
administered by EPA.
1. Permit Issuance and Renewal
Part 71 would generally follow the currently
promulgated part 70, as proposed to be revised in the August
29, 1994, Federal Register notice, in establishing
procedures for permit issuance and renewal. These
procedures are set forth in proposed 71.7(a)-(c) and are
discussed in greater detail in section 3-F-1 of the
Supplementary Information Document.
In certain respects, part 71 would differ from part 70
and the proposed revisions thereto. For example, part 71
permitting authorities would be required to provide EPA with
statements describing the legal and factual basis for draft
permit terms only where the part 71 program has been
delegated to a State or Tribal agency for administration.
Also, only in cases where EPA has delegated part 71
administration to a State or Tribal agency would EPA would
reserve the right to terminate or revoke and reissue a
permit when the delegate permitting authority is not taking
appropriate action to expeditiously process a permit renewal
application.
2. Permit Revisions
Proposed 71.7(d)-(h) would govern how permits are
revised under part 71 programs. These procedures would
generally follow the 4-track system contained in the
recently proposed revisions to part 70. However, certain
aspects of the 4-track system would not be available unless
EPA had delegated administration of a part 71 program to a
State or eligible Tribal agency. Moreover, where the
proposed revisions to part 70 would leave it to State
discretion to decide certain issues on a program-by-program
basis, part 71 would contain specific provisions. Where the
permit revision procedures under part 71 would differ from
those under proposed part 70, the rationale for those
differences is provided in detail. Where the procedures
under part 71 would be the same as those under the proposed
part 70 4-track system, this notice incorporates by
reference the rationale for those provisions contained in
the notice for the proposed revisions to part 70. See 59 FR
44460 (Aug. 29, 1994). The part 71 permit revision
procedures are discussed in greater detail in section 3-F-2
of the Supplementary Information Document.
The EPA wishes to stress that in first describing this
permit revision structure in the proposed revisions to part
70, the Agency solicited comments on ways to simplify what
is admittedly a complex system. In light of the extensive
comments received concerning the complexity of the proposal,
EPA will publish a supplemental proposal covering part 70
permit revision procedures that differs from the August 29,
1994 proposal. The supplemental proposal is expected to be
published within a few months of the publication of today's
part 71 proposal and has not been developed in time to be
incorporated into today's proposal. After the new part 70
procedures are proposed, EPA will most likely need to
publish a supplemental proposal for part 71 pertaining to
permit revision procedures. If so, EPA would finalize other
portions of the rule first in order to be able to administer
part 71 programs by November 15, 1995. The EPA expects to
promulgate the part 70 permit revisions procedure in time to
adjust corresponding sections of proposed part 71, as
appropriate, before EPA would receive any applications for
permit revisions under a part 71 program.
a. Administrative Amendments.
The provisions governing administrative amendments to
part 71 permits would be located at proposed 71.7(e).
Today's proposal would follow existing part 70 in allowing
changes that are generally clerical in nature to be made
pursuant to administrative amendment procedures. Also, like
the proposed revisions to part 70, part 71 would allow
increases in the frequency of required testing, monitoring,
recordkeeping and reporting to be incorporated through the
administrative amendment process. While part 70 provides a
subsequent opportunity for identifying other changes similar
to those just described for processing as administrative
amendments in the program approval stage, part 71 would not,
simply because after promulgation of this rule there would
be no further stage of part 71 program development.
Where EPA has delegated administration of a part 71
program to a State or eligible Tribe, part 71 would follow
the recent proposed revisions to part 70 by allowing changes
that undergo "merged" part 71/NSR or part 71/section 112(g)
process to be incorporated into the part 71 permit as
administrative amendments. For purposes of part 71, this
opportunity to follow proposed part 70 would exist only
where States or eligible Tribes take delegation of the part
71 program. When administering a part 71 program for a
State, EPA would not also be implementing the State's
preconstruction program, so EPA would not be able to upgrade
the State's preconstruction program to part 71 process.
While this eliminates a significant opportunity for
streamlined permit revision where EPA is acting as the
permitting authority, EPA believes that it is infeasible for
EPA to merge preconstruction review and part 71 review
unless the same permitting authority processes both actions.
Moreover, to the extent States take delegation of part 71
programs, this opportunity for flexibility will be present.
The EPA solicits comment on the proposed limited
availability of merged processing under part 71 and
suggestions for ways in which this merged processing could
be more feasibly provided.
In delegation agreements, EPA and delegate agencies
could agree that delegate agencies could conduct merged
processing on a case-by-case basis. That is, delegate
agencies could be authorized to provide merged process for
all or some of their preconstruction determinations or to
allow sources to elect merged process for only individual
changes. Delegate agencies that provided merged process on
only a case-specific basis would have to state when they are
doing so in the initial notification of the permit action
sent to EPA. A delegate agency that wished to provide for
merged NSR changes would have to set out the eligibility
criteria and process for merged NSR changes in its
application for delegation to EPA. Depending on existing
State statutory or regulatory provisions, no changes would
be required to existing NSR programs.
While under the proposed revisions to part 70 EPA would
require States to submit eligibility criteria for merged
processing in their part 70 programs that EPA would review
in the context of program approval, EPA believes that the
process in part 71 for applying for delegation and entering
into delegation agreements provides an adequate forum for
evaluating a delegate agency's ability to provide merged
processing. Similarly, EPA believes that delegation
agreements are adequate vehicles for establishing a delegate
agency's authority to merge preconstruction and part 71
actions on a case-by-case basis. The delegation process
requires the State to submit evidence of adequate statutory
and regulatory authority to carry out part 71
responsibilities, and EPA would publish delegation
agreements in the Federal Register, giving notice of the
delegate agency's authorization to provide for merged
processing.
Consistent with the proposed revisions to part 70, part
71 would allow administrative amendment procedures to be
used to incorporate standards promulgated after permit
issuance pursuant to section 112 of the Act.
For all changes that qualify as administrative
amendments, the part 71 permitting authority would use
specific procedures to incorporate those changes into the
permit. Generally, these procedures would follow those
contained in the August 29, 1994, proposed revisions to part
70, but would differ in certain respects. For example, the
part 71 permitting authority would be required to provide
EPA with a copy of the effective permit addendum reflecting
the change only where EPA has delegated a part 71 program to
a State or eligible Tribe.
b. De Minimis Permit Revisions.
Following the proposed revisions to part 70, EPA is
proposing at 71.7(f) a de minimis permit revision track in
part 71 for changes that do not undergo merged program
administrative amendment procedures but that have only a
small emissions impact. Under this track, a source would be
able to operate the change as early as the day it submits
its permit revision application. Public and affected State
review of the change would then follow. See the more
detailed discussion in section 3-F-2-b of the Supplementary
Information Document, as well as the Agency's preamble for
the proposed revisions to part 70 (59 FR 44460, Aug. 29,
1994) regarding the types of changes that would be eligible
for this process, the details of the process itself, and the
rationale for the creation of this revision track.
In certain respects, the de minimis track in part 71
would differ from that in proposed part 70. For example, a
person who was unsuccessful in persuading the part 71
permitting authority to disapprove a source's requested de
minimis change could not petition EPA to object to the
permit. This is because both when EPA is the permitting
authority and when EPA has delegated that responsibility,
citizens will already have the opportunity to directly
appeal the final de minimis permit revision to the
Environmental Appeals Board. Thus, requiring an
intermediate step of requesting EPA to object to its own
permitting action would both be redundant and delay citizen
access to administrative, and ultimately judicial, review of
the change. The Agency solicits comment on this approach.
While the proposed revisions to part 70 would leave States
discretion in developing their part 70 programs in
determining whether the source, versus the State permitting
authority, would have the responsibility to provide public
notice of de minimis changes, under part 71, sources would
have that duty. This specificity is due to the fact that
EPA, unlike States, will not be conducting further program
development for part 71 programs beyond promulgating part
71, so it is necessary for EPA to establish in this rule
whether the public notification duty will fall on sources or
the permitting authority. The EPA proposes to place the
public notice responsibility on sources because the Agency
believes that sources will be in a better position to
provide timely notice of their de minimis changes than EPA
regional offices would be and will have more ready access to
area newspapers for providing such notice. Consequently,
requiring sources to provide notice should ensure that de
minimis changes are expeditiously processed. Moreover, EPA
believes that under the proposed revisions to part 70,
revised State programs could commonly require sources to
provide such notice, and consistency in implementation of de
minimis permit revision procedures will aid program
transition when States obtain part 70 approval or when EPA
assumes permitting responsibilities.
As under the proposed revisions to part 70, the scope
of de minimis changes would be defined in two ways. Any
change at a small emissions unit ("unit-based" de minimis)
would qualify, as would a small change at a large unit
("increment-based" de minimis), provided certain conditions
designed to ensure the enforceability of the resulting
permit limit were met. Unlike the proposed revisions to
part 70, for part 71 EPA is not proposing that permitting
authorities, whether they are EPA or delegate States or
eligible Tribes, could establish alternative de minimis
emissions thresholds based on a demonstration submitted
subsequent to final promulgation of part 71. This is
because, again, after promulgation of part 71, EPA will not
be further developing part 71 programs, so there will not be
an opportunity to consider alternative de minimis
thresholds. Moreover, EPA does not believe that EPA
delegation of part 71 administration to States or eligible
Tribes provides an adequate forum for evaluating alternative
thresholds developed by States or eligible Tribes, since
there will be no formal approval action in those delegations
and the public will not have an opportunity to comment upon
them before they are effective.
Procedurally, part 71 would also provide more
specificity than would the proposed revisions to part 70.
For example, the source could operate the requested de
minimis change 7 days after the permitting authority
received the application or, with the permitting authority's
permission, as early as the day its application is
submitted. The proposed revisions to part 70 provide that
States in developing their part 70 programs would have
discretion to allow changes to be made 7 days following
receipt of the application, and such authorization would be
included in their program submittals for EPA approval; as
discussed above, since promulgation of part 71 will
represent the final stage of part 71 program development,
proposed part 71 specifies that sources could make de
minimis implement changes after 7 days.
Also, under part 71, sources would be required to
provide public notice of de minimis changes on a monthly,
batched basis, publishing one notice listing all changes at
the source for which applications for de minimis permit
revisions had been sent to the permitting authority in the
preceding month. The EPA solicits comment on this approach,
particularly regarding the extent to which States intend to
impose the public notification duty on sources under the
proposed revisions to part 70. While the proposed revisions
to part 70 specified neither who has the responsibility for
providing public notice nor the manner in which public
notice should be given, part 71 would be specific on these
points, for the reasons discussed above. The EPA solicits
comment, however, on the method or methods sources could use
to provide such notice. For example, sources could be
required to publish notice of de minimis changes in a
newspaper of general circulation within the area where the
source is located or in State or local governmental
publications, to send actual notice to interested persons on
a list developed by the source or the permitting authority,
or both. At minimum, the final rule will provide a
mechanism to ensure that public notice reaches all
interested citizens.
c. Minor Permit Revisions.
Under today's proposal, most changes ineligible for
administrative amendment or de minimis permit revision
procedures would be eligible for the minor permit revision
process. Taking the current part 70 rule's minor permit
modification process as a starting point and following the
proposed revisions to part 70, proposed part 71 would add
expedited procedures for providing public notice and a 21-
day comment period, allow the source to operate the
requested change at the end of the 21-day comment period
when no objections are received, and provide for permitting
authority final action to be taken on applications within 60
days of their receipt. The description of and the rationale
for EPA's proposed minor permit revision process for part 70
is contained in the preamble to the proposed revisions to
part 70 (see 59 FR 44460, Aug. 29, 1994). To the extent
applicable to part 71, EPA incorporates that rationale for
this notice. However, where elements of the minor permit
revision track differ in proposed part 71 from those in part
70, this notice describes those differences. A more
detailed discussion of the part 71 minor permit revision
process is contained in section 3-F-2-c of the Supplementary
Information Document.
For part 71 minor permit revisions, as for de minimis
changes and merged program administrative amendments, notice
to EPA, and EPA's 45-day review period and opportunity to
veto would occur only where EPA had delegated its role as
the permitting authority to a State or eligible Tribe.
While this is a departure from the proposed revisions to
part 70, as discussed previously, EPA does not believe there
is any utility, when EPA is the permitting authority, in
requiring EPA review of EPA permitting action, since
sources, affected States and public citizens that object to
EPA permitting actions will be able to directly appeal those
decisions to the Environmental Appeals Board. Consequently,
providing for an additional step of EPA review and
opportunity to object would unnecessarily slow down this
expedited revision track and would also delay access of
interested parties to administrative and judicial review.
Moreover, in cases of objections to minor permit
modifications filed by affected States, only where EPA had
delegated part 71 administration to a State or eligible
Tribe would the part 71 permitting authority have to forward
to EPA a written response to any of these objections that
were not accepted.
Another difference under the part 71 program would be
that if the permitting authority failed to act on a public
objection, the commenter could file suit in Federal court,
rather than State court, to force the permitting authority
to take action on the written comment. In addition,
commenters would be able to bring suit in Federal court to
seek an injunction against the source implementing or
continuing to implement requested changes before they are
approved. Injunctive relief would be available in
accordance with applicable standards for obtaining such
relief under Federal law.
Also, only where EPA had delegated a part 71 program to
a State or eligible Tribe, would the part 71 permitting
authority be required to wait until the date after EPA's 45-
day review period had expired, provided EPA had not
objected, before issuing the final minor permit revision.
The delegate agency would be required to take final action
by day 60, or 15 days after the close of EPA's review
period, whichever is later. In addition, under part 71
programs, commenters may not petition EPA to object to minor
permit revisions for the reasons discussed above with
respect to de minimis permit revisions.
d. Significant Permit Revisions. Following the
proposed revisions to part 70, under proposed part 71 the
significant permit revision process would essentially follow
that of the significant permit modification track in
existing part 70. See the description of this process in
the Agency's proposed revisions to part 70 (59 FR 44460,
Aug. 29, 1994) for the rationale for this approach, which
EPA incorporates by reference for purposes of part 71. See
also the more detailed description of the part 71
significant permit revision process contained in section 3-
F-2-d of the Supplementary Information Document.
Proposed part 71 would require the permitting authority
to take final action on applications for significant permit
revisions within 18 months of receipt of the application.
However, because prompt action on permit revisions is of
critical importance to industry, the EPA intends to complete
such revisions within 12 months and expects that only the
most complex revisions would require more than a year to
complete.
e. Alternative Option for Monitoring Changes.
Following the proposed revisions to part 70, EPA also
proposes as an option in part 71 alternative provisions
governing changes involving monitoring requirements. While
this option essentially adheres to the 4-track system
discussed above, certain provisions of the system would need
to be modified to incorporate the alternative option for
monitoring changes. The rationale for this alternative
option is discussed in detail in the preamble to the
proposed revisions to part 70 (see 59 FR 44460, Aug. 29,
1994), and this notice incorporates that rationale by
reference, to the extent it is applicable to part 71. As
appropriate, EPA intends to match in the final part 71 rule
the final part 70 provisions regarding this option. For a
more detailed discussion of this option under part 71, see
section 3-F-2-e of the Supplementary Information Document.
Under part 71, the source, rather than the permitting
authority, would have the responsibility to provide monthly
batch public notice of monitoring changes processed under
this option's de minimis permit revision track. Moreover,
for monitoring changes processed under this option's
significant permit revision track, part 71 permitting
authorities would be required to send demonstrations and
their evaluations to EPA only where EPA has delegated part
71 program administration. Again, EPA believes that
expeditious process of de minimis permit revisions is better
served by sources providing notice, and that the non-
permitting authority EPA review and veto role adds value to
the permitting process only where there is a separate entity
such as a delegated State functioning as the part 71
permitting authority.
3. Incorporation of New Standards
The process by which EPA proposes to incorporate into
permits new MACT standards promulgated under section 112
would follow that contained and discussed in detail in the
proposed revisions to part 70 (see 59 FR 44460, Aug. 29,
1994). This notice incorporates by reference the rationale
for this process contained in the preamble to the proposed
revisions to part 70. To the extent appropriate, EPA
intends the final part 71 rule to be consistent with the
part 70 rule as it is finally promulgated. For a more
detailed discussion of this process for purposes of part 71,
see section 3-F-3 of the Supplementary Information Document.
Note that under a delegated part 71 program, if EPA
receives the initial notification because the MACT standard
has not yet been delegated to the State, local or Tribal
agency, EPA will send this notice to the delegate part 71
permitting authority, and upon receipt of this notice the
permitting authority could begin processing the
administrative amendment. Also, under delegated part 71
programs, where the NSR programs have been enhanced to meet
part 71 requirements, minor and major NSR actions would be
acceptable for addressing and establishing part 71 permit
conditions needed to assure compliance with MACT standards.
Thus, the merged preconstruction review process applying to
NSR permits could also be used to revise the part 71 permit
to incorporate the MACT requirements applicable to the
source. If the NSR action were not merged (as would be the
case if EPA had not delegated part 71 administration to a
State or eligible Tribe), the part 71 revision would be
eligible under the minor permit revision track, or, if it
met the criteria, the de minimis permit revision track.
4. Permit Reopenings
Under proposed 71.7(i), part 71 would follow the
currently promulgated part 70 in providing when and how
permits would be reopened. For a more detailed discussion
of the part 71 permit reopening procedures, see section 3-F-
4 of the Supplementary Information Document. Where EPA has
delegated a part 71 program to a State or eligible Tribe,
special provisions for EPA notification to the delegate
agency that cause exists to reopen would apply. These
procedures follow those in existing part 70 for notification
to approved part 70 permitting authorities. Briefly, if EPA
finds that cause exists to reopen a permit, it would notify
the delegate agency and the source. The delegate agency
would have 90 days after receipt of this notice to forward
to EPA a proposed determination of termination, revision, or
revocation and reissuance of the permit. The EPA could
extend the 90-day period for an additional 90 days if a new
application or additional information is necessary. The EPA
could then review the proposed determination for 90 days.
If the delegate agency fails to submit a determination or if
EPA objects to the determination, EPA may terminate, revise,
or revoke and reissue the permit after providing the source
at least 30 days written notice and an opportunity for
comment and a hearing on EPA's proposed action.
G. Section 71.8 - Affected State Review
Following the proposed revisions to part 70, proposed
71.8 would implement section 505(a)(2) of the Act and
require that the permitting authority provide notice to all
affected States (as defined in proposed 71.2) of each
draft permit and addenda to permits that incorporate de
minimis permit revisions. Under the proposed procedures for
minor permit revisions, sources, rather than permitting
authorities, would have the responsibility to provide notice
to affected States for such changes. Affected States are
those States whose air quality may be affected, and that are
contiguous to, the State in which a part 71 permit, permit
revision, or permit renewal is being proposed, or those
within 50 miles of the source. Tribal areas or areas under
the jurisdiction of a local air pollution control area may
be considered affected States in some cases.
Affected States that receive notice pursuant to
proposed 71.8 could submit written recommendations and
comments to the permitting authority. If the permitting
authority refuses to accept the recommendations, the reasons
for the refusal would have to be provided in writing to the
affected State(s) that provided the recommendations or
comments during the public or affected State review period.
H. Section 71.9 - Permit Fees
1. Authority to Impose Fees
The EPA believes that title V provides EPA the
authority to charge sources fees whenever EPA is required to
administer a part 71 program. Section 502(b)(3)(C)(i) of
the Act provides that if EPA determines that the fee
provisions of a State's part 70 program do not meet the
requirements of title V, or if EPA determines that a
permitting authority is not adequately administering or
enforcing its approved fee program, EPA may, in addition to
taking any other action authorized under title V, collect
reasonable fees from the sources that should be paying
adequate fees pursuant to an approved part 70 fee program.
Thus, EPA has the discretion to charge fees whenever a State
fails to establish an approvable fee program or fails to
implement its approved fee program, even if there are no
other deficiencies in the State's operating permits program.
Section 502(b)(3)(C)(i) also provides that fees charged by
EPA shall be designed solely to cover EPA's costs of
administering the provisions of the permits program
promulgated by EPA.
2. Fee Calculation and Assessment
The fee schedule proposed in 71.9 would establish a
dollar per ton charge on actual emissions of each regulated
pollutant (for fee calculation) that is emitted from a
source.
Under the fee schedule in this proposal, the date of
the initial fee submittal would be contingent upon several
factors. If EPA withdraws approval of a part 70 program,
initial part 71 fees would be due in accordance with a
schedule based upon a source's primary SIC Code, as provided
in proposed 71.9(f)(1).
If EPA implements a part 71 program in an area that did
not have a part 70 program in place, initial fee calculation
work sheets and fees would be due at the same time the
initial permit application is due, in accordance with the
requirements of proposed 71.5(b)(1).
Regardless of whether a part 70 program preceded a
part 71 program, sources that become subject to the part 71
program after the part 71 program's effective date would be
required to submit initial fee calculation work sheets and
fees at the same time the initial permit application would
be due, in accordance with the requirements of proposed
71.5(b)(1).
Sources would be allowed to pay their initial annual
fee in two installments. The first payment equalling one-
third of the annual fee would have to be submitted along
with the initial fee calculation worksheet. The balance
would be due four months later, but in no event later than a
year after the program's effective date.
As provided in proposed 71.9(g), for sources that
receive a part 71 permit as a result of an EPA veto of the
State's proposed part 70 permit (as provided in proposed
71.4(e)), the initial fee calculation work sheet and fees
would be due 3 months after the date the part 71 permit is
issued. Delaying the source's fee payment in this manner
would provide the State an opportunity to issue a permit
that satisfies EPA's objection, thereby relieving sources of
the burden of paying both State and Federal permit fees.
However, such sources would not be permitted to pay fees in
installments because their obligation to pay fees arises
after EPA has completed the permit issuance process.
For sources that commenced operation during the
calendar year preceding the date on which a source's initial
application is due, the initial fee calculation would be
based on an estimate of the current calendar year's actual
emissions. This estimated fee would be adjusted in the
first annual emission report. In addition, sources that
would be required to submit initial fee calculation work
sheets and fees between January 1 and March 31, as required
by either proposed 71.9(f)(1) or 71.9(g), would have the
option of basing their initial fee calculation on an
estimate of the preceding calendar year's actual emissions.
This provision would provide sources with a means for
meeting the initial fee submittal requirements if their
initial fee submittal date does not provide for sufficient
time to calculate the previous calendar year's actual
emissions. This estimation would also have to be reconciled
in the first annual emission report.
For purposes of subsequent annual emissions reporting
and fee assessments, the date (month and day) on which the
initial part 71 fee calculation work sheet and fees were due
would be considered the "anniversary date" for that source.
Each source would be required to submit an annual report of
its actual emissions for the preceding calendar year by its
anniversary date. However, to allow sources with
anniversary dates between January 1 and March 31 the time
needed to analyze the preceding calendar year's emissions
data, the anniversary date for these sources would be
April 1. The annual report would have to include a fee
calculation work sheet and full payment.
As discussed above, sources that commenced operation
during the preceding calendar year would base their initial
fee calculation on an estimate of the current calendar
year's actual emissions. When the permitting authority
receives the first annual emissions report, the permitting
authority would compare the estimate to the emissions report
and would adjust the initial fee to reflect the annual
emissions listed in the report. If an additional fee is
required, payment would be due with the submittal of the
annual emissions report. If the source has overpaid, the
permitting authority would credit the source's account.
Regardless of this adjustment procedure, the source would be
required to pay its current emissions fee based on the
actual emissions listed in the first annual emissions
report.
Sources subject to proposed 71.9(f)(1) or 71.9(g)
that have initial application and fee calculation work
sheets due between January 1 and March 31 could opt to base
their initial fee on an estimate of the past year's actual
emissions. The first annual emissions report for such
sources would have to reconcile the emissions fee from the
initial fee calculation. In addition to calculating the
current emissions fee, the report would be required to
include actual emissions data from the estimated year, and
the source's account would have to be revised accordingly.
Section 502(b)(3)(C)(ii) requires that sources that
fail to pay fees in a timely fashion shall be assessed
interest at a rate equal to the sum of the Federal short-
term rate determined by the Secretary of the Treasury in
accordance with section 6621(a)(2) of the Internal Revenue
Code of 1986, plus 3 percentage points and shall pay a
penalty charge of 50 percent of the fee amount. Proposed
71.9(l) would implement section 502(b)(3)(C)(ii) by
providing that the penalty charge shall be due if the fee is
not paid within 30 days of the payment due date or if
sources that compute fees based on estimated annual
emissions substantially underestimate these emissions.
Fee payments would be required to be in United States
currency in the form of a money order, bank draft, certified
check, corporate check, or electronic funds transfer payable
to the order of the U. S. Environmental Protection Agency.
The EPA intends to develop additional guidance regarding
remittance procedures as the Federal operating permits
program is implemented.
3. Principles for Developing Fee Structure
The following principles were used to develop the
proposed fee requirements:
a. Fees Based on Average Annual Costs. By means of
the fee structure proposed in this rule, EPA intends to
recover both direct and indirect costs for the various
activities conducted to administer part 71 programs. Direct
costs would include personnel benefits and salaries, travel,
equipment costs, and contractor expenses. Indirect costs
would be those resources, outside of direct program costs,
used to manage, oversee and provide counsel to program
offices. These would include costs such as those incurred
by EPA's management, administrative, and policy staff.
Indirect costs would also include overhead costs, such as
utilities and rents.
The methodology proposed to be used for setting fees is
to estimate the cost of implementing the part 71 program
nationwide and to divide that cost by the estimated
emissions that would be subject to the fee. The result is a
fee expressed in dollars per ton/yr of pollutants emitted.
A detailed discussion of the assumptions and calculations
involved in determining fees is found in "Federal Operating
Permits Program Costs and Fee Analysis" (Fee Analysis),
which is contained in the docket for this rulemaking.
The cost estimates presented in the Fee Analysis are
based on operating a part 71 program for two years. The EPA
believes this is a reasonable average program duration,
given the expected transitory nature of the program.
For purposes of the cost analysis, the hourly
personnel costs were assumed to be the same for EPA and for
delegate agencies. Therefore, the total personnel costs for
an EPA administered program and one which is delegated in
whole or in part would be identical except for the cost of
additional EPA oversight (which would be covered by a $3 per
ton/yr surcharge discussed below).
Because part 71 programs will generally be transitional
programs, EPA may in some cases decide to staff the program
primarily through contractor assistance. The emissions fee
for a particular part 71 program would vary depending on the
extent to which EPA relies on contractor support and the
cost of contractor assistance. If the program is
administered by EPA without contractor assistance, the
proposed fee would be $45 per ton/yr. If the program were
staffed through contractor assistance (except for those
functions for which the use of contractors is not
appropriate such as final permit issuance determinations),
EPA would establish a fee based on the contractor costs for
a particular program.
As provided in proposed 71.9(c)(3), the fee for a
contractor assisted program is the sum of the permitting
authority's costs associated with activities that it
undertakes, the cost of paying a contractor to undertake
other activities, and a surcharge that covers EPA's
oversight costs. The formula for determining the cost of
contractor assistance is as follows:
C = [B + T + N] divided by 12,300,000
Where B represents the base cost (contractor costs), where T
represents travel costs, and where N represents non-
personnel data management and tracking costs.
B, T and N, when summed, are divided by the total
tonnage of national emissions that would be subject to fees
(12.3 million tons) to convert the cost into a per ton fee
rate.
The Fee Analysis discusses the methodology used in
computing the base cost of the part 71 program, travel costs
and non-personnel data management and tracking costs.
Travel costs and non-personnel data management and tracking
costs would be the costs ($14,488,000 and $13,400,000
respectively) indicated in Table A-3 of that document.
As indicated above, the base cost would vary depending
on the hourly rate paid for contractor assistance. Table A-
3 presents the base cost for a program in which contractor
assistance (costing $62 per hour) was used to the maximum
extent possible. This $62 figure reflects the average
hourly cost of several large contracts awarded by EPA for
projects relating to air quality control. Using that hourly
rate, the resulting per ton fee would be $77. The base cost
was computed by summing the costs of contractor assistance
for years 1 and 2 for the activities listed in Table A-1 of
the Fee Analysis (except those activities which EPA should
undertake, i.e., presiding over hearings, transition
planning, guidance, contract management, and training) and
then computing an annualized cost. To determine the fee for
a particular part 71 program, EPA would substitute a
different hourly rate (based on the actual rate charged by
the contractor) into the computation.
Each time a part 71 program is implemented, EPA would
determine the percentage of personnel time allocated to
contractors by considering who could best perform each type
of permitting activity (e.g., technical review and
processing of permit applications and compliance plans,
preparation for public hearings, compliance inspections).
This flexibility would allow EPA to develop a staffing
pattern that meets the unique needs of the part 71 program
being administered. By using the formula specified in
proposed 71.9(c)(3), EPA would arrive at the basic
emissions fee. If the program is delegated or staffed
largely by contractors, there would be additional costs due
to the oversight that EPA must provide to the program.
These additional costs of EPA's review of permit
applications, compliance plans, draft permits, permit
revisions and reopenings would increase the emissions fee by
$3 per ton/yr.
The EPA currently uses contractors for permits related
work pursuant to competitively bid contracts which
compensate contractors on a level of effort basis, using set
hourly fees. These contracts, which provide for a certain
number of hours of services at a fixed hourly rate, were
used in projecting the costs of using contractors to
implement part 71 programs and could be used by EPA for part
71 programs when contractor assistance is needed. It has
been suggested that for part 71 programs it may be more cost
effective if contracts for part 71 programs were
independently bid. Therefore, EPA solicits comments on
whether fees for part 71 programs should be based on
contractor costs established by a new competitive bid
process. While not wanting to dismiss this alternative, the
EPA is concerned about the costs involved with preparing the
documentation required for the competitive bid process and
that the length of time required to undertake this process
(usually 12-18 months) would make this alternative
impractical in light of the program's effective date. In
particular, EPA solicits comments on whether this approach
would result in cost savings.
The EPA considered several other options for setting
fees. For example, EPA considered the possibility of basing
fees for each part 71 program on the fee structure submitted
by a State or local government as part of its part 70
submittal. This approach, however, has limited utility in
that it is not appropriate where the submittal contains an
inadequate fee program or where no submittal is made.
Furthermore, the administrative burden (and the delay in
program implementation) involved with completing individual
rulemakings for each part 71 program made this option
infeasible.
Given that it is not practical to craft a fee schedule
that fits each State, and given that EPA is unable to
foresee with certainty when and where it may be necessary to
implement part 71 programs, EPA proposes to base its fees on
the average cost of implementing a part 71 program.
The EPA considered whether the average cost of the
part 71 program would be recovered by charging a fee of
$25 per ton/yr (1989 baseline with CPI adjustments), which
is the amount of fee revenue that EPA would presume is
adequate for purposes of funding State operating permits
programs under part 70. For fiscal year 1995, this fee
would equal $30.18. However, EPA believes that there would
be some differences in costs between the Federal program and
State programs which made use of the presumptive fee
inappropriate.
Using the approach outlined above, EPA has developed a
proposed fee structure that will reflect the cost of the
Federal operating permits program, though not necessarily
the cost of implementing the program in any particular
State. The proposed fee is expected to be adequate for
nearly all part 71 programs and should, on average, collect
sufficient revenue to fund permitting under this part.
However, if EPA determines that the fee structure provided
in proposed 71.9(c)(1)-(4) does not adequately reflect the
program costs for a particular area, such as a Tribal area,
then EPA may by separate rulemaking establish a different
fee for a part 71 program.
b. Minimizing Administrative Burdens. Although EPA
could design a fee system that imposes different fees based
on such factors as source categories, the particular
pollutants emitted, or the type of permitting action
requested, EPA proposes a straight forward emissions-based
fee system. For sources, the fee computation would be
simple. Similarly, EPA's administrative burden related to
assessing fees and monitoring compliance with fee
requirements would be minimized.
c. Fees Calculated Based on Existing Information. The
EPA would provide sources with fee calculation work sheets.
Using these work sheets, sources would compute their actual
emissions of the appropriate pollutants and multiply by the
appropriate per ton/yr rate. Sources would submit fees
within the first 12 months of the effective date of the
program, and annually thereafter. Many sources are already
subject to annual emissions reporting requirements. Thus,
except for new sources, there would generally be no
requirement that sources develop any information for the
work sheets that would not already be required on the
application form or as an emission reporting requirement.
d. Fees Imposed in Advance of EPA's Rendering
Services. Under the proposal, all part 71 sources would
remit fees within 12 months of the effective date of the
permit program, even if the source is not issued a part 71
permit within that time. Those fees will provide a stable
source of revenue from which to fund the initial start-up
costs of the program, the costs of issuing permits within
the first year of the program, as well as cover ongoing
activities such as inspections, reviewing monitoring
reports, and other compliance and enforcement activities.
This procedure would comply with Federal policy for
user fees established in OMB Circular A-25 (July 8, 1993),
which provides that fees are to be collected before services
are administered or goods provided to ensure that fees are
actually paid for the services provided, that the Treasury
receives funds in a timely manner, and that additional
administrative burdens and costs for collecting fees are
avoided.
3. Revision of Fee Structure
To reflect changes in operating costs, fees would be
adjusted automatically every year (after 1997) by the same
percentage as the percent change in the CPI. Also, the fee
schedule would be revisited every two years as required by
section 902(a)(8) of the Chief Financial Officer's Act of
1990. (31 U.S.C. 501 et seq.)
I. Section 71.10 - Delegation of Part 71 Program
1. Delegation Process
Section 301(a)(1) of the Act provides that the
Administrator is authorized to prescribe such regulations as
are necessary to carry out his or her functions under the
Act. Pursuant to this authority, proposed 71.10 provides
that a part 71 program may be delegated in whole or in part,
with or without signature authority (i.e., the authority to
issue permits) to any State or local agency or eligible
Tribe that is found to have the requisite legal authority to
administer such a program. For purposes of the rule, an
eligible Indian Tribe would be a Tribe that EPA has
determined meets the criteria for being treated in the same
manner as a State, pursuant to regulations implementing
section 301(d)(2) of the Act.
The EPA recognizes that in some cases States could fail
to receive part 70 program approval due to program flaws
that are not related to the permitting authority's
practicable ability to implement a title V program. For
example, the submitted part 70 program may contain elements
in it enabling legislation or its regulations that prevent
EPA from granting program approval, even though EPA may be
confident that the State permitting authority could
adequately administer and enforce a title V program that
meets the requirements of the Act. While title V requires
EPA to promulgate Federal title V programs for States that
fail to receive part 70 program approval, EPA believes that
in situations where State permitting authorities appear
capable of implementing programs that meet the requirements
of title V, it would be consistent with the general policies
of the Act to involve States in implementing required
Federal permits programs, rather than exclude State
permitting authorities.
The Act has long provided that air pollution control is
the primary responsibility of States and local governments.
(See, e.g., section 101(a)(3) of the Act,
42 U.S.C. 7401(a)(3).) Moreover, while title V requires
States to submit permit programs for approval by EPA, the
Act does not provide that program approval is the sole
mechanism available for State air pollution control agencies
to become permitting authorities under title V.
Section 501(4) of the Act defines "permitting authority" to
mean both the Administrator or the air pollution control
agency "authorized" by the Administrator to carry out a
permit program under title V. Section 302(b) of the Act
defines "air pollution control agency" to include State and
local government agencies. The EPA believes the word
"authorized" as used in section 501(4) may reasonably be
interpreted to apply not only to instances in which EPA
approves a submitted part 70 program, but also to instances
in which EPA determines that a State or local air pollution
control agency demonstrates that it is capable of carrying
out a title V permit program even where the State has not
submitted a part 70 program that has received EPA approval.
The EPA could exercise its discretion to delegate
authority to administer some portion or all of a part 71
program where, for example, it makes sense to take advantage
of existing expertise of the delegate agency or where it
seems probable that the delegate agency's submitted part 70
program will be approved within a short time by EPA,
provided in both cases that the delegate agency has the
authority to administer the portion of the program that
would be delegated.
Any agency that seeks to obtain delegation of a part 71
program would be required to submit a formal request for
delegation, in accordance with the provisions of proposed
71.10, and such other documentation as is necessary for
review and consideration by the Administrator to make a
determination that the agency or eligible Tribe has adequate
legal authority and procedures to administer and enforce a
part 71 program.
The EPA would adopt a flexible approach in evaluating
delegation requests. The EPA would not demand that each
delegate agency administer a part 71 program in precisely
the same way because each delegate agency would have to
comply with its own procedures, administrative codes,
regulations, and laws as well as the requirements of this
part.
The Governor or designee for a State, a local agency,
or the Tribal governing body for an eligible Tribe, would be
required to submit to EPA a written request for delegation
of authority on behalf of the State or local agency or
eligible Tribe pursuant to proposed 71.10. The request
would have to include a legal opinion that certifies that
the State or local agency or eligible Tribe has the
requisite legal authority to implement and administer the
program. The request would also have to identify the
officers or agencies responsible for carrying out the State,
local, or Tribal procedures, regulations, and laws.
The EPA would respond in writing to each delegation
request and shall state to what extent the request has been
accepted or rejected. If the request is accepted in whole
or in part, the Administrator would delegate to the Governor
or designee, the local agency, or Tribal governing body, the
authority to carry out the accepted portions of the
delegation. If the request is rejected in whole or in part,
the notification shall specify the reasons for such
rejection.
The terms and conditions of the delegation would be set
forth in a "delegation of authority agreement" that
specifies the effective date for the agreement. The
delegation of authority agreement would be published in the
Federal Register by EPA and would identify the delegate
State, local, or Tribal procedures to be used for
implementing and administering the program by reference to
the request and to any additional submission by the Governor
or designee, or Tribal governing body supplementing or
modifying the State, local or Tribal procedures.
2. Full and Partial Delegation
Although EPA encourages delegate agencies to accept
full delegation of all aspects of the administration of
part 71 programs, there are situations where a delegate
agency may be unable or unwilling to assume all
responsibility for administering these programs. Where
appropriate, EPA could choose to grant partial delegations
as follows:
(1) Delegation of authority may be granted for only a
portion of the State or regulatory area;
(2) Delegation of authority may be restricted to
certain source categories or parts thereof; or
(3) Authority may be delegated for selected parts of
the procedural responsibility in implementing a part 71
program with EPA acting as a partner in completing the
remaining actions (e.g., delegation of authority may be
granted with regard to the administrative and/or technical
portion of implementing the part 71 program, with EPA
providing enforcement should such action become necessary);
(4) Authority may be delegated for only the acid rain
portion of a title V program, or for other parts of the
title V program, not including the acid rain portion.
3. Procedural Requirements for Delegation
The delegate agency would be required to provide notice
to the Administrator of all applications for any permit,
permit renewal, or permit revision, including any compliance
plan, or any portion thereof that the Administrator
determines to be necessary to review the application and
permit effectively, each proposed permit, and each final
permit as provided in proposed 71.10(d). The delegate
agency would also have to provide notice of each draft
permit to affected States on or before the time that the
delegate agency provides this notice to the public under
proposed 71.7(e)(4), (h), or (i) or 71.11(d) and would
be required to provide any affected State a copy of the
addendum for a de minimis permit revision within 7 days of
the date on which the addendum takes effect.
Affected States that receive notice pursuant to
proposed 71.8(a) could submit written recommendations and
comments on the permit to the delegate agency. If the
delegate agency refuses to accept the recommendations, the
reasons for the refusal would have to be provided in writing
to the State(s) providing the recommendations.
The EPA could waive its own and affected States' review
of permits for any category of sources, except major
sources, by nationwide regulation for a category of sources.
The EPA could also waive its own right to review, but
maintain the requirement for a delegate agency to notify
affected States. During Phase II of the acid rain program,
the Agency does not intend to waive its own right to review
permits for affected sources under the acid rain program.
When a part 71 program has been delegated with
signature authority in accordance with the provisions of
this section, the Administrator could object, in writing, to
a part 71 permit if the delegate agency fails to properly
submit, process, or provide notice as would be required by
this part or if the part 71 permit does not assure
compliance with applicable requirements of the Act. If the
delegate agency fails to revise the proposed permit in
response to the objection, the Administrator could deny the
permit or issue a permit in accordance with the part 71
program.
4. Delegation of Authority Agreement
A delegation of authority agreement would specify the
terms and conditions of the delegation and would be required
to include, but not be limited to:
(1) A provision that the delegation is made in
accordance with proposed 71.10;
(2) A provision that describes the source categories,
geographic areas, and the administrative and enforcement
activities governed by the delegation;
(3) A provision that requires the delegate agency to
comply with the public notice requirements of proposed
71.7 and 71.11;
(4) A provision that requires the delegate agency to
provide a copy, through the appropriate Regional Office, of
each permit application, proposed permit, and final permit
to the Administrator as required in proposed 71.10(d);
(5) A provision that any permit issued by a delegate
agency contain a statement identifying the permit as a
title V, part 71 permit;
(6) A provision that requires EPA's concurrence on any
applicability determination or policy statement regarding
title V or parts 70 or 71 not covered by determinations or
guidance provided to the delegate agency;
(7) A provision that requires immediate notification
to be provided to EPA if the delegate agency is unable or
unwilling to administer or enforce a provision of the
delegated part 71 program with respect to any source; and
(8) A provision that the delegate agency may not grant
any waiver to a permit requirement or issue any order that
violates an effective provision or requirement of part 71 or
the Act.
J. Section 71.11 - Administrative Record, Public
Participation, and Administrative Review
Section 71.11 of the proposal establishes procedures by
which the part 71 permitting authority would act on permit
applications, issue draft permits, provide opportunities for
public comment, and issue final permits. The emphasis in
proposed 71.11(a)-(j) is on a description of the notice
and public participation procedures for initial permit
issuance, permit renewals, permit reopenings, and
significant permit revisions. The notice and public
participation procedures for administrative amendments,
de minimis permit revisions, and minor permit revisions are
described in proposed 71.7.
Proposed 71.11(k)-(m) describe the administrative
record for permits, the procedure for appeal of permits, and
the determination of the beginning and ending days for any
scheduled time period. Unlike proposed 71.11(a)-(j),
provisions in proposed 71.11(k)-(m) would apply to all
permit actions, including administrative amendments, de
minimis permit revisions, minor permit revisions and
significant permit revisions.
The EPA considered two alternative methods of
establishing the public participation and administrative
review procedural requirements. The first alternative would
be to amend the existing procedures in 40 CFR part 124,
which establishes specific decision making procedures for
RCRA, Underground Injection Control (UIC), PSD, and NPDES
permits, so that the procedures would be compatible with the
part 71 program. The EPA would then incorporate those
provisions by reference into the part 71 permit rule. The
second alternative was to establish public participation and
administrative appeal procedures as a separate section of
this rule. This alternative has the advantage of allowing
these procedures to focus specifically on the needs of the
part 71 program as well as appear in close proximity to the
permit program requirements in the Code of Federal
Regulations.
Today's proposal follows the second alternative. The
proposed public participation and administrative appeals
procedures are set out at 71.11 and are based closely on
selected provisions of part 124, subpart A. The EPA does
not believe the choice of one format over the other will
have a substantial impact on the implementation of this
rule.
Once a permit application is complete, including an
application to revise an existing permit, the permitting
authority would tentatively decide whether to prepare a
draft permit. Such draft permits would contain permit
conditions specified in proposed 71.6, public notice of
the draft permit would be issued and the draft would be made
available for comment. Administrative amendments of permits
would not be subject to draft permit or public notice
requirements. Public notice of de minimis permit revisions
would be on a post hoc basis, and draft permits for minor
permit revisions would be publicly noticed by the applicant
source. All draft permits issued by the permitting
authority would be accompanied by a statement that briefly
describes the derivation of the conditions of the draft
permit and the reasons for them.
Proposed 71.11(d) would establish public notice and
comment procedures for part 71 permit actions not addressed
elsewhere in the proposal, including application denials,
draft permit preparation, scheduling of public hearings,
reopening of the public comment period, and granting of
appeals. Where other provisions of this proposal establish
permitting procedures for specific types of actions, such as
in the provisions on administrative amendments, de minimis
permit revisions, and minor permit revisions, those
provisions would govern. Notice of draft permits under
proposed 71.11(d) (including permit revisions) would
provide at least 30 days for public comment, and notices of
hearings would be issued at least 30 days before hearings
are held. Notice would be provided by mail to interested
persons, by publication, or by other reasonable means and
would include information on the permittee, contact persons,
and general procedures on submitting comments and requesting
to speak at hearings. In addition, notices of hearings
would provide information on dates, times, and places of
hearings, as well as applicable rules and procedures. The
permitting authority could hold hearings either upon the
basis of requests or on its own initiative.
Proposed 71.11(e) would establish requirements for
consideration of comments on a draft permit. It would
require that a request for a public hearing be in writing
and include a statement of the nature of the issues proposed
to be raised at the hearing. It would also stipulate that
all comments be considered in making the final decision on
the draft permit, and that a publicly available record be
kept of commenters and issues raised.
Proposed 71.11(f) on public hearings would require
that a public hearing be held if there was a significant
degree of interest in a draft permit. The permitting
authority would designate a Presiding Officer who would be
responsible for conducting the hearing. This proposed
procedure would allow statements from any person, with
reasonable limits on time allowed for oral statements. A
tape recording or written transcript would be required to be
made available to the public.
Proposed 71.11(g) would require that all reasonably
ascertainable issues and all reasonably ascertainable
arguments be raised or submitted by the close of the public
comment period. It would require that supporting materials
be submitted in full, rather than incorporated by reference.
In order to comply with this proposed requirement, the
comment period could be longer than 30 days, at the
discretion of the permitting authority.
Proposed 71.11(h) would allow the permitting
authority to reopen the public comment period if any person
believed that a condition of the draft permit is
inappropriate, or that the permitting authority's decision
to deny an application, terminate a permit, or prepare a
draft permit is inappropriate. If information submitted
during the public comment period appeared to raise
substantial new questions, the permitting authority would
have the flexibility to prepare a new draft permit, or
prepare a revised statement of basis and reopen or extend
the comment period.
Proposed 71.11(i) would require the permitting
authority to issue a final permit decision once the public
comment period had closed. The final decision, which
becomes effective immediately upon issuance of the decision
or a later date specified in the decision, would be a
decision to issue, deny, revise, revoke and reissue, renew,
or terminate a permit.
Proposed 71.11(j) would require the permitting
authority to issue a response to comments. The response
would specify what provisions, if any, of the draft permit
were changed in the final permit decision, and why. It
would also require a description and response to all
significant comments, and require inclusion of any cited
documents in the administrative record. If an affected
State recommended changes to the draft permit that were not
accepted by the permitting authority, proposed 71.11(j)
would require written notification to the affected State.
Final permit decisions would be based on the
administrative record defined in proposed 71.11(k),
including comments received, hearing transcripts, the
response to comments, the final permit, the permit
application, and the draft permit and its statement of
basis.
Proposed 71.11(l) grants a right of appeal of all
final permit decisions, including those taken under
provisions establishing procedures for administrative
amendments, de minimis permit revisions, and minor permit
revisions, and establishes procedures for such appeals.
Within 30 days of a final permit decision, interested
persons could petition the Environmental Appeals Board to
review the final permit decision. Petitions for review
would be required to include a statement of the reasons
supporting review and could address only issues raised
during the public comment period, unless it was
impracticable to raise the relevant objections during such
period or the grounds for objection arose after the period
closed. An example of a situation in which it is
impracticable to raise an objection during the comment
period would be when a significant change is made from a
draft to final permit without providing an opportunity for
public comment. Moreover, while persons who participated in
the comment or hearing processes could petition the Board to
review any condition of the final permit decision, persons
who failed to file comments or participate in hearings could
petition the Board only with respect to changes from the
draft to final permit decision. When a part 71 permit is
appealed, it would nevertheless remain fully effective and
enforceable against the permitted source.
The EPA seeks comment on its method of establishing
procedures for public participation and administrative
review, and on the appropriateness of the specific
procedures proposed. The EPA particularly seeks comment on
the issues of the statement of basis accompanying draft
permits, the proposed public notice and comment
requirements, and appeals of permits.
Pursuant to sections 114 and 503(e) of the Act, EPA, by
this proposed rule solicits comments on the appropriateness
of, and the means for, making available to the public
information that a source would be required by this rule to
collect. Such information might include, for example, the
data resulting from use of required monitoring methods.
Specifically, EPA is requesting comment on what types and
amount of information required under this rule should be
made available to the public, what limits, if any, to place
on a requirement to make available such information, and
appropriate methods for making such information publicly
available (e.g., electronic reporting to a publicly
accessible data base, direct access by the public to
information held by sources, or reliance on EPA and/or
delegated States to assist the public in obtaining the
information). The EPA also solicits comment on appropriate
language for a rule or policy guidance document to
effectuate public availability of information required under
this rule and solicits comments on whether a rule or a
policy guidance document is more appropriate.
Under both delegated and nondelegated part 71 programs,
interested persons (including permitees) would be authorized
to petition the Administrator to reopen an already issued
permit for cause as provided in proposed 71.11(n).
Petitions would be required to be in writing and to contain
facts or reasons supporting the request. If the
Administrator determined that cause exists to reopen the
permit, he or she would revise, revoke and reissue, or
terminate the permit consistent with the requirements and
procedures in proposed 71.7.
Under part 70, citizens can petition EPA to object to
State issued permits and can appeal EPA's failure to object
to a proposed permit. However, for both delegated and
nondelegated part 71 programs, the EPA feels this type of
petition process is unnecessary because the final permit can
be appealed directly to the Environmental Appeals Board
(EAB) and because citizens can use the petition process
provided by proposed 71.11(n) in cases where the deadline
for appeal to the EAB has passed. The EPA believes that
this approach provides an adequate opportunity for EPA
oversight of part 71 programs, and that consequently there
is little value in providing the opportunity for citizens to
petition the Administrator to object to a proposed permit,
which could result in two separate and simultaneous routes
to appeal EPA's permitting actions. Moreover, the approach
proposed today would be more consistent with that taken in
the Agency's recently promulgated rule (to be codified at 40
CFR 71.21 et seq), which governs how title V specialty
permits would be issued to sources seeking alternative
hazardous air pollution emissions limits under section
112(i)(5) of the Act. See 59 FR 59921 (Nov. 21, 1994)
("Federal Operating Permit Programs; Permits for Early
Reductions Sources"). The Agency solicits comment on this
approach.
K. Section 71.12 - Prohibited Acts
It is important to note that it is unnecessary to
include an enforcement authority section in the part 71
Federal program regulations that specifically corresponds to
the enforcement authority section in the part 70 State
program regulations. Rather, because the program under
part 71 is a Federal program, it will be enforced through
the full Federal enforcement authorities in the Act.
Examples of the Federal enforcement authorities
available under the Act for violations of title V and the
regulations thereunder include, but are not limited to, the
authority to: (1) restrain or enjoin immediately and
effectively any person by order or by suit in court from
engaging in any activity in violation of the Act that is
presenting an imminent and substantial endangerment to the
public health or welfare, or the environment; (2) seek
injunctive relief in court to enjoin any violation of the
Act; (3) issue an administrative order against any person
assessing a civil administrative penalty of up to
$25,000 per day for each violation of the Act; and
(4) assess and recover a civil penalty of not more than
$25,000 per day for each violation of the Act. Another
example of enforcement authority available under the Act is
the authority to assess criminal fines pursuant to title 18
of the United States Code or imprisonment for not to exceed
5 years, or both, against any person who knowingly violates
title V and the regulations thereunder. The above list is
not an exhaustive description of the Federal enforcement
authority available under the Act for violations of title V
and the regulations thereunder. Accordingly, nothing in
this discussion shall be construed to limit the Federal
enforcement authorities available under the Act for
violations of title V and the regulations thereunder.
The Federal enforcement authority available under the
Act for violations of title V and the regulations thereunder
provides broader enforcement authority than the States are
required to have under the part 70 regulations. For
example, 40 CFR 70.11 requires that States have authority to
recover civil penalties for a maximum amount of not less
than $10,000 per day per violation. The Federal enforcement
authority imposes a maximum penalty of up to $25,000 per day
per violation.
VI. Administrative Requirements.
A. Reference Documents
All the documents referenced in this preamble fall into
one of two categories. They are either reference materials
that are considered to be generally available to the public,
or they are memoranda and reports prepared specifically for
this rulemaking. Both types of documents can be found in
Docket No. A-93-51.
B. Office of Management and Budget (OMB) Review
Under Executive Order 12866 (58 FR 51735 (October 4,
1993)), the Agency must determine whether the regulatory
action is "significant" and therefore, subject to OMB review
and the requirements of the Executive Order. The Order
defines "significant" regulatory action as one that is
likely to lead to a rule that may:
(1) Have an annual effect on the economy of
$100 million or more, adversely and materially affecting a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local or
Tribal governments or communities;
(2) Create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of
entitlements, grants, user fees, or loan program or the
rights and obligation of recipients thereof;
(4) Raise novel legal or policy issues arising out of
legal mandates, the President's priorities, or the
principles set forth in the Executive Order."
Pursuant to the terms of Executive Order 12866, it has
been determined that this rule is a "significant" regulatory
action. As such, this action was submitted to OMB for
review. Changes made in response to OMB suggestions or
recommendations will be documented in the public record.
The estimated annualized cost of implementing the
part 71 program is $137.5 million to the Federal government
and $79.8 million to respondents, for a total of $217.3
million which reflects industry's total expected costs of
complying with the program. Since any costs incurred by the
Agency in administering a program would be recaptured
through fees imposed on sources, the true cost to the
Federal government is zero. The requirements for the costs
result from section 502(d) of title V which mandates that
EPA develop a Federal operating permits program. The
proposed program is designed to improve air quality by:
indirectly improving the quality of State-administered
operating permits programs; encouraging the adoption of
lower cost control strategies based on economic incentive
approaches; improving the effectiveness of enforcement and
oversight of source compliance; facilitating the
implementation of other titles of the Act, such as title I;
and improving the quality of emissions data and other
source-related data.
C. Regulatory Flexibility Act Compliance
Under the Regulatory Flexibility Act, whenever an
Agency publishes any proposed or final rule in the Federal
Register, it must prepare a Regulatory Flexibility Analysis
(RFA) that describes the impact of the rule on small
entities (i.e., small businesses, organizations, and
governmental jurisdictions). The EPA has established
guidelines which require an RFA if the proposed rule will
have any economic impact, however small, on any small
entities that are subject to the rule, even though the
Agency may not be legally required to develop such an
analysis.
The original part 70 rule and the recently proposed
revisions to part 70 were determined to not have a
significant and disproportionate adverse impact on small
entities. Similarly, a regulatory flexibility screening
analysis of the impacts of the proposed part 71 rule
revealed that the proposed rule would not have a significant
and disproportionate adverse impact on small entities; few
small entities would be subject to part 71 permitting
requirements because the proposed rule defers permitting
requirements for nonmajor sources. Consequently, the
Administrator certifies that the proposed part 71
regulations will not have a significant and disproportionate
impact on small entities. The EPA, however, solicits any
information or data which might affect this proposed
certification. The EPA will reexamine this issue and
perform any subsequent analysis deemed necessary. Any
subsequent analysis will be available in the docket and
taken into account before promulgation.
D. Paperwork Reduction Act
The information collection requirements in this
proposed rule have been submitted for approval to OMB under
the Paperwork Reduction Act, 44 U.S.C. 3501 et. seq. An
Information Collection Request document has been prepared by
EPA and a copy may be obtained from Sandy Farmer,
Information Policy Branch (2136), U.S. Environmental
Protection Agency, 401 M St., Washington, D.C. 20460, (202)
382-2706.
As compared to the burden imposed by 40 CFR part 70,
the average additional annual burden on sources for the
collection of information is approximately 3.3
million hours, or on average approximately 96 hours per
respondent and none for State and local agencies. The total
annualized cost for collection is estimated to be
approximately $79.8 million for sources. There is no burden
for State and local agencies. Send comments regarding the
burden estimate or any other aspect of this collection of
information, including suggestions for reducing this burden
to: Chief, Information Policy Branch (PM-223) U.S.
Environmental Agency, 401 M St. SW, Washington, D.C. 20460;
and to the Office of Information and Regulatory Affairs,
Office of Management and Budget, Washington, D.C. 20503,
marked, "Attention: Desk Officer for EPA." The final rule
will respond to any OMB or public comments on the
information collection requirements contained in this
proposal.
E. Unfunded Mandates Reform Act
As shown in the Information Collection Request Document
(ICR), today's action imposes no costs on State, local and
tribal governments. The EPA estimates that the direct cost
to the private sector would be no more than $96.6 million in
any one year.
The estimate of direct costs to industry includes the
costs that are over and above costs industry would have
incurred by complying with State permits programs mandated
by the Act, for which part 71 programs are substitutes. For
EPA's estimates of the cost to industry and permitting
agencies for State permits programs, see 57 FR 32293 (July
21, 1992) and 59 FR 44525 (August 29, 1994). As shown in
the ICR for proposed part 71, the part 71 program would
impose on industry a marginal cost (i.e., a cost above what
industry would incur to comply with State requirements) of
$31.9 million for collecting information (e.g., completing
permit applications). Additionally, EPA has calculated the
marginal cost to industry of the part 71 fee structure to be
$64.7 million. As shown in the ICR, part 71 programs would
generate $137.5 million in fees, using an average fee of
nearly $60 per ton of certain regulated pollutants. On the
other hand, most States are expected to charge approximately
$31 per ton (or $25 per ton as adjusted for inflation using
a baseline year of 1989) which is the fee amount which title
V of the Act suggests would be adequate to fund a State
permit program. The difference between fees generated under
part 71 and under the otherwise applicable State fee
requirements (based on $31 per ton) would be $64.7 million.
In addition, it is important to note that the estimates used
in these projections (and the ICR) are based on the
assumption that EPA would administer 10 part 71 programs for
a full year. The EPA believes that it is very unlikely that
it would administer that many programs for such an extended
time period. For these reasons, EPA believes that the total
marginal costs to industry under today's proposal would not
exceed $100 million in any one year. Therefore, the Agency
concludes that it is not required by Section 202 of the
Unfunded Mandates Reform Act of 1995 to provide a written
statement to accompany this proposed regulatory action
because promulgation of the rule would not result in the
expenditure by State, local, and tribal governments, in the
aggregate or by the private sector, of $100,000,000 or more
in any one year.
List of Subjects 40 CFR Part 55
Air pollution control, Outer Continental shelf,
operating permits.
List of Subjects 40 CFR Part 71
Air pollution control, Prevention of significant
deterioration, New source review, Fugitive emissions,
Particulate matter, Volatile organic compounds, Nitrogen
dioxide, Carbon monoxide, Hydrocarbons, Lead, Operating
permits, Indian Tribes, Air pollution control--Tribal
authority.
Proposed Rulemaking for Federal Operating Permits
p. 115 of 261
Dated: Carol Browner,
Administrator.
Billing Code 6560-50 For the reasons set out in the preamble, title 40,
chapter I of the Code of Federal Regulations is proposed to
be amended as set forth below.
(Note: Material enclosed by brackets and designated as
"Option" sets forth alternative proposal regarding revision
of permit terms that prescribe monitoring or recordkeeping
procedures.)
PART 55--[AMENDED]
1. The authority citation for part 55 continues to
read as follows:
Authority: Section 328 of the Clean Air Act (42 U.S.C.
7401, et seq.) as amended by Public Law 101-549.
2. Section 55.6 is proposed to be amended by adding
paragraph (c)(3) to read as follows:
55.6 Permit requirements.
* * * * *
(c) * * *
(3) If the COA does not have an operating permits
program approved pursuant to 40 CFR part 70 or if EPA has
determined that the COA is not adequately implementing an
approved program, the applicable requirements of 40 CFR
part 71, the Federal operating permits program, shall apply
to the OCS sources. The applicable requirements of 40 CFR
part 71 will be implemented and enforced by the
Administrator. The Administrator may delegate the authority
to implement and enforce all or part of a Federal operating
permits program to a State pursuant to 55.11 of this part.
* * * * *
3. Section 55.10 is proposed to be amended by revising
paragraph (a)(1) and by adding paragraph (b) to read as
follows:
55.10 Fees.
(a) * * *
(1) EPA will calculate and collect operating permit
fees from OCS sources in accordance with the requirements of
40 CFR part 71.
* * * * *
(b) OCS sources located beyond 25 miles of States'
seaward boundaries. EPA will calculate and collect
operating permit fees from OCS sources in accordance with
the requirements of 40 CFR part 71.
4. Section 55.13 is proposed to be amended by adding
paragraph (f) to read as follows:
55.13 Federal requirements that apply to OCS sources.
* * * * *
(f) 40 CFR part 71 shall apply to OCS sources:
(1) Located within 25 miles of States' seaward
boundaries if the requirements of 40 CFR part 71 are in
effect in the COA.
(2) Located beyond 25 miles of States' seaward
boundaries.
(3) When an operating permits program approved
pursuant to 40 CFR part 70 is in effect in the COA and a
Federal operating permit is issued to satisfy an EPA
objection pursuant to 40 CFR 71.4(e).
* * * * *
5. Part 71 is proposed to be added to read as follows:
PART 71--FEDERAL OPERATING PERMITS PROGRAM
Sec.
71.1 Program overview.
71.2 Definitions.
71.3 Sources subject to permitting requirements.
71.4 Program implementation.
71.5 Permit applications.
71.6 Permit content.
71.7 Permit review, issuance, renewal, reopenings, and
revisions.
71.8 Affected State review.
71.9 Permit fees.
71.10 Delegation of part 71 program.
71.11 Administrative record, public participation, and
administrative review.
71.12 Prohibited acts.
Authority: 42 U.S.C. 7401, et seq.
PART 71--FEDERAL OPERATING PERMITS PROGRAM
71.1 Program overview.
(a) This part sets forth the comprehensive Federal air
quality operating permits permitting program consistent with
the requirements of title V of the Clean Air Act (Act)
(42 U.S.C. 7401, et seq.) and defines the requirements and
the corresponding standards and procedures by which the
Administrator will issue operating permits. This permitting
program is designed to promote timely and efficient
implementation of goals and requirements of the Act.
(b) All sources subject to the operating permit
requirements of title V and this part shall have a permit to
operate that assures compliance by the source with all
applicable requirements.
(c) The requirements of this part, including
provisions regarding schedules for submission and approval
or disapproval of permit applications, shall apply to the
permitting of affected sources under the acid rain program,
except as provided herein or as modified by title IV of the
Act and regulations promulgated thereunder.
(d) Issuance of permits under this part may be
coordinated with issuance of permits under the Resource
Conservation and Recovery Act (42 U.S.C. 6901, et seq.) and
under the Clean Water Act (33 U.S.C. 1251, et seq.), whether
issued by the State, the U.S. Environmental Protection
Agency (EPA), or the U.S. Army Corps of Engineers.
(e) Nothing in this part shall prevent a State from
administering an operating permits program and establishing
more stringent requirements not inconsistent with the Act.
71.2 Definitions.
The following definitions apply to part 71. Except as
specifically provided in this section, terms used in this
part retain the meaning accorded them under the applicable
requirements of the Act.
Act means the Clean Air Act, as amended, 42 U.S.C.
7401, et seq.
Administrator or EPA means the Administrator of the
U.S. Environmental Protection Agency (EPA) or his or her
designee.
Affected source shall have the meaning given to it in
the regulations promulgated under title IV of the Act.
Affected States are:
(1) All States and Tribal areas whose air quality may
be affected and that are contiguous to the State or Tribal
area in which the permit, permit revision or permit renewal
is being proposed; or that are within 50 miles of the
permitted source. A Tribe and any associated Tribal area
shall be treated as a State under this paragraph (1) only if
EPA has determined that the Tribe is eligible to be treated
in the same manner as a State.
(2) The State or Tribal area in which a part 71
permit, permit revision, or permit renewal is being
proposed.
(3) Those areas within the jurisdiction of the air
pollution control agency for the area in which a part 71
permit, permit revision, or permit renewal is being
proposed.
(4) Except as provided in paragraph (3) of this
definition, the term "affected State" does not include any
local agency, district, or interstate program.
Affected unit shall have the meaning given to it in the
regulations promulgated under title IV of the Act.
Applicable requirement means all of the following as
they apply to emissions units in a part 71 source (including
requirements that have been promulgated or approved by EPA
through rulemaking at the time of issuance but have future-
effective compliance dates):
(1) Any standard or other requirement provided for in
the applicable implementation plan approved or promulgated
by EPA through rulemaking under title I of the Act that
implements the relevant requirements of the Act, including
any revisions to that plan promulgated in part 52 of this
chapter;
(2) Any requirement enforceable by the Administrator
and by citizens under the Act that limits emissions for the
purposes of creating offset credits or for complying with or
avoiding the applicability of applicable requirements;
(3) Any term or condition of any preconstruction
permits issued pursuant to regulations approved or
promulgated through rulemaking under title I, including
parts C or D, of the Act;
(4) Any standard or other requirement under
section 111 of the Act, including section 111(d);
(5) Any standard or other requirement under
section 112 of the Act, including any requirement concerning
accident prevention under section 112(r)(7) of the Act;
(6) Any standard or other requirement of the acid rain
program under title IV of the Act or the regulations
promulgated thereunder;
(7) Any requirements established pursuant to
section 114(a)(3) or 504(b) of the Act;
(8) Any standard or other requirement governing solid
waste incineration, under section 129 of the Act;
(9) Any standard or other requirement for consumer and
commercial products, under section 183(e) of the Act;
(10) Any standard or other requirement for tank
vessels, under section 183(f) of the Act;
(11) Any standard or other requirement of the program
to control air pollution from outer continental shelf
sources, under section 328 of the Act;
(12) Any standard or other requirement of the
regulations promulgated to protect stratospheric ozone under
sections 608 or 609 of title VI of the Act, unless the
Administrator has determined that such requirements need not
be contained in a title V permit, and any standard or other
requirement under any other section(s) of title VI of the
Act that the Administrator determines should be contained in
a title V permit; and
(13) Any national ambient air quality standard or
increment or visibility requirement under part C of title I
of the Act, but only as it would apply to temporary sources
permitted pursuant to section 504(e) of the Act.
Delegate agency means the State air pollution control
agency, local agency, other State agency, Tribal agency, or
other agency authorized by the Administrator pursuant to
71.10 of this part to carry out all or part of a permit
program under part 71.
Designated representative shall have the meaning given
to it in section 402(26) of the Act and the regulations
promulgated thereunder.
Draft permit means the version of a permit for which
the permitting authority offers public participation under
71.7 or 71.11 of this part and affected State review
under 71.8 of this part.
Eligible Indian Tribe or Eligible Tribe means a Tribe
that has been determined by EPA to meet the criteria for
being treated in the same manner as a State, pursuant to the
regulations implementing section 301(d)(2) of the Act.
Emissions allowable under the permit means a federally
enforceable permit term or condition determined at issuance
to be required by an applicable requirement that establishes
an emissions limit (including a work practice standard) or a
federally enforceable emissions cap that the source has
assumed to avoid an applicable requirement to which the
source would otherwise be subject.
Emissions unit means any part or activity of a
stationary source that emits or has the potential to emit
any regulated air pollutant or any pollutant listed under
section 112(b) of the Act. This term is not meant to alter
or affect the definition of the term "unit" for purposes of
title IV of the Act.
Federal Indian Reservation, Indian Reservation or
Reservation means all land within the limits of any Indian
reservation under the jurisdiction of the United States
Government, notwithstanding the issuance of any patent, and
including rights-of-way running through the reservation.
Final action or final permit action means the issuance
or denial of a part 71 permit, permit renewal, or permit
revision by the permitting authority, which has completed
all review procedures required by 71.7, 71.8, and
71.11 of this part and is subject to administrative appeal
and judicial review.
Fugitive emissions are those emissions which could not
reasonably pass through a stack, chimney, vent, or other
functionally-equivalent opening.
General permit means a part 71 permit that meets the
requirements of 71.6(d) of this part.
Indian Tribe or Tribe means any Indian Tribe, band,
nation, or other organized group or community, including any
Alaskan native village, which is federally recognized as
eligible for the special programs and services provided by
the United States to Indians because of their status as
Indians.
Insignificant activity or emissions means those
activities, operations, and emissions levels which meet the
criteria listed in 71.5(g) of this part for exemption from
the documentation and reporting requirements of 71.5(f) of
this part.
Major new source review (major NSR) means a title I
program contained in an EPA-approved or promulgated
implementation plan for the preconstruction review of
changes which are subject to review as new major stationary
sources or major modifications under EPA regulations
implementing parts C or D of title I of the Act.
Major source means any stationary source or group of
stationary sources as described in paragraph (1), (2), or
(3) of this definition. For purposes of paragraphs (2) and
(3), major stationary source includes any group of
stationary sources that are located on one or more
contiguous or adjacent properties, and are under common
control of the same person (or persons under common control)
belonging to a single major industrial grouping. For the
purposes of defining "major source" in paragraph (2) or (3)
of this definition, a stationary source or group of
stationary sources shall be considered part of a single
industrial grouping if all of the pollutant emitting
activities at such source or group of sources on contiguous
or adjacent properties belong to the same Major Group
(i.e., all have the same two-digit code) as described in the
Standard Industrial Classification Manual, 1987. In
addition, for purposes of paragraphs (2) and (3) of this
definition, any facility that supports a source, where both
are under the control of the same person (or persons under
common control) and on contiguous or adjacent properties,
shall be considered a support facility and part of the same
source, regardless of the 2-digit code of that facility. A
stationary source (or group of stationary sources) is
considered a support facility to a source if at least
50 percent of the output of the support facility is
dedicated to the source.
(1) A major source under section 112 of the Act, which
is defined as:
(i) For pollutants other than radionuclides, any
stationary source or group of stationary sources located
within a contiguous area and under common control that emits
or has the potential to emit, in the aggregate, 10 tons per
year (tpy) or more of any hazardous air pollutant (HAP)
(including any fugitive emissions of such pollutant) which
has been listed pursuant to section 112(b) of the Act,
25 tpy or more of any combination of such HAP (including any
fugitive emissions of such pollutants), or such lesser
quantity as the Administrator may establish by rule.
Notwithstanding the preceding sentence, emissions from any
oil or gas exploration or production well (with its
associated equipment) and emissions from any pipeline
compressor or pump station shall not be aggregated with
emissions from other similar units, whether or not such
units are in a contiguous area or under common control, to
determine whether such units or stations are major sources;
or
(ii) For radionuclides, "major source" shall have the
meaning specified by the Administrator by rule.
(2) A major stationary source of air pollutants or any
group of stationary sources as defined in section 302 of the
Act, that directly emits, or has the potential to emit,
100 tpy or more of any air pollutant (including any fugitive
emissions of any such pollutant, as determined by rule by
the Administrator). The fugitive emissions of a stationary
source shall not be considered in determining whether it is
a major stationary source for the purposes of section 302(j)
of the Act or for the purposes of paragraph (3) of this
definition, unless the source belongs to one of the
following categories of stationary source:
(i) Coal cleaning plants (with thermal dryers);
(ii) Kraft pulp mills;
(iii) Portland cement plants;
(iv) Primary zinc smelters;
(v) Iron and steel mills;
(vi) Primary aluminum ore reduction plants;
(vii) Primary copper smelters;
(viii) Municipal incinerators capable of charging more
than 250 tons of refuse per day;
(ix) Hydrofluoric, sulfuric, or nitric acid plants;
(x) Petroleum refineries;
(xi) Lime plants;
(xii) Phosphate rock processing plants;
(xiii) Coke oven batteries;
(xiv) Sulfur recovery plants;
(xv) Carbon black plants (furnace process);
(xvi) Primary lead smelters;
(xvii) Fuel conversion plants;
(xviii) Sintering plants;
(xix) Secondary metal production plants;
(xx) Chemical process plants;
(xxi) Fossil-fuel boilers (or combination thereof)
totaling more than 250 million British thermal units per
hour heat input;
(xxii) Petroleum storage and transfer units with a
total storage capacity exceeding 300,000 barrels;
(xxiii) Taconite ore processing plants;
(xxiv) Glass fiber processing plants;
(xxv) Charcoal production plants;
(xxvi) Fossil-fuel-fired steam electric plants of more
than 250 million British thermal units per hour heat input;
or
(xxvii) All other stationary source categories
regulated by a standard promulgated as of August 7, 1980,
under section 111 or 112 of the Act, but only with respect
to those air pollutants that have been regulated for that
category;
(3) A major stationary source as defined in part D of
title I of the Act, including:
(i) For ozone nonattainment areas, sources with the
potential to emit 100 tpy or more of volatile organic
compounds or oxides of nitrogen in areas classified as
"marginal" or "moderate," 50 tpy or more in areas classified
as "serious," 25 tpy or more in areas classified as
"severe," and 10 tpy or more in areas classified as
"extreme;" except that the references in this paragraph to
100, 50, 25, and 10 tpy of nitrogen oxides shall not apply
with respect to any source for which the Administrator has
made a finding, under section 182(f)(1) or (2) of the Act,
that requirements under section 182(f) of the Act do not
apply;
(ii) For ozone transport regions established pursuant
to section 184 of the Act, sources with the potential to
emit 50 tpy or more of volatile organic compounds;
(iii) For carbon monoxide nonattainment areas (1) that
are classified as "serious," and (2) in which stationary
sources contribute significantly to carbon monoxide levels
as determined under rules issued by the Administrator,
sources with the potential to emit 50 tpy or more of carbon
monoxide; and
(iv) For particulate matter (PM-10) nonattainment
areas classified as "serious," sources with the potential to
emit 70 tpy or more of PM-10 or, where applicable, a PM-10
precursor.
Minor new source review (minor NSR) means a title I
program approved by EPA into a State's implementation plan
under EPA regulations implementing section 110(a)(2) of
title I of the Act for the preconstruction review of changes
which are subject to review as new or modified sources and
which do not qualify as new major stationary sources or
major modifications under EPA regulations implementing
parts C or D of title I of the Act.
Part 70 permit means any permit or group of permits
covering a part 70 source that has been issued, renewed,
amended or revised pursuant to 40 CFR part 70.
Part 70 program or State program means an operating
permits program approved by the Administrator under 40 CFR
part 70.
Part 70 source means any source subject to the
permitting requirements of 40 CFR part 70.
Part 71 permit, or permit (unless the context suggests
otherwise) means any permit or group of permits covering a
part 71 source that has been issued, renewed, amended or
revised pursuant to this part.
Part 71 program means a Federal operating permits
program under this part.
Part 71 source means any source subject to the
permitting requirements of this part, as provided in
71.3(a) and 71.3(b) of this part.
Permit program costs means all reasonable (direct and
indirect) costs required to administer an operating permits
program, as set forth in 71.9(b) of this part.
Permit revision means any administrative permit
amendment, de minimis permit revision, minor permit
revision, or significant permit revision.
Permitting authority means one of the following:
(1) The Administrator, in the case of EPA-implemented
programs;
(2) A delegate agency authorized by the Administrator
to carry out a Federal permit program under this part; or
(3) The State air pollution control agency, local
agency, other State agency, Indian Tribe, or other agency
with a part 70 program.
Potential to emit means the maximum capacity of a
stationary source to emit any air pollutant under its
physical and operational design. Any physical or
operational limitation on the capacity of a source to emit
an air pollutant, including air pollution control equipment
and restrictions on hours of operation or on the type or
amount of material combusted, stored, or processed, shall be
treated as part of its design if the limitation is
enforceable by the Administrator and by citizens under the
Act. This term does not alter or affect the use of this
term for any other purposes under the Act, or the term
"capacity factor" as used in title IV of the Act or the
regulations promulgated thereunder.
Proposed permit means the version of a permit that the
delegate agency proposes to issue and forwards to the
Administrator for review in compliance with 71.10(d) of
this part.
Regulated air pollutant means the following:
(1) Nitrogen oxides or any volatile organic compounds;
(2) Any pollutant for which a national ambient air
quality standard has been promulgated;
(3) Any pollutant that is subject to any standard
promulgated under section 111 of the Act;
(4) Any Class I or II substance subject to a standard
promulgated under or established by title VI of the Act; or
(5) Any pollutant subject to a standard promulgated
under section 112 or other requirements established under
section 112 of the Act, including sections 112(g), (j), and
(r) of the Act, including the following:
(i) Any pollutant subject to requirements under
section 112(j) of the Act. If the Administrator fails to
promulgate a standard by the date established pursuant to
section 112(e) of the Act, any pollutant for which a subject
source would be major shall be considered to be regulated on
the date 18 months after the applicable date established
pursuant to section 112(e) of the Act; and
(ii) Any pollutant for which the requirements of
section 112(g)(2) of the Act have been met, but only with
respect to the individual source subject to
section 112(g)(2) requirement.
Regulated pollutant (for fee calculation), which is
used only for purposes of 71.9(c) of this part, means any
regulated air pollutant except the following:
(1) Carbon monoxide;
(2) Any pollutant that is a regulated air pollutant
solely because it is a Class I or II substance subject to a
standard promulgated under or established by title VI of the
Act; or
(3) Any pollutant that is a regulated air pollutant
solely because it is subject to a standard or regulation
under section 112(r) of the Act.
Renewal means the process by which a permit is reissued
at the end of its term.
Responsible official means one of the following:
(1) For a corporation: a president, secretary,
treasurer, or vice-president of the corporation in charge of
a principal business function, or any other person who
performs similar policy or decision-making functions for the
corporation, or a duly authorized representative of such
person if the representative is responsible for the overall
operation of one or more manufacturing, production, or
operating facilities applying for or subject to a permit and
either:
(i) the facilities employ more than 250 persons or have
gross annual sales or expenditures exceeding $25 million (in
second quarter 1980 dollars); or
(ii) the delegation of authority to such representative
is approved in advance by the permitting authority;
(2) For a partnership or sole proprietorship: a
general partner or the proprietor, respectively;
(3) For a municipality, State, Federal, or other
public agency: either a principal executive officer or
ranking elected official. For the purposes of this part, a
principal executive officer of a Federal agency includes the
chief executive officer having responsibility for the
overall operations of a principal geographic unit of the
agency (e.g., a Regional Administrator of EPA); or
(4) For affected sources:
(i) The designated representative for all actions,
standards, requirements, or prohibitions under title IV of
the Act or the regulations promulgated thereunder; or
(ii) The designated representative or a person meeting
the provisions of paragraph (1), (2), or (3) of this
definition for any other purposes under part 71.
State means any non-Federal permitting authority,
including any local agency, interstate association, or
statewide program. The term "State" also includes the
District of Columbia, the Commonwealth of Puerto Rico, the
Virgin Islands, Guam, American Samoa, and the Commonwealth
of the Northern Marianas Islands. Where such meaning is
clear from the context, "State" shall have its conventional
meaning. For purposes of the acid rain program, the term
"State" shall be limited to authorities within the
48 contiguous States and the District of Columbia as
provided in section 402(14) of the Act.
Stationary source means any building, structure,
facility, or installation that emits or may emit any
regulated air pollutant or any pollutant listed under
section 112(b) of the Act.
Title I modification or modification under any
provision of title I of the Act means any modification under
part C or part D of title I or sections 110(a)(2),
111(a)(4), 112(a)(5), or 112(g) of the Act; under
regulations promulgated thereunder by EPA or in 61.07 of
part 61 of this chapter; or under State regulations approved
by EPA to meet such requirements.
Tribal area means, for the purposes of the regulations
under this part, those lands over which an Indian Tribe has
authority under the Clean Air Act to regulate air quality.
These lands include all areas within the exterior boundaries
of an Indian reservation and any other areas outside
reservation boundaries that EPA determines to be within a
Tribe's inherent authority.
71.3 Sources Subject to Permitting Requirements.
(a) Part 71 sources. The following sources are
subject to the permitting requirements under this part:
(1) Any major source, except that a source is not
required to obtain a permit if it would be classified as a
major source solely because it has the potential to emit
major amounts of a pollutant listed pursuant to
section 112(r)(3) of the Act and is not otherwise required
to obtain a permit under this part;
(2) Any source, including an area source (i.e., a
nonmajor source), subject to a standard, limitation, or
other requirement under section 111 of the Act;
(3) Any source, including an area source (i.e., a
nonmajor source), subject to a standard or other requirement
under section 112 of the Act, except that a source is not
required to obtain a permit solely because it is subject to
regulations or requirements under section 112(r) of the Act;
(4) Any source required to have a permit under part C
or D of title I of the Act;
(5) Any affected source; and
(6) Any source in a source category designated by the
Administrator pursuant to this section.
(b) Source category exemptions.
(1) All sources listed in paragraph (a) of this
section that are not major sources, affected sources, or
solid waste incineration units required to obtain a permit
pursuant to section 129(e) of the Act are exempted from the
obligation to obtain a part 71 permit until such time as the
Administrator completes a rulemaking to determine how the
program should be structured for nonmajor sources and the
appropriateness of any permanent exemptions in addition to
those provided for in paragraph (b)(4) of this section.
(2) Nonmajor sources subject to a standard or other
requirement under either section 111 or 112 of the Act after
July 21, 1992 shall be exempted from the obligation to
obtain a part 71 permit if the Administrator exempts such
sources from the requirement to obtain a part 70 or part 71
permit at the time that the new standard is promulgated.
(3) Any source listed in paragraph (a) of this section
that is exempt from the requirement to obtain a permit under
this section may opt to apply for a permit under a part 71
program.
(4) The following source categories are exempted from
the obligation to obtain a part 71 permit:
(i) All sources and source categories that would be
required to obtain a permit solely because they are subject
to part 60, Subpart AAA---Standards of Performance for New
Residential Wood Heaters; and
(ii) All sources and source categories that would be
required to obtain a permit solely because they are subject
to part 61, Subpart M - National Emission Standard for
Hazardous Air Pollutants for Asbestos, 61.145, Standard
for Demolition and Renovation.
71.4 Program Implementation.
(a) Part 71 programs for States. The Administrator
will administer and enforce a full or partial operating
permits program for a State (excluding Tribal areas) in the
following situations:
(1) A program for a State meeting the requirements of
part 70 of this chapter has not been granted full approval
under 70.4 of this chapter by the Administrator by
November 15, 1995, and the State's part 70 program has not
been granted interim approval under 70.4(d) of this
chapter for a period extending beyond November 15, 1995.
The effective date of such a part 71 program is November 15,
1995.
(2) An operating permits program for a State which was
granted interim approval under 70.4(d) of this chapter has
not been granted full approval by the Administrator by the
expiration of the interim approval period or November 15,
1995, whichever is later. Such a part 71 program shall be
effective upon expiration of the interim approval or
November 15, 1995, whichever is later.
(3) Any partial part 71 program will be effective only
in those portions of a State that are not covered by a
partial part 70 program that has been granted full or
interim approval by the Administrator pursuant to 70.4(c)
of this chapter.
(b) Part 71 programs for Tribal areas. The
Administrator may administer and enforce an operating
permits program for a Tribal area, as defined in 71.2 of
this part, when an operating permits program for the area
which meets the requirements of part 70 of this chapter has
not been granted full or interim approval by the
Administrator by November 15, 1995.
(1) Determining the boundaries of a Tribal area. At
least 90 days prior to the effective date of a part 71
program for a Tribal area, the Administrator shall notify
all appropriate governmental entities of the proposed
geographic boundaries of the program.
(i) For programs solely addressing air resources
within the exterior boundaries of the Reservation, EPA's
notification of other governmental entities shall specify
the geographic boundaries of the Reservation. For programs
also addressing off-reservation areas, EPA's notification of
other governmental entities shall include the substance and
bases of the Tribe's assertions of jurisdiction over such
off-reservation area(s), including:
(A) A map or legal description of the off-reservation
area(s) over which the Tribe asserts jurisdiction.
(B) A statement by the Tribe's legal counsel (or
equivalent official) which describes the basis for the
Tribe's assertion of jurisdiction which may include a copy
of documents such as Tribal constitutions, by-laws,
charters, executive orders, codes, ordinances, and/or
resolutions which support the Tribe's assertion of
jurisdiction over the off-reservation area(s).
(ii) The appropriate governmental entities shall have
15 days to provide written comments to the Administrator
regarding any dispute concerning the boundary of the
Reservation. Where a Tribe has asserted jurisdiction over
off-reservation areas, appropriate governmental entities may
request a single 15-day extension to the general 15-day
comment period.
(iii) In all cases, comments must be timely, limited
to the scope of the Tribe's jurisdictional assertion, and
clearly explain the substance, bases and extent of any
objections. If a Tribe's assertion is subject to a
conflicting claim, the EPA may request additional
information and may consult with the Department of the
Interior.
(iv) The Administrator shall promptly decide the scope
of the Tribe's jurisdiction. If a conflicting claim cannot
be promptly resolved, the Administrator shall implement a
part 71 program encompassing all undisputed areas.
(v) The part 71 program will extend to all areas
within the exterior boundaries of the Tribe's reservation,
as determined by the Administrator, and any other areas the
Administrator has determined to be within the Tribe's
jurisdiction.
(vi) The Administrator's determination of the scope of
the Tribe's jurisdiction shall be published in the Federal
Register at least 30 days prior to the effective date of the
part 71 program.
(2) The effective date of a part 71 program for a
Tribal area shall be November 15, 1997.
(3) Notwithstanding paragraph (b)(2) of this section,
the Administrator, in consultation with the governing body
of the Tribal area, may adopt an earlier effective date.
(4) Notwithstanding paragraph (i)(2) of this section,
within two years of the effective date of the part 71
program for the Tribal area, the Administrator shall take
final action on permit applications from part 71 sources
that are submitted within the first full year after the
effective date of the part 71 program.
(c) Part 71 programs imposed due to inadequate
implementation.
(1) The Administrator will administer and enforce an
operating permits program for a permitting authority if the
Administrator has notified the permitting authority, in
accordance with 70.10(b)(1) of this chapter, of the
Administrator's determination that a permitting authority is
not adequately administering or enforcing its approved
operating permits program, or any portion thereof, and the
permitting authority fails to do either of the following:
(i) Correct the deficiencies within 18 months after
the Administrator issues the notice; or
(ii) Take significant action to assure adequate
administration and enforcement of the program within 90 days
of the Administrator's notice.
(2) The effective date of a part 71 program
promulgated in accordance with this paragraph shall be:
(i) Two years after the Administrator's notice if the
permitting authority has not corrected the deficiency within
18 months after the date of the Administrator's notice; or
(ii) Such earlier time as the Administrator determines
appropriate if the permitting authority fails, within
90 days of the Administrator's notice, to take significant
action to assure adequate administration and enforcement of
the program.
(d) Part 71 programs for OCS sources.
(1) Using the procedures of this part, the
Administrator will issue permits to any source which is an
outer continental shelf (OCS) source, as defined under
55.2 of this chapter, is subject to the requirements of
part 55 of this chapter and section 328(a) of the Act, is
subject to the requirement to obtain a permit under title V
of the Act, and is either:
(i) Located beyond 25 miles of States' seaward
boundaries; or
(ii) Located within 25 miles of States' seaward
boundaries and a part 71 program is being administered and
enforced by the Administrator for the corresponding onshore
area, as defined in 55.2 of this chapter, for that source.
(2) The requirements of 71.4(d)(1)(i) of this part
shall become effective upon the effective date of
promulgation of these regulations.
(3) The requirements of 71.4(d)(1)(ii) of this part
shall become effective upon the effective date of a part 71
program for the corresponding onshore area.
(e) Part 71 program for permits issued to satisfy an
EPA objection. Using the procedures of this part and 40 CFR
70.8(c) or (d), or 40 CFR 70.7(g)(4) or (5)(i) and (ii), as
appropriate, the Administrator will deny, terminate, revise,
revoke or reissue a permit which has been proposed or issued
by a permitting authority or will issue a part 71 permit
when:
(1) A permitting authority with an approved part 70
operating permits program fails to respond to a timely
objection to the issuance of a permit made by the
Administrator pursuant to section 505(b) of the Act and
70.8(c) and (d) of this chapter;
(2) The Administrator, under 70.7(g) of this
chapter, finds that cause exists to reopen a permit and the
permitting authority fails to either:
(i) Submit to the Administrator a proposed
determination of termination, modification, or revocation
and reissuance, as appropriate; or
(ii) Resolve any objection EPA makes to the permit
which the permitting authority proposes to issue in response
to EPA's finding of cause to reopen, and to terminate,
revise, or revoke and reissue the permit in accordance with
that objection.
(3) The requirements of this paragraph (e) of this
section shall become effective upon the effective date of
promulgation of these regulations.
(f) Use of selected provisions of this part. The
Administrator may utilize any or all of the provisions of
this part to administer the permitting process for
individual sources or take action on individual permits, or
may adopt through rulemaking portions of a State or Tribal
program in combination with provisions of this part to
administer a Federal program for the State or Tribal area in
substitution of or addition to the Federal program otherwise
required by this part.
(g) Public notice of part 71 programs. In taking
action to administer and enforce an operating permits
program under this part, the Administrator will publish a
notice in the Federal Register informing the public of such
action and the effective date of any part 71 program as set
forth in 71.4(a), (b), (c), or (d)(1)(ii) of this part.
The promulgation of this part serves as the notice for the
part 71 permit programs described in 71.4(d)(1)(i) and
(e) of this part. The EPA will also publish a notice in the
Federal Register of any delegation of a portion of the part
71 program to a State, eligible Tribe, or local agency
pursuant to the provisions of 71.10 of this part. In
addition to notices published in the Federal Register under
this paragraph, the Administrator will, to the extent
practicable, publish notice in a newspaper of general
circulation within the area subject to the part 71 program
effectiveness or delegation, and will send a letter to the
Tribal governing body for an Indian Tribe or the Governor
(or his or her designee) of the affected area to provide
notice of such effectiveness or delegation.
(h) Effect of limited deficiencies in State or Tribal
programs. The Administrator may administer and enforce a
part 71 program in a State or Tribal area even if only
limited deficiencies exist either in the initial program
submittal for a State or eligible Tribe under part 70 of
this chapter or in an existing State or Tribal program that
has been approved under part 70 of this chapter.
(i) Transition plan for initial permit issuance. If a
full or partial part 71 program becomes effective in a State
or Tribal area prior to the issuance of part 70 permits to
all part 70 sources under an existing program that has been
approved under part 70 of this chapter, the Administrator
shall take final action on initial permit applications for
all part 71 sources in accordance with the following
transition plan.
(1) All part 71 sources that have not received part 70
permits shall submit permit applications under this part
within 1 year after the effective date of the part 71
program.
(2) Final action shall be taken on at least one-third
of such applications annually over a period not to exceed
3 years after such effective date.
(3) Any complete permit application containing an
early reduction demonstration under section 112(i)(5) of the
Act shall be acted on within 12 months of receipt of the
complete application.
(4) Submittal of permit applications and the
permitting of affected sources shall occur in accordance
with the deadlines in title IV of the Act and the
regulations promulgated thereunder.
(j) Delegation of part 71 programs. The Administrator
may promulgate a part 71 program in a State or Tribal area
and delegate part of the responsibility for administering
the part 71 program to the State or eligible Tribe in
accordance with the provisions of 71.10 of this part;
however, delegation of a part of a program will not
constitute any type of approval of a State or Tribal
operating permits program under part 70 of this chapter.
Where only selected portions of a part 71 program are
administered by the Administrator and the State or eligible
Tribe is delegated the remaining portions of the program,
the notice referred to in paragraph (g) of this section will
define the respective roles of the State or eligible Tribe
and the Administrator in administering and enforcing the
part 71 operating permits program.
(k) EPA administration and enforcement of part 70
permits. When the Administrator administers and enforces a
part 71 program after a determination and notice under
70.10(b)(1) of this chapter that a State or Tribe is not
adequately administering and enforcing an operating permits
program approved under part 70 of this chapter, the
Administrator will administer and enforce permits issued
under the part 70 program until part 71 permits are issued
using the procedures of part 71. Until such time as part 70
permits are replaced by part 71 permits, the Administrator
will revise, reopen, revise, terminate, or revoke and
reissue part 70 permits using the procedures of part 71 and
will assess and collect fees in accordance with the
provisions of 71.9 of this part.
(l) Transition to approved part 70 program. The
Administrator will suspend the issuance of part 71 permits
promptly upon publication of notice of approval of a State
or Tribal operating permits program that fully meets the
requirements of part 70 of this chapter. The Administrator
may retain jurisdiction over the part 71 permits for which
the administrative or judicial review process is not
complete and will address this issue in the notice of State
program approval. After approval of a State or Tribal
program and the suspension of issuance of part 71 permits by
the Administrator:
(1) The Administrator, or the permitting authority
acting as the Administrator's delegated agent, will continue
to administer and enforce part 71 permits until they are
replaced by permits issued under the approved part 70
program. Until such time as part 71 permits are replaced by
part 70 permits, the Administrator will revise, reopen,
revise, terminate, or revoke and reissue part 71 permits
using the procedures of the part 71 program. However, if
the Administrator has delegated authority to administer part
71 permits to a delegate agency, the delegate agency will
revise, reopen, terminate, or revoke and reissue part 71
permits using the procedures of the approved part 70
program. If a part 71 permit expires prior to the issuance
of a part 70 permit, all terms and conditions of the part 71
permit, including any permit shield that may be granted
pursuant to 71.6(n) of this part, shall remain in effect
until the part 70 permit is issued or denied, provided that
a timely and complete application for a permit renewal was
submitted to the permitting authority in accordance with the
requirements of the approved part 70 program.
(2) A State or local agency or Indian Tribe with an
approved part 70 operating permits program may issue part 70
permits for all sources with part 71 permits in accordance
with a permit issuance schedule approved as part of the
approved part 70 program or may issue part 70 permits to
such sources at the expiration of the part 71 permits.
(3) The Administrator shall rescind the part 71 permit
for a source when it is replaced by a part 70 permit issued
under the approved part 70 program.
(m) Exemption for certain territories. Upon petition
by the Governor of Guam, American Samoa, the Virgin Islands,
or the Commonwealth of the Northern Marianas Islands, the
Administrator may exempt any source or class of sources in
such territory from the requirement to have a part 71 permit
under this chapter. Such an exemption does not exempt such
source or class of sources from any requirement of
section 112 of the Act, including the requirements of
section 112(g) or (j).
(1) Such exemption may be granted if the Administrator
finds that compliance with part 71 is not feasible or is
unreasonable due to unique geographical, meteorological, or
economic factors of such territory, or such other local
factors as the Administrator deems significant. Any such
petition shall be considered in accordance with section
307(d) of the Act, and any exemption granted under this
paragraph shall be considered final action by the
Administrator for the purposes of section 307(b).
(2) The Administrator shall promptly notify the
Committees on Energy and Commerce and on Interior and
Insular Affairs of the House of Representatives and the
Committees on Environment and Public Works and on Energy and
Natural Resources of the Senate upon receipt of any petition
under this paragraph and of the approval or rejection of
such petition and the basis for such action.
(n) Retention of records. The records for each draft,
proposed, and final permit application, renewal, or
modification shall be kept by the Administrator for a period
of 5 years.
71.5 Permit applications.
(a) Duty to apply. The owner or operator of a source
required to obtain a permit under 71.3 of this part shall
submit a timely and complete permit application in
accordance with this section.
(b) Timely application.
(1) A timely application for a source which does not
have an existing operating permit issued by a State under
the State's approved part 70 program and is applying for a
part 71 permit for the first time is one that is submitted
within 12 months or an earlier date after the source becomes
subject to the part 71 program. Sources required to submit
applications earlier than 12 months will be notified in
advance by the permitting authority of this requirement and
given a reasonable time to submit their applications. In no
case will this notice be given less than 120 days in advance
of the submittal date.
(2) For purposes of changes eligible under 71.6(q)
of this part, a timely application is one that is submitted
not later than 6 months after the notice required under
71.6(q)(ii) of this part.
(3) For purposes of permit revisions other than
changes eligible under 71.6(g) of this part, a timely
application is one that is submitted by the relevant
deadlines set forth in 71.7(e), (f), (g), or (h) of this
part.
(4) For purposes of permit renewal, a timely
application is one that is submitted at least 6 months but
no longer than 18 months prior to the date of the part 70 or
part 71 permit expiration.
(5) Applications for initial phase II acid rain
permits shall be submitted to the permitting authority by
January 1, 1996 for sulfur dioxide, and by January 1, 1998
for nitrogen oxides or by such other deadlines established
under title IV of the Act and the regulations promulgated
thereunder.
(c) Complete application. To be found complete, an
application must provide all information required pursuant
to paragraph (f) of this section sufficient to allow the
permitting authority to begin processing the application,
except that an application for a permit revision need supply
such information only if it is related to the proposed
change. Additionally, an initial applicant must remit
payment of any fees owed pursuant to 71.9 of this part in
order for the application to be found complete. The
information supplied by the applicant pursuant to
paragraph (f) of this section must be sufficient to evaluate
the subject source and its application and to determine all
applicable requirements. A responsible official shall
certify the submitted information consistent with
paragraph (i) of this section. Unless the permitting
authority determines that an application is not complete
within 60 days of receipt of the application, such
application shall be deemed to be complete, except as
otherwise provided in 71.7(a)(3) of this part. If, while
processing an application that has been determined or deemed
to be complete, the permitting authority determines that
additional information is necessary to evaluate or take
final action on that application, the permitting authority
may request such information in writing and set a reasonable
deadline for a response. The source's ability to operate
without a permit, as set forth in 71.7(b) of this part,
shall be in effect from the date the application is
determined or deemed to be complete until the final permit
is issued, provided that the applicant submits any requested
additional information by the deadline specified by the
permitting authority.
(d) Confidential information. In a case where a
source submits information to the permitting authority under
a business confidentiality claim, the permitting authority
will follow procedures found at 40 CFR part 2. Pursuant to
2.301(e) of this chapter, information contained in the
permit application regarding emissions data or a standard or
limitation is not entitled to confidential treatment.
(e) Duty to supplement or correct application. Any
applicant who fails to submit any relevant facts or who has
submitted incorrect information in a permit application
shall, upon becoming aware of such failure or incorrect
submittal, promptly submit such supplementary facts or
corrected information. In addition, an applicant shall
provide additional information as necessary to address any
requirements that become applicable to the source after the
date it filed a complete application but prior to release of
a draft permit.
(f) Standard application form. Part 71 sources shall
submit the following information using application forms
provided by the permitting authority (or if provided by the
permitting authority, an electronic reporting method).
Information as described below for each emissions unit at a
part 71 source shall be included in the application. A
complete part 71 permit application shall include the
following elements:
(1) Identifying information, including company name
and address (or plant name and address if different from the
company name), owner's name and agent, and telephone numbers
and names of plant site managers/contacts.
(2) A description of the source's processes and
products (by Standard Industrial Classification Code)
including any associated with each alternate scenario
identified by the source.
(3) The following emissions-related information:
(i) All emissions of pollutants for which the source
is major, and all emissions of regulated air pollutants. A
permit application shall describe all emissions of regulated
air pollutants emitted from any emissions unit, except where
such units are exempted under paragraph (g) of this section.
Fugitive emissions shall be included in the permit
application in the same manner as stack emissions for each
emissions unit, regardless of whether the source category in
question is included in the list of sources contained in the
definition of major source. Moreover, information related
to the emissions of air pollutants sufficient to verify
which requirements are applicable to the source, and other
information necessary to collect any permit fees owed under
the fee schedule established pursuant to 71.9 of this part
must be provided.
(ii) Identification and description of all points of
emissions described in paragraph (f)(3)(i) of this section
in sufficient detail to establish the basis for fees and
applicability of requirements of the Act.
(iii) Emissions rates in tpy and in such additional
terms as are necessary to establish compliance consistent
with the applicable standard reference test method.
(iv) The following information to the extent it is
needed to determine or regulate emissions: fuels, fuel use,
raw materials, production rates, and operating schedules.
(v) Identification and description of air pollution
control equipment and compliance monitoring devices or
activities, including brief descriptions of any appropriate
operation and maintenance procedures and quality assurance
procedures.
(vi) Limitations on source operation affecting
emissions or any work practice standards, where applicable,
for all regulated air pollutants at the part 71 source.
(vii) Other information required by any applicable
requirement (including, but not limited to, stack height
limitations developed pursuant to section 123 of the Act).
(viii) Calculations on which the information in
paragraphs (f)(3)(i) through (vii) of this section is based.
(4) The following air pollution control requirements:
(i) Citation and description of all applicable
requirements, and
(ii) Description of or reference to any applicable
test method for determining compliance with each applicable
requirement.
(5) Other specific information that may be necessary
to implement and enforce other applicable requirements of
the Act or of this part or to determine the applicability of
such requirements.
(6) An explanation of any proposed exemptions from
otherwise applicable requirements.
(7) Additional information as determined to be
necessary by the permitting authority to define alternative
operating scenarios identified by the source pursuant to
71.6(a)(8) of this part or to define permit terms and
conditions implementing 71.6(a)(9) or 71.6(p) of this
part.
(8) Identification of those emissions units eligible
for emissions trading under 71.6(a)(9) of this part and
those emissions units at which changes may be processed
under de minimis permit revision procedures contained in
71.7(f) of this part.
(9) A compliance plan for all part 71 sources that
contains all the following:
(i) A description of the compliance status of the
source with respect to all applicable requirements.
(ii) A description as follows:
(A) For applicable requirements with which the source
is in compliance, a statement that the source will continue
to comply with such requirements.
(B) For applicable requirements that will become
effective during the permit term, a statement that the
source will meet such requirements on a timely basis.
(C) For requirements for which the source is not in
compliance at the time of permit issuance, a narrative
description of how the source will achieve compliance with
such requirements.
(iii) A compliance schedule as follows:
(A) For applicable requirements with which the source
is in compliance, a statement that the source will continue
to comply with such requirements.
(B) For applicable requirements that will become
effective during the permit term, a statement that the
source will meet such requirements on a timely basis. A
statement that the source will meet in a timely manner
applicable requirements that become effective during the
permit term shall satisfy this provision, unless a more
detailed schedule is expressly required by the applicable
requirement.
(C) A schedule of compliance for sources that are not
in compliance with all applicable requirements at the time
of permit issuance. Such a schedule shall include a
schedule of remedial measures, including an enforceable
sequence of actions with milestones, leading to compliance
with any applicable requirements for which the source will
be in noncompliance at the time of permit issuance. This
compliance schedule shall resemble and be at least as
stringent as that contained in any judicial consent decree
or administrative order to which the source is subject. Any
such schedule of compliance shall be supplemental to, and
shall not sanction noncompliance with, the applicable
requirements on which it is based.
(iv) A schedule for submission of certified progress
reports every 6 months for sources required to have a
schedule of compliance to remedy a violation, unless more
frequent submittals are required in the applicable
requirement or by the permitting authority.
(v) For affected sources applying for part 71 permits,
the compliance plan content requirements specified in this
paragraph must be met for all applicable requirements,
including the applicable requirements of title IV. For
permit applications required under the acid rain program,
the compliance plan content requirements of 40 CFR part 72,
subpart D must be met.
(10) Requirements for compliance certification,
including the following:
(i) A certification of compliance with all applicable
requirements by a responsible official consistent with
paragraph (i) of this section and section 114(a)(3) of the
Act;
(ii) A statement of methods used for determining
compliance, including a description of monitoring,
recordkeeping, and reporting requirements and test methods;
(iii) A schedule for annual submissions of compliance
certifications during the permit term, or for more frequent
submissions if specified by the underlying applicable
requirement or by the permitting authority; and
(iv) A statement indicating the source's compliance
status with any applicable enhanced monitoring and
compliance certification requirements of the Act.
(11) The use of nationally-standardized forms for acid
rain portions of permit applications and compliance plans,
as required by regulations promulgated under title IV of the
Act.
(12) Temporary sources requesting a single permit for
multiple sites must also provide in the permit application
ambient air quality standard and increment and visibility
analyses as required under part C of title I of the Act.
(g) Insignificant activities and emissions levels.
The following types of insignificant activities and
emissions levels are exempt from the requirements of
paragraph (f) of this section. Notwithstanding the
preceding sentence, no activity or emission levels shall be
exempt from the requirements of paragraph (f) of this
section if the information omitted from the application is
needed to determine the applicability of or to impose any
applicable requirement, to determine whether a source is
major, to determine whether a source is subject to the
requirement to obtain a part 71 permit, or to calculate the
fee amount required under the schedule established pursuant
to 71.9 of this part.
(1) Insignificant activities. Information concerning
the following activities need not be provided in the
application:
(i) Mobile sources;
(ii) Air-conditioning units used for human comfort
that do not use a class I or class II ozone depleting
substance and do not exhaust air pollutants into the ambient
air from any manufacturing or other industrial process;
(iii) Ventilating units used for human comfort that do
not exhaust air pollutants into the ambient air from any
manufacturing or other industrial process;
(iv) Heating units used for human comfort that do not
provide heat for any manufacturing or other industrial
process;
(v) Noncommercial food preparation;
(vi) Consumer use of office equipment and products;
(vii) Janitorial services and consumer use of
janitorial products; and
(viii) Internal combustion engines used for
landscaping purposes.
(2) Insignificant emissions levels. Emissions meeting
the criteria in paragraph (g)(2)(i) or (g)(2)(ii) of this
section need not be included in the application consistent
with paragraph (f) of this section, but must be listed with
sufficient detail to identify the emission unit and indicate
that the exemption applies. Similar emission units,
including similar capacities or sizes, may be listed under a
single description, provided the number of emission units is
included in the description. No additional information is
required at time of application, but the permitting
authority may request additional information during
application processing.
(i) Emission criteria for regulated air pollutants,
excluding hazardous air pollutants (HAP). Potential to emit
of regulated air pollutants, excluding HAP, for any single
emissions unit shall not exceed 1 tpy, except in extreme
ozone nonattainment areas, where potential to emit may not
exceed 1,000 pounds (lb) per year. Aggregate emissions of
any regulated air pollutant, excluding HAP, from all
emission units shall not exceed potential to emit of 10 tpy,
except in extreme ozone nonattainment areas, where potential
to emit may not exceed 5 tpy.
(ii) Emission criteria for HAP. Potential to emit of
any HAP from any single emissions unit shall not exceed
1,000 lb per year or the de minimis level established under
section 112(g) of the Act, whichever is less. Aggregate
emissions of all HAP from all emission units shall not
exceed potential to emit of 5 tpy or the section 112(g) de
minimis levels, whichever is less.
(h) Application for coverage under a general permit.
Part 71 sources that qualify for a general permit must apply
to the permitting authority for coverage under the terms of
the general permit or must apply for a part 71 permit
consistent with this section. The permitting authority may
provide for applications for general permits which deviate
from the requirements of this section, provided that such
applications meet the requirements of Title V of the Act,
and include all information necessary to determine
qualification for, and assure compliance with, the general
permit.
(i) Certification by a responsible official. Any
application form, report, or compliance certification
submitted pursuant to these regulations shall contain
certification by a responsible official of truth, accuracy,
and completeness. This certification and any other
certification required under this part shall state that,
based on information and belief formed after reasonable
inquiry, the statements and information in the document are
true, accurate, and complete.
71.6 Permit content.
(a) Standard permit requirements. Each permit issued
under this part shall include the following elements:
(1) Emission limitations and standards, including
those operational requirements and limitations that assure
compliance with all applicable requirements at the time of
permit issuance.
(i) The permit shall specify and reference the origin
of and authority for each term or condition, and identify
any difference in form as compared to the applicable
requirement upon which the term or condition is based.
(ii) The permit shall state that where an applicable
requirement of the Act is more stringent than an applicable
requirement of regulations promulgated under title IV of the
Act, both provisions shall be incorporated into the permit
and shall be enforceable by the Administrator.
(iii) If an applicable implementation plan allows a
determination of an alternative emission limit at a part 71
source, equivalent to that contained in the plan, to be made
in the permit issuance, renewal, or significant permit
revision process, and the permitting authority elects to use
such process, any permit containing such equivalency
determination shall contain provisions to ensure that any
resulting emissions limit has been demonstrated to be
quantifiable, accountable, enforceable, and based on
replicable procedures.
(iv) Emission units and part 71 sources.
(A) For major sources, the permitting authority shall
include in the permit all applicable requirements for all
relevant emissions units in the major source.
(B) For any nonmajor source subject to the part 71
program, the permitting authority shall include in the
permit all applicable requirements applicable to emissions
units that caused the source to be subject to the part 71
program.
(2) Permit duration. The permitting authority shall
issue permits for a fixed term of 5 years in the case of
affected sources, and for a term not to exceed 5 years in
the case of all other sources. Notwithstanding this
requirement, the permitting authority shall issue permits
for solid waste incineration units combusting municipal
waste subject to standards under section 129(e) of the Act
for a period not to exceed 12 years and shall review such
permits at least every 5 years. The permit shall state when
the source's application for renewal must be submitted to
the permitting authority consistent with 71.5 of this
part.
(3) For affected sources, a permit condition
prohibiting any affected unit from emitting sulfur dioxide
in excess of any allowances that the affected unit lawfully
holds under title IV of the Act or the regulations
promulgated thereunder.
(i) No permit revision shall be required for increases
in emissions that are authorized by allowances acquired
pursuant to the acid rain program, provided that such
increases do not require a permit revision under any other
applicable requirement.
(ii) No limit shall be placed on the number of
allowances held by the unit. The unit may not, however, use
allowances as a defense to noncompliance with any other
applicable requirement.
(iii) Any such allowance shall be accounted for
according to the procedures established in regulations
promulgated under title IV of the Act.
(4) A severability clause to ensure the continued
validity of the various permit requirements in the event of
a challenge to any portion of the permit.
(5) Provisions stating the following:
(i) The source must comply with all conditions of the
part 71 permit. Any permit noncompliance constitutes a
violation of the Act and is grounds for enforcement action;
for permit termination, revocation and reissuance, or
modification; or for denial of a permit renewal application.
(ii) Need to halt or reduce activity not a defense.
It shall not be a defense for a source in an enforcement
action that it would have been necessary to halt or reduce
the permitted activity in order to maintain compliance with
the conditions of this permit.
(iii) The permit may be modified, revoked, reopened
and reissued, or terminated for cause. The filing of a
request by the source for a permit revision, revocation and
reissuance, or termination, or of a notification of planned
changes or anticipated noncompliance does not stay any
permit condition.
(iv) The permit does not convey any property rights of
any sort, or any exclusive privilege.
(v) The permittee shall furnish to the permitting
authority, within a reasonable time, any information that
the permitting authority may request in writing to determine
whether cause exists for revising, revoking and reissuing,
or terminating the permit or to determine compliance with
the permit, including copies of records required to be kept
by the permit. The source may assert a claim of
confidentiality consistent with section 114(c) of the Act
and 40 CFR part 2 with respect to any such requested
information.
(vi) A schedule of compliance does not sanction
noncompliance with the applicable requirement on which it is
based.
(6) A provision to ensure that a part 71 source pays
fees to the permitting authority consistent with the fee
schedule in 71.9 of this part.
(7) Emissions trading. A provision stating that no
permit revision shall be required under any economic
incentives, marketable permits, emissions trading or other
similar programs or processes approved in an implementation
plan or other applicable requirement authorizing such
changes to be provided for in the permit and where the
permit provides for such changes.
(8) Terms and conditions for reasonably anticipated
operating scenarios identified by the source in its
application as approved by the permitting authority. Such
terms and conditions:
(i) Shall require the source, contemporaneously with
making a change from one operating scenario to another, to
record in a log at the permitted facility a record of the
scenario under which it is operating. Provided that each of
the alternative scenarios available for a particular unit is
monitored in a way that yields objective, contemporaneous
measurement and recordation of relevant emissions or
parameters and that the means of measurement are
sufficiently different for each of the scenarios that the
contemporaneous record reveals the scenario under which the
source was operating when the record was made, no further
notice to the permitting authority is required. Otherwise,
the permit shall require that when any change is made
between alternative scenarios, the permittee at the
beginning of the following week shall place in regular mail
to the permitting authority notice of such change(s) between
scenarios, which could consist of a copy of the relevant
portion of the on-site log indicating the scenario(s) under
which the source operated during the previous week;
(ii) May extend the permit shield described in
paragraph (f) of this section to all terms and conditions
under each such operating scenario; and
(iii) Must ensure that the terms and conditions of
each such alternative scenario meet all applicable
requirements and the requirements of this part.
(9) Terms and conditions, if the permit applicant
requests them, for the trading of emissions increases and
decreases in the permitted facility, to the extent that the
applicable requirements provide for trading such increases
and decreases without a case-by-case approval of any
emissions trade. Such terms and conditions:
(i) Shall include all terms required under
paragraphs (a) and (c) of this section to ensure compliance;
(ii) May extend the permit shield described in
paragraph (f) of this section to all terms and conditions
that allow such increases and decreases in emissions; and
(iii) Must meet all applicable requirements and the
requirements of this part.
(b) Federally-enforceable requirements. All terms and
conditions in a part 71 permit, including any provisions
designed to limit a source's potential to emit, shall be
enforceable by the Administrator and citizens under the Act.
(c) Compliance requirements. All part 71 permits
shall contain testing, monitoring, reporting, recordkeeping
and compliance certification requirements sufficient to
assure compliance with the terms and conditions of the
permit consistent with the following provisions of this
section. Any document (including reports) required to be
submitted by a part 71 permit shall contain a certification
by a responsible official that meets the requirements of
71.5(i) of this part.
(d) Monitoring requirements. Each permit shall
contain the following requirements with respect to
monitoring:
(1) All emissions monitoring and analysis procedures
or test methods required under the applicable requirements,
including any procedures and methods promulgated pursuant to
sections 114(a)(3) or 504(b) of the Act;
(2) Where the applicable requirement does not require
periodic testing or instrumental or noninstrumental
monitoring (which may consist of recordkeeping designed to
serve as monitoring), periodic monitoring sufficient to
yield reliable data from the relevant time period that are
representative of the source's compliance with the permit,
as reported pursuant to paragraph (f) of this section. Such
monitoring requirements shall assure use of terms, test
methods, units, averaging periods, and other statistical
conventions consistent with the applicable requirement.
Recordkeeping provisions may be sufficient to meet the
requirements of this paragraph (d)(2) of this section; and
(3) As necessary, requirements concerning the use,
maintenance, and, where appropriate, installation of
monitoring equipment or methods.
(e) Recordkeeping requirements. Each permit shall
contain the following requirements with respect to
recordkeeping:
(1) All applicable recordkeeping requirements;
(2) Where applicable, a requirement to maintain
records of required monitoring information that include the
following:
(i) The date, place as defined in the permit, and time
of sampling or measurements;
(ii) The date(s) analyses were performed;
(iii) The company or entity that performed the
analyses;
(iv) The analytical techniques or methods used;
(v) The results of such analyses; and
(vi) The operating conditions as existing at the time
of sampling or measurement; and
(3) Retention of records of all required monitoring
data and support information for a period of at least
5 years from the date of the monitoring sample, measurement,
report, or application. Support information includes all
calibration and maintenance records and all original strip-
chart recordings for continuous monitoring instrumentation,
and copies of all reports required by the permit.
(f) Reporting and notification requirements. Each
permit shall contain the following requirements with respect
to reporting and notification:
(1) All applicable reporting requirements.
(2) Submittal of reports of any required monitoring at
least every 6 months or more frequently if required by the
applicable requirement or by the permitting authority. All
instance of deviations from permit requirements must be
clearly identified in such reports. All required reports
must be certified by a responsible official consistent with
71.5(i) of this part.
(3) Prompt reporting of deviations from permit
requirements, including those attributable to upset
conditions as defined in the permit, the probable cause of
such deviations, and any corrective actions or preventive
measures taken. Where the underlying applicable requirement
contains a definition of prompt or otherwise specifies a
time frame for reporting deviations, that definition or time
frame shall govern. Where the underlying applicable
requirement fails to address the time frame for reporting
deviations, reports of deviations shall be submitted to the
permitting authority based on the following schedule:
(i) For emissions of a hazardous air pollutant or a
toxic air pollutant (as identified in an applicable
regulation) that continue for more than an hour in excess of
permit requirements, the report must be made with 24 hours
of the occurrence.
(ii) For emissions of any regulated air pollutant,
excluding those listed in paragraph (f)(3)(i) of this
section, that continue for more than two hours in excess of
permit requirements, the report must be made within
48 hours.
(iii) A permit may contain a more stringent reporting
requirement than required by paragraphs (f)(3)(i) and (ii)
of this section.
If any of the above conditions are met, the source must
notify the permitting authority by telephone or facsimile
based on the timetable listed in paragraphs (f)(3)(i)-(iii)
of this section. A written notice, certified consistent
with 71.5(i) of this part, must be submitted within
10 working days of the occurrence.
All deviations reported under paragraph (f)(3) of this
section must also be identified in the 6 month report
required under paragraph (f)(2) of this section.
(4) For purposes of paragraph (f)(3) of this section,
deviation means any condition determined by observation,
data from an enhanced monitoring protocol, any other
monitoring protocol, or any other monitoring which is
required by the permit that can be used to determine
compliance, that identifies that an emission unit subject to
a part 71 permit term or condition has failed to meet an
applicable emission limitation or standard or that a work
practice was not complied with or completed. For a
condition lasting more than 24 hours which constitutes a
deviation, each 24 hour period is considered a separate
deviation. Included in the meaning of deviation are any of
the following:
(i) A condition where emissions exceed an emission
limitation or standard;
(ii) A condition where process or control device
parameter values demonstrate that an emission limitation or
standard has not been met;
(iii) Any other condition in which observations or
data collected demonstrates noncompliance with an emission
limitation or standard or any work practice or operating
condition required by the permit.
(g) Compliance certification requirements. Each
permit shall contain the following requirements with respect
to compliance certifications with the terms and conditions
contained in the permit, including emission limitations,
standards, or work practices:
(1) The frequency (not less than annually or more
frequently if specified in the applicable requirement or by
the permitting authority) of submissions of compliance
certifications;
(2) In accordance with paragraph (d) of this section,
a means for monitoring the compliance of the source with its
emissions limitations, standards, and work practices;
(3) A requirement that the compliance certification
include the following:
(i) The identification of each term or condition of
the permit that is the basis of the certification;
(ii) The compliance status;
(iii) Whether compliance was continuous or
intermittent;
(iv) The method(s) used for determining the compliance
status of the source, currently and over the reporting
period consistent with paragraph (d) of this section;
(v) Such other facts as the permitting authority may
require to determine the compliance status of the source;
and
(vi) A requirement that all compliance certifications
be submitted to the permitting authority.
(4) Such additional requirements as may be specified
pursuant to sections 114(a)(3) and 504(b) of the Act.
(h) Inspection and entry requirements. Each permit
shall contain inspection and entry requirements that require
that, upon presentation of credentials and other documents
as may be required by law, the permittee shall allow the
permitting authority or an authorized representative to
perform the following:
(1) Enter upon the permittee's premises where a
part 71 source is located or emissions-related activity is
conducted, or where records must be kept under the
conditions of the permit;
(2) Have access to and copy, at reasonable times, any
records that must be kept under the conditions of the
permit;
(3) Inspect at reasonable times any facilities,
equipment (including monitoring and air pollution control
equipment), practices, or operations regulated or required
under the permit; and
(4) As authorized by the Act, sample or monitor at
reasonable times substances or parameters for the purpose of
assuring compliance with the permit or applicable
requirements.
(i) Compliance schedule. Each permit shall contain a
schedule of compliance consistent with 71.5(f)(9) of this
part.
(j) Progress reports. Each permit shall contain a
requirement that the permittee submit progress reports
consistent with an applicable schedule of compliance and
71.5(f)(9) of this part to be submitted at least
semiannually, or more frequently if required by the
applicable requirement or by the permitting authority. Such
progress reports shall contain the following:
(1) Dates for achieving the activities, milestones, or
compliance required in the schedule of compliance, and dates
when such activities, milestones or compliance were
achieved; and
(2) An explanation of why any dates in the schedule of
compliance were not or will not be met, and any preventive
or corrective measures adopted.
(k) Other provisions. Each permit shall contain such
other provisions as the permitting authority may require.
(l) General permits.
(1) The permitting authority may, after notice and
opportunity for public participation provided under 71.11
of this part, issue a general permit covering numerous
similar sources. Any general permit shall comply with all
requirements applicable to other part 71 permits and shall
identify criteria by which sources may qualify for the
general permit. To sources that qualify, the permitting
authority shall grant the terms and conditions of the
general permit. Notwithstanding the shield provisions of
paragraph (n) of this section, the source shall be subject
to enforcement action for operation without a part 71 permit
if the source is later determined not to qualify for the
conditions and terms of the general permit. General permits
shall not be authorized for affected sources under the acid
rain program unless otherwise provided in regulations
promulgated under title IV of the Act.
(2) Without repeating the public participation
procedures required under 71.11 of this part, the
permitting authority may grant a source's request for
authorization to operate under a general permit, and such a
grant shall be a final permit action for purposes of
judicial review.
(3) The permitting authority shall provide timely
notice to the public of any authorization given to a source
to operate under the terms of a general permit. Such notice
may be made on a monthly, summarized basis covering all
sources receiving authorization since the time of the last
notice.
(m) Temporary sources. The permitting authority may
issue a single permit authorizing emissions from similar
operations by the same source owner or operator at multiple
temporary locations. The operation must be temporary and
involve at least one change of location during the term of
the permit. No affected source shall be permitted as a
temporary source. Permits for temporary sources shall
contain all of the terms and conditions required by this
section as well as the following terms and conditions:
(1) Conditions that will assure compliance with all
applicable requirements at all authorized locations;
(2) Requirements that the owner or operator notify the
permitting authority at least 10 days in advance of each
change in location; and
(3) Conditions that assure compliance with all other
provisions of this section.
(n) Permit shield.
(1) Except as provided in this part, the permitting
authority may expressly include in a part 71 permit a
provision stating that compliance with the terms and
conditions of the permit shall be deemed compliance with any
applicable requirements as of the date of permit issuance,
provided that:
(i) Such applicable requirements are included and are
specifically identified in the permit; or
(ii) The permitting authority, in acting on the permit
application or revision, determines in writing that other
requirements specifically identified are not applicable to
the source, and the permit includes the determination or a
concise summary thereof.
(2) A part 71 permit that does not expressly state
that a permit shield exists shall be presumed not to provide
such a shield.
(3) Nothing in this paragraph or in any part 71 permit
shall alter or affect the following:
(i) The provisions of sections 112(r)(9) and 303 of
the Act (emergency orders), including the authority of the
Administrator under those sections;
(ii) The liability of an owner or operator of a source
for any violation of applicable requirements prior to or at
the time of permit issuance;
(iii) The applicable requirements of the acid rain
program, consistent with section 408(a) of the Act; or
(iv) The ability of EPA to obtain information from a
source pursuant to section 114 of the Act.
(o) Emergency provision.
(1) Definition. An "emergency" means any situation
arising from sudden and reasonably unforeseeable events
beyond the control of the source, including acts of God,
which situation requires immediate corrective action to
restore normal operation, and that causes the source to
exceed a technology-based emission limitation under the
permit, due to unavoidable increases in emissions
attributable to the emergency. An emergency shall not
include noncompliance to the extent caused by improperly
designed equipment, lack of preventative maintenance,
careless or improper operation, or operator error.
(2) Effect of an emergency. An emergency constitutes
an affirmative defense to an action brought for
noncompliance with such technology-based emission
limitations if the conditions of paragraph (o)(3) of this
section are met.
(3) The affirmative defense of emergency shall be
demonstrated through properly signed, contemporaneous
operating logs, or other relevant evidence that:
(i) An emergency occurred and that the permittee can
identify the cause(s) of the emergency;
(ii) The permitted facility was at the time being
properly operated;
(iii) During the period of the emergency the permittee
took all reasonable steps to minimize levels of emissions
that exceeded the emission standards, or other requirements
in the permit; and
(iv) The permittee submitted notice of the emergency
to the permitting authority within 2 working days of the
time when emission limitations were exceeded due to the
emergency. This notice fulfills the requirement of
paragraph (f)(3) of this section. This notice must contain
a description of the emergency, any steps taken to mitigate
emissions, and corrective actions taken.
(4) In any enforcement proceeding, the permittee
seeking to establish the occurrence of an emergency has the
burden of proof.
(5) This provision is in addition to any emergency or
upset provision contained in any applicable requirement.
(p) Operational flexibility. A permitted facility may
make changes without requiring a permit revision, if the
changes are not modifications under any provision of title I
of the Act and the changes do not exceed the emissions
allowable under the permit (whether expressed therein as a
rate of emissions or in terms of total emissions), provided
that the facility provides the permitting authority with
written notification as required below in advance of the
proposed changes, which shall be a minimum of 7 days. The
source and the permitting authority shall attach each such
notice to their copy of the relevant permit.
(1) Trading under permitted emissions cap. The
permitting authority shall include in a permit an emissions
cap, pursuant to a request submitted by the applicant,
consistent with any specific emission limits or restrictions
otherwise required in the permit by any applicable
requirements, and permit terms and conditions for emissions
trading solely for the purposes of complying with that cap,
provided that the permitting authority finds that the
request contains adequate terms and conditions, including
all terms required under 71.6 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 or changed only in a full
permit issuance, renewal, or significant permit revision
procedures. The permitting authority shall not be required
to include in the cap or emissions trading provisions any
emissions unit where the permitting authority determines
that the emissions are not quantifiable or where it
determines that there are no replicable procedures or
practical means to enforce the emissions trades.
(i) Under this paragraph (p)(1) of this section, the
written notification required above shall state when the
change will occur and shall describe the changes in
emissions that will result and how these increases and
decreases in emissions will comply with the terms and
conditions of the permit.
(ii) The permit shield described in 71.6(n) of this
part may extend to terms and conditions that allow such
increases and decreases in emissions.
(2) Trading under the implementation plan. Permitted
sources may trade increases and decreases in emissions in
the permitted facility, where the applicable implementation
plan provides for such emissions trades without requiring a
permit revision and based on the 7-day notice prescribed in
paragraph (p) of this section. This provision is available
in those cases where the permit does not already provide for
such emissions trading provided the permit identifies which
permit terms may be replaced with the emission trading
provisions in the implementation plan.
(i) Under paragraph (p)(2) of this section, the
written notification required above shall include such
information as may be required by the provision in the
applicable implementation plan authorizing the emissions
trade, including at a minimum, when the proposed change will
occur, a description of each such change, any change in
emissions, the permit requirements with which the source
will comply using the emissions trading provisions of the
applicable implementation plan, and the pollutants emitted
subject to the emissions trade. The notice shall also refer
to the provisions with which the source will comply in the
applicable implementation plan and that provide for the
emissions trade.
(ii) The permit shield described in 71.6(n) of this
part shall not extend to any change made under paragraph (p)
of this section. Compliance with the permit terms that the
source will meet using the emissions trade shall be
determined according to requirements of the applicable
implementation plan authorizing the emissions trade.
(q) The permitting authority may allow permittees,
without first applying for a permit revision, to make
changes that do not result in the source being in violation
of any permit term or condition but render the source
subject to an applicable requirement to which the source was
not previously subject, provided the requirements of
paragraphs (q)(1) through (8) of this section are met.
(1) Each change shall:
(i) Meet all applicable requirements and shall not
violate or result in the violation of any existing permit
term or condition; and
(ii) Not result in a net increase in the allowable
emissions of any regulated pollutant at the source.
(2) The change may not be subject to the requirements
of title IV of the Act.
(3) Sources must provide contemporaneous written
notice to the permitting authority of each such change.
Such written notice shall describe each such change, the
date of the change, any change in emissions, pollutants
emitted, and the applicable requirement to which the source
becomes subject as a result of the change.
(4) The change shall not be eligible for the permit
shield under 71.6(n) of this part until such time as a
permit shield may be granted in a subsequent permit revision
consistent with the provisions of 71.7(g) or 71.11 of
this part.
(5) The permittee shall keep a record describing
changes made under this paragraph.
(6) The permittee shall apply for a permit revision by
the deadline set forth in 71.5(b)(2) of this part, except
that if the deadline would occur after the date on which a
renewal application is due, the permitting authority may
allow the permittee to incorporate the permit revision
request in its renewal application.
(7) The permit shall be revised under the relevant
procedures of 71.7(e), (f), (g), or 71.11 of this part
for which the change is eligible, except that,
notwithstanding provisions in those sections, if the change
is subsequently processed under minor permit revision or
significant permit revision procedures, and the permitting
authority or EPA (in the case of a program delegated
pursuant to 71.10 of this part) determines that the change
was ineligible under this paragraph, then the source shall
be liable from the date the change was made for failure to
have applied for a permit revision before the change was
made as required under 71.7 of this part.
(8) If eligible for the minor permit revision
procedures of 71.7(g) of this part, the following
provisions shall apply to changes made under this paragraph:
(i) The public notice required under 71.7(g)(3)(ii)
of this part shall state that if no germane and non-
frivolous objection is received within 21 days of
application, the permitting authority may consider that the
change was eligible for processing under this paragraph
without further opportunity for public objection. In
addition to the provisions of 71.7(g)(3)(ii) of this part,
a germane objection is one that objects to the change on the
grounds that the source was ineligible under this paragraph.
(ii) The provisions of 71.7(g)(5)(i) and (ii) of
this part prohibiting the source from making the change do
not apply.
(iii) Notwithstanding the provisions of 71.7(g)(7)
of this part, the source must comply with all applicable
requirements from the date the change was made.
71.7 Permit review, issuance, renewal, reopenings, and
revisions.
(a) Action on application.
(1) A permit, permit revision, or renewal may be
issued only if all of the following conditions have been
met:
(i) The permitting authority has received a complete
application for a permit, permit revision, or permit
renewal, except that a complete application need not be
received before issuance of a general permit under 71.6(l)
of this part;
(ii) The permitting authority has complied with the
applicable requirements for public participation under this
section or 71.11 of this part, if applicable;
(iii) The permitting authority has complied with the
requirements for notifying and responding to affected States
under 71.8(a) of this part;
(iv) Except as provided in paragraph (a)(6) of this
section, the conditions of the permit provide for compliance
with all applicable requirements and the requirements of
this part; and
(v) In the case of a program delegated pursuant to
71.10 of this part, except for revisions qualifying for de
minimis permit revision procedures under paragraph (f) of
this section or for administrative amendment procedures
under paragraphs (e)(1)(i)-(iv) of this section, the
Administrator has received a copy of the proposed permit and
any notice required under 71.10(d) of this part and has
not objected to the issuance of the permit under 71.10(g)
of this part within the time period specified therein.
(2) Except as provided under the initial transition
plan provided under 71.4(i) of this part or under
regulations promulgated under title IV or title V of the Act
for the permitting of affected sources under the acid rain
program, the permitting authority shall take final action on
each permit application (including a request for permit
revision or renewal) within 18 months after receiving a
complete application. Notwithstanding the preceding
sentence, the permitting authority shall take final action
within 12 months after receipt of a complete application
containing an early reduction demonstration under
section 112(i)(5) of the Act and regulations promulgated
thereunder, and within the time period specified under
paragraph (g)(5)(v) of this section for a minor permit
revision. Final action may be delayed where an applicant
fails to provide additional information in a timely manner
as requested by the permitting authority under 71.5(c) of
this part.
(3) The permitting authority shall promptly provide
notice to the applicant of whether the application is
complete. Unless the permitting authority requests
additional information or otherwise notifies the applicant
of incompleteness within 60 days of receipt of an
application, the application shall be deemed complete.
Notwithstanding the above, for revisions that qualify for
and are processed through the procedures of paragraph (e),
(f), or (g) of this section, the permitting authority need
not undertake a completeness determination before commencing
revision procedures.
(4) The permitting authority shall provide a statement
that sets forth the legal and factual basis for the draft
permit conditions (including references to the applicable
statutory or regulatory provisions). The permitting
authority shall send this statement to any person who
requests it, and to EPA, in the case of a program delegated
pursuant to 71.10 of this part.
(5) The submittal of a complete application shall not
affect the requirement that any source have a
preconstruction permit under title I of the Act.
(6) Any new applicable requirement approved or
promulgated by EPA that becomes applicable to a source prior
to issuance of a draft permit (whether during issuance or
renewal) shall be included in the draft permit. If any new
applicable requirement becomes applicable after issuance of
a draft permit, and the requirement is not reflected in the
draft permit, the permit may be issued without incorporating
the new applicable requirement, provided that the permitting
authority institutes proceedings no later than the date of
permit issuance to reopen the permit consistent with
paragraph (i) of this section to incorporate the new
applicable requirement and that the permit contains a
statement that it is being reopened for this purpose.
(b) Requirement to apply for a permit. Except as
provided in the following sentence and paragraphs (e), (f),
and (g) of this section, no part 70 or part 71 source may
operate after the time that it is required to submit a
timely and complete application under an approved permit
program or this part, except in compliance with a permit
issued under a part 70 program or this part. If a part 70
or part 71 source submits a timely and complete application
for permit issuance (including for renewal), the source's
failure to have a part 71 permit is not a violation of this
part until the permitting authority takes final action on
the permit application, except as noted in this section.
This protection shall cease to apply if, subsequent to the
completeness determination made pursuant to paragraph (a)(3)
of this section, and as required by 71.5(c) of this part,
the applicant fails to submit by the deadline specified in
writing by the permitting authority any additional
information identified as being needed to process the
application.
(c) Permit renewal and expiration.
(1) Permits being renewed are subject to the same
procedural requirements that apply to initial permit
issuance, including those for public participation, affected
State review, and EPA review, in the case of a program
delegated pursuant to 71.10 of this part.
(2) Permit expiration terminates the source's right to
operate unless a timely and complete renewal application has
been submitted consistent with paragraph (b) of this section
and 71.5(b) and 71.5(c) of this part.
(3) If a timely and complete application for a permit
renewal is submitted by the permittee consistent with
71.5(b) and 71.5(c) of this part, but the permitting
authority has failed to issue or deny the renewal permit
before the end of the term of the previous part 70 or
part 71 permit, then all the terms and conditions of the
permit, including any permit shield, shall remain in effect
until the permitting authority issues or denies the renewal
permit. In the case of a program delegated pursuant to
71.10 of this part, EPA may invoke its authority under
section 505(e) of the Act to terminate or revoke and reissue
the permit.
(d) Permit revisions. Changes requiring revision of a
part 70 or part 71 permit are those that could not be
operated without violating an existing permit term or
rendering the source subject to an applicable requirement to
which the source has not been previously subject. A permit
revision for purposes of the acid rain portion of the permit
shall be governed by regulations promulgated under title IV
of the Act.
(e) Administrative permit amendments.
(1) An "administrative permit amendment" is a permit
revision that:
(i) Corrects typographical errors;
(ii) Identifies a change in the name, address, or
phone number of any person identified in the permit, or
provides a similar minor administrative change;
(iii) Requires more frequent testing, monitoring,
recordkeeping, or reporting;
(iv) Allows for a change in ownership or operational
control of a source where the permitting authority
determines that no other change in the permit is necessary,
provided that a written agreement containing a specific date
for transfer of permit responsibility, coverage, and
liability between the current and new permittee has been
submitted to the permitting authority;
(v) In the case of a program delegated pursuant to
71.10 of this part, incorporates the requirements of a
minor new source review (NSR) or major NSR preconstruction
permit or decision or a section 112(g) determination,
provided that such permit or determination was issued in
accordance with the procedural requirements of
paragraph (e)(4) of this section and contains compliance
requirements substantially equivalent to those required
under 71.6 of this part.
(vi) Notwithstanding the provisions of
paragraph (e)(1)(v) of this section, incorporates a standard
promulgated after permit issuance pursuant to section 112 of
the Act.
(2) Administrative permit amendments for purposes of
the acid rain portion of the permit shall be governed by
regulations promulgated under title IV of the Act.
(3) Administrative permit amendment procedures for
changes meeting the criteria under 71.7(e)(1)(i)-(iv) of
this part. Changes meeting the criteria set forth in
paragraphs (e)(1)(i)-(iv) of this section may be made to a
permit using the following procedures:
(i) The source shall submit to the permitting
authority an application containing a proposed addendum to
the source's part 70 or part 71 permit. The application
shall demonstrate how the proposed change meets one of the
criteria for administrative amendments set forth in
paragraphs (e)(1)(i)-(iv) of this section, and include
certification by the responsible official consistent with
71.5(i) of this part that the change is eligible for
administrative amendment procedures. The addendum shall:
(A) Identify the terms of the existing part 70 or
part 71 permit that it proposes to change;
(B) Propose new permit terms consistent with the
provisions of this part applicable to the change;
(C) Designate the addendum as having been processed
under the procedures of this paragraph; and
(D) Specify that the addendum will be effective
60 days from the date of permitting authority receipt unless
the permitting authority disapproves the change within such
period.
(ii) The permitting authority may allow the source to
implement the requested change immediately upon making all
required submittals, including the proposed addendum.
(iii) The proposed addendum will become effective
60 days after the permitting authority receives the
submittal, provided the permitting authority has not
disapproved the request in writing before the end of the
60-day period. The permitting authority shall record the
change by attaching a copy of the addendum to the existing
part 70 or part 71 permit and, in the case of a program
delegated pursuant to 71.10 of this part, shall provide
the Administrator with a copy of the addendum.
(iv) If the permitting authority disapproves the
change, it shall notify the source of its reasons for
disapproving the change in a timely manner. Upon receiving
such notice, the source shall comply with the terms of the
permit that it had proposed to change, and thereafter the
proposed addendum shall not take effect. The permitting
authority may approve a permit addendum for an
administrative permit amendment that varies from the
source's application without rendering the source liable for
violating its existing permit if the permitting authority's
revisions are not necessary to make the request eligible for
administrative amendment procedures and do not change the
applicant's proposed determination of which applicable
requirements of the Act apply to the source as a result of
the requested change and if the source demonstrates to the
satisfaction of the permitting authority its compliance with
the applicable requirement to which it is subject as a
result of the change. However, the source would remain
liable for any violations of the requirements which are
applicable as a result of the change and the source's
proposed permit revision.
(v) The process in paragraph (e)(3) of this section
may also be used for changes initiated by the permitting
authority that meet the criteria under paragraphs (e)(1)(i),
(ii), and (iv) of this section. For such changes, the
permitting authority shall notify the source of the proposed
change and its effective date, and shall attach a copy of
the change to the existing permit. On the effective date of
the proposed change, the source shall comply with the
provisions of the proposed change.
(vi) The permit shield under 71.6(n) of this part
may not extend to administrative amendments processed under
paragraph (e)(3) of this section.
(4) Administrative amendment procedures for changes
meeting the criteria under 71.7(e)(1)(v) of this part. In
the case of a program delegated pursuant to 71.10 of this
part, a change meeting the criteria of paragraph (e)(1)(v)
of this section may be made to a permit using the procedures
in the following paragraphs (e)(4)(i)-(iv) of this section.
(i) An applicant shall submit prior to construction
(including modification), a permit application to the
permitting authority meeting the requirements for
applications of minor NSR, major NSR, section 112(g)
determinations under the Act, and paragraph (e)(3)(i) of
this section. The application must:
(A) Specify draft permit terms governing construction
of any proposed new or modified emissions unit or
combination thereof, including all applicable requirements;
(B) Inform the permitting authority that the source is
requesting to revise the part 70 or part 71 permit using the
process under this paragraph;
(C) Include a proposed addendum to the part 70 or
part 71 permit that identifies the terms of the existing
part 70 or part 71 permit that will change and the draft
terms and conditions which will govern operation of the new
or modified unit consistent with part 71 (including
compliance requirements consistent with 71.6 of this part)
and any notice requirements contained in
paragraph (e)(4)(ii) of this section, and that incorporates
relevant terms and conditions from the proposed minor NSR or
major NSR or section 112(g) action; and
(D) Include an affidavit signed by a responsible
official stating that the source accepts all liability of
making the requested change prior to final permitting
authority action to revise the source's permit.
(ii) For any minor NSR or major NSR or section 112(g)
action and part 71 permit addendum proposed for approval
under paragraph (e)(4) of this section, the permitting
authority shall:
(A) Provide a comment period for the public and
affected States prior to construction of the change of at
least 30 days or, in the case of minor NSR, as many days as
required by the applicable implementation plan approved as
of November 15, 1993, but not less than 15 days. Where a
minor NSR action includes a netting transaction involving
either a single emissions increase above applicable title I
modification significance levels or a sum of increases above
applicable major source thresholds, a public comment period
of at least 30 days must be provided for a change to qualify
for processing under this paragraph;
(B) Provide notice and a copy of the application filed
pursuant to paragraph (e)(4)(i) of this section to EPA by
the beginning of the public comment period;
(C) Issue a minor NSR or major NSR permit or
determination or issue a section 112(g) determination and an
addendum to the part 70 or part 71 permit for the operation
of the change if it determines the requirements of the
applicable minor NSR, major NSR, or section 112(g) review
program and part 71 have been met; and
(D) Provide an opportunity for EPA objection
consistent with the provisions of 71.10(g) of this part,
starting either upon receipt of the notice described under
paragraph (e)(4)(ii)(D)(1) or (2) of this section as
applicable or from the date the permitting authority made
its final minor NSR, major NSR, or section 112(g)
determination, whichever is later.
(1) For changes approved by the permitting authority
under major NSR or section 112(g) review, the source shall
provide a notice to EPA and the permitting authority which
must be postmarked at least 21 days before the anticipated
date of initial startup of the new or modified source. For
such changes, the source may commence operation at the end
of the 21-day period unless EPA objects in writing to the
proposed change within the 21-day period. Upon notification
of such objection, the source may not operate such a change
and must comply with the terms and conditions of the permit
that it sought to change.
(2) For changes approved by the permitting authority
under minor NSR, the source shall notify EPA and the
permitting authority of the anticipated date for startup of
the change. The source may commence operation of such a
change upon postmark of such notice.
(iii) The proposed part 71 permit addendum may become
effective 45 days after EPA receives notice under
paragraph (e)(4)(ii)(D) of this section or 45 days from the
date the permitting authority makes its final
preconstruction determination, whichever is later, provided
that by the end of such period EPA has not objected to the
change.
(iv) If EPA objects to the change, EPA shall notify
the permitting authority and the source of its reasons for
objecting to the change. Upon receiving such notice, the
source shall comply with the terms of the permit that it had
proposed to change, and thereafter the proposed addendum
shall not take effect. If, subsequent to source
implementation of the requested change, EPA objects to the
change, the source shall be liable for having operated in
violation of its existing permit from the time it
implemented the change. Notwithstanding the preceding
sentence, the permitting authority may revise a proposed
addendum making an administrative permit amendment in
response to an EPA objection without rendering the source
liable for violating its existing permit if the permitting
authority's revisions are not necessary to make the change
eligible for administrative amendment procedures and do not
change the applicant's proposed determination of which
applicable requirements apply to the source as a result of
the requested change and if the source demonstrates to the
satisfaction of the permitting authority its compliance with
the applicable requirement to which it is subject as a
result of the change and the source's proposed permit
revision. However, the source would remain liable for any
violations of the requirements which are applicable as a
result of the change and the source's proposed permit
revision.
(v) The permitting authority may provide a permit
shield consistent with the provisions of 71.6(n) of this
part.
(5) Administrative permit amendment procedures for
changes meeting the criteria under 71.7(e)(1)(vi) of this
part. Changes meeting the criteria set forth in
paragraph (e)(1)(vi) of this section may be made to a permit
using the following procedures:
(i) After receipt of the initial notification required
under the section 112 standard, the permitting authority
shall prepare a proposed addendum to the source's part 70 or
part 71 permit. The addendum shall contain the following:
(A) A statement that the section 112 standard is an
applicable requirement for the permitted source;
(B) A schedule of compliance, consistent with 71.5
of this part;
(C) A requirement to submit any implementation plan or
report required under the standard;
(D) A requirement to apply for a minor permit revision
by the deadline for the compliance statement, unless the
source is exempted from this requirement by the rulemaking
promulgating the applicable section 112 standard. If the
source is utilizing an alternative requiring case-by-case
approval, such as emissions averaging, the source shall
apply for a significant permit revision in lieu of the minor
permit revision required in the preceding sentence. If the
compliance statement deadline is within 6 months of the end
of the permit term, the source may incorporate its
application for the revisions into its application for
permit renewal, in lieu of applying for revisions by the
compliance statement deadline;
(E) Any other provisions required to be incorporated
into the permit by the applicable section 112 standard.
(ii) The permitting authority shall make available for
public review and comment for at least 30 days a list of
sources whose permits are reopened under this paragraph.
Notice of the availability of the list shall be given by
such time as to assure that any additional administrative
amendments for sources subject to the standard and not on
the list take effect within 18 months after promulgation of
the section 112 standard. If after considering public
comment, the permitting authority determines that permits
for other sources must be reopened to incorporate
section 112 standards, it shall notify such sources of its
intent to do so at least 30 days before reopening the
permit, and may use the provisions of this paragraph.
(iii) The proposed addendum shall become effective not
later than 18 months after promulgation of the section 112
standard. The permitting authority shall attach a copy of
the addendum to the existing part 70 or part 71 permit and
shall, in the case of a program delegated pursuant to
71.10 of this part, provide the Administrator with a copy.
(iv) The permitting authority shall, as soon as
practicable, place all information required to be submitted
by the permit with respect to the section 112 standard in a
docket accessible to the public.
(v) The permit shield under 71.6(n) of this part may
not extend to administrative amendments processed under
paragraph (e)(5) of this section.
(f) De minimis permit revisions.
(1) A de minimis permit revision may be made by the
permitting authority to a part 70 or part 71 permit provided
that the permit contains a term or condition authorizing the
source to make use of de minimis permit revision procedures
for qualifying changes at the applicable unit and such term
or condition was established during permit issuance or
renewal, or under permit revision procedures contained in
71.11 of this part, and provided the action taken meets
the criteria and procedures specified in paragraph (f) of
this section.
(2) Criteria. For the change to be considered de
minimis and eligible for de minimis permit revision
procedures, the conditions in paragraph (f)(2)(i) of this
section and the applicable conditions and limits in
paragraphs (f)(2)(ii) and (iii) of this section must be met.
The limits in paragraphs (f)(2)(ii) and (iii) of this
section are on a single pollutant basis except where a
combination of hazardous air pollutants is indicated.
(i) Conditions limiting de minimis changes.
(A) The source must not be in violation of the part 70
or part 71 permit terms and conditions it seeks to change.
(B) In the case of existing units, the need for a
permit revision must result from a physical or operational
change. [OPTION: ADD TO END OF SENTENCE: , unless the
permit revision solely involves monitoring or recordkeeping
requirements.]
(C) [OPTION: ADD TO BEGINNING OF SENTENCE: Except
for permit revisions solely involving monitoring or
recordkeeping requirements,] The change may not involve a
permit term or condition established to limit emissions
which is federally enforceable only as a part 70 or part 71
permit term or condition.
(D) De minimis emission threshold levels cannot be met
by offsetting emission increases with emission decreases at
the same source.
[OPTION: ADD NEW PARAGRAPHS (f)(2)(i)(E) and (F):
(E) The change may not involve a change to monitoring
or recordkeeping requirements unless, prior to the source's
submission of a de minimis permit revision application, the
permitting authority affirmatively determines that the
monitoring or recordkeeping change has been demonstrated by
the source:
(1) To not affect the capability of the method to
measure emission results as precisely, accurately, and
timely as is provided by the existing monitoring or
recordkeeping method;
(2) To only affect a single source or facility; and
(3) To not constitute a new or alternative monitoring
method or represent a new operating level of the method.
(F) The criteria for all demonstrations required under
paragraph (f)(2)(i)(E) of this section shall include, in
addition to the requirements of paragraph (f)(3)(C) of this
section, an analysis conducted in accordance with 40 CFR
64.4(b)(5) and 64.4(c) utilizing appendices A, B, C, and D,
and related appendices' procedures of 40 CFR part 64. END
OF OPTION]
(ii) Unit-based change limits. For a change at any
emissions unit to qualify as a unit-based de minimis permit
revision, the total emissions of an entirely new unit and
the total emissions at an existing unit after the change
(i.e., the sum of the existing emissions before the change
plus the emissions increase that results from the change)
may not exceed:
[ALTERNATIVE 1:]
(A) For criteria pollutants, the following emissions
over the life of the permit:
(1) 4 tons of CO;
(2) 1 ton of NOX;
(3) 1.6 tons of SO2;
(4) 0.6 ton of PM-10;
(5) 1 ton of VOC.
[ALTERNATIVE 2:]
(A) For criteria pollutants, 20 percent of the
applicable major source threshold, or 5 tpy of VOC or NOX,
whichever is greater, but in no event more than 15 tpy PM-10
or 0.6 tpy lead.
[ALTERNATIVE 3:]
(A) For criteria pollutants,
5 tpy.
[ALTERNATIVE 4:]
(A) For criteria pollutants, 30 percent of the
applicable major source threshold or 5 tpy, whichever is
greater. [END OF ALTERNATIVES FOR (A)]
[ALTERNATIVE 1:]
(B) For HAP's, 0 tpy.
[ALTERNATIVE 2:]
(B) For HAP's, 20 percent of the section 112 major
source thresholds or 50 percent of the section 112(g) de
minimis levels, whichever is less.
[ALTERNATIVE 3:]
(B) For HAP's, 75 percent of section 112(g) de minimis
levels. [END OF ALTERNATIVES FOR (B)]
(C) For other pollutants regulated only under section
111 of the Act, the significance levels in 52.21(b)(23)(i)
of part 52 of this chapter.
(iii) Increment-based change limits. A change at any
emissions unit not qualifying for a unit-based change may
still qualify as a de minimis permit revision if the
following criteria are met:
(A) Additional conditions:
(1) Any resulting emissions limit must be expressed in
the same form and units of measure as the previous emissions
limit;
(2) Any associated recalibration of continuous
emissions monitors (CEM) or operational parameters must be
undertaken in accordance with emission rates-to-CEM or
operational parameter ratios established in the operating
permit program, in the source's permit, or through permit
issuance procedures providing at least as much permitting
authority, EPA (in the case of a program delegated pursuant
to 71.10 of this part), and affected State review and
public participation as minor permit revision procedures;
[OPTION: DELETE PREVIOUS PARAGRAPH (f)(2)(iii)(A)(2).]
(B) Size restrictions on individual change. No
emissions increase at any unit may exceed:
[ALTERNATIVE 1:]
(1) For criteria pollutants, the following emissions
over the life of the permit:
(i) 4 tons of CO;
(ii) 1 ton of NOX;
(iii) 1.6 tons of SO2;
(iv) 0.6 ton of PM-10;
(v) 1 ton of VOC.
[ALTERNATIVE 2:]
(1) For criteria pollutants, 20 percent of the
applicable major source threshold, 10 percent of the limit
applicable to the unit undergoing the change, or 15 tpy VOC
or NOX, whichever is less but in no event less than [2 - 5]
tpy VOC or NOX or greater than 15 tpy PM-10 or 0.6 tpy lead.
[ALTERNATIVE 3:]
(1) For criteria pollutants, 30 percent of applicable
major source thresholds, or 15 percent of the limit
applicable to the unit undergoing the change, whichever is
less, but in no event less than 5 tpy for VOC or NOX. [END
OF ALTERNATIVES FOR (1)]
[ALTERNATIVE 1:]
(2) For HAP's, 0 tpy.
[ALTERNATIVE 2:]
(2) For HAP's, 20 percent of the section 112 major
source thresholds, 50 percent of the de minimis levels set
pursuant to section 112(g) of the Act, or 10 percent of the
limit applicable to the unit undergoing change, whichever is
less.
[ALTERNATIVE 3:]
(2) For HAP's, 75 percent of section 112(g) de minimis
levels. [END OF ALTERNATIVES FOR (2)]
(3) For other pollutants regulated only under
section 111 of the Act, the significance levels in
52.21(b)(23)(i) of part 52 of this chapter.
(3) De minimis permit revision procedures.
(i) Application. A source may submit an application
to the permitting authority requesting the use of de minimis
permit revision procedures provided that the permit contains
a term or condition that authorizes the source to make use
of the de minimis permit revision procedures for qualifying
changes, the application meets the requirements of 71.5(f)
of this part, and the permit application includes the
following:
(A) A description of the change, the emissions
resulting from the change, and any new applicable
requirements that will apply if the change occurs;
(B) An addendum containing the terms and conditions of
the source's suggested draft permit revision;
(C) A demonstration that the proposed change meets the
criteria for a de minimis permit revision; and
(D) Certification by a responsible official consistent
with 71.5(i) of this part that:
(1) The source is in compliance with any permit terms
or conditions it seeks to revise;
(2) The proposed revision meets the criteria for use
of de minimis permit revision procedures; and
(3) The source accepts all liability of making the
requested change prior to final permitting authority action
to revise the source's permit.
[OPTION: ADD NEW PARAGRAPH:
(E) A summary of any required demonstration performed
in accordance with paragraphs (f)(2)(i)(E) and (F) of this
section, and verification of such demonstration's
affirmative approval by the permitting authority.]
(ii) The permitting authority may allow the source to
implement the requested change 7 days after the permitting
authority's receipt of the source's de minimis permit
revision application. At its discretion, the permitting
authority may grant a request by the source to implement the
change after less than 7 days.
(iii) Public notification. Public notice shall be
provided by the source of de minimis permit revision
applications received by the permitting authority on a
monthly, batched basis. At a minimum, the notice shall
include: the name and address of the source where the
proposed change would occur, a description of the change,
the effective date of the permit revision, the emissions
resulting from the change, and any new applicable
requirements that will apply if the change occurs; reference
to the pertinent administrative record/public docket; and
the name, address and phone number of a person from whom
interested persons may obtain additional information,
including the permit application and supporting
documentation as described in paragraph (f)(3)(i) of this
section. [OPTION: ADD TO END OF PARAGRAPH: In addition,
for permit revisions involving changes to monitoring or
recordkeeping requirements, the permitting authority shall
also submit to the publicly available docket the complete
demonstration required by paragraphs (f)(2)(i)(E) and (F) of
this section, a summary of the demonstration, and an
affirmative statement of the demonstration's adequacy.]
(iv) Permit amendment. The permit is revised by
attaching the proposed addendum to the permit with the
addendum specifying when the permit revision takes effect
consistent with the following provisions.
(A) Where the preconstruction permitting agency
affirmatively approved the change pursuant to a
preconstruction review process that included at least a
21-day public comment period and the preconstruction
permitting agency authorized the change to be made under the
de minimis permit revision process, the addendum shall take
effect upon submission to the part 71 permitting authority
of a complete de minimis permit revision application.
(B) Where the preconstruction permitting agency did
not affirmatively approve the change pursuant to a
preconstruction review that provided for at least a 21-day
public comment period, the addendum shall take effect
[30-90] days after the date public notice is given under
paragraph (f)(3)(iii) of this section if the part 71
permitting authority does not disapprove the request within
that time period. The part 71 permitting authority shall
retain the authority to disapprove such a change made
through the de minimis permit revision process for a period
of [30-90] days following the date public notice is given
under paragraph (f)(3)(iii) of this section.
(v) EPA and affected State notification.
(A) In the case of a program delegated pursuant to
71.10 of this part, the permitting authority shall send a
copy of the addendum to the permit to EPA within 7 days of
the date the addendum takes effect.
(B) In all cases, the permitting authority shall send
a copy of the addendum to any affected State within 7 days
of the date the addendum takes effect.
(vi) Public request for disapproval.
(A) Within [15-45] days of the date public
notification is given, any person may request that the
permitting authority disapprove the change if the permitting
authority retained authority to disapprove the de minimis
permit revision as described under paragraph (f)(3)(iv)(B)
of this section.
(B) Where the permitting authority was not required to
retain authority to disapprove the de minimis permit
revision, the public may petition the permitting authority
to revoke the permit revision allowing the change.
(4) Source liability. If, after a source makes the
requested change, the permitting authority disapproves the
change or EPA objects to the change (in the case of a
program delegated pursuant to 71.10 of this part), the
source shall be liable for having operated in violation of
its existing permit from the time at which the source made
the change. Notwithstanding the preceding sentence, the
permitting authority may issue a permit revision that varies
from the source's proposed addendum without rendering the
source liable for violating its existing permit if the
proposed addendum includes enforcement terms sufficient to
support an enforcement action and the permitting authority's
revisions are not necessary to make the change eligible for
de minimis permit revision procedures and do not change the
applicant's determination of which requirements of the Act
apply to the source as a result of the requested change.
The source would remain liable for any violations of the
requirements which are applicable as a result of the change
and the source's proposed permit revision.
(5) The permit shield under 71.6(n) of this part may
not extend to de minimis permit revisions.
(g) Minor permit revision procedures.
(1) Criteria.
(i) Minor permit revision procedures may be used only
for those permit revisions that:
(A) Do not affect permit terms or conditions that the
source is violating;
(B) Do not involve changes to existing monitoring,
reporting, or recordkeeping requirements in the permit,
unless such changes are necessary to implement other changes
that qualify for minor permit revision procedures;
[OPTION: REPLACE PARAGRAPH (g)(1)(i)(B) WITH THE
FOLLOWING:
(B) Involve changes to monitoring or recordkeeping
requirements that are:
(1) Changes in the enforceable operating level of the
method that, prior to the source's submission of a minor
permit revision application, the permitting authority has
affirmatively determined the source has demonstrated to be
correlated to the source's existing or proposed compliance
emissions rate, but such changes may not involve a switch to
a new or alternative monitoring or recordkeeping operating
parameter;
(2) Changes to a monitoring or recordkeeping method
that affect the measurement sensitivity of the method and
representativeness of the data (e.g., precision, accuracy,
measurement location, or averaging time) such that there may
be a measurable effect in relation to the relevant source
compliance emissions rate; changes that affect the scope and
intent of the existing monitoring method (e.g., modified
sample conditioning system, upgraded detector, upgraded data
management system); or changes that may be generally
applicable to similar monitoring methods in the same or
other source categories (e.g., equipment modification for
interference avoidance). Such changes may not involve a
switch to new or alternative monitoring methods. Prior to
the source's submission of a minor permit revision
application, the permitting authority shall have
affirmatively determined that the monitoring or
recordkeeping change has been demonstrated by the source to
have a known relationship and ability to determine
compliance with the applicable source compliance emissions
rate; or
(3) In the case of a program delegated pursuant to
71.10 of this part, changes to monitoring or recordkeeping
methods that have been approved pursuant to major or minor
NSR and that are demonstrated therein to have a known
relationship and ability to determine compliance with the
applicable source compliance emissions rate. The
application for the minor permit revision must include
supporting documentation from the major or minor NSR permit
approval, information regarding the demonstration and
approval of the requested monitoring or recordkeeping
method, and information in accordance with 71.7(g)(2) of
this part as related to the monitoring change. END OF
OPTION]
(C) Do not involve or depend on netting transactions
undertaken to avoid being subject to preconstruction review
under parts C or D of title I of the Act unless such
emissions reductions:
(1) Have been approved pursuant to a minor NSR process
for which a 30-day public comment period was provided; or
(2) Do not involve any single emissions increase that
exceeds the applicable threshold for being a major
modification under parts C or D of title I of the Act, and
the sum of all the contemporaneous increases does not exceed
the applicable threshold for determining whether a source is
major;
(D) Do not involve offsets or modifications under
section 112(g) of the Act, unless the change has been
approved pursuant to a section 112(g) review process;
(E) Are not modifications subject to parts C or D of
title I of the Act, unless the change has been approved
pursuant to major NSR and would incorporate all applicable
requirements determined therein into the part 70 or part 71
permit;
(F) [OPTION: ADD TO BEGINNING OF SENTENCE: Except
for permit revisions solely involving monitoring or
recordkeeping requirements,] Do not seek to establish or
change a permit term or condition established to limit
emissions which is federally enforceable only as a part 70
or part 71 permit term or condition. Such terms and
conditions include:
(1) A federally-enforceable emissions cap assumed in
the part 70 or part 71 permit to avoid classification as a
modification under any provision of title I of the Act;
(2) An alternative emission limit established under
the provisions of 71.6(a)(1)(iii) of this part equivalent
to a requirement contained in an applicable implementation
plan;
(3) An alternative emissions limit established in the
part 70 or part 71 permit pursuant to regulations
promulgated under section 112(i)(5) of the Act;
(4) An emissions limit established in the part 70 or
part 71 permit pursuant to regulations promulgated under
section 112(j) of the Act; and
(5) Any other term or condition for which there is no
corresponding underlying applicable requirement and the
establishment of which allows the source to avoid an
applicable requirement to which the source would otherwise
be subject.
(ii) Notwithstanding paragraph (g)(1)(i) of this
section, minor permit revision procedures may be used for
permit revisions involving the use of economic incentives,
marketable permits, emissions trading, and other similar
approaches, to the extent that such minor permit revision
procedures are explicitly provided for in an applicable
implementation plan or in applicable requirements
promulgated by EPA.
[OPTION: ADD NEW PARAGRAPH:
(iii) Any demonstration required by
paragraph (g)(1)(i)(B) of this section shall include an
analysis conducted in accordance with 40 CFR 64.4(b)(5) and
64.4(c) utilizing appendices A, B, C, and D and related
appendices of 40 CFR part 64.]
(2) Application. An application requesting the use of
minor permit revision procedures shall meet the requirements
of 71.5(f) of this part and shall include the following:
(i) A description of the change, the emissions
resulting from the change, and any new applicable
requirements that will apply if the change occurs;
(ii) An addendum containing the terms and conditions
of the source's suggested draft permit revision;
(iii) A demonstration that the proposed change is
eligible to be processed as a minor permit revision;
(iv) Certification by a responsible official,
consistent with 71.5(i) of this part, that:
(A) The proposed change meets the criteria for use of
minor permit revision procedures;
(B) The source is in compliance with the permit terms
or conditions it seeks to revise;
(C) Public notice of the proposed revision has been
provided pursuant to paragraph (g)(3) of this section; and
(D) Notice to the Administrator (in the case of a
program delegated pursuant to 71.10 of this part), and
affected States of the proposed revision has been provided
pursuant to paragraph (g)(4) of this section; and
(v) An affidavit signed by a responsible official
stating that the source accepts all legal risks of making
the requested change prior to final permitting authority
action to revise the source's permit.
[OPTION: ADD NEW PARAGRAPH:
(vi) For a change involving changes to monitoring or
recordkeeping requirements, a summary of any demonstration
required by paragraph (g)(1)(i)(B) of this section and
performed in accordance with paragraph (g)(1)(iii) of this
section and verification of its approval by the permitting
authority. If in approving the demonstration the permitting
authority determines that subsequent verification testing of
the change is necessary, the permitting authority may
establish a compliance schedule for performing verification
testing to further demonstrate, consistent with
paragraph (g)(1)(iii) of this section, the adequacy of the
change. Such compliance schedule, after approval by the
permitting authority, shall be attached to the addendum
described in paragraph (g)(2)(ii) of this section and be
processed as a permit term and shall not allow the source to
begin verification testing in advance of the time when the
source would be allowed to implement the minor permit
revision requested change. The approved compliance schedule
shall include a commitment by the source to provide the
results of the verification testing to the permitting
authority within 90 days of submittal of the minor permit
revision application. Upon receipt of the verification
testing results, the permitting authority shall determine
whether the results demonstrate the adequacy of the change
consistent with paragraph (g)(1)(iii) of this section. The
permitting authority shall promptly notify the source in
writing of its determination, and place a copy of such
notice in the public docket. The permit shield under
71.6(n) of this part may extend to minor permit revisions
involving monitoring and recordkeeping changes only after
any required further verification testing of the change has
been completed.]
(3) Public notification.
(i) Immediately upon filing an application for a minor
permit revision, the source shall provide notice to the
public of the requested minor permit revision by:
(A) Publication of a notice in a newspaper of general
circulation in the area where the source is located or in a
State publication designed to give the general public
notice; and
(B) Sending a letter to persons on a mailing list
developed by the permitting authority, including those who
previously participated in any public comment process
provided for the source's permit and those who request to be
placed on a list to receive notification of permit issuance,
revision, reopening, or renewal requests.
(ii) In addition to the elements required under
71.11(d)(4) of this part, the public notice shall describe
the requested change and state that if no germane and non-
frivolous objection to the requested change is received by
the permitting authority within 21 days of publication of
the notice, the source may implement the change without the
permitting authority providing further opportunity for
public participation. For purposes of this paragraph, a
germane objection is one that objects to the use of minor
permit revision procedures for the requested change on the
grounds that the source has failed to comply with the
procedural and notification requirements of
paragraphs (g)(3) and (4) of this section or that the
requested change is ineligible for the use of minor permit
revision procedures under paragraph (g)(1)(i) of this
section. For purposes of this paragraph, a non-frivolous
objection must specify the basis for its objection and
present factual or other relevant information in support of
its objection.
(iii) The permitting authority shall place a copy of
the minor permit revision request in a public docket.
[OPTION: ADD A NEW SENTENCE: The permitting authority
shall also place in the docket any complete demonstration
required by 71.7(g)(1)(i)(B) of this part, a summary of
the demonstration, the permitting authority's analysis of
the demonstration, and an affirmative statement of the
demonstration's adequacy.]
(4) EPA and affected State notification.
(i) In the case of a program delegated pursuant to
71.10 of this part, immediately upon filing an application
for a minor permit revision, the source shall notify the
Administrator of the requested permit revision in the same
manner and subject to the same conditions required of
permitting authorities under 71.10(d) of this part. Such
notification shall relieve the permitting authority of the
requirement to provide notice to the Administrator of the
requested minor permit revision under 71.10(d) of this
part, but shall not relieve the permitting authority of the
requirement to promptly send to the Administrator any notice
under 71.8(b) of this part.
(ii) In all cases, immediately upon filing an
application for a minor permit revision, the source shall
notify affected States of the requested permit revision in
the same manner and subject to the same conditions required
of the permitting authority under 71.8(a) of this part.
Such notification shall relieve the permitting authority of
the requirement to provide notice to affected States of the
requested minor permit revision under 71.8(a) of this
part, but shall not relieve the permitting authority of the
requirement to send any affected State any notice under
71.8(b) of this part.
(5) Timetable for issuance. Upon receipt of an
application for a minor permit revision, the permitting
authority shall provide at least 21 days for public comment
on the requested change, and shall keep a record of the
commenters and the issues raised during the public comment
period. Such records shall be made available to the public.
The minor permit revision shall occur according to the
following procedures:
(i) If the permitting authority receives no public
objection to the requested change within 21 days of
publication of the public notice, the source may implement
the requested change on the 22nd day after publication of
the public notice, provided that:
(A) The permitting authority has neither denied the
minor permit revision nor determined that the requested
revision does not meet the minor permit revision criteria
and should be reviewed under significant permit revision
procedures; and
(B) In the case of a program delegated pursuant to
71.10 of this part, the Administrator has not objected to
the proposed minor permit revision.
(ii) If the permitting authority receives a public
objection to the requested change within 21 days after
publication of the public notice, the permitting authority
must determine within 28 days of publication of the public
notice whether the objection is germane and non-frivolous,
and proceed according to the following procedures:
(A) If the permitting authority within 28 days of
public notification finds the public objection to be either
frivolous or not germane, the permitting authority may
respond to the public objection in the course of processing
the minor permit revision request as a minor permit
revision, and the source may implement the requested change
on the 29th day after publication of the public notice or
upon notification from the permitting authority that the
permitting authority has determined the public objection to
be frivolous or not germane, whichever is first, provided
that:
(1) The permitting authority has neither denied the
minor permit revision application nor determined that the
request fails to meet the minor permit revision criteria and
should be reviewed under significant permit revision
procedures; and
(2) In the case of a program delegated pursuant to
71.10 of this part, the Administrator has not objected to
the proposed minor permit revision.
(B) If the permitting authority fails to determine
within 28 days after publication of the public notice of the
request for a minor permit revision whether a public
objection submitted within 21 days of such notice is germane
and non-frivolous, the source may implement the requested
change on the 29th day after publication of the public
notice, provided that:
(1) The permitting authority has neither denied the
minor permit revision application nor determined that the
request fails to meet the minor permit revision criteria and
should be reviewed under significant permit revision
procedures; and
(2) In the case of a program delegated pursuant to
71.10 of this part, the Administrator has not objected to
the proposed minor permit revision.
(C) If the permitting authority finds the public
objection to be germane and non-frivolous, the permitting
authority shall not issue a final minor permit revision for
the change, and shall either deny the minor permit revision
application or determine that the requested change does not
meet the minor permit revision criteria and should be
reviewed under significant permit revision procedures. If
the permitting authority continues to process the requested
change under significant permit revision procedures, public
notice of the proposed change must be provided in the manner
required for significant permit revisions under 71.11 of
this part. Such notice shall provide at least 30 days for
public comment on the requested change, shall identify the
time and place of any hearing that may be held, and shall
include a statement of procedures to request a hearing if a
hearing has not already been scheduled. For purposes of
this paragraph, such a hearing may be held as soon as
14 days after publication of a notice that the requested
change is being processed as a significant permit revision.
The source shall not implement the requested change unless
and until the permitting authority approves it as a
significant permit revision.
(iii) Any person who filed a public objection pursuant
to this paragraph which the permitting authority within
28 days of public notification does not determine to be
germane and non-frivolous may bring suit in Federal court to
compel action by the permitting authority and, in accordance
with applicable standards for obtaining such relief under
Federal law, seek an injunction in Federal court prohibiting
the source from implementing the requested change.
(iv) In the case of a program delegated pursuant to
71.10 of this part, where the minor permit revision has
not been denied or required to be reviewed under significant
permit revision procedures, the permitting authority may
issue a final minor permit revision after EPA's 45-day
review period has elapsed provided the Administrator has not
objected to the requested change, or after EPA has notified
the permitting authority after the close of the public
comment period that EPA will not object to issuance of the
minor permit revision, whichever is first, provided that the
final minor permit revision does not differ from the draft
permit except to the extent any changes to the draft permit
qualify for administrative permit amendment procedures under
paragraph (e) of this section.
(v) Within 60 days after the permitting authority's
receipt of an application for a minor permit revision, or
15 days after the expiration of EPA's 45-day review period
(in the case of a program delegated pursuant to 71.10 of
this part), whichever is later, the permitting authority
shall:
(A) Issue the minor permit revision as proposed;
(B) Deny the minor permit revision application;
(C) Determine that the requested revision does not
meet the minor permit revision criteria and should be
reviewed under significant permit revision procedures; or
(D) Revise the draft minor permit revision and, in the
case of a program delegated pursuant to 71.10 of this
part, if such revision includes any changes that do not
qualify for processing as administrative permit amendments
under paragraph (e) of this section, transmit to the
Administrator the new proposed permit revision as required
by 71.10(d) of this part.
(vi) Any person who objected to a minor permit
revision request during the public comment period shall be
notified by the permitting authority upon final approval of
the request. The permitting authority shall also place a
copy of its final approval decision in the public docket in
which it places minor permit revision requests when received
or provide a substantially equivalent means of public access
to its final decision.
(6) Reopening of the public comment period. If any
data, information, or arguments submitted during the public
comment period appear to raise substantial new questions
concerning a permit, the permitting authority may reopen or
extend the comment period to give interested persons an
opportunity to comment on the information or arguments
submitted. Comments filed during the reopened comment
period shall be limited to the substantial new questions
that caused its reopening. The public notice shall define
the scope of the reopening.
(7) Issuance and effective date of permit.
(i) After the close of the public comment period on a
draft permit, the permitting authority shall issue a final
permit decision. The permitting authority shall notify the
applicant and each person who has submitted written comments
or requested notice of the final permit decision. This
notice shall include reference to the procedures for
appealing a decision on a permit.
(ii) A final permit decision shall become effective
immediately upon issuance of the decision unless a later
effective date is specified in the decision.
(8) Source's ability to make change. The source may
make the change proposed in its minor permit revision
application in accordance with paragraph (g)(5) of this
section. After the source makes the change allowed by the
preceding sentence, and until the permitting authority takes
any of the actions specified in paragraphs (g)(5)(v)(A)-(D)
of this section, the source must comply with both the
applicable requirements governing the change and the
proposed permit terms and conditions. During this time
period, the source need not comply with the existing permit
terms and conditions it seeks to revise. However, if the
source fails to comply with its proposed permit terms and
conditions during this time period, the existing permit
terms and conditions it seeks to revise may be enforced
against it.
(9) Source liability. If, after a source makes the
requested change but prior to a permitting authority's final
action to approve the change and revise the permit, the
Administrator objects to the proposed minor permit revision
(in the case of a program delegated pursuant to 71.10 of
this part), or the permitting authority either denies the
minor permit revision or determines that the requested
revision does not meet the minor permit revision criteria
and should be reviewed under significant permit revision
procedures, the source shall be liable for having operated
in violation of its existing permit from the time at which
it implemented the requested change. Notwithstanding the
preceding sentence, the permitting authority may issue a
permit revision that varies from the source's application
without rendering the source liable for violating its
existing permit if the permitting authority's revisions are
not necessary to make the change eligible for minor permit
revision procedures and do not change the applicant's
proposed determination of which requirements of the Act
apply to the source as a result of the requested change and
if the source demonstrates to the satisfaction of the
permitting authority its compliance with the applicable
requirement to which it is subject as a result of the change
and the source's proposed permit revision. However, the
source would remain liable for any violations of the
requirements of the Act applicable as a result of the change
and the source's proposed permit revision. [OPTION: ADD
NEW SENTENCE: If, after the permitting authority's final
action to revise the permit, any verification testing of the
new operating level or revised monitoring approach as
required by paragraph (g)(2)(vi) of this section
demonstrates that the new operating level or revised
monitoring approach fails to demonstrate compliance, the
source then shall comply with the monitoring and
recordkeeping permit terms and conditions that applied to
the source before the minor permit revision, the minor
permit revision shall be null and void and cease to have
effect, and the source shall be liable for operating in
violation of its permit from the time it implemented the
change.]
(10) Permit shield. The permit shield under 71.6(n)
of this part may extend to minor permit revisions, provided
that the permitting authority has taken final action to
issue the minor permit revision as a permit revision.
(h) Significant permit revision procedures.
(1) Criteria. Significant permit revision procedures
shall be used for applications requesting permit revisions
that do not qualify as administrative amendments, de minimis
permit revisions, or minor permit revisions. At a minimum,
every significant change in existing monitoring permit terms
or conditions and every relaxation of reporting or
recordkeeping permit terms or conditions shall be considered
a significant change. [OPTION: DELETE PRECEDING SENTENCE]
Nothing herein shall be construed to preclude the permittee
from making changes consistent with this part that would
render existing permit compliance terms and conditions
irrelevant.
(2) Significant permit revisions shall meet all
requirements of this part, including those for applications,
public participation, review by affected States, and in the
case of a program delegated pursuant to 71.10 of this
part, review by EPA, as they apply to permit issuance and
permit renewal. The permitting authority shall implement
this review process to complete review on the majority of
significant permit revisions within 9 months after receipt
of a complete application.
(OPTION: ADD NEW PARAGRAPH (h)(3):
(3) Changes involving new or alternative monitoring
methods that have not been approved pursuant to major or
minor NSR under criteria equivalent to those contained in
this paragraph shall be processed as significant permit
revisions. Permitting authorities may approve such changes
only where the new or alternative monitoring or
recordkeeping method is demonstrated to have a known
relationship and ability to determine compliance with the
applicable standard. Such demonstration shall include an
analysis conducted in accordance with 40 CFR 64.4(b)(5) and
64.4(e) utilizing appendices A, B, C, and D, and related
appendices' procedures of 40 CFR part 64. The permitting
authority shall include the demonstration and written
evidence of the permitting authority's evaluation of the
demonstration in the proposed permit it sends to EPA (in the
case of a program delegated pursuant to 71.10 of this
part) for review as required by 71.10 of this part.]
(i) Reopening for cause.
(1) Each issued permit shall include provisions
specifying the conditions under which the permit will be
reopened prior to the expiration of the permit. A permit
shall be reopened and revised under any of the following
circumstances:
(i) Additional applicable requirements under the Act
become applicable to a major part 70 or part 71 source with
a remaining permit term of 3 or more years. Such a
reopening shall be completed not later than 18 months after
promulgation of the applicable requirement. No such
reopening is required if the effective date of the
requirement is later than the date on which the permit is
due to expire, unless the original permit or any of its
terms and conditions have been extended pursuant to 71.6
of this part or paragraph (c)(3) of this section.
(ii) Additional requirements (including excess
emissions requirements) become applicable to an affected
source under the acid rain program. Upon approval by the
Administrator, excess emissions offset plans shall be deemed
to be incorporated into the permit.
(iii) The permitting authority or EPA (in the case of
a program delegated pursuant to 71.10 of this part)
determines that the permit contains a material mistake or
that inaccurate statements were made in establishing the
emissions standards or other terms or conditions of the
permit.
(iv) The permitting authority or EPA (in the case of a
program delegated pursuant to 71.10 of this part)
determines that the permit must be revised or revoked to
assure compliance with the applicable requirements.
(2) Proceedings to reopen and issue a permit shall
follow the same procedures as apply to initial permit
issuance and shall affect only those parts of the permit for
which cause to reopen exists, and shall be made as
expeditiously as practicable. Notwithstanding the preceding
sentence, proceedings to reopen for section 112 standards
may use the following procedures:
(i) Where the section 112 standard is promulgated
after permit issuance, administrative amendment procedures
under paragraph (e)(5) of this section may be used.
(ii) Where the section 112 standard is promulgated
before permit issuance and a compliance statement required
under the section 112 standard is due after permit issuance,
the source shall apply for a minor permit revision by the
compliance statement deadline to incorporate requirements
necessary to assure compliance with the standard, unless the
source is exempted from this requirement under
paragraph (i)(2)(iii) of this section or under the
rulemaking promulgating the section 112 standard. If the
source is utilizing alternatives requiring case-by-case
approval, such as emissions averaging, or if required under
the rulemaking promulgating the section 112 standard, the
source shall apply for a significant permit revision by the
compliance statement deadline, in lieu of the requirement in
the preceding sentence to apply for a minor permit revision.
(iii) Sources subject to the following section 112
standards promulgated as of [DATE OF PUBLICATION OF FINAL
RULE] are exempt from the requirements in
paragraph (i)(2)(ii) of this section to apply for a minor
permit revision: NESHAP for Industrial Process Cooling
Towers.
(3) Reopenings under paragraph (i)(1) of this section
shall not be initiated before a notice of such intent is
provided to the part 70 or part 71 source by the permitting
authority at least 30 days in advance of the date that the
permit is to be reopened, except that the permitting
authority may provide a shorter time period in the case of
an emergency. Where reopening for section 112 standards
requiring initial notification by the source, and where the
source has provided such notification to the permitting
authority by the applicable date, the permitting authority
need not provide the notice required by the preceding
sentence.
(j) Reopenings for cause by EPA for delegated
programs.
(1) In the case of a program delegated pursuant to
71.10 of this part, if the Administrator finds that cause
exists to terminate, revise, or revoke and reissue a permit
pursuant to paragraph (i) of this section, the Administrator
will notify the permitting authority and the permittee of
such finding in writing.
(2) The permitting authority shall, within 90 days
after receipt of such notification, forward to EPA a
proposed determination of termination, revision, or
revocation and reissuance, as appropriate. The
Administrator may extend this 90-day period for an
additional 90 days if he or she finds that a new or revised
permit application is necessary or that the permitting
authority must require the permittee to submit additional
information.
(3) The Administrator will review the proposed
determination from the permitting authority within 90 days
of receipt.
(4) The permitting authority shall have 90 days from
receipt of an EPA objection to resolve any objection that
EPA makes and to terminate, revise, or revoke and reissue
the permit in accordance with the Administrator's objection.
(5) If the permitting authority fails to submit a
proposed determination pursuant to paragraph (j)(2) of this
section or fails to resolve any objection pursuant to
paragraph (j)(4) of this section, the Administrator will
terminate, revise, or revoke and reissue the permit after
taking the following actions:
(i) Providing at least 30 days notice to the permittee
in writing of the reasons for any such action. This notice
may be given during the procedures in paragraphs (j)(1)
through (4) of this section.
(ii) Providing the permittee an opportunity for
comment on the Administrator's proposed action and an
opportunity for a hearing.
71.8 Affected State Review.
(a) Notice of draft permits. When a part 71 operating
permits program becomes effective in a State or Tribal area,
the permitting authority shall provide notice of each draft
permit to any affected State, as defined in 71.2 of this
part, on or before the time that the permitting authority
provides this notice to the public pursuant to
71.7(e)(4), 71.7(h), 71.7(i) or 71.11(d) of this part and
shall provide any affected State a copy of the addendum for
a de minimis permit revision within 7 days of the date on
which the addendum takes effect.
(b) Notice of refusal to accept recommendations.
Prior to issuance of the final permit, the permitting
authority shall notify any affected State (and the
Administrator, in the case of a program delegated pursuant
to 71.10 of this part) in writing of any refusal by the
permitting authority to accept all recommendations for the
proposed permit that the affected State submitted during the
public or affected State review period. The notice shall
include the permitting authority's reasons for not accepting
any such recommendation. The permitting authority is not
required to accept recommendations that are not based on
applicable requirements or the requirements of this part.
(c) Waiver of notice requirements. The Administrator
may waive the requirements of paragraph (a) of this section
for any category of sources (including any class, type, or
size within such category) other than major sources by
regulation for a category of sources nationwide.
71.9 Permit Fees.
(a) Fee requirement. The owners or operators of
part 71 sources shall pay annual fees, or the equivalent
over some other period, that are sufficient to cover the
permit program costs, in accordance with the procedures
described in this section.
(b) Permit program costs. These costs include, but
are not limited to, the costs of the following activities as
they relate to a part 71 program:
(1) Preparing generally applicable guidance regarding
the permit program or its implementation or enforcement;
(2) Reviewing and acting on any application for a
permit, permit revision, or permit renewal, including the
development of an applicable requirement as part of the
processing of a permit, or permit revision or renewal;
(3) Processing permit reopenings;
(4) General administrative costs of the permit
program, including transition planning, interagency
coordination, contract management, training, informational
services and outreach activities, assessing and collecting
fees, the tracking of permit applications, compliance
certifications, and related data entry;
(5) Implementing and enforcing the terms of any
part 71 permit (not including any court costs or other costs
associated with an enforcement action), including adequate
resources to determine which sources are subject to the
program;
(6) Emissions and ambient monitoring, modeling,
analyses, demonstrations, preparation of inventories, and
tracking emissions, provided these activities are needed in
order to issue and implement part 71 permits; and
(7) Providing direct and indirect support to small
business stationary sources in determining applicable
requirements and in receiving permits under this part (to
the extent that these services are not provided by a State
Small Business Stationary Source Technical and Environmental
Compliance Assistance Program).
(c) Establishment of fee schedule.
(1) For part 71 programs that are administered by EPA,
each part 71 source shall pay an annual fee in the amount of
$45 dollars per ton (as adjusted pursuant to the criteria
set forth in paragraph (n)(1) of this section) times the
total tons of the actual emissions of each regulated
pollutant (for fee calculation) emitted from the source,
including fugitive emissions.
(2) For part 71 programs that are delegated pursuant
to 71.10 of this part, the annual fee for each part 71
source shall be the amount specified in paragraph (c)(1) of
this section plus a surcharge of $3 per ton per year. The
surcharge will be used to defray the Agency's cost of
administering program delegation.
(3) For part 71 programs that are administered by EPA
with contractor assistance, the per ton fee will vary
depending on the extent of contractor involvement and the
cost to EPA of contractor assistance. The EPA shall
establish a per ton fee that is based on the contractor
costs for the specific part 71 program that is being
administered, using the following formula:
Cost per ton = (E x $45) + [(1-E) x $C] + $3 surcharge
Where E represents EPA's proportion of total effort
(expressed as a percentage of total effort) needed to
administer the part 71 program, 1-E represents the
contractor's effort, and C represents the contractor
assistance cost on a per ton basis. The $3 surcharge covers
EPA's cost for administering contractor permit program
activities. C shall be computed by using the following
formula:
C = [B + T + N] divided by 12,300,000
Where B represents the base cost (contractor costs), where T
represents travel costs, and where N represents non-
personnel data management and tracking costs.
(4) For programs that are delegated in part and that
also use contractor assistance, the fee shall be computed
using the formula in paragraph (c)(3) of this section,
provided that E represents the proportion of total effort
(expressed as a percentage) expended by EPA and the delegate
agency.
(5) The following emissions shall be excluded from the
calculation of fees under paragraph (c)(1) of this section:
(i) The amount of a part 71 source's actual emissions
of each regulated pollutant (for fee calculation) that the
source emits in excess of four thousand (4,000) tpy;
(ii) A part 71 source's actual emissions of any
regulated pollutant (for fee calculation) already included
in the fee calculation; and
(iii) The insignificant quantities of actual emissions
not required to be listed or calculated in a permit
application pursuant to 71.5(g) of this part.
(6) "Actual emissions" means the actual rate of
emissions in tpy of any regulated pollutant (for fee
calculation) emitted from a part 71 source over the
preceding calendar year. Actual emissions shall be
calculated using each emissions unit's actual operating
hours, production rates, in-place control equipment, and
types of materials processed, stored, or combusted during
the preceding calendar year.
(7) Notwithstanding the above, if the Administrator
determines that the fee structures provided in
paragraphs (c)(1)-(4) of this section do not reflect the
costs of administering a part 71 program, then the
Administrator shall by rule set a fee which adequately
reflects permit program costs for that program.
(d) Prohibition on fees with respect to emissions from
affected units. Notwithstanding any other provision of this
section, during the years 1995 through 1999 inclusive, no
fee for purposes of title V shall be required to be paid
with respect to emissions from any affected unit under
section 404 of the Act.
(e) Submission of initial fee calculation work sheets
and fees.
(1) Each part 71 source shall complete and submit an
initial fee calculation work sheet as provided in
paragraphs (e)(2), (f), and (g) of this section and shall
complete and submit fee calculation work sheets thereafter
as provided in paragraph (h) of this section. Calculations
of actual or estimated emissions and calculation of the fees
owed by a source shall be computed by the source on fee
calculation work sheets provided by EPA. Fee payment in an
amount that equals one-third of the annual fees owed must
accompany each initial fee calculation work sheet. The
balance of the annual fees owed must be paid within four
months of the due date of the initial fee or within one year
of the effective date of the part 71 program, whichever is
earlier.
(2) The fee calculation work sheet shall require the
source to submit a report of its actual emissions for the
preceding calendar year and to compute fees owed based on
those emissions. For sources that have been issued part 70
or part 71 permits, actual emissions shall be computed using
compliance methods required by the most recent permit. If
actual emissions cannot be determined using the compliance
methods in the permit, the actual emissions should be
determined using federally recognized procedures. If a
source commenced operation during the preceding calendar
year, the source shall estimate its actual emissions for the
current calendar year. In such a case, fees for the source
shall be based on the total emissions estimated.
(f) Deadlines for submission.
(1) When EPA withdraws approval of a part 70 program
and implements a part 71 program, part 71 sources shall
submit initial fee calculation work sheets and fees in
accordance with the following schedule:
(i) Sources having SIC codes between 0100 and 2499
inclusive shall complete and submit fee calculation work
sheets and fees within 4 months of the effective date of the
part 71 program;
(ii) Sources having SIC codes between 2500 and 2999
inclusive shall complete and submit fee calculation work
sheets and fees within 5 months of the effective date of the
part 71 program;
(iii) Sources having SIC codes between 3000 and 3999
inclusive shall complete and submit fee calculation work
sheets and fees within 6 months of the effective date of the
part 71 program;
(iv) Sources having SIC codes higher than 3999 shall
complete and submit fee calculation work sheets and fees
within 7 months of the effective date of the part 71
program.
(2) Sources that are required under either
paragraph (f)(1) or (g) of this section to submit fee
calculation work sheets and fees between January 1 and
March 31 may estimate their emissions for the preceding
calendar year in lieu of submitting actual emissions data.
If the source's initial fee calculation work sheet was based
on estimated emissions for the source's preceding calendar
year, then the source shall reconcile the fees owed when it
submits its annual emissions report, as provided in
paragraph (h)(3) of this section.
(3) When EPA implements a part 71 program that does
not replace an approved part 70 program, part 71 sources
shall submit initial fee calculation work sheets and initial
fees when submitting their permit applications in accordance
with the requirements of 71.5(b)(1) of this part.
(4) Notwithstanding the above, sources that become
subject to the part 71 program after the program's effective
date shall submit an initial fee calculation work sheet and
initial fees when submitting their permit applications in
accordance with the requirements of 71.5(b)(1) of this
part.
(g) Fees for sources that are issued part 71 permits
following an EPA objection pursuant to 71.4(e) of this
part. Fees for such sources shall be determined as provided
in paragraph (c) of this section. However, initial fee
calculation work sheets for such sources and full payment of
annual fees shall be due three months after the date on
which the source's part 71 permit is issued.
(h) Annual emissions reports.
(1) Deadlines for submission. Each part 71 source
shall submit an annual report of its actual emissions for
the preceding calendar year, a fee calculation work sheet
(based on the report), and full payment of the annual fee
each year on the anniversary date of its initial fee
calculation work sheet, except that sources that were
required to submit initial fee calculation work sheets
between January 1 and March 31 inclusive shall submit
subsequent annual emissions reports and fee calculation work
sheets on April 1.
(2) For sources that have been issued part 70 or
part 71 permits, actual emissions shall be computed using
methods required by the most current permit for determining
compliance.
(3) If the source's initial fee calculation work sheet
was based on estimated emissions for the source's current or
preceding calendar year, then the source shall reconcile the
fees owed when it submits its annual emissions report. The
source shall compare the estimated emissions from the
initial work sheet and the actual emissions from the report
and shall enter such information on the fee calculation work
sheet that accompanies the annual report. The source shall
recompute the initial fee accordingly and shall remit any
underpayment with the report and work sheet. The EPA shall
credit any overpayment to the source's account.
(i) Recordkeeping requirements. Part 71 sources will
retain, in accordance with the provisions of 71.6(e) of
this part, all work sheets and other materials used to
determine fee payments. Records shall be retained for
5 years following the year in which the emissions data is
submitted.
(j) Fee assessment errors.
(1) If EPA determines than a source has completed the
fee calculation work sheet incorrectly, the permitting
authority shall bill the applicant for the corrected fee or
credit overpayments to the source's account.
(2) Each source notified by the permitting authority
of additional amounts due shall remit full payment within
30 days of receipt of an invoice from the permitting
authority.
(3) An owner or operator of a part 71 source who
thinks that the assessed fee is in error shall provide a
written explanation of the alleged error to the permitting
authority along with the assessed fee. The permitting
authority shall, within 90 days of receipt of the
correspondence, review the data to determine whether the
assessed fee was in error. If an error was made, the
overpayment shall be credited to the account of the part 71
source.
(k) Remittance procedure.
(1) Each remittance under this section shall be in
United States currency and shall be paid by money order,
bank draft, certified check, corporate check, or electronic
funds transfer payable to the order of the U.S.
Environmental Protection Agency.
(2) Each remittance shall be sent to the Environmental
Protection Agency to the address designated on the fee
calculation work sheet or the invoice.
(l) Penalty and interest assessment.
(1) The permitting authority shall assess interest on
payments which are received later than the date due. The
interest rate shall be the sum of the Federal short-term
rate determined by the Secretary of the Treasury in
accordance with section 6621(a)(2) of the Internal Revenue
Code of 1986, plus 3 percentage points.
(2) The permitting authority shall assess a penalty
charge of 50 percent of the fee amount if the fee is not
paid within 30 days of the payment due date.
(3) Part 71 sources shall be assessed a penalty of
50 percent on underpayments computed under paragraph (h)(3)
of this section when the underpayment is in excess of
20 percent of the initial estimated fee amount and interest
as computed under paragraph (l)(1) of this section on that
portion of the underpayment in excess of 20 percent of the
initial fee amount.
(m) Failure to remit fees. The permitting authority
shall not issue a final permit or permit revision until all
fees, interest and penalties assessed against a source under
this section are paid. The initial application of a source
shall not be found complete unless the source has paid all
fees owed.
(n) Adjustments of fee schedules.
(1) The fee schedules provided in paragraphs (c)(1)-
(4) of this section shall remain in effect until
December 31, 1996. Thereafter, the fee schedules shall be
changed annually by the percentage, if any, of any annual
increase in the Consumer Price Index.
(2) Part 71 permit program costs and fees will be
reviewed by the Administrator at least every two years, and
changes will be made to the fee schedule as necessary to
reflect permit program costs.
(3) When changes to a fee schedule are made based on
periodic reviews by the Administrator, the changes will be
published in the Federal Register as a proposed rule.
(o) Use of revenue. All fees, penalties, and interest
collected under this part shall be deposited in a special
fund in the U.S. Treasury, which thereafter shall be
available for appropriation, to remain available until
expended, subject to appropriation, to carry out the
activities required by this part.
71.10 Delegation of Part 71 Program.
(a) Delegation of part 71 program. The Administrator
may delegate, in whole or in part, with or without signature
authority, the authority to administer a part 71 operating
permits program to a State, eligible Tribe, local, or other
non-State agency in accordance with the provisions of this
section. In order to be delegated authority to administer a
part 71 program, the delegate agency must submit a legal
opinion from the Attorney General from the State, or the
attorney for the State, local, interstate, or eligible
Tribal agency that has independent legal counsel, stating
that the laws of the State, locality, interstate compact or
Indian Tribe provide adequate authority to carry out all
aspects of the delegated program. A Delegation of Authority
Agreement (Agreement) shall set forth the terms and
conditions of the delegation, shall specify the provisions
of this part that the delegate agency shall be authorized to
implement, and shall be entered into by the Administrator
and the delegate agency. The Agreement shall become
effective upon the date that both the Administrator and the
delegate agency have signed the Agreement. Once delegation
becomes effective, the delegate agency will be responsible,
to the extent specified in the Agreement, for administering
the part 71 program for the area subject to the Agreement.
(b) Publication of Delegation of Authority Agreement.
The Agreement shall be published in the Federal Register.
(c) Revision or revocation of Delegation of Authority
Agreement. An Agreement may be modified, amended, or
revoked, in part or in whole, by the Administrator after
consultation with the delegate agency.
(d) Transmission of information to the Administrator.
(1) When a part 71 program has been delegated in
accordance with the provisions of this section, except as
provided by 71.7(a)(1)(v) of this part, the delegate
agency shall provide to the Administrator a copy of each
application for a permit, permit renewal, or permit revision
(including any compliance plan, or any portion the
Administrator determines to be necessary to review the
application and permit effectively), each proposed permit,
and each final part 71 permit.
(2) The applicant may be required by the delegate
agency to provide a copy of the permit application
(including the compliance plan) directly to the
Administrator.
(3) Upon agreement with the Administrator, the
delegate agency may submit to the Administrator a permit
application summary form and any relevant portion of the
permit application and compliance plan, in place of the
complete permit application and compliance plan. To the
extent practicable, the preceding information shall be
provided in computer-readable format compatible with EPA's
national database management system.
(e) Retention of records. The records for each draft,
proposed, and final permit, and application for permit
renewal or revision shall be kept for a period of 5 years by
the delegate agency. The delegate agency shall also submit
to the Administrator such information as the Administrator
may reasonably require to ascertain whether the delegate
agency is implementing, administering, and enforcing the
delegated part 71 program in compliance with the
requirements of the Act and of this part.
(f) Prohibition of default issuance.
(1) For the purposes of Federal law and title V of the
Act, when a part 71 program has been delegated in accordance
with the provisions of this section, no part 71 permit
(including a permit renewal or revision) will be issued
until affected States have had an opportunity to review the
draft permit as required pursuant to 71.8(a) of this part
and EPA has had an opportunity to review the proposed
permit.
(2) To receive delegation of signature authority, the
legal opinion submitted by the delegate agency pursuant to
paragraph (a) of this section shall certify that no
applicable provision of State, local or Tribal law requires
that a part 71 permit or renewal be issued after a certain
time if the delegate agency has failed to take action on the
application (or includes any other similar provision
providing for default issuance of a permit), unless EPA has
waived such review for EPA and affected States.
Notwithstanding this prohibition on default permit issuance,
permits may be revised on a default basis pursuant to the
procedures in 71.7(e) and (f) of this part.
(g) EPA objection.
(1) No permit for which an application must be
transmitted to the Administrator under paragraph (d)(1) of
this section shall be issued if the Administrator objects to
its issuance in writing within 45 days of receipt of the
proposed permit and all necessary supporting information.
When a part 71 program has been delegated in accordance with
the provisions of this section, failure of the delegate
agency to do any of the following shall constitute grounds
for an objection by the Administrator:
(i) Comply with paragraph (d) of this section;
(ii) Submit any information necessary to review
adequately the proposed permit;
(iii) Process the permit under the procedures required
by 71.7 and 71.11 of this part;
(iv) Propose or issue a part 71 permit that complies
with applicable requirements of the Act or the requirements
under this part, except as provided in 71.7(a)(6) of this
part; or
(v) Comply with the requirements of 71.8(a) of this
part.
(2) Any EPA objection under paragraph (g)(1) of this
section shall include a statement of the Administrator's
reason(s) for objection and a description of the terms and
conditions that the permit must include to respond to the
objection. The Administrator will provide the permit
applicant a copy of the objection.
(3) If the delegate agency fails, within 90 days after
the date of an objection under paragraph (g)(1) of this
section, to revise and submit to the Administrator the
proposed permit in response to the objection, the proposed
permit shall not issue and thereafter the Administrator
shall issue a part 71 permit to the applicant in accordance
with the requirements of this part.
(h) Public petitions. In the case of a delegated
program, any interested person may petition the
Administrator to reopen a permit for cause as provided in
71.11(n) of this part.
(i) Appeal of permits. When a part 71 program has
been delegated with signature authority in accordance with
the provisions of this section, any permit applicant and any
person or affected State that submitted recommendations or
comments on the draft permit, or that participated in the
public hearing process may petition the Environmental
Appeals Board in accordance with 71.11(l)(1) of this part.
(j) Non-delegable conditions.
(1) The Administrator's authority to object to the
issuance of a part 71 permit cannot be delegated to an
agency not within EPA.
(2) The Administrator's authority to act upon
petitions submitted pursuant to paragraph (h) of this
section cannot be delegated to an agency not within EPA.
71.11 Administrative record, public participation, and
administrative review.
The provisions of paragraphs (a) through (j) of this
section shall apply to initial permit issuance, permit
renewals, permit reopenings, and significant permit
revisions but not to permit revisions qualifying for minor
permit revision procedures, de minimis permit revision
procedures, or administrative amendments. The provisions of
paragraphs (k), (l), and (m) of this section shall apply to
all permit proceedings.
(a) Draft permits.
(1) The permitting authority shall promptly provide
notice to the applicant of whether the application is
complete pursuant to 71.7(a)(3) of this part.
(2) Once an application for an initial permit, permit
revision, or permit renewal is complete, the permitting
authority shall decide whether to prepare a draft permit or
to deny the application.
(3) If the permitting authority initially decides to
deny the permit application, it shall issue a notice of
intent to deny. A notice of intent to deny the permit
application is a type of draft permit and follows the same
procedures as any draft permit prepared under this section.
If the permitting authority's final decision is that the
initial decision to deny the permit application was
incorrect, it shall withdraw the notice of intent to deny
and proceed to prepare a draft permit under paragraph (a)(4)
of this section.
(4) If the permitting authority decides to prepare a
draft permit, it shall prepare a draft permit that contains
the permit conditions required under 71.6 of this part.
(5) All draft permits prepared under this section
shall be publicly noticed and made available for public
comment.
(b) Statement of basis. The permitting authority
shall prepare a statement of basis for every draft permit
subject to this section. The statement of basis shall
briefly describe the derivation of the conditions of the
draft permit and the reasons for them or, in the case of
notices of intent to deny or terminate, reasons supporting
the initial decision. The statement of basis shall be sent
to the applicant and, on request, to any other person.
(c) Administrative record for draft permits.
(1) The provisions of a draft permit shall be based on
the administrative record defined in this section.
(2) For preparing a draft permit, the administrative
record shall consist of:
(i) The application and any supporting data furnished
by the applicant;
(ii) The draft permit or notice of intent to deny the
application or to terminate the permit;
(iii) The statement of basis;
(iv) All documents cited in the statement of basis;
and
(v) Other documents contained in the supporting file
for the draft permit.
(3) Material readily available at the permitting
authority or published material that is generally available,
and that is included in the administrative record under
paragraphs (b) and (c) of this section need not be
physically included with the rest of the record as long as
it is specifically referred to in the statement of basis.
(d) Public notice of permit actions and public comment
period.
(1) Scope.
(i) The permitting authority shall give public notice
that the following actions have occurred:
(A) A permit application has been initially denied
under paragraph (a) of this section;
(B) A draft permit has been prepared under
paragraph (a) of this section;
(C) A hearing has been scheduled under paragraph (f)
of this section;
(D) A public comment period has been reopened under
paragraph (h) of this section;
(E) An appeal has been granted under paragraph (l)(3)
of this section.
(ii) No public notice is required in the case of
administrative permit revisions, or when a request for
permit revision, revocation and reissuance, or termination
has been denied under paragraph (a)(2) of this section.
Written notice of that denial shall be given to the
requester and to the permittee.
(iii) Public notices may describe more than one permit
or permit action.
(2) Timing.
(i) Public notice of the preparation of a draft
permit, (including a notice of intent to deny a permit
application), shall allow at least 30 days for public
comment.
(ii) Except as provided under 71.7(g)(5)(ii)(C) of
this part, public notice of a public hearing shall be given
at least 30 days before the hearing. Public notice of the
hearing may be given at the same time as public notice of
the draft permit and the two notices may be combined.
(iii) The permitting authority shall provide such
notice and opportunity for participation to affected States
on or before the time that the permitting authority provides
this notice to the public.
(3) Methods. Public notice of activities described in
paragraph (d)(1)(i) of this section shall be given by the
following methods:
(i) By mailing a copy of a notice to the following
persons (any person otherwise entitled to receive notice
under paragraph (d) of this section may waive his or her
rights to receive notice for any permit):
(A) The applicant;
(B) Affected States;
(C) Air pollution control agencies of affected States,
Tribal and local air pollution control agencies which have
jurisdiction over the area in which the source is located,
the chief executives of the city and county where the source
is located, any comprehensive regional land use planning
agency and any State or Federal Land Manager whose lands may
be affected by emissions from the source;
(D) Any unit of local government including the local
emergency planning committee, having jurisdiction over the
area where the source is located and to each State agency
having any authority under State law with respect to the
operation of such source;
(E) Persons on a mailing list developed by:
(1) Including those who request in writing to be on
the list;
(2) Soliciting persons for "area lists" from
participants in past permit proceedings in that area; and
(3) Notifying the public of the opportunity to be put
on the mailing list through periodic publication in the
public press and, where deemed appropriate by the permitting
authority, in such publications as regional and State funded
newsletters, environmental bulletins, or State law journals.
The permitting authority may update the mailing list from
time to time by requesting written indication of continued
interest from those listed. The permitting authority may
delete from the list the name of any person who fails to
respond to such a request.
(ii) By publication of a notice in a daily or weekly
newspaper of general circulation within the area affected by
the source.
(iii) By any other method reasonably calculated to
give actual notice of the action in question to the persons
potentially affected by it, including press releases or any
other forum or medium to elicit public participation.
(4) Contents.
(i) All public notices. All public notices issued
under this subpart shall contain the following minimum
information:
(A) The name and address of the permitting authority
processing the permit;
(B) The name and address of the permittee or permit
applicant and, if different, of the facility regulated by
the permit, except in the case of draft general permits;
(C) The activity or activities involved in the permit
action;
(D) The emissions change involved in any permit
revision;
(E) The name, address, and telephone number of a
person whom interested persons may contact for instructions
on how to obtain additional information, such as a copy of
the draft permit, the statement of basis, the application,
relevant supporting materials, and other materials available
to the permitting authority that are relevant to the
permitting decision.
(F) A brief description of the comment procedures
required by paragraph (e) of this section, a statement of
procedures to request a hearing (unless a hearing has
already been scheduled) and other procedures by which the
public may participate in the final permit decision;
(G) The location of the administrative record, the
times at which the record will be open for public
inspection, and a statement that all data submitted by the
applicant are available as part of the administrative
record; and
(H) Any additional information considered necessary or
proper.
(ii) Public notices for hearings. Public notice of a
hearing may be combined with other notices required under
paragraph (d)(1) of this section. Any public notice of a
hearing under paragraph (f) of this section shall contain
the following information:
(A) The information described in paragraph (d)(4)(i)
of this section;
(B) Reference to the date of previous public notices
relating to the permit;
(C) The date, time, and place of the hearing; and
(D) A brief description of the nature and purpose of
the hearing, including the applicable rules and the comment
procedures.
(5) All persons identified in paragraphs (d)(3)(i)(A),
(B), (C), (D), and (E) of this section shall be mailed a
copy of the public hearing notice described in
paragraph (d)(4)(ii) of this section.
(e) Public comments and requests for public hearings.
During the public comment period provided under
paragraph (a) of this section, any interested person may
submit written comments on the draft permit and may request
a public hearing, if no hearing has already been scheduled.
A request for a public hearing shall be in writing and shall
state the nature of the issues proposed to be raised at the
hearing. All comments shall be considered in making the
final decision and shall be answered as provided in
paragraph (j) of this section. The permitting authority
will keep a record of the commenters and of the issues
raised during the public participation process, and such
records shall be available to the public.
(f) Public hearings.
(1) The permitting authority shall hold a hearing
whenever it finds, on the basis of requests, a significant
degree of public interest in a draft permit.
(2) The permitting authority may also hold a public
hearing at its discretion, whenever, for instance, such a
hearing might clarify one or more issues involved in the
permit decision.
(3) Public notice of the hearing shall be given as
specified in paragraph (d) of this section.
(4) Whenever a public hearing is held, the permitting
authority shall designate a Presiding Officer for the
hearing who shall be responsible for its scheduling and
orderly conduct.
(5) Any person may submit oral or written statements
and data concerning the draft permit. Reasonable limits may
be set upon the time allowed for oral statements, and the
submission of statements in writing may be required. The
public comment period under paragraph (d) of this section
shall be automatically extended to the close of any public
hearing under this section. The hearing officer may also
extend the comment period by so stating at the hearing.
(6) A tape recording or written transcript of the
hearing shall be made available to the public.
(g) Obligation to raise issues and provide information
during the public comment period. All persons, including
applicants, who believe any condition of a draft permit is
inappropriate or that the permitting authority's initial
decision to deny an application, terminate a permit, or
prepare a draft permit is inappropriate, must raise all
reasonably ascertainable issues and submit all reasonably
ascertainable arguments supporting their position by the
close of the public comment period (including any public
hearing). Any supporting materials that are submitted shall
be included in full and may not be incorporated by
reference, unless they are already part of the
administrative record in the same proceeding, or consist of
State or Federal statutes and regulations, EPA documents of
general applicability, or other generally available
reference materials. In the case of a program delegated
pursuant to 71.10 of this part, if requested by the
Administrator, the permitting authority shall make
supporting materials not already included in the
administrative record available to EPA. The permitting
authority may direct commenters to provide such materials
directly to EPA. A comment period longer than 30 days may
be necessary to give commenters a reasonable opportunity to
comply with the requirements of this section. Additional
time shall be granted to the extent that a commenter who
requests additional time demonstrates the need for such
time.
(h) Reopening of the public comment period.
(1) The permitting authority may order the public
comment period reopened if the procedures of paragraph (h)
of this section could expedite the decision making process.
When the public comment period is reopened under
paragraph (h) of this section, all persons, including
applicants, who believe any condition of a draft permit is
inappropriate or that the permitting authority's initial
decision to deny an application, terminate a permit, or
prepare a draft permit is inappropriate, must submit all
reasonably available factual grounds supporting their
position, including all supporting material, by a date not
less than 30 days after public notice under paragraph (h)(2)
of this section, set by the permitting authority.
Thereafter, any person may file a written response to the
material filed by any other person, by a date, not less than
20 days after the date set for filing of the material, set
by the permitting authority.
(2) Public notice of any comment period under this
paragraph shall identify the issues to which the
requirements of 71.11(h)(1)-(4) of this part shall apply.
(3) On its own motion or on the request of any person,
the permitting authority may direct that the requirements of
paragraph (h)(1) of this section shall apply during the
initial comment period where it reasonably appears that
issuance of the permit will be contested and that applying
the requirements of paragraph (h)(1) of this section will
substantially expedite the decision making process. The
notice of the draft permit shall state whenever this has
been done.
(4) A comment period of longer than 30 days may be
necessary in complicated proceedings to give commenters a
reasonable opportunity to comply with the requirements of
this section. Commenters may request longer comment periods
and they may be granted to the extent the permitting
authority finds it necessary.
(5) If any data, information, or arguments submitted
during the public comment period appear to raise substantial
new questions concerning a permit, the permitting authority
may take one or more of the following actions:
(i) Prepare a new draft permit, appropriately
modified;
(ii) Prepare a revised statement of basis, and reopen
the comment period; or
(iii) Reopen or extend the comment period to give
interested persons an opportunity to comment on the
information or arguments submitted.
(6) Comments filed during the reopened comment period
shall be limited to the substantial new questions that
caused the reopening. The public notice shall define the
scope of the reopening.
(7) Public notice of any of the above actions shall be
issued under paragraph (d) of this section.
(i) Issuance and effective date of permit.
(1) After the close of the public comment period on a
draft permit, the permitting authority shall issue a final
permit decision. The permitting authority shall notify the
applicant and each person who has submitted written comments
or requested notice of the final permit decision. This
notice shall include reference to the procedures for
appealing a decision on a permit. For the purposes of this
section, a final permit decision means a final decision to
issue, deny, revise, revoke and reissue, renew, or terminate
a permit.
(2) A final permit decision shall become effective
immediately upon issuance of the decision unless a later
effective date is specified in the decision.
(j) Response to comments.
(1) At the time that any final permit decision is
issued, the permitting authority shall issue a response to
comments. This response shall:
(i) Specify which provisions, if any, of the draft
permit have been changed in the final permit decision, and
the reasons for the change; and
(ii) Briefly describe and respond to all significant
comments on the draft permit raised during the public
comment period, or during any hearing.
(2) Any documents cited in the response to comments
shall be included in the administrative record for the final
permit decision as defined in paragraph (k) of this section.
If new points are raised or new material supplied during the
public comment period, the permitting authority may document
its response to those matters by adding new materials to the
administrative record.
(3) The response to comments shall be available to the
public.
(4) The permitting authority will notify in writing
any affected State of any refusal to accept recommendations
for the permit that the State submitted during the public or
affected State review period.
(k) Administrative record for final permits.
(1) The permitting authority shall base final permit
decisions on the administrative record defined in
paragraph (k)(2) of this section.
(2) The administrative record for any final permit
shall consist of:
(i) All comments received during any public comment
period, including any extension or reopening;
(ii) The tape or transcript of any hearing(s) held;
(iii) Any written material submitted at such a
hearing;
(iv) The response to comments and any new materials
placed in the record;
(v) Other documents contained in the supporting file
for the permit;
(vi) The final permit;
(vii) The application and any supporting data
furnished by the applicant;
(viii) The draft permit or notice of intent to deny
the application or to terminate the permit;
(ix) The statement of basis for the draft permit;
(x) All documents cited in the statement of basis;
(xi) Other documents contained in the supporting file
for the draft permit.
(3) The additional documents required under
paragraph (k)(2) of this section should be added to the
record as soon as possible after their receipt or
publication by the permitting authority. The record shall
be complete on the date the final permit is issued.
(4) Material readily available at the permitting
authority, or published materials which are generally
available and which are included in the administrative
record under the standards of paragraph (j) of this section
need not be physically included in the same file as the rest
of the record as long as it is specifically referred to in
the statement of basis or in the response to comments.
(l) Appeal of permits.
(1) Within 30 days after a final permit decision has
been issued, any person who filed comments on the draft
permit or participated in the public hearing may petition
the Environmental Appeals Board to review any condition of
the permit decision. Any person who failed to file comments
or failed to participate in the public hearing on the draft
permit may petition for administrative review only to the
extent of the changes from the draft to the final permit
decision. Except for revisions qualifying for minor permit
revision procedures, de minimis permit revision procedures,
or administrative amendments, the 30-day period within which
a person may request review under this section begins with
the service of notice of the permitting authority's action
unless a later date is specified in that notice. For
revisions processed pursuant to minor permit revision
procedures, the 30-day period within which a person may
request review under this section begins on the date after
the permitting authority notifies the source and commenters
of the final permit action. For revisions processed
pursuant to de minimis permit revision procedures, the
30-day period within which a person may request review under
this section begins on the date after the expiration of the
permitting authority's period to disapprove the revision or
revoke the revision in response to a citizen petition,
whichever is applicable. For revisions processed pursuant
to administrative amendment procedures, the 30-day period
within which a person may request review under this section
begins on the date following the expiration of the 60-day
period after which the administrative amendment is
effective. The petition shall include a statement of the
reasons supporting that review, including a demonstration
that any issues raised were raised during the public comment
period (including any public hearing) to the extent required
by these regulations unless the petitioner demonstrates that
it was impracticable to raise such objections within such
period or unless the grounds for such objection arose after
such period, and, when appropriate, a showing that the
condition in question is based on:
(i) A finding of fact or conclusion of law which is
clearly erroneous; or
(ii) An exercise of discretion or an important policy
consideration which the Environmental Appeals Board should,
in its discretion, review.
(2) The Board may also decide on its initiative to
review any condition of any permit issued under this part.
The Board must act under paragraph (l) of this section
within 30 days of the service date of notice of the
permitting authority's action.
(3) Within a reasonable time following the filing of
the petition for review, the Board shall issue an order
either granting or denying the petition for review. To the
extent review is denied, the conditions of the final permit
decision become final agency action. Public notice of any
grant of review by the Board under paragraph (l)(1) or (2)
of this section shall be given as provided in paragraph (d)
of this section. Public notice shall set forth a briefing
schedule for the appeal and shall state that any interested
person may file an amicus brief. Notice of denial of review
shall be sent only to the permit applicant and to the
person(s) requesting review.
(4) A petition to the Board under paragraph (l)(1) of
this section is, under 42 U.S.C. 307(b), a prerequisite to
seeking judicial review of the final agency action.
(5) For purposes of judicial review, final agency
action occurs when a final permit is issued or denied by the
permitting authority and agency review procedures are
exhausted. A final permit decision shall be issued by the
permitting authority:
(i) When the Board issues notice to the parties that
review has been denied;
(ii) When the Board issues a decision on the merits of
the appeal and the decision does not include a remand of the
proceedings; or
(iii) Upon the completion of remand proceedings if the
proceedings are remanded, unless the Board's remand order
specifically provides that appeal of the remand decision
will be required to exhaust administrative remedies.
(6) Neither the filing of a petition for review of any
condition of the permit or permit decision nor the granting
of an appeal by the Environmental Appeals Board shall stay
the effect of any contested permit or permit condition.
(m) Computation of time.
(1) Any time period scheduled to begin on the
occurrence of an act or event shall begin on the day after
the act or event.
(2) Any time period scheduled to begin before the
occurrence of an act or event shall be computed so that the
period ends on the day before the act or event, except as
otherwise provided.
(3) If the final day of any time period falls on a
weekend or legal holiday, the time period shall be extended
to the next working day.
(4) Whenever a party or interested person has the
right or is required to act within a prescribed period after
the service of notice or other paper upon him or her by
mail, 3 days shall be added to the prescribed time.
(n) Public petitions to the Administrator.
(1) Any interested person (including the permittee)
may petition the Administrator to reopen a permit for cause,
and the Administrator may commence a permit reopening on his
or her own initiative. However, the Administrator shall not
revise, revoke and reissue, or terminate a permit except for
the reasons specified in 71.7(i)(1) or 71.6(a)(5)(i).
All requests shall be in writing and shall contain facts or
reasons supporting the request.
(2) If the Administrator decides the request is not
justified, he or she shall send the requester a brief
written response giving a reason for the decision. Denials
of requests for revision, revocation and reissuance, or
termination are not subject to public notice, comment, or
hearings. Denials by the Administrator may be informally
appealed to the Environmental Appeals Board by a letter
briefly setting forth the relevant facts. The Board may
direct the Administrator to begin revision, revocation and
reissuance, or termination proceedings under paragraph
(n)(3) of this section. The appeal shall be considered
denied if the Board takes no action within 60 days after
receiving it. This informal appeal is, under 42 U.S.C. 307,
a prerequisite to seeking judicial review of EPA action in
denying a request for revision, revocation and reissuance,
or termination.
(3) If the Administrator decides the request is
justified and that cause exists to revise, revoke and
reissue or terminate a permit, he or she shall initiate
proceedings to reopen the permit pursuant to 71.7(i) or
71.7(j) of this part.
71.12 Prohibited acts.
Violations of any applicable requirement; any permit
term or condition; any fee or filing requirement; any duty
to allow or carry out inspection, entry, or monitoring
activities; or any regulation or order issued by the
permitting authority pursuant to this part are violations of
the Act and are subject to full Federal enforcement
authorities available under the Act.
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