ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 9, 55 and 71
[FRL - ]
Federal Operating Permits Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
SUMMARY: This action promulgates regulations setting forth
the procedures and terms under which the Administrator will
administer programs for issuing operating permits to covered
stationary sources, pursuant to title V of the Clean Air Act
as amended in 1990 (Act). Although the primary
responsibility for issuing operating permits to such sources
rests with State, local, and Tribal air agencies, EPA will
remedy gaps in air quality protection by administering a
Federal operating permits program in areas lacking an EPA-
approved or adequately administered operating permits
program. Federally issued permits will clarify which
requirements apply to sources and will enhance understanding
of and compliance with air quality regulations.
EFFECTIVE DATE: [30 days following date of publication].
FOR FURTHER INFORMATION CONTACT: Candace Carraway
(telephone 919-541-3189) or Kirt Cox (telephone
919-541-5399), U. S. Environmental Protection Agency, Office
of Air Quality Planning and Standards, Information Transfer
and Program Integration Division, Mail Drop 12, Research
Triangle Park, North Carolina 27711.
SUPPLEMENTARY INFORMATION:
Docket. Supporting information used in developing the
promulgated rules is contained in Docket No. A-93-51.
Supporting information used in developing 40 CFR part 70 is
contained in Dockets No. A-90-33 and No. A-93-50. These
dockets are available for public inspection and copying
between 8:30 a.m. and 3:30 p.m. Monday through Friday at
EPA's Air Docket, Room M-1500, Waterside Mall, 401 M Street
SW, Washington, D.C. 20460. A reasonable fee may be charged
for copying.
Background Information Document. A background information
document (BID) for the promulgated rule may be obtained from
the docket. Please refer to "Federal Operating Permits
Program - Response to Comments." The BID contains a summary
of the public comments made on the proposed Federal
Operating Permits Program rule and EPA responses to the
comments.
Regulated entities. Entities potentially regulated by this
action are major sources, affected sources under title IV of
the Act (acid rain sources), solid waste incineration units
required to obtain a permit under section 129 of the Act,
and those areas sources subject to a standard under section
111 or 112 of the Act which have not been exempted or
deferred from title V permitting requirements. Regulated
categories and entities include:
Category
Examples of regulated entities Industry Major sources under title I or section 112
of the Act; affected sources under title IV
of the Act (acid rain sources); solid waste
incineration units required to obtain a
permit under section 129 of the Act; area
sources subject to new source performance
standards or national emission standards
for hazardous air pollutants that are not
exempted or deferred from permitting
requirements under title V.
This table is not intended to be exhaustive, but rather
provides a guide for readers regarding entities likely to be
regulated by this action. This table lists the types of
entities that EPA is now aware could potentially be
regulated by this action. Other types of entities not
listed in the table could also be regulated. To determine
whether your facility is regulated by this action, you
should carefully examine the applicability criteria in
section 71.3(a) of the rule. If you have questions
regarding the applicability of this action to a particular
entity, consult the person listed in the preceding "FOR
FURTHER INFORMATION CONTACT" section or the EPA Regional
Office that is administering the part 71 permit program for
the State or area in which the relevant source or facility
is located.
Outline. The information presented in this preamble is
organized as follows:
I. Background
II. Summary of Promulgated Rule
III. Significant Changes to the Proposed Rule
IV. Administrative Requirements
A. Docket
B. Executive Order 12286
C. Regulatory Flexibility Act
D. Paperwork Reduction Act
E. Unfunded Mandates Reform Act
I. Background
A. Background of EPA's Development of the Proposed
Part 71 Rule
Title V of the Act requires that if a permits program
meeting the requirements of title V has not been approved
for any State by November 15, 1995, EPA must promulgate,
administer, and enforce a Federal title V program for that
State (42 U.S.C. section 7661a(d)(3)). Thus, from the date
of enactment of the 1990 Amendments to the Act, EPA was
subject to a 5-year deadline to establish a Federal program
for States that do not obtain EPA approval of their State
programs within that time. The Act had also placed EPA
under a 1-year deadline to promulgate regulations
establishing the minimum elements of approvable State permit
programs (42 U.S.C. section 7661a(b)). The EPA promulgated
its regulations establishing these criteria, codified at 40
CFR part 70 (the part 70 rule), on July 21, 1992 (57 FR
32250). States were then to submit their title V programs
for EPA review by November 15, 1993, and EPA was to approve
or disapprove those submitted programs within 1 year of
receiving them (42 U.S.C. section 7661a(d)(1)). Thus, under
the temporal scheme of title V, EPA was to approve or
disapprove timely submitted State title V programs by
November 15, 1994, exactly 1 year before EPA's duty to
establish a Federal program for unapproved States would
ripen.
Almost immediately upon promulgation of part 70,
numerous industry, State and local government, and
environmentalist petitioners challenged EPA's final rule in
litigation in the Court of Appeals. See Clean Air
Implementation Project v. EPA, No. 92-1303 (D.C. Cir.).
Petitioners identified dozens of issues to which they
objected in the part 70 rule, and EPA decided to conduct
broad-based settlement discussions with all petitioners
concerning these issues. These discussions occurred for
over a year following the commencement of the litigation,
and resulted in EPA, with the consultation of all of the
litigants, developing proposed revisions to many provisions
in the part 70 rule. These provisions mainly concerned the
flexibility provisions of part 70, which governed when
permits would need to be revised to reflect changes in
operation at sources, and the procedures by which permits
would be revised. On August 29, 1994, EPA published
proposed substantial revisions to part 70 reflecting the
outcome of these discussions (59 FR 44460)(hereafter "August
1994 proposed revisions to part 70"). That proposal
reflected EPA's most current thinking at the time concerning
the proper implementation of title V, and departed in
numerous respects from positions taken in the existing
promulgated part 70 rule.
When EPA began developing part 71 in the fall of 1993,
settlement discussions concerning part 70 were still ongoing
and were yielding what appeared to be fruitful results. The
Agency believed at the time that any needed revisions to
part 70 would be finalized well in advance of the deadline
for establishing any necessary Federal programs, and so
decided to develop part 71 based on contemplated proposed
revisions to part 70, as EPA wished to model part 71 on its
long-term implementation goals for title V, rather than on
provisions of a part 70 rule that EPA did not believe would
remain as promulgated in the current rule.
When EPA published its proposed revisions to part 70 in
August 1994, the Agency still believed that the revisions
would be finalized in time for EPA to base its part 71
Federal program rule on the revised part 70. Consequently,
when EPA published its proposed part 71 regulations on April
27, 1995, the proposal was based on the August 1994 proposed
revisions to part 70 (60 FR 20804; hereafter, "part 71
proposal"). The part 71 proposal thus contained provisions
concerning critical definitions under title V, the scope of
applicability of the program to sources, requirements
governing applications and permit content, and, most
significantly, operational flexibility and permit revisions
that departed from the current part 70 rule's corresponding
provisions. In the proposal notice, the Agency specifically
solicited comment on whether the Agency had appropriately
based part 71 upon the relevant provision of the existing
part 70 rule and the recently proposed revision to part 70.
See 60 FR at 20805.
At the time of proposal of part 71, the Agency was
aware of many adverse comments on the August 1994 proposed
revisions to part 70, and EPA had engaged in discussions
with stakeholders to obtain recommendations for publishing a
supplemental proposal to revise the flexibility provisions
of part 70. See 60 FR at 20805, 20817. The part 71
proposal notice indicated that the Agency believed it might
not be possible to promulgate final permit revision
procedures for part 71, in light of the ongoing discussions
to develop part 70 permit revision procedures in time to
meet the statutory deadline for establishing Federal
programs in States lacking approved part 70 programs. As a
result, the notice suggested that EPA may have to finalize
the part 71 rule in two phases, the first without any
provisions for revising permits, which would be addressed in
a later supplemental proposal. Id. Indeed, EPA's
supplemental proposal for both parts 70 and 71, published on
August 31, 1995, described how part 71's future permit
revision procedures would be modelled upon the part 70
procedures for permit revisions proposed in that notice (60
FR 45530; hereafter, "August 1995 supplemental proposal").
B. The Need for Part 71 to Facilitate Transition
In the part 71 proposal notice, EPA stressed the need
for implementation of part 71 to facilitate a smooth
transition to State implementation of title V through
approved part 70 programs. See 60 FR at 20805, 20816. The
EPA continues to believe that Congress envisioned that
States would have primary responsibility for implementing
title V, just as they do for implementing much of the rest
of the Act. See, for example, section 101(a)(3) of the Act,
in which Congress found that air pollution prevention and
air pollution control at its source is the primary
responsibility of States and local governments (42 U.S.C.
section 7401(a)(3)). Note also that under title V of the
Act, Congress gave States the initial opportunity to develop
and administer title V programs, while directing EPA to
function as a backstop if States are unable to adopt
provisions under State law to take on title V
responsibilities, rather than directing EPA to establish the
Federal program first and then allowing States to apply to
take over title V administration, as under prior permitting
programs such as the prevention of significant deterioration
(PSD) and the national pollutant discharge elimination
system (NPDES) under the Clean Water Act.
The EPA believes that granting States primary
responsibility to implement title V makes good policy sense.
States are far better positioned than EPA to administer
permitting programs covering their resident sources for
several reasons. First, States are more familiar with the
operational characteristics of resident sources, and with
the applicable requirements to which they are subject. In
having had the lead on developing State implementation plans
(SIP's) and implementing other provisions of the Act that
apply to these sources, States have developed substantial
expertise in, among other things, running air permit
programs that govern new construction and changes in
emissions of air pollutants such as the new source review
(NSR) and PSD programs. States have developed enforcement
programs based on this structure, and are able to coordinate
their permitting programs with the goals and needs of their
overall air pollution control programs. Finally, compared
to EPA Regional offices, States are simply closer to their
sources, have greater resources, and are better able to
respond to the regulated community and its needs for
expeditious permit processing.
In light of this, EPA has repeatedly stated its belief
that federally-implemented part 71 programs would be of
short duration, lasting only until the few remaining States
that have not developed approvable part 70 programs are able
to submit title V programs that meet the requirements of the
Act. Rather than viewing part 71 only as a means of
exerting leverage in States that have not yet adopted
adequate part 70 programs, EPA has also viewed part 71 as an
opportunity to aid States in taking up responsibility to
implement title V. To this end, EPA has attempted to
structure the rule so that States in which part 71 programs
are established will be able to use the program as an aid to
adopting and implementing their own part 70 programs. For
example, today's rule provides that States can take
delegation of administration of the Federal program in their
States. If a State that for whatever reason has not been
successful in developing its own statutes and regulations to
implement title V is nevertheless capable of running a
Federal program, EPA sees no reason not to offer the State
the opportunity to more efficiently run the permit program
than EPA believes the Agency could. The EPA also believes
that the experience of running the Federal program may
assist States in overcoming any remaining hurdles that have
so far prevented them from adopting adequate title V
programs under State law.
C. Basing Part 71 on the Part 70 Program
In the part 71 proposal notice, EPA stated its view
that it is appropriate to model part 71 procedures on those
required by part 70, in order to promote national
consistency between title V programs that are administered
throughout the country. See 60 FR at 20816. Such national
consistency would ensure that sources are not faced with
substantially different programs simply because EPA, as
opposed to State agencies, is the relevant title V
permitting authority, would promote uniformity in affected
State and public participation, and would provide a level
playing field for sources. Basing part 71 on part 70 would
also encourage States that are still developing their title
V programs to take delegation of the part 71 program, as it
would be more consistent with the programs they are
preparing to implement under State law. States taking
delegation would in turn ensure smoother transition to State
administration of part 70 programs, as sources would have
already become familiar with the State as the title V
permitting authority and would not need to restart their
permit application process anew when the State program
receives EPA approval.
Since at the time the part 71 proposal was being
developed it appeared to EPA that part 70 would soon be
revised in many significant respects, EPA chose to base the
proposal upon the recent proposed revisions to part 70,
rather than on the existing promulgated rule. This was due
in part to the fact that the August 1994 proposed revisions
to part 70 addressed a number of basic issues under title V
that necessarily would govern how those issues are addressed
in part 71 (such as the definition of major source and the
necessary provisions to implement section 502(b)(10) of the
Act), and in part to the Agency's wish to provide in the
Federal rule many of the benefits of the August 1994
proposed revisions to part 70. As noted above, however, EPA
specifically asked commenters to address whether EPA had
inappropriately either followed or departed from the
approaches taken in both the current part 70 rule and its
proposed revisions.
Echoing their comments on the August 1994 proposed
revisions to part 70, industry commenters unanimously argued
that the permit revisions procedures contained in the part
71 proposal were too complex and confusing and would hinder
sources' abilities to make rapid changes in response to
market needs. In addition, most industry commenters
presented three general arguments in response to EPA's
proposal to establish a uniform national part 71 rule based
on the August 1994 proposed revisions to part 70. The first
type of argument was that EPA should not promulgate a
uniform national part 71 rule at all, but rather should
develop part 71 programs case-by-case, taking into account
the specific characteristics of the State's existing air
program, and basing the State's part 71 program as much as
possible on the State's part 70 program that it has
developed to date and that EPA had not found to be
inadequate. According to this argument, the best way to
facilitate transition from Federal to State implementation
of title V is to make sure the Federal and State programs
are virtually identical in each relevant State, even if that
means the Federal programs would differ from State to State.
It would follow that EPA should approve whatever adequate
elements a State had adopted for its title V program, and
then only fill the remaining gaps with Federal provisions as
necessary. This argument also held that section 502 of the
Act actually requires a case-by-case approach to developing
part 71 programs for States, and that the Act does not
authorize EPA to promulgate a nationally uniform rule.
While EPA agrees that in theory the smoothest
transition from Federal to State implementation might occur
where the Federal program is identical to the State's, the
Agency does not agree that it is inappropriate to promulgate
a nationally uniform rule for part 71. At the outset, EPA
disagrees with the assertion that the Agency lacks legal
authority to establish a nationally uniform rule for part
71. While section 502(d)(3) of the Act does require EPA to
promulgate, administer and enforce a title V program "for"
any State that does not obtain part 70 approval, 42 U.S.C.
section 7661a(d)(3), that language does not compel a
separate State-by-State approach to establishing a Federal
title V program; nor does it compel a Federal program that
is based on the State's existing but as yet unapproved State
program. Indeed, EPA would be hard-pressed to base a
Federal program on a State program where no State program
has ever been adopted or submitted for EPA evaluation. Even
if a State had adopted and submitted a program, EPA stresses
that the Agency can only evaluate the adequacy of State
programs through notice and comment rulemaking, which might
not occur before a Federal program is due. The EPA believes
Congress must have recognized the possibility that EPA would
be called upon to establish a Federal program even where a
State has never adopted any State program of its own or
where a program had not been submitted in time for EPA to
find it adequate; in such situations, it would be impossible
for EPA to base the Federal program on the State's. The EPA
also believes that the resource burden of establishing and
implementing different case-by-case programs for States
would overwhelm EPA Regional offices and establishing a
generic template for part 71 is a far more efficient use of
Agency resources to get the Federal program up and running.
The EPA has consequently concluded that a nationally uniform
regulation is necessary for purposes of carrying out the
Agency's functions under title V. Section 301(a)(1) of the
Act authorizes EPA to prescribe such regulations as are
necessary to carry out the Administrator's functions under
the Act (42 U.S.C. section 7601(a)(1)). Thus, EPA believes
it has ample statutory authority to establish the most
efficient and nationally consistent part 71 regulation
possible. Finally, EPA notes that EPA's other permitting
programs under its environmental statutes, such as the NPDES
program and the PSD program, are governed by nationally
uniform regulations, implementation of which have been very
successful. The EPA sees no reason to depart from this
established approach for purposes of running Federal title V
programs, especially since Congress clearly did anticipate
that EPA would first address title V through establishing
regulations that would govern the minimum elements of title
V programs to be administered by any air pollution control
agency. See section 502(b) of the Act, 42 U.S.C.
section 7661a(b).
The second type of industry argument in response to
basing the part 71 proposal on the proposed revisions to
part 70 stressed that EPA should delay promulgation of any
part 71 rule until the revisions to part 70 are finalized.
This argument pointed out that promulgating part 71 based on
the August 1994 proposed revisions to part 70 would result
in the part 71 rule being based on an approach that the
Agency itself had begun to revise in developing the
supplemental proposed revisions to part 70 (which were
eventually published just 4 months after the date of the
part 71 proposal). The argument noted that since EPA is
envisioning substantial changes to the part 70 rule, the
part 71 rule should not finalize title V issues that will
remain in transition until the part 70 rule is finally
revised. This argument also specifically responded
adversely to EPA's statement in the proposal that it may be
necessary to split finalization of part 71 into two phases
in which the operational flexibility and permit revision
procedures would remain reserved until a second phase. In
the view of these commenters, such provisions are critical
components of any part 71 rule that is adopted, and it would
not be appropriate to leave them out of part 71 for any
unspecified time. This argument also stated that finalizing
part 71 now based upon the proposed revisions to part 70
would actually impede transition to approved State part 70
programs, since the Federal program, and the approved State
program based on the current part 70 that replaces it, would
take very different approaches to such fundamental issues as
applicability of the program, operational flexibility and
permit revision procedures. Finally, this argument offered
a theory that title V actually does not require EPA to adopt
part 71 programs for States until May 15, 1997; under this
theory, a commenter argued that the Act actually gives
States until May 15, 1995, rather than November 15, 1993, to
submit initial title V programs, since States have 18 months
following the first "due date" to submit any remedies to
deficient programs and avoid sanctions that would fall after
that 18-month period. The commenter would interpret the
date on which the 18-month period expires as the date
referred to in section 502(d)(3) and argues that EPA is not
required to promulgate a Federal program until 2 years after
the expiration of the 18-month period.
First, EPA is not persuaded by the commenter's argument
that part 71 programs are not due until May 15, 1997.
Section 502(d)(1) of the Act clearly provides that States
are to submit their title V programs "[n]ot later than 3
years after the date of enactment of the Clean Air Act
Amendments of 1990," 42 U.S.C. section 7661a(d)(1), which
occurred on November 15, 1990. Moreover, section 502(d)(3)
clearly refers to "the date required for submission of such
a program under paragraph (1) (of section 502)," 42 U.S.C.
section 7661a(d)(3), as the trigger for the 2-year period
after which EPA must establish Federal programs. There is
no reference to any 18-month grace-period in section
502(d)(3), and EPA disputes the assertion that the date on
which a sanctions clock expires under section 502(d)(2) can
be viewed as the "real" deadline for submission of State
programs in the face of the plain language of section
502(d)(1) and section 502(d)(3)'s reference to the deadline
in section 502(d)(1). Thus, while EPA is sympathetic to
concerns that finalizing part 71 in advance of the Agency
finally revising part 70 could result in the Agency
promulgating provisions that are essentially moving targets
in the Federal rule, EPA does not believe it has the
authority to delay issuance of part 71 beyond the deadline
prescribed by Congress. Moreover, as a policy matter, EPA
believes it is necessary to put part 71 in place to aid
States that to date have unsuccessfully struggled to develop
approvable title V programs, as it is a potential vehicle
for State administration of title V (through delegation of
part 71) even where obstacles remain that block certain
States from obtaining part 70 approval. The EPA does not
believe that the environmental benefits of title V should be
delayed simply due to the fact that some States have not
been successful at developing title V programs. Moreover,
EPA does not feel it would be appropriate to attempt to
justify delaying promulgation and implementation of the
Federal program because of the continuing difficulties in
revising the part 70 rule. However, EPA is persuaded by
commenters that the part 71 rule should not contain gaps to
be filled in at a second stage for provisions for
operational flexibility and permit revisions, and is
sympathetic to concerns that basing these provisions on the
August 1994 proposed revisions to part 70 might even
interfere with transition to State programs approved under
the current part 70 rule. These latter points are discussed
in more detail below.
The third general type of industry argument in response
to basing part 71 on the August 1994 proposal was that if
EPA must establish a Federal program now, it should do so
based on the existing part 70 rule, and revise the program
later when part 70 is revised. This argument recognized
that EPA may simply be unable in certain cases to base a
State-specific part 71 program on an existing State program,
but stressed the fact that any program that the State is
still struggling to adopt would be based on the existing
part 70 rule, rather than on the proposed revisions thereto.
The argument pointed out the fact that under the August 1994
proposed revisions to part 70, EPA planned to allow States
several years following final promulgation before States
would be expected to implement new part 70 programs based on
the revised rule. Thus, commenters observed, States would
likely be developing and implementing part 70 programs based
on the July 1992 rule for considerable time. In light of
this, it would actually interfere with smooth transition
from Federal to State implementation to base part 71 on the
future part 70 rule, especially in light of the fact that at
this point how part 70 will be ultimately revised is only
speculative; rather, transition could be facilitated only
where the Federal rule resembles the model that the State
rule is expected to follow. States might be less inclined
to take delegation of a Federal rule that does not resemble
existing part 70 and the State analogues that are being
developed, and thus sources would be more likely to be faced
with different permitting authorities under part 71 and part
70 programs. Moreover, the relevant guidance that EPA had
issued to date to aid implementation of the current rule,
such as the Agency's "White Paper for Streamlined
Development of Part 70 Permit Applications" (herein referred
to as the "first white paper") and the March 5, 1996
guidance document entitled "White Paper Number 2 for
Improved Implementation of the Part 70 Operating Permits
Program, could be less valuable as an aid in implementing a
Federal rule that is not based on the current part 70, and
both sources and part 71 permitting authorities could be
forced to start somewhat from scratch in implementing the
program.
The EPA agrees that the most appropriate course of
action is to promulgate, on an interim basis, part 71 based
on the current part 70 rule. In reaching this conclusion,
EPA was persuaded by concerns about impeding transition to
part 70 approval under the current rule and by industry
concerns about issuing a rule containing gaps regarding
operational flexibility and permit revisions. Moreover, as
many issues in part 70 are still outstanding following the
August 1994 and August 1995 proposals, and as many of those
issues concern key definitions and procedures under title V,
it would be premature for EPA to finalize part 71 based upon
the proposed revisions to part 70 until it makes final
decisions on these issues in part 70. Thus, the only way
EPA can fulfill its mandate to step in as the title V
permitting authority for States that have not obtained part
70 approval at this time, and to do so by establishing a
complete part 71 program that provides the flexibility
needed by industry and mandated by title V, is to promulgate
the rule based upon the current part 70 regulation. The EPA
stresses, however, that by finalizing this interim approach
in part 71, the Agency does not preclude itself from
revising part 71 in the future as based on appropriate
aspects of either the August 1994, April 1995, or August
1995 proposals for parts 70 and 71. In fact, EPA intends to
issue a second round of final rulemaking for part 71
(hereafter "phase II rulemaking) in the future once the
Agency has resolved with relevant stakeholders the
outstanding issues and is prepared to promulgate final
revisions to part 70. As a general matter, EPA stresses
that the most current reflection of the Agency's intended
policy regarding many of these provisions is the August 31,
1995 supplemental proposal. Consequently, while the
provisions adopted today in part 71 that relate to
outstanding issues under the definitions, applicability,
permit application, permit content, permit revisions and
reopenings, and affected State and EPA review sections are
consistent with the corresponding provisions in the existing
part 70 rule, rather than with provisions in the proposals
mentioned above, it should be expected that EPA will issue a
second final rulemaking, without a second round of proposal,
to conform part 71 to the revised part 70 rule when the
Agency is prepared to issue it.
The EPA believes that this approach is a logical
outgrowth of the part 71 proposal issued in April 1995.
While that proposal only contained regulatory provisions
based on the August 1994 proposed revisions to part 70, EPA
explicitly solicited comment on whether the proposal was in
any way inappropriately inconsistent with the current part
70 rule. Clearly, the commenters noted such
inconsistencies, and the proposal facilitated meaningful
comment on what approach the Agency should take in
promulgating part 71 vis-a-vis the outstanding issues in the
part 70 revision process. As discussed above, the proposal
enabled industry commenters to fall into three basic
categories in response to the proposal -- in fact, many
commenters advanced more than one of the basic types of
arguments in their comments, realizing that the different
arguments might have different force depending upon the
extent to which States had actually developed and submitted
their own programs. The approach adopted today was urged by
numerous industry commenters as the most reasonable in light
of the need to issue a part 71 program now, as opposed to
leaving gaps to be filled in later at a second stage of
final rulemaking. In addition, today's rule is consistent
with the existing part 70 rule under which States continue
to submit programs, and under which EPA continues to approve
those programs. Thus, EPA does not believe that a second
round of proposed rulemaking is necessary before finalizing
part 71 to conform to the Agency's currently effective
regulation implementing title V, part 70.
In the following sections of this notice, the specific
provisions that are being finalized based upon current part
70 rather than upon the provisions of the part 71 proposal
are identified and further discussed. For each of them, the
general governing principle is that while the Agency has
proposed to revise part 70 to modify many of the provisions
corresponding to the part 71 provisions adopted today, EPA
is not yet prepared to adopt final positions on those issues
and so, in the interests of promoting smooth transition from
Federal to State implementation of title V, is choosing to
issue, on an interim basis, a part 71 rule that matches as
closely as possible the existing part 70 rule. The EPA's
finalization of those provisions today in no way reflects
the Agency's ultimate decision to renounce any of the
positions articulated in the proposed revisions to part 70
or the corresponding proposals for part 71.
II. Summary of Promulgated Rule
A. Applicability
The Federal operating permits program requires all part
71 sources to submit permit applications to the permitting
authority no later than within 1 year of the effective date
of the program. The operating permit program applies to the
following sources:
1. Major sources, defined as follows:
a. Air toxics sources, as defined in section 112 of
the Act, with the potential to emit 10 tons per year (tpy),
or more, of any hazardous air pollutant (HAP) listed
pursuant to 112(b); 25 tpy, or more, of any combination of
HAP listed pursuant to 112(b); or a lesser quantity of a
given pollutant, if the Administrator so specifies
(501(2)(A)).
b. Sources of air pollutants, as defined in
section 302, with the potential to emit 100 tpy, or more, of
any pollutant (501(2)(B)).
c. Sources subject to the nonattainment area
provisions of title I, part D, with the potential to emit,
depending on the nonattainment area designation 10 or more
tpy of volatile organic compound (VOC) or oxides of
nitrogen, 50 or more tpy of carbon monoxide, and seventy or
more tpy of particulate matter (501(2)(B)).
2. Any other sources subject to a standard under
section 111 or 112.
3. Sources subject to the acid rain program (501(1)).
4. Any source subject to the PSD program or the NSR
program under title I, part C or D.
5. Any other stationary source in a category EPA
designates, in whole or in part, by regulation, after notice
and comment.
For purposes of determining applicability, a sourcežs
total emissions of a pollutant are found by summing the
potential emissions of that pollutant from all emissions
units under common control at the same plant site. If a
source is a major source, even if only due to the total
emissions from one pollutant, then a source must submit
(with few exceptions) a permit application that includes all
emissions of all regulated air pollutants from all emissions
units located at the plant.
Part 71 follows the approach of part 70 in deferring
nonmajor sources from permitting requirements. The
permitting requirements for nonmajor sources subject to a
standard under section 111 or 112 of the Act prior to July
21, 1992 are deferred for 5 years from the effective date of
the first approved part 70 program that deferred nonmajor
sources. The EPA may determine on a case-by-case basis
permitting requirements for nonmajor sources when they
become subject to new section 111 or 112 standards. Sources
subject to the new source performance standard for new
residential wood heaters or the national emission standards
for hazardous air pollutants for asbestos as it applies to
demolition and renovation activities are permanently exempt
from permitting requirements.
B. Program Implementation
The EPA will administer a part 71 program for those
portions of a State that lack EPA approval for its operating
permits program or for a State that fails to adequately
administer and enforce an approved program. However, the
requirement that EPA establish a Federal program for States
lacking a fully approved program is suspended if a State
program is granted interim approval. The EPA will also
administer part 71 programs in Tribal areas. Should a part
71 program become effective prior to the issuance of part 70
permits to all sources (under an approved part 70 program),
EPA will require part 71 permit applications from sources
that have not received part 70 permits. Applications shall
be due within a year of the effective date of the part 71
program. The EPA will take final action on at least one-
third of the applications annually.
Section 71.4 also establishes procedures that would be
used for issuing permits to certain sources located on the
Outer Continental Shelf (OCS) and after EPA objects to a
proposed or issued State permit.
The EPA may also delegate the responsibility for
administering the part 71 program to the State or eligible
Tribe if the requirements of section 71.10 have been met.
However, delegation will not constitute approval of a State
or Tribal operating permits program under part 70.
The EPA will suspend the issuance of part 71 permits
upon publication of notice of approval of a State or Tribal
operating permits program under part 70. The EPA or the
delegate agency will continue to administer and enforce part
71 permits until they are replaced by permits issued under
the approved part 70 program.
The EPA will publish a notice in the Federal Register
informing the public of the effective dates or delegation of
any part 71 programs for States, Tribal areas, and OCS
sources. Where practicable, EPA will also publish notice in
a newspaper of general circulation within the area subject
to the part 71 program and will notify the affected
government.
C. Permit Applications
Each source meeting the applicability criteria of this
part is required to submit timely and complete information
on standard application forms provided by the permitting
authority. Streamlined forms for electronic formats may be
provided.
An initial part 71 permit application is required
within 12 months of the later of:
1. The effective date of this part in a State, Tribal
area, or OCS area where a source is located, unless the
source has an existing part 70 permit;
2. The expiration of any deferral for a nonmajor
source;
3. The date a source commences operation; or
4. The date a source meets any of the applicability
criteria of section 71.3.
Sources with part 70 permits in force at the time
part 71 becomes effective in the area where they are located
would not have to apply for a part 71 permit until their
part 70 permit expires. Prior to its expiration, the
part 70 permit may be modified by EPA.
Sources would be notified of the requirement to submit
an application at least 180 days prior to when the
application is due.
The permitting authority will perform a completeness
determination within 60 days of receipt of an application,
or the application will be deemed complete by default. A
complete application would contain all the information
needed to begin processing the permit application,
including, at a minimum, a completed standard application
form (or forms) and a compliance plan.
The compliance plan describes how the source plans to
maintain or to achieve compliance with all applicable air
quality requirements under the Act. This plan must include
a schedule of compliance and a schedule for the source to
submit progress reports to the permitting authority. Each
source must submit a compliance certification report in
which it certifies its status with respect to each
requirement, and the method used to determine the status.
Each operating permit application, report, or
compliance certification submitted pursuant to part 71 must
include a certification signed by a responsible official
attesting to the truth, accuracy, and completeness of the
information submitted.
Applicants may be required to update information in the
application after the filing date and prior to the release
of the draft permit.
D. Permit Content
Part 71 permits must meet all applicable requirements
of the Act and, among other things, must contain:
1. A 5-year term for acid rain sources, up to a 12-
year term for certain municipal waste combustors, and up to
a 5-year term for all other sources.
2. Limits and conditions to assure compliance with all
applicable requirements under the Act.
3. A schedule of compliance, where applicable.
4. Inspection, entry, monitoring, compliance
certification, recordkeeping, and reporting requirements to
assure compliance with the permit terms and conditions.
5. A provision describing permit reopening conditions.
6. Provisions under which the permit can be revised,
terminated, modified, or reissued for cause.
7. Provisions ensuring operational flexibility so that
certain changes can be made within a permitted facility
without a permit revision.
8. A provision that nothing in the permit or
compliance plan affects allowances under the acid rain
program.
All terms and conditions in a part 71 permit, including
any provisions designed to limit a source's potential to
emit, are enforceable by the Administrator and citizens
under the Act.
Like part 70, part 71 would allow sources to apply for
a permit shield, i.e., a provision in the permit that states
that if the source complies with terms and conditions of the
permit, the source shall be deemed in compliance with any
applicable requirements reflected in the permit as of the
date of permit issuance.
E. Permit Issuance and Review
Regulations concerning the processes for permit
issuance, review, renewal, revision, and reopening are found
in sections 71.7 and 71.11. Briefly, these include:
1. Action on Applications for Permit Issuance and
Permit Renewal
Section 71.7(a) describes the conditions that must be
satisfied before EPA or a delegate agency may issue a
permit. These include receipt of a complete application,
compliance with public participation requirements, and
notification of affected States, Indian Tribes, and EPA (if
the program has been delegated). Except during the initial
phase-in of the program, the permitting authority is
required to act on permit applications within 18 months
after receiving a complete application.
The timely submittal of a complete application and any
additional required information creates a "shield" against
enforcement for failure to have a part 70 or part 71 permit.
Permits being renewed are subject to the same procedural
requirements that apply to initial permit issuance, as
provided in section 71.7(c). The administrative procedures
for permit issuance are contained in section 71.11 and are
generally based on analogous provisions governing other EPA
permitting programs at 40 CFR part 124.
2. Permit Revisions
Sections 71.7(d) and (e) outline the mechanisms for
permit modification and administrative amendments that are
needed to revise part 71 permits to accommodate changes that
would otherwise violate terms and conditions of the permit.
Administrative amendments can be accomplished by the
permitting authority without public or EPA review. These
permit revisions include correction of typographical errors,
changes in address or source ownership, as well as
incorporation of requirements established under State
preconstruction review that meet certain procedural and
compliance requirements.
If a change is not prohibited or addressed by the
permit, the permittee may make the change after submitting a
notice, and the permit is revised at renewal.
The regulations establish minor and significant permit
modification procedures for changes that go beyond the
activities allowed in the original permit or that increase
the total emissions allowed under the permit.
Minor permit modifications reflect increases in
permitted emissions that do not amount to modifications
under any requirement of title I and that do not meet
certain other requirements. Minor permit modification
procedures require a source to provide advance notice of the
proposed change, but allow a change to take effect prior to
the conclusion of the revision procedures.
A source that makes a change before the minor permit
modification has been issued does so at its own risk. It is
not protected from underlying applicable requirements by any
shield. It is only afforded a temporary exemption from the
formal requirement that it operate in accordance with the
permit terms that it seeks to change in its modification
application. Should the proposed permit modification be
rejected, the source would be subject to enforcement
proceedings for any violation of these requirements.
Significant permit modifications are inherently more
complex, and will require additional time to accomplish.
Permitting authorities will initiate their review of the
proposed changes after receipt of an application.
Sources subject to requirements of the acid rain
program must hold allowances to cover their emissions of
sulfur dioxide (SO2). Allowance transactions registered by
the Administrator will be incorporated into the source's
permit as a matter of law, without following either the
permit modification or amendment procedures described above.
3. Reopening for Cause
The permitting authority may terminate, modify, or
revoke and reissue a permit for cause. Reopening and
reissuing procedures follow the same procedures as apply to
initial issuance. Advance notice is required before permit
reopenings may be initiated.
Section 71.7(f) requires that permits issued to major
sources with 3 or more years remaining in the permit's term
be reopened to incorporate applicable requirements which are
promulgated after the issuance of the permit. Revisions
must be made as expeditiously as practicable, but no later
than 18 months after the promulgation of such additional
requirements.
4. Permit Notification to EPA and Affected States
Consistent with 40 CFR section 70.8(b), EPA or the
delegate agency would be required to provide notice of draft
permits to all affected States and to certain Indian
Tribes.
Affected States are those whose air quality may be
affected and that are contiguous to the State in which the
source is located, or that are within 50 miles of the
source. The permitting authority must give affected States
an opportunity to submit written recommendations for the
permit and notify any affected State in writing of any
refusal to accept all of its recommendations.
Although Indian Tribes are not considered affected
States unless they establish their compliance with criteria
for being treated in the same manner as States pursuant to
section 301(d) of the Act, the Agency believes federally
recognized Tribes should be given notice of draft permits
that may be issued to sources that could affect Tribal air
quality. The regulation requires that the permitting
authority send such notices.
The Act authorizes EPA to object to any permit that
would not be in compliance with the applicable requirements
of the Act. In the case of a delegated program, the
permitting authority may not issue a part 71 permit if the
Administrator has objected to its issuance in writing within
45 days of receipt of the proposed permit.
5. Administrative and Judicial Review
After the close of the public comment period on a draft
permit, the permitting authority will issue a final permit
decision. Within 30 days of the final permit decision,
anyone who filed comments on the draft permit or
participated in the public hearing may petition the
Environmental Appeals Board (EAB) to review any condition of
the permit. In general, the objections in the petition must
have been raised during the public participation period on
the permit. The petition will stay the effectiveness of the
specific terms of the permit which are the subject of the
request for review, pending conclusion of the appeal
proceedings.
The EAB will issue an order either granting or denying
the petition for review. To the extent review is denied,
the conditions of the final permit decision become final
agency action and are subject to judicial review in the
United States Court of Appeals under section 307(b) of the
Act. The decision of the EAB to issue or deny the permit is
also subject to judicial review.
Interested persons (including permitees) are authorized
to petition the Administrator to reopen an already issued
permit for cause. Petitions would be required to be in
writing and to contain facts or reasons supporting the
request.
F. Permit Fees
Section 71.9 establishes the Federal operating permits
program fee requirements for owners or operators of part 71
sources. The fees must be sufficient to cover the permits
program costs, including the following:
1. Reviewing and acting on any permit, permit
revision, or permit renewal, and processing permit
reopenings.
2. Administering the permit program.
3. Implementing and enforcing the terms of any part 71
permit.
4. Monitoring, modeling, manipulating, and tracking
emissions.
5. Providing support to small business stationary
sources.
Consistent with the two-phased approach to part 71
promulgation described in this notice, EPA is today
implementing a two-phased approach to part 71 fee
requirements. Phase I fee collection will be sufficient to
cover Phase I costs. Since Phase II fee collection is
associated with permit revision procedures, a fee amount for
Phase II cannot be finalized in today's rule. The Phase II
fee will add the costs for the permit revision procedures
that are finalized in that rulemaking.
The dollar per ton fee will vary depending on the
implementation mechanism EPA uses to administer a part 71
program. A program that is administered completely by EPA
would charge $32 per ton per year (ton/yr). Permit fees for
a program for which EPA relies on contractor assistance to
the greatest extent possible would be approximately $57 per
ton/yr. Program costs (and fees) would vary among part 71
programs depending on the hourly rate paid to the contractor
for its work on the particular State's part 71 program. The
costs of a program that is staffed in part by EPA employees
and in part by contractors or by the delegate agency would
vary in accordance with the percentage of personnel time
allocated to non-EPA staff and the hourly rate paid to the
contractor for its work on the State's part 71 program.
The EPA may suspend collection of part 71 fees for part
71 programs which are fully delegated to States and for
which EPA incurs no administrative costs.
The EPA may promulgate a separate fee schedule for a
particular part 71 program if the Administrator determines
that the fee schedule in the rule does not adequately
reflect the cost of administering the program.
Sources are required to submit fee calculation
worksheets and fees at the same time as their initial permit
applications are due and thereafter on an annual basis.
Part 71 program costs and permit fees will be reviewed
by the Administrator at least every 2 years, and changes
will be made to the fee schedule as necessary to reflect
permit program costs.
G. Federal Oversight of Delegated Programs
Section 71.10 establishes the procedures EPA would
follow when delegating the authority to administer a part 71
program to a State, eligible Indian Tribe, or other air
pollution control agency. The EPA will delegate authority
to run the program where possible in order to take advantage
of existing expertise of the delegate agency or where it
seems probable that the delegate agency's submitted part 70
program will be approved within a short time by EPA,
provided in both cases that the delegate agency has the
authority to administer the program that would be delegated.
A delegate agency must submit a formal request for
delegation and other documentation that shows the agency or
eligible Tribe has adequate legal authority and capacity to
administer and enforce the part 71 program. If the request
for delegation is accepted, EPA and the delegate agency will
enter into an agreement that sets forth the terms and
conditions of the delegation.
As part of its oversight of delegated programs, EPA
would review copies of applications, compliance plans,
proposed permits and final permits that the delegate agency
would be required to send to EPA. The EPA would have 45
days in which to review proposed permits. If EPA objects to
the issuance of a permit within that time, the delegate
agency would be required to revise and resubmit the proposed
permit to EPA.
Delegation of a part 71 program would not relieve a
State of its obligation to submit an approvable part 70
program, nor from any sanctions that the Administrator may
apply for the State's failure to have an approved part 70
program.
H. Enforcement
The Federal enforcement authority available under
section 113 of the Act for violations of title V and the
regulations thereunder provides broader enforcement
authority than States are required to have under the part 70
regulations. Examples of the Federal enforcement
authorities available under the Act include, but are not
limited to, the authority to: (1) restrain or enjoin
immediately any person by order or by suit in court from
engaging in any activity in violation of the Act that is
presenting an imminent and substantial endangerment to the
public health or welfare, or the environment; (2) seek
injunctive relief in court to enjoin any violation of the
Act; (3) issue administrative orders that assess civil
administrative penalties; (4) assess and recover civil
penalties; and (5) assess criminal fines.
III. Significant Changes to the Proposed Regulations
A. Section 71.2 - Definitions
The Agency has adopted definitions in today's
rulemaking that are consistent with and are mainly modelled
on corresponding definitions in the current part 70 rule,
rather than on the part 71 proposal. Consequently, many of
the definitions adopted today differ from those contained in
the part 71 proposal which were largely based upon the
August 1994 proposed revisions to corresponding definitions
in part 70 which the Agency is not yet prepared to finalize.
Several definitions found in the proposed section 71.2
have been revised to conform more closely to the definitions
used in the current part 70 rule. These include "affected
State," "applicable requirements," "final permit," "major
source," "permit revision," "permitting authority," and
"responsible official," each of which is discussed briefly
below. Similarly, EPA adopted definitions for "permit
modification" and "section 502(b)(10) change" from the
current part 70 rule, because these terms are integral parts
of today's rulemaking, which is based on the existing part
70 regulations. Also, several definitions in the part 71
proposal describe terms and concepts that the Agency has
concluded are either not necessary or are not ready to be
finalized in today's rulemaking. The terms for which EPA
has not adopted a definition include "insignificant activity
or emissions," "major new source review," "minor new source
review," "potential to emit," "title I modification," and
"Tribal area." To the extent these proposed terms were
based on the August 1994 proposed revisions to part 70, EPA
will finally address them in the Phase II rulemaking.
In addition, the Agency has retained several
definitions found in the part 71 proposal that are not found
in the current part 70 rule, but are needed for part 71.
These include definitions for "delegate agency," "part 71
permit," "part 71 program," and "part 71 source." The
Agency has also adopted definitions for "eligible Indian
Tribe," "Federal Indian reservation," and "Indian Tribe,"
which were added to clarify which Tribes would be eligible
to receive delegation of the part 71 program and to be
considered "affected States."
The part 71 proposal and the August 1995 supplemental
proposal reflect the Agency's position on what definitions
would be appropriate in conjunction with the permit revision
procedures, operational flexibility provisions, and other
provisions that have been proposed for finalization in the
Phase II rulemaking. Subsequent to reviewing all of the
comments on both of these proposals, EPA may finalize
definitions that differ from those adopted today.
1. Affected States
a. Indian Tribes. The EPA received numerous comments
from Indian Tribes suggesting that federally recognized
Indian Tribes should be considered to be "affected States"
if their air quality may be affected or the Tribal area is
contiguous to the State in which the permittee is located or
is within 50 miles of the permittee. They contended that
Tribes should not have to meet any type of eligibility
criteria in order to be considered an "affected State."
Contrary to the view of these commenters, the EPA interprets
section 301(d)(2) of the Act as authorizing the Agency to
treat Indian Tribes in the same manner as a State for
purposes of being an "affected State" only when EPA has
determined that the Indian Tribe has demonstrated that it
has met the eligibility criteria of section 301(d)(2) of the
Act. The second paragraph of the proposed definition of
"affected State" was inconsistent with this interpretation
in that it would have treated Tribes in the same manner as
States if the permitting action concerned a source located
in a Tribal area, regardless of the Tribe's eligibility
status. Therefore, EPA has amended this paragraph to
include the same eligibility requirement as the first
paragraph. That is, that the Indian Tribe must have
demonstrated that it has met the eligibility criteria of
section 301(d)(2). However, in the interest of furthering
government-to-government relationships with Tribes, EPA has
adopted a provision in section 71.8 that requires the part
71 permitting authority to provide notice of draft permits
to any federally recognized Indian Tribe whose air quality
may be affected by the permitting actions and whose
reservation or Tribal area is contiguous to the jurisdiction
in which the part 71 permit is proposed or is within 50
miles of the permitted source. (See discussion at section
III.G. of this notice.)
b. Local agencies. The proposed definition of
"affected State" in the part 71 proposal added language not
found in the current part 70 definition of "affected State"
to the effect that, when a part 71 permit, permit
modification, or permit renewal is proposed for a source
located within the jurisdiction of a local agency, that
agency would be considered an affected State. Today's
rulemaking retains this approach because it pertains to a
situation which is unique to part 71, i.e., when EPA
administers a part 71 program in an area where the local
agency would normally be the permitting authority of record
under an approved part 70 program. The proposal also
differed from today's rulemaking in that under the proposal,
local agencies would not otherwise be considered affected
States. Since the approach taken to such jurisdictions is
an issue for both part 70 and 71, it will be addressed in
the Phase II rulemaking. In the interim, the proposed
language has been deleted to comport with the current part
70 definition.
2. Applicable Requirements
The part 71 proposal expanded the part 70 definition of
"applicable requirement" to include the provision that any
requirement enforceable by the Administrator and by citizens
under the Act which limits emissions for the purpose of
creating offset credits or avoiding any applicability
requirement is itself an applicable requirement. This
addition, while helpful for understanding what constitutes
an applicable requirement, was based on the August 1994
proposed revisions to part 70, which EPA is not yet prepared
to finally promulgate. As such, EPA believes it is not
appropriate to finalize this change for purposes of part 71
at this time, but intends to address this issue in the Phase
II rulemaking. It was therefore deleted to comport with the
current part 70 definition.
The definition of "applicable requirement" in the part
71 proposal also differed from the definition in the current
part 70 rule in that it limited the title VI requirements
that would have to be included in a title V permit. This
proposed language, while consistent with the August 1994
proposed revisions to part 70, which, again, EPA is not yet
prepared to finalize, was removed so that the definition
would conform to the definition in the current part 70
regulation.
3. Final permit
The proposal contained a proposed definition of "final
action or final permit action." The final rule changes this
term to "final permit" in order to better harmonize the
definition with the term "final permit" in the current part
70 regulation promulgated at section 70.2.
4. Major source
The proposed part 71 rule contained a definition of
"major source" that was based on the proposed change to the
term contained in the August 1994 proposed revisions to part
70. Since publication of the part 71 proposal, EPA has also
proposed additional changes to the term in the August 1995
supplemental proposal for parts 70 and 71. The EPA is
currently in the process of reviewing, evaluating and
developing positions in response to comments on this very
important term and other issues raised in the August 1995
proposal. Consequently, EPA is not yet prepared to
promulgate part 71 in general, or the major source
definition in particular, as based on the August 1994, April
1995 or August 1995 proposals. The only exception to this
approach is in regard to source categories for which
fugitive emissions are to be counted in determining whether
a source is a major source under section 302 of the Act.
Consistent with PSD and nonattainment NSR, current part
70 requires the counting of fugitive emissions from source
categories which have been listed pursuant to section 302(j)
in major source applicability determinations. See the
definition of "major source" at 40 CFR section 70.2. The
one difference, however, between the list of source
categories under PSD and nonattainment NSR and current part
70 is in regard to the 27th category of sources that are
required to count fugitive emissions. In parts 51 and 52,
the 27th category is stated as follows:
Any other stationary source category which, as of
August 7, 1980, is being regulated under section
111 or 112 of the Act.
In current part 70, the 27th category reads as follows:
All other stationary source categories regulated
by a standard promulgated under section 111 or 112
of the Act, but only with respect to those air
pollutants that have been regulated for that
category;
As can be seen from the above, one of the principal
differences between these two paragraphs is the date of
August 7, 1980, which is specified in the PSD and
nonattainment NSR regulations, but is absent from the
current part 70 regulation. The result of this difference
is that part 70 literally requires sources to count
fugitives even where those sources are not required to do so
in determining whether they are major for purposes of PSD or
nonattainment NSR. As stated in the preamble to the August
1994 part 70 proposal, EPA acknowledges that it did not
follow the procedural steps necessary under section 302(j)
to expand the scope of sources in this category for which
fugitives must be counted in part 70 major source
determinations. See memorandum of June 2, 1995, entitled
"EPA Reconsideration of Application of Collocation Rules to
Unlisted Sources of Fugitive Emissions for Purposes of Title
V Permitting," from Lydia Wegman, Deputy Director, Office of
Air Quality Planning and Standards, to Regional Air
Directors. Instead of perpetuating this problem by
following this aspect of current part 70, and even though
the Agency is not yet ready to finalize the approach taken
in the August 1995 supplemental proposal for parts 70 and
71, EPA believes that an appropriate interim solution is to
finalize this category similar to how it was proposed in the
April 1995 part 71 proposal and consistent with the
provisions in the PSD and nonattainment NSR regulations. As
a result, the 27th category will read as follows:
Any other stationary source category which, as of
August 7, 1980, is being regulated under section
111 or 112 of the Act.
Use of the above language best ensures that, until EPA is
prepared to finalize part 70's proposed revisions, there
will be no discrepancy between the treatment of fugitive
emissions under PSD and nonattainment NSR and the
corresponding provision in this phase I part 71 rule. This
language further ensures that sources which are considered
major sources under PSD and nonattainment NSR are also major
sources under part 71. This consistency is compelled by
section 501(2) which requires any stationary source to be
considered major under title V if it is a major source under
section 112 or a major stationary source under section 302
or part D of title I.
It is important to remember that EPA has proposed
additional modifications to the list of source categories,
including this 27th category, in the August 1995 proposal
for parts 70 and 71. However, as EPA is currently in the
process of reviewing and evaluating comments regarding these
revisions, EPA cannot at this time finalize any of these
proposed modifications.
The EPA stresses that the definition of major source in
today's rulemaking does not constitute a decision to reject
other proposed changes to the term contained in the recent
proposals. Rather, EPA expects the Phase II part 71
rulemaking to make whatever changes to the term are
necessary in order to maintain harmonization with part 70,
if the part 70 definition of major source is ultimately
revised as the Agency intends. In the meantime, however, in
order to avoid delay in fulfilling the Agency's
responsibilities under title V, and in order to avoid
repeating a procedural mistake that occurred in the
development of the first part 70 rule, EPA has concluded, in
response to the commenters, that at this point it is most
reasonable to promulgate a definition that is consistent
with the major source definition contained in the current
part 70 rule, except for the 27th category of sources listed
pursuant to section 302(j). As EPA has already told States
that they may receive interim approval of their State
programs even if they do not literally match with current
part 70's 27th category, due to EPA's concession that the
Agency did not take the procedural steps necessary in part
70 to constitute a section 302(j) rulemaking, EPA believes
it is reasonable to take this limited departure from part
70. The EPA will respond to specific comments on the major
source definition as proposed in April 1995 and August 1995
in the context of finalizing the Phase II part 71 rule.
5. Permit Modification and Permit Revision
For the purposes of this rulemaking, EPA adopted the
definition of permit modification in the current part 70
regulation and revised the definition of "permit revision"
to be consistent with the current part 70 definition.
6. Permitting authority
The final rule changes the proposed definition of
"permitting authority" to more closely match the definition
of the term currently promulgated at section 70.2.
7. Potential to emit
Today's rule does not include a final regulatory
definition of the term "potential to emit." The part 71
proposal contained a proposed definition of potential to
emit that was based on the August 1994 proposed revisions to
part 70. The current part 70 definition of the term
provides that physical or operational limits on a source's
capacity to emit an air pollutant shall be considered part
of the source's design if the limitation is enforceable by
the Administrator. Under the proposed definition, the
phrase "and by citizens under the Act" would have been
added. The EPA is still in the process of evaluating
comments on the proposed revisions to part 70 with respect
to this issue, and is not yet prepared to adopt the revision
to the definition into a final rule. Consequently, it is
premature to adopt this change into the final part 71 rule
at this time.
In addition, EPA also received substantial adverse
comment on the proposed requirement that limitations on
potential to emit be enforceable by the Administrator (i.e.,
"federally enforceable"). Industry commenters noted that
EPA's policy on Federal enforceability was the subject of
several pending lawsuits against the Agency in the Court of
Appeals. These commenters have long held that emissions
limitations enforceable under State law should not have to
be federally enforceable in order to be considered part of a
source's physical or operational design and a valid limit on
potential to emit. These commenters also urged EPA to
codify the Agency's January 25, 1995, memorandum in which
EPA stated it would not require certain sources that
otherwise have the potential to emit an air pollutant in
major amounts to obtain permits under state part 70
programs. See, memorandum of January 25, 1995, entitled
"Options for Limiting the Potential to Emit (PTE) of a
Stationary Source Under Section 112 and Title V of the Clean
Air Act (Act)," from John Seitz, Director, Office of Air
Quality Planning and Standards, to Regional Air Division
Directors (hereafter "January 25, 1995 memorandum from John
Seitz").
Since the close of the comment period, the U.S. Court
of Appeals for the District of Columbia Circuit has ruled on
two occasions that EPA in two separate regulations had
failed to explain why the Agency had adopted a restrictive
interpretation of "potential to emit." See National Mining
Association v. EPA, 59 F.3d 1351 (D.C. Cir. July 21, 1995),
and Chemical Manufacturers Association v. EPA, No. 89-1514
(D.C. Cir. Sept. 15, 1995). In response to these rulings,
EPA has begun a rulemaking effort that would consistently
apply to all of its regulations and programs that base
applicability on sources' potential to emit. This
rulemaking will address potential to emit not only in the
regulations that were the subject of the two court rulings
(EPA's "General Provisions" regulations under section 112 of
the Act promulgated at 40 CFR part 63, and the NSR and PSD
regulations at parts 51 and 52), but also to parts 70 and
71.
In the meantime, however, the Agency believes it would
not be appropriate to delay issuance of the part 71
regulation (and implementation of the Federal operating
permit program in States that have not yet obtained part 70
approval) due to the pendency of the Agency's general
potential to emit rulemaking. At the same time, EPA does
not believe it would be appropriate to merely recodify the
part 70 definition of potential to emit in this Phase I part
71 rule, in light of the recent court decisions concerning
the section 112 and NSR and PSD regulations. Consequently,
for this interim part 71 rule, EPA is not adopting a
regulatory definition of potential to emit for purposes of
part 71. This definition will be added to part 71 at a
later time, when the Agency completes its general rulemaking
to define potential to emit for its various stationary
source programs under the Act.
Nevertheless, the absence of a regulatory definition of
potential to emit in today's rule should not prevent sources
from being able to determine whether they are subject to the
part 71 program because they are major sources. The EPA
stresses that the term "major source" is already defined as
a statutory matter in title V at section 501(2) of the Act
to mean a major source as defined in section 112 and a major
stationary source as defined in section 302 or part D of
title I of the Act. Moreover, the definition of major
source adopted today also tracks these statutory provisions,
and, as discussed in the recent memorandum entitled "Interim
Policy on Federal Enforceability Requirement for Limitations
on Potential to Emit," from John Seitz, Director, Office of
Air Quality Planning and Standards (hereafter January 22,
1996 memorandum from John Seitz), most current regulatory
requirements and policies regarding potential to emit,
including the interim policy discussed in the January 25,
1995 Seitz memorandum, remain in effect while EPA conducts
expedited rulemaking to address these issues in detail.
Consequently, in determining whether a source is major, the
part 71 permitting authority and source operator should look
to the regulatory definition of major source adopted in
today's rule and the statutory definitions in section 112,
section 302, and part D of title I (as those provisions are
implemented by applicable regulations thereunder) as
controlling for purposes of this Phase I part 71 rule.
In National Mining Association v. EPA, 59 F.3d 1351
(D.C. Cir. July 21, 1995), the Court dealt with the
potential to emit definition under the hazardous air
pollutant programs promulgated pursuant to section 112. In
this decision, the Court agreed with EPA that only
"effective" State-issued controls should be cognizable in
limiting potential to emit. In addition, the Court did not
question the validity of current federally enforceable
mechanisms in limiting potential to emit. However, the
Court found that EPA had not adequately explained why only
federally enforceable measures should be considered in
assessing the effectiveness of State-issued controls.
Accordingly, the Court remanded the section 112 General
Provisions regulation to EPA for further proceedings. Thus,
EPA must either provide a better explanation as to why
Federal enforceability promotes the effectiveness of State
controls, or remove the exclusive Federal enforceability
requirement. The Court did not vacate the section 112
regulations, and they remain in effect pending completion of
EPA rulemaking proceedings in response to the Court's
remand.
The EPA reiterates that independent from the decision
in National Mining, current EPA policy already recognizes
State-enforceable potential to emit limits under section 112
and title V in many circumstances under the transition
policy discussed in the January 25, 1995 John Seitz
memorandum, as recently revised by the January 22, 1996 John
Seitz memorandum. In recognition of the absence in some
States of suitable federally enforceable mechanisms to limit
potential to emit applicable to sources that might otherwise
be subject to section 112 major source requirements or to
title V, EPA's policy provides for the consideration of
State-enforceable limits as a gap-filling measure during a
transition period that extends until January 1997. Under
this policy, restrictions contained in State permits issued
to sources that actually emit more than 50 percent, but less
than 100 percent, of a relevant major source threshold are
treated by EPA as acceptable limits on potential to emit,
provided that the permit and the restriction in particular
are enforceable as a practical matter. In addition, sources
with consistently low levels of actual emissions relative to
major source thresholds can avoid section 112 major source
requirements even absent any permit or other enforceable
limit on potential to emit. Specifically, the policy
provides that sources which maintain their emissions at
levels that do not exceed 50 percent of any applicable major
source threshold are not treated as major sources and do not
need a permit to limit potential to emit, so long as they
maintain adequate records to demonstrate that the 50 percent
level is not exceeded.
Under today's Phase I part 71 rule, sources that are
not treated as major under this policy would also not be
treated as major for purposes of part 71. However, if a
source would be treated as major under the applicable
regulations implementing section 112 and this policy, the
source would be required to obtain a part 71 permit. The
EPA notes that this policy is to end in January 1997. In
conjunction with the general rulemaking on potential to
emit, EPA will consider whether it is appropriate to extend
the transition period beyond January 1997.
In Chemical Manufacturers Association v. EPA, No. 89-
1514 (D.C. Cir. Sept. 15, 1995), the Court addressed the
potential to emit definition in the PSD and NSR programs.
Specifically, this case challenged the June 1989 rulemaking
in which EPA reaffirmed the requirement for Federal
enforceability of potential to emit limits taken to avoid
major source permitting requirements in these programs. In
a briefly worded judgment, the Court, in light of National
Mining, remanded the PSD and NSR regulations to EPA. In
addition, in contrast to its disposition of the section 112
regulations in National Mining, the Court in Chemical
Manufacturers vacated the federal enforceability requirement
of the potential to emit definitions in the PSD and NSR
regulations.
The EPA interprets the Court's decision to vacate the
PSD/NSR Federal enforceability requirement as causing an
immediate change in how EPA regulations should be read,
although EPA expects that the effect of this change will be
limited. Specifically, regarding provisions of the
definitions of potential to emit and related definitions
requiring that physical or operational changes or
limitations be "federally enforceable" to be taken into
account in determining PSD/NSR applicability, the term
"federally enforceable" should now be read to mean
"federally enforceable or legally and practically
enforceable by a State or local air pollution control
agency."
However, the effects of the vacatur will be limited
during the period prior to completion of new EPA rulemaking
on this issue. Thus, during this interim period, Federal
enforceability is still required to create "synthetic minor"
new and modified sources in most circumstances pending
completion of EPA rulemaking. This is because EPA
interprets the order vacating certain provisions of the
PSD/NSR regulations as not affecting the provisions of any
current State or Federal implementation plan (SIP or FIP),
or of any permit issued under any current SIP or FIP. Thus,
previously issued federally enforceable permits issued under
such programs remain in effect.
Moreover, new or modified sources that seek to lawfully
avoid compliance with the major source requirements of PSD
or nonattainment NSR by limiting potential to emit to
achieve synthetic minor status must still obtain a general
or "minor" NSR preconstruction permit under section
110(a)(2)(C) of the Act and 40 CFR section 52.23. (This
requirement was not at issue in the Chemical Manufacturers
case, and is unaffected by the Court's ruling.) Every SIP
contains a minor NSR program that applies generally to new
or modified sources of air pollutants, and permits issued
under such programs are, like all other SIP measures,
federally enforceable. In sum, the precise impact of the
vacatur on PSD/NSR applicability in any State, and hence the
applicability of part 71 under the section 302 and part D of
title I prongs of the definition of major source adopted in
part 71, can be definitively established only by reviewing
the provisions of the particular SIP or FIP to which the
source is subject.
8. Regulated air pollutant
In the August 1995 supplemental proposal, EPA proposed
a less inclusive definition than is currently promulgated in
part 70 or was proposed for part 71 in the April 1995
notice. However, for purposes of today's rulemaking, EPA is
retaining the definition in the part 71 proposal, which is
consistent with the current part 70 definition. The EPA
intends to take final action on the term as proposed in the
supplemental proposal in the Phase II rulemaking.
9. Responsible official
Although EPA has proposed, in the August 1994 proposed
revisions to part 70, to clarify that the criteria for
selecting the designated representative is the same at an
affected source as at other sources, the Agency has adopted
a definition of this term for purposes of today's rulemaking
that is consistent with the definition in current part 70.
The EPA will take final action in Phase II consistent with
the Agency's final resolution of this issue in response to
comments on the August 1994 notice.
10. Section 502(b)(10) changes
The part 71 proposal, in omitting the definition of
"section 502(b)(10) changes" from section 71.2, followed the
approach used in the August 1994 proposed revisions to part
70. The Agency's reasons for the omission are articulated
in that proposal at 59 FR 44467-8. As indicated in the
August 1995 supplemental proposal, this is still the Agency
position. However, EPA will not adopt a final position on
proposed revisions regarding operational flexibility for
part 70 or 71 until the Phase II rulemaking. For purposes
of today's rulemaking, EPA has adopted a definition of the
section 502(b)(10) changes that comports with the current
part 70 regulation, in order to better harmonize the Phase I
part 71 rule and the current part 70 regulation.
11. Title I modification
The part 71 proposal, based on the August 1994 proposed
revision to part 70, contained a proposed definition of the
phrase "Title I modification or modification under any
provision of title I of the Act." Subsequently, EPA issued
a revised proposed definition in the August 1995
supplemental proposal for parts 70 and 71. The EPA is in
the process of reviewing and developing a position in
response to the comments on the several proposals with
respect to this issue, and is not yet prepared to define the
term in a final rule. The EPA will add a definition in the
Phase II rulemaking that is consistent with how EPA
ultimately defines the term under part 70.
A detailed discussion of the history of this definition
is contained in the preamble to the August 1995 part 70
proposal (60 FR 45545). At issue is whether the phrase
"modifications under any provision of title I" as used in
section 502(b)(10) of the Act includes not only
modifications subject to major NSR requirements of parts C
and D of title I but also modifications subject to minor NSR
programs established by the States pursuant to section
110(a)(2)(C).
In August 1994, EPA proposed to interpret the title I
modification language of part 70 to include minor as well as
major NSR modifications (55 FR 44527). The EPA received
many comments from industry and States contesting this
interpretation. The commenters argued that EPA had defined
title I modification in the preamble to the May 1991
proposed part 70 rule to exclude minor NSR (56 FR 21746-47
and footnote 6) and did not redefine it in the final July
1992 rule. As a result, they argued that they were relying
on the current rule to be interpreted consistent with the
proposed rule preamble and that EPA could not change its
interpretation without undertaking further rulemaking.
Based in part on the arguments raised by commenters,
EPA revised its proposed interpretation of the definition of
title I modification in the August 1995 supplemental notice
to exclude modifications subject to minor NSR. In addition,
EPA proposed regulatory language defining title I
modification which excluded the reference to section
110(a)(2) of the Act.
While EPA is not yet prepared to adopt a final
definition for the term, in implementing the Phase I part 71
program EPA will treat the issue consistently with the
approach the Agency has advised States to take under the
current part 70 regulation. Consequently, it will not
consider title I modifications to include changes subject to
State minor NSR programs.
B. Section 71.3 - Sources Subject to Permitting
Requirements
The final rule promulgates provisions regarding
applicability of the program at section 71.3. These
provisions are based on their counterparts in the currently
promulgated part 70 rule at section 70.3. Consequently, in
several aspects, they differ from section 71.3 as proposed,
which was based on the August 1994 proposed revisions to
section 70.3 which the Agency is not yet prepared to
finalize.
Paragraph (a)(1) of the part 71 proposal contained an
exemption from title V for major sources that would be
subject to title V only if they have the potential to
accidentally release pollutants listed pursuant to section
112(r)(3) in major amounts. This exemption has been
deleted, even though it garnered reviewer support,
consistent with the decision to match the part 70
requirements except where unique circumstances make a change
necessary. If EPA ultimately revises part 70 to add the
deleted language, the Agency would intend to revise part 71
consistently.
Proposed section 71.3(a)(4) which was modelled upon the
August 1994 proposed revisions to part 70 and would have
stated that any source subject to title I parts C or D would
be required to obtain a permit was also deleted from the
final regulation to comport with the part 70 regulation.
The purpose of this provision was to ensure that all sources
subject to preconstruction permitting as major sources under
parts C or D of the Act are also subject to title V
permitting. Again, if part 70 is ultimately revised to add
this provision, EPA would intend to revise part 71 to add it
as well.
Similarly, paragraph (b)(2) has been changed to conform
with section 70.3(b)(2), which addresses applicability for
sources subject to section 111 or 112 standards promulgated
after July 21, 1992. Proposed section 71.3(b)(2) differed
from both existing section 70.3(b)(2) and the August 1994
proposed revisions thereto. If section 70.3(b)(2) is
ultimately revised, EPA would expect to revise
section 71.3(b)(2) to harmonize it with part 70.
Paragraphs (c) and (d) of this section, found in the
proposal at sections 71.6(a)(1)(iv) and 71.5(f)(3)(i),
respectively, were moved to this section for compatibility
with the current part 70 provisions at sections 70.3(c) and
(d).
C. Section 71.4 - Program Implementation.
The major issues raised by commenters on proposed
section 71.4 related to the need to base part 71 on
finalized (as opposed to proposed) provisions of part 70,
how the part 71 program should be customized to fit the
unique needs of the State or area for which the program is
administered, and jurisdictional issues with respect to
programs on Tribal lands. The Agency's approach to the
first issue is discussed at length in section II of this
document. This section addresses the second and third
issues in addition to several minor changes to the proposed
rule that were adopted today.
1. National Template Approach
With respect to the second issue, EPA received
divergent comments. For example, commenters suggested that
a national template should be flexible, that a national
template should be used only to fill in the gaps of
deficient State programs, and that there should be no
national template because title V does not authorize EPA to
develop such a rule.
The Agency carefully considered the statutory framework
for the program and interprets title V as authorizing a
national template approach. For a further discussion of
this issue, see section II of this document. The EPA chose
a national template approach because EPA believes the
national template is flexible enough to be an effective
program in nearly all areas, and individual rulemakings for
each area that has a part 71 program would be needlessly
burdensome on the Agency. Since the national template will
serve the needs of most areas, it is more efficient to
promulgate the program once while allowing for separate
rulemakings, as needed, in some areas. The EPA recognizes
the desirability of providing a flexible approach to
administering the program, as the commenters have suggested,
when the national template does not adequately fit the
unique State or Tribal situation. Such flexibility is
already contained in section 71.4. When EPA determines
that the national template rule is not appropriate for a
State, EPA may adopt, through a separate rulemaking,
appropriate portions of a State or Tribal program in
combination with provisions of part 71 in order to craft a
suitable part 71 program, as provided in section 71.4(f).
Furthermore, section 71.9(c)(7) provides that when the
national fee structure would not reflect the cost of
administering a part 71 program, the Administrator shall
through a separate rulemaking set an appropriate fee.
Finally, as provided in section 71.5 and as discussed in
section III.D of this document, EPA has designed part 71 to
provide significant flexibility to accommodate the localized
air quality issues. For example, EPA will use State
application forms whenever possible and will try to match
the list of trivial activities which may be left off
application forms to the lists established in the State
operating permit program.
2. Part 71 Programs in Tribal Areas
The EPA is deferring promulgation of regulations that
would describe how the Agency would determine the boundaries
of a part 71 program for a Tribal area. The EPA has
published a proposed rule, pursuant to section 301(d)(2) of
the Act, specifying the provisions of the Act for which EPA
believes it is appropriate to treat Indian Tribes in the
same manner as States and outlining the Agency's position on
the authority of Indian Tribes to administer air programs
under the Act. See 59 FR 43956 (Aug. 25, 1994)("Indian
Tribes: Air Quality Planning and Management," hereafter
"proposed Tribal rule"). As indicated in the part 71
proposal, EPA intends to follow the approach of the Tribal
rule with respect to issues of jurisdiction and resolution
of jurisdictional disputes. The EPA agrees that it would be
more practical to defer addressing jurisdictional issues
until the promulgation of the Tribal rule. The Agency will
finalize an approach to jurisdiction as well as a definition
of Tribal area in the Phase II rulemaking or in conjunction
with finalizing the Tribal rule. In the interim, the Agency
will not be able to implement part 71 programs in Tribal
areas unless it completes a rulemaking that establishes the
boundaries of the part 71 program in the Tribal area.
Rulemakings for the Tribal rule and Phase II will be
completed well in advance of the November 1997 deadline for
EPA to implement part 71 programs on Tribal lands.
Therefore, EPA does not expect that the deferral of
jurisdictional issues will delay implementation of the part
71 program. Although part 71 contains no definition of
"Tribal area," EPA will provide (and will require delegate
agencies to provide) notice of proposed permitting actions
pursuant to section 71.8(d) even prior to the Phase II
rulemaking. In the interim, federally recognized Indian
Tribes will receive notice with respect to permitting
actions related to sources whose emissions may affect Tribal
air quality and that are located in contiguous jurisdictions
or are within 50 miles of the exterior boundaries of the
reservation.
3. Expiration of Part 71 Permits
The Agency received comments suggesting that part 71
permits should be rescinded automatically, without the
Agency taking any action, when they are replaced by a part
70 permit. The EPA agrees that no separate agency action
should be required when a part 71 permit is replaced by a
part 70 permit issued under the approved part 70 program
because unless the rescission happens simultaneously with
the issuance of the part 70 permit, a source could be
subject to a part 70 and a part 71 permit which may contain
different requirements. Accordingly, EPA has deleted
proposed section 71.4(l)(3) which provided that the
Administrator would rescind part 71 permits when they were
replaced with part 70 permits. Further, the EPA has adopted
section 71.6(a)(11) which provides that part 71 permits
shall contain a provision to ensure that a part 71 permit
will expire when the source is issued a part 70 permit.
4. Suspension of Issuance of Part 71 Permits
The EPA revised the first paragraph of proposed
section 71.4(l) to clarify, consistent with EPA's original
intent, that EPA may suspend issuance of part 71 permits
whenever the Agency has granted full or interim approval to
a State part 70 program. Section 502(e), which addresses
suspension of the issuance of part 71 permits, provides that
the triggering event for suspension is publication of notice
of approval. Thus, there is no statutory requirement that a
State program must "fully" meet the requirements of part 70
or be fully approvable in order for EPA to suspend permit
issuance. The Agency believes it is appropriate to suspend
issuance of part 71 permits when a State program
substantially meets the requirements of part 70 and has
received interim approval because it would be confusing and
burdensome to have two title V permit programs operating
simultaneously in the same jurisdiction. Therefore, EPA has
deleted the word "fully" from the first paragraph of
proposed section 71.4(l).
5. Delegation Agreements
The final rule makes a minor change to proposed
section 71.4(j) in parallel with a change to proposed
section 71.10(b) to reflect the fact that under the final
rule, EPA will not publish its delegation agreement with a
delegate agency. Therefore, section 71.4(j) provides that
the roles of the delegate agency and EPA in administering
the part 71 program will be defined in a delegation
agreement, not in a Federal Register notice. The EPA will
follow the procedures for delegation agreements established
for the PSD program under which EPA does not publish its
delegation agreements. Delegation agreements reflect the
understanding of EPA and the delegate agency as to their
respective responsibilities and are not subject to any
notice requirement. This approach allows EPA and the
delegate agency to modify their agreement as circumstances
change, without the burden of publishing a Federal Register
notice.
6. Early Reductions Permits
The Agency retained in section 71.4(i)(3) the
requirement that the permitting authority take action on
complete permit applications containing an early reduction
demonstration within 12 months of receipt of the complete
application. Although the current part 70 regulation sets a
9 month deadline for State action, EPA Regional offices are
allowed 12 months to take action on the permit applications
submitted under the interim permitting rule for early
reduction sources that EPA adopted prior to the approval of
any State part 70 programs. See 40 CFR section 71.26(a)(2).
The Agency believes that this time frame is reasonable given
the effort required to process the permits and the need for
sources qualifying for a compliance extension under the
Early Reductions Rule to obtain a permit prior to certain
deadlines set by the rule.
D. Section 71.5 - Permit Applications
The part 71 proposal addressed permit applications at
proposed section 71.5(a) through (i). This proposed section
was based upon a combination of corresponding provisions in
the existing part 70 rule and in the August 1994 proposed
revisions to part 70, and was presented in a slightly
different structure from the part 70 rule. In light of
EPA's decision to promulgate part 71 on an interim basis,
more consistently with the existing part 70 rule, the
provisions based upon the August 1994 proposal are not being
adopted today. Moreover, in order to facilitate transition
from implementing part 71 to part 70 programs, the final
rule is being adopted in a structure that is more consistent
with that of the current part 70 rule.
1. Timely Application
Under section 71.5(b)(1) of the proposal all initial
permit applications would have to be submitted within 12
months or an earlier date after the source becomes subject
to part 71. The proposal would have required that the
permitting authority provide notice of the earlier date to
the source and that this notice would be given at least 120
days in advance of the application submittal date.
Several commenters argued that the 120 days (4 months)
minimum notice would not give sources sufficient time to
prepare an application. They also argued that 4 months was
insufficient time for sources to submit their applications
early for purposes of addressing deficiencies and ensuring
they receive the application shield.
In response to these comments, EPA has lengthened the
notice period from 4 months to 6 months. Section 503(c) of
the Act requires the submittal of all applications within 12
months of the effective date of a permit program or such
earlier date as the permitting authority may establish and
that one-third of these applicants be issued permits in this
first year. In order to issue one-third of the permits in
the first year, EPA must receive at least one-third of the
applications prior to 12 months after the effective date of
the program.
The EPA considered and rejected commenters' suggestions
for 8 to 12 months advance notice because they would
interfere with EPA's requirement to issue one-third of the
permits in the first year. The EPA believes that the 6
month alternative will allow EPA enough time to process and
issue permits. The EPA believes that 6 months is sufficient
time for sources to prepare applications for several reasons
that had not been announced at time of proposal. First, on
July 10, 1995, EPA issued the first white paper that
examines options for simplifying part 70 permit applications
and sets minimum expectations concerning how much
information must be included in order for the application to
be found complete. In today's notice EPA announces its
intention to implement both of the white papers for part 71
program purposes. Second, EPA has revised the rule to
clarify that part 71 permit application forms may be
developed by the delegate agency or the EPA allowing a part
71 application form to be based on a State form developed
for part 70 purposes, as long as the form meets the minimum
requirements of part 71 (discussed in more detail below).
Third, because the final rule more closely follows the part
70 program upon which most State operating programs are
based, sources will be familiar with most part 71 permit
application requirements.
In addition, proposed sections 71.5(b)(2) and (3) have
been deleted because they referred to off-permit changes and
a four-track permit revision system which the Agency is not
finalizing today.
2. Complete Applications
The final rule adopts the language from the current
part 70 rule concerning complete applications. However, EPA
believes that several clarifications will help applicants
understand the flexibility available for submitting
simplified permit applications that can be found complete.
The terms "simplified permit application" or "streamlined
permit application" refer to applications that require less
information.
In the part 71 proposal, EPA proposed to adopt
language, from the August 29, 1994 part 70 revision notice
(59 FR 44518) that would have clarified that an application
would be found complete if it contained information
"sufficient to begin processing the application." As stated
previously, today's rulemaking is based on provisions of
current part 70; therefore, this language does not appear in
today's rulemaking. However, EPA believes, as stated more
fully in the first white paper, that considerable
flexibility already exists in the part 70 rule to find
simplified permit applications complete. Since the white
papers will be implemented for part 71 purposes, this
flexibility also exists in the part 71 permit program.
Furthermore, the proposed revisions to part 70 (August
29, 1994) and the part 71 proposal discussed several
additional options currently available to States for
developing simplified permit applications and finding them
complete, and did not propose any rule changes necessary to
implement these options. These options were: (1) a two-step
application completeness determination process for
simplified applications and (2) simplified application
content requirements for applicable requirements with future
compliance dates. After the publication of these proposal
notices, the first white paper included these two
flexibility options, as well as many additional options, and
reaffirmed EPA's interpretation that implementation of these
options does not depend on making changes to the part 70
rule or State part 70 programs.
The EPA believes this approach will provide flexibility
for sources to prepare simplified permit applications and
for permitting authorities to find them complete. This
approach will also promote consistency between the part 71
and part 70 programs, which in turn, will provide for a
smoother transition between the programs. Guidance on the
implementation of the white papers and other flexibility
options for completeness determinations for a part 71
program implemented in a particular State may be provided by
the EPA or delegate agency soon after the program takes
effect.
Additionally, proposed section 71.5(d), concerning the
treatment of business confidential information, has been
revised in the final rule. The language of the proposal
discussed the responsibilities of permitting authorities to
process requests for confidential treatment and included a
general reference to 40 CFR part 2. Considering the
structure of these regulations and this section's position
in these regulations, the Agency believes that the
promulgated language clarifies the procedures that
applicants must follow to request confidential treatment for
business information in applications, provides a more
precise cross-reference to those procedures, and does not
add any new requirements regarding the treatment of
confidential information not intended by the proposal.
Note also that certain technical changes are being made
to part 71's completeness provisions as a result of the
final rule's greater harmonization with the existing part 70
rule. First, the completeness criteria are being
promulgated at section 71.5(a)(2) while the proposal
addressed completeness at section 71.5(c). In addition, the
final rule references section 71.5(c) as the provision
setting out required information in permit applications,
while the proposal referenced proposed section 71.5(f).
Moreover, the final rule cites section 71.5(d) as the
provision concerning certification by a responsible
official, while the proposal cited proposed section 71.5(i).
Finally, the citation in the proposal to section 71.7(a)(3)
has been changed in the final rule to section 71.7(c)(4) as
a result of the changes to section 71.7.
3. Standard Application Form and Required Application
Proposed section 71.5(f) would have required part 71
sources to submit "applications provided by the permitting
authority, or if provided by the permitting authority, an
electronic reporting method" and did not include any
preamble discussion of the interpretation of this phase.
One commenter on the proposal encouraged EPA to use existing
State forms in States where EPA assumes part 71 authority.
Final section 71.5(c) has been revised to more closely
follow the corresponding language of section 70.5(c). The
EPA agrees with the commenter and will provide forms
developed by delegate agencies (States), or the EPA,
including electronic application methods, for purposes of
applying for part 71 permits. This approach to application
development is possible because "permitting authority" is
defined in section 71.2 as including the EPA or the delegate
agency. This approach to providing part 71 forms will lead
to less disruption and a smoother transition for sources
preparing initial part 71 applications because, in many
cases, sources will be familiar with the State form on which
the part 71 form is based. For example, sources may already
be collecting information and drafting an operating permit
using the State form in expectation of part 70 program
approval by EPA. In addition, commenters asked that EPA
clarify and simplify the requirements for emissions-related
information in part 71 applications consistent with EPA's
guidance in the first white paper. In response to these
comments, EPA intends to implement the white paper guidance
with respect to the collection and reporting of emission-
related information and EPA believes that no changes to part
71 are necessary to do so.
Numerous technical changes have been made to the final
rule regarding information to be required in permit
applications to better match the current part 70 rule. In
the proposal, information requirements were addressed at
proposed sections 71.5(f) through (i), while the final rule
follows part 70 by covering these requirements in
sections 71.5(c) and (d). New citations to other provisions
of part 71 are also due to the final rule's harmonization
with part 70.
4. Insignificant Activities and Emission Levels
Extensive comments were received on the proposed
insignificant activity and emission levels provisions of
proposed section 71.5(g). Commenters argued, in part, that
activities subject to applicable requirements should be
eligible for the exemption for insignificant activities and
emission levels, that the requirement that applications not
exclude information needed to determine whether a source is
subject to the requirement to obtain a part 71 permit would
be too restrictive, that the list of insignificant
activities in the final rule should be expanded, that the
list of trivial activities in the first white paper should
be codified in part 71, that the exemption for mobile
sources as insignificant activities should be removed, that
the single emissions unit emissions thresholds for
insignificant emissions should be raised, and that the
aggregate source-wide emission thresholds for insignificant
emissions should be deleted.
a. Eligibility for Insignificant Treatment and
Information Required in Applications. Section 71.5(c) of
the final rule addresses, in part, information that must not
be omitted from permit applications. These requirements
have special relevance for applicants when determining what
information must be included in applications for emission
units that are eligible for insignificant treatment. To be
consistent with current part 70, final section 71.5(c)
deletes certain proposed provisions that do not follow the
corresponding language of section 70.5(c) and that were
based upon the proposed revisions to part 70 published in
August 1994. Accordingly, deleted from final
section 71.5(c) is the proposed language that would have not
allowed the application to omit information needed to: (1)
determine whether a source is major, and (2) determine
whether a source is subject to the requirement to obtain a
part 71 permit. Notwithstanding these deletions, EPA
continues to believe that the definition of major source at
section 71.2 controls the determination of which units are
counted for major source applicability purposes and that
emissions of units that qualify for insignificant treatment
in the application are not exempt from these determinations.
Consistent with the Agency's approach in implementing the
current part 70 rule, the EPA is reversing its
interpretation, first expressed in the proposed preamble,
that would have excluded the eligibility of activities for
treatment as insignificant when such activities are subject
to applicable requirements. The EPA believes that no change
to the final rule is necessary to implement this new
interpretation.
Industry commenters were particularly concerned that
EPA's interpretation that proposed section 71.5(g) would not
allow activities with applicable requirements to be eligible
for insignificant treatment would render the insignificant
activity and emissions level provisions meaningless because
few sources would be eligible for streamlined treatment in
the application.
The EPA now believes that it was overly broad in
stating that emission units were precluded from eligibility
as "insignificant" if such units would be subject to
applicable requirements. As discussed below, EPA believes
there are circumstances in which an emission unit or
activity can be treated as "insignificant" under a Federal
operating permits program, even if it is subject to an
applicable requirement. However, a title V application must
still contain information needed to determine the
applicability of or to impose any applicable requirement or
any required fee and a permit must still meet the
requirements of section 71.6 for all emission units subject
to applicable requirements, including those eligible for
insignificant treatment.
Both sections 71.5(c) and 71.5(c)(3)(i) require
sufficient information to verify the requirements applicable
to the source and to collect appropriate permit fees.
This means that some of the information required by
sections 71.5(c)(3) through (9) may be needed in the permit
application for insignificant activities in order for the
permitting authority to draft an adequate operating permit.
As an example, where an insignificant activity is not in
compliance with an applicable requirement at the time of
permit issuance, the permit application would need to
contain a compliance plan, including a compliance schedule,
for achieving compliance with the applicable requirement.
As another example, if a source has some insignificant
activities within a category that are subject to an
applicable requirement and some within that same category
that are not subject to that applicable requirement because
the applicability criteria for the applicable requirement
are different from the applicability criteria for
insignificant activities, the permit application would
generally be required to include sufficient information on
the insignificant activity for the permitting authority to
determine which units are subject to the applicable
requirement and to include that applicable requirement in
the permit for the subject insignificant activity. The EPA
believes that a part 71 permit application may simply list
the applicable requirements that apply to insignificant
activities generally, rather than requiring the permit
application to explicitly identify which insignificant
activities are subject to which applicable requirements.
The permitting authority would then issue a permit imposing
the applicable requirements in the permit, but not
specifically identifying which insignificant activities are
subject to those applicable requirements. (For a more
detailed discussion, see the first white paper and the
proposed interim approval and proposed notice of correction
for the State of Washington's part 70 program, 60 FR 50166
(September 28, 1995).)
b. Insignificant Activity Lists. Section 70.5(c), in
part, allows States to develop lists of insignificant
activities and emission levels that need not be included in
applications and requires activities (or equipment) exempted
due to size or production rate to be listed in the
application. State part 70 program submittals were approved
by EPA that implement this provision in a variety of ways.
The structure of the proposed regulations was based on the
structure of these State implementing regulations, and
included a short list of insignificant activities and
provisions setting insignificant emissions levels. The
proposed list of insignificant activities,
section 71.5(g)(1), included a list of specific source
categories, activities, or equipment that could be left off
the application. The proposed insignificant emissions
provisions, section 71.5(g)(ii), allowed sources the
flexibility to treat additional source categories,
equipment, or activities as insignificant, provided certain
eligibility criteria were met, including not exceeding
certain emissions levels, and provided that the activities
were listed in the application. The EPA believed that the
proposed insignificant emissions approach was flexible
enough that extensive lists of insignificant activities
would not be needed in the final rule. The EPA reasoned
that no list of insignificant activities would ever be so
inclusive as to list every type of activity potentially
eligible for insignificant treatment at industrial sources,
and therefore, additions to the list would require resource-
intensive notice and comment rulemaking on an ongoing basis.
The proposal asked for comment on its approach and asked
whether the proposed approach would be compatible with
approaches developed by States.
Numerous industry commenters argued, in general, that
the proposed part 71 list was not extensive enough to
provide meaningful relief for industry from the
administrative burdens associated with submitting detailed
information for emission units or activities that pose
little or no environmental risk and that the part 71 list
was not as extensive as lists developed by States for their
part 70 programs.
The EPA is finalizing the proposed list of
insignificant activities with one revision. The EPA
believes that the commenters' concerns that there be more
opportunities for streamlining the information required by
part 71 permit applications is best addressed by
implementing the white papers for part 71 purposes, and that
no changes to the final rule are necessary to implement this
approach. The EPA believes that the white papers provide
for application streamlining that is comparable and, in many
ways, superior to approaches based on omitting certain
emission unit or activities from the application only when
eligibility for insignificant treatment is established in a
rule. In general, the white papers allow sources to provide
little or no detailed source-specific information for
emissions units or activities where the information is not
reasonably available and to the extent the information is
not needed to resolve disputed questions of major source
status, applicability of requirements, compliance with
applicable requirements, or needed to calculate fees.
For example, section B.3. Insignificant Activities of
the first white paper allows trivial activities to be
completely omitted from applications. The white paper
defines trivial activities as activities without specific
applicable requirements (although they may have "generic"
applicable requirements, explained below) and with extremely
small emissions and included a list of trivial activities in
Appendix A. Many of the trivial activities identified in
the first white paper are common to State lists of
insignificant activities. Under part 71, sources may rely
on this list, and EPA or the delegate agency may add to it
without the need for Federal rulemaking. This allows EPA to
expand the list of trivial activities for a part 71 program
in a specific location, consistent with trivial activity
lists established in the State operating permit program,
thus tailoring the program for a specific program
implemented in a State.
Also providing considerable streamlining is section B.4
Generic Grouping of Emission Units and Activities of the
first white paper which allows emissions units or activities
with "generic" applicable requirements to be omitted from
the application, independent of eligibility for
insignificant treatment. Under this section, sources may
provide little or no detailed source-specific information,
even for units with "generic" requirements, provided that
the "generic" requirements are described in the application
such that their scope and manner of enforcement are clear.
"Generic" requirements are certain broadly applicable
requirements that apply and are enforced in the same manner
for all subject units or activities and that are often found
in the SIP. Examples of such requirements include
requirements that apply identically to all emissions units
at a facility (e.g., source-wide opacity limits), general
housekeeping requirements, and requirements that apply
identical emissions limits to small units (e.g., certain
process weight requirements). Where the applicable
requirement is amenable to this approach, part 71 permitting
authorities may follow this approach regardless of whether
subject activities have been listed as trivial or
insignificant. A lengthy list of the types of requirements
suitable for this treatment is not possible here because,
among other reasons, the examples of which EPA is aware are
SIP requirements, and so vary from State to State. The EPA
or delegate agency will decide which SIP requirements can be
treated in this generic fashion for specific locations where
part 71 programs are implemented.
The EPA has determined that the insignificant activity
exemption for air-conditioning units used for human comfort
at final section 71.5(c)(11)(i)(B) should be changed to
clarify that substances other than class I or II substances
may be regulated under title VI of the Act. This change is
necessary because effective November 15, 1995, title VI
requires recycling or recovery of substitute refrigerants
regardless of whether or not they are ozone depleting
substances (Class I and Class II substances) unless EPA
makes a refrigerant-specific decision that the substitute
will not harm human health or the environment and can,
therefore, be vented.
c. Insignificant Emissions Levels. In response to
comments, EPA has revised proposed section 71.5(g)(2)(i),
which is section 71.5(c)(11)(ii)(A) of the final rule, to
increase the insignificant emissions threshold for regulated
air pollutants other than (HAP) from a single emissions unit
from 1 tpy to 2 tpy and to delete the 1,000 pounds (lb) per
year threshold in extreme ozone nonattainment areas. The
EPA believes this decision is appropriate since, as
commenters pointed out, EPA has previously stated in part 70
approval notices that insignificant emissions thresholds set
at 2 tpy would be approvable in most locations. The EPA
believes that due to the similarity between part 70 and part
71 programs it can logically conclude that this level is
also appropriate for a part 71 program, regardless of where
it is located. This level will provide a measure of
additional flexibility for sources to exempt insignificant
activities, thus simplifying the application, with little
additional risk that significant emission units will be
excluded from the application. As further discussed below,
there are several safeguards available in the final rule
that should ensure that significant units are not excluded
from applications due to their eligibility for insignificant
treatment. In addition, EPA is deleting the proposed 1,000
lb per year threshold for extreme ozone nonattainment areas.
This will simplify the rule by setting the same tpy emission
thresholds for attainment and nonattainment pollutants,
while requiring the thresholds in relative terms to be no
more than 20 percent of the major source threshold for
nitrogen oxides and VOC and 2 percent of the major source
threshold for the remaining criteria pollutants. Two tpy is
considered trivial by EPA for all pollutants other than HAP
in relation to major source thresholds in all attainment or
nonattainment areas and will not prevent the EPA from
collecting information of a consequential or significant
nature. In addition, these levels are more commonly found
in State part 70 programs and therefore should help to ease
the transition from part 71 to part 70 operating permit
programs.
In response to comments, EPA has decided to delete the
aggregate source-wide emissions criteria for insignificant
emissions of regulated air pollutants
(sections 71.5(c)(11)(ii)(A) and (B) of the final rule).
The EPA proposed these aggregate source-wide emissions
criteria as an additional means to ensure that emissions
that might otherwise trigger the applicability of applicable
requirements or major source status would not be excluded
from applications. However, EPA now believes that the
proposed aggregate emissions thresholds would have
significantly limited the value of the insignificant
emissions provisions for most medium to large sources. This
deletion should not impede the permitting authority's
ability to write permits which assure compliance with
applicable requirements and the requirements of part 71.
The EPA also believes that the utility of aggregate plant-
wide thresholds is negligible because of various other
safeguards already provided in the rule; in particular,
section 71.5(c)(11) requires applications to not exclude
information needed to determine the applicability of, or to
impose, any applicable requirement. In addition, the
requirement of section 71.5(c)(11)(ii) that units or
activities with insignificant emissions be listed in the
application provides an opportunity for the permitting
authority to review the source's decision to treat emissions
as insignificant, while the single-unit emissions thresholds
of sections 71.5(c)(11)(ii)(A) and (B) limit the size of
emissions to levels that would normally ensure that the
units are not covered by extensive control requirements.
5. Compliance Certification
The part 71 proposal would have required sources to
submit certifications that they were in compliance with all
applicable requirements. Commenters requested further
clarification of the certification requirements and argued
that it was not clear exactly what efforts a source was
required to make to determine its compliance status prior to
certifying that it was in compliance with all applicable
requirements, and that it was unclear whether or not a
source was obliged to reconsider past applicability
determinations prior to making such a certification. The
EPA does not believe that any revisions to the rule are
necessary to address the commenters' points. This is true
because the white papers for part 70 address these issues
and sources may follow that guidance for purposes of
completing part 71 permit applications.
E. Section 71.6 - Permit Content
Todayžs permit content provisions more closely track
the provisions contained in current 70.4 and 70.6 than did
those in the proposal. Thus, the order of the paragraphs in
section 71.6 is more similar to the permit content section
of current part 70 than to the part 71 proposal. For
example, the provisions dealing with the permitting
authority's duty to address emissions units in the permit
has been moved from section 71.6(a)(iv) to section 71.3(c),
consistent with current part 70. In addition, using current
part 70 as the template for permit content means that the
provisions for "off-permit" contained in today's rulemaking
mirror those found at section 70.4(b), while the off-permit
provisions of the proposed rule tracked those contained in
the August 1994 proposed revisions to part 70. Similarly,
today's rulemaking adopts the requirements for emissions
trading and operational flexibility that are found in
current part 70.
In addition, EPA retains a provision related to the
prompt reporting of deviations from permit conditions from
the part 71 proposal. Current part 70 requires States to
define "prompt" in their own programs, and today's
rulemaking defines the term for the part 71 program and
closes this gap in the proposed rule. Todayžs rulemaking
also establishes a part 71 permit expiration date.
The EPA reiterates that today's rulemaking finalizes
provisions for permit content on an interim basis in order
to better facilitate smooth transition from implementation
of part 71 to approved State programs established pursuant
to the current part 70 rule. With respect to permit content
provisions, the April 1995 and August 1995 proposals contain
provisions which reflect the Agency's current best thinking,
and subsequent to reviewing all of the comments on both
proposals, EPA may finalize provisions for permit content
that differ from those adopted today consistent with the
approaches EPA eventually takes in promulgating final
revisions to part 70.
1. Off-permit Operations
Under today's rulemaking, sources are allowed to make
changes at a facility that are not addressed or prohibited
by the permit terms, provided they meet the requirements of
section 71.6(a)(12). The provision adopted today is
patterned on 70.4(b)(14) and (15), the analogous provisions
in current part 70. Like part 70, part 71 requires that the
source provide the permitting authority with contemporaneous
written notification for these types of changes, that these
changes be incorporated into the permit at renewal, and that
the source keep certain records of these changes.
Consistent with current part 70, section 71.6(a)(12) limits
off-permit changes to those that do not constitute title I
modifications, are not subject to any requirements under
title IV of the Act, and meet all applicable requirements of
the Act. In applying this provision, the Agency will use
the interpretation of the term "title I modification" that
States are allowed to use under the current part 70 rule.
EPA expects that allows a significant number of minor NSR
changes, to the extent that they are not prohibited by the
title V permit, to qualify for off-permit treatment.
Like part 70, part 71 does not allow off-permit changes
to alter the permitted facility's obligation to comply with
the compliance provisions of its title V permit and does not
grant the permit shield to off-permit changes. For a more
thorough discussion of the concept of off-permit changes,
see the rationale for part 70's off-permit provision found
at 57 FR 32269.
The part 71 proposal contained a modified off-permit
provision at proposed section 71.6(q) that was designed in
light of the four-track permit revision procedures contained
in the proposal and modeled on the off-permit provision
contained in the August 1994 proposed revisions to part 70.
Proposed section 71.6(q) would have allowed certain changes
to remain off-permit but would have required the source to
submit an application to revise its permit to reflect that
change within 6 months of commencing operation of that
change. In the August 1995 supplemental proposal to parts
70 and 71, the Agency indicated that off-permit provisions
may be unnecessary if the streamlined permit revisions
procedures for parts 70 and 71 are adopted as proposed
therein. After reviewing comments on both proposals, EPA
will decide whether to retain an off-permit provision in the
Phase II rulemaking, consistent with the approach EPA takes
in finalizing permit revisions procedures. Off-permit
treatment is available in the interim, consistent with that
provided by current part 70, but EPA does not believe that
many permits will be issued prior to the Phase II rulemaking
and that the off-permit provision therefore will not be
greatly utilized.
2. Operational Flexibility
Under the rule adopted today, sources will enjoy the
same operational flexibility as is provided to part 70
sources under current part 70. Section 502(b)(10) of the
Act requires that the minimum elements of an approvable
permit program include provisions to allow changes within a
permitted facility without requiring a permit revision. In
the current part 70 rule at section 70.4(b)(12)(i)-(iii),
and the rule adopted today, there are three different
methods for implementing this mandate. Accordingly, section
71.6(a)(13)(i) provides for sources to make certain changes
within a permitted facility that contravene specific permit
terms without requiring a permit revision, as long as the
source does not exceed the emissions allowable under the
permit and the change is not a title I modification. Under
the interpretation of the term žtitle I modificationž that
EPA is allowing States to take under the current part 70
rule, section 502(b)(10) changes may include changes subject
to minor NSR, provided the change does not exceed the
emissions allowable under the permit. Section
71.6(a)(13)(ii) also allows emissions trading at the
facility to meet limits in the applicable implementation
plan when the plan provides for such trading on
7-days notice in cases where trading is not already provided
for in the permit. Additionally, section 71.6(a)(13)(iii)
allows emissions trading for the purpose of complying with a
federally-enforceable emissions cap that is established in
the permit independent of otherwise applicable requirements.
For a thorough discussion of the flexibility allowed under
the analogous part 70 provisions, see 57 FR 32266.
The part 71 proposal contained an approach to
operational flexibility that was modeled on the August 1994
proposed revisions to part 70, not current part 70. The
August 1995 supplemental proposal suggested further
refinements to the concept. After reviewing comments on
both proposals, EPA may adopt an approach to operational
flexibility that is different from the one found in today's
rulemaking, consistent with the approach EPA takes in
finally revising part 70. While the approach adopted today
differs significantly from that of the proposal, the Agency
is adopting it on an interim basis in order to better
facilitate transition to the State part 70 programs that are
similarly based on the provisions governing operational
flexibility under the current part 70 rule.
3. Affirmative Defense
In order to remain consistent with current part 70, EPA
is adopting a provision from the part 71 proposal that would
allow sources to assert an affirmative defense to an
enforcement action based on noncompliance with certain
requirements due to an emergency. Such a defense would be
independent of any emergency or upset provision contained in
an applicable requirement. See section 71.6(g). This
provision is consistent with that found in the current part
70 rule at section 70.6(g).
As a result of concerns identified in legal challenges
to part 70, the Agency, in the August 1995 supplemental
proposal, solicited comment on the need for, scope and terms
of an emergency affirmative defense provision. The Agency
is reviewing those comments, but has not yet made a decision
on whether or not to modify or remove this additional
affirmative defense provision from part 70. The Agency will
make part 71 consistent with the decision reached for part
70 in the part 71 Phase II promulgation. In the interim,
sources may rely on the affirmative defense offered by
section 71.6(g).
4. Definition of Prompt Reporting
The proposal contained provisions concerning prompt
reporting of deviations from permitting requirements at
proposed sections 71.6(f)(3) and (4). The final rule at
section 71.6(a)(3)(iii) requires that each permit contain
provisions for prompt notification of deviations.
Two commenters requested that the prompt reporting
deadlines in part 71 be adjusted to reflect other
environmental regulation timelines or to reflect State
program guidelines that have been approved by the Agency for
part 70 programs. The Agency disagrees with the request.
Section 503(b)(2) of the Act requires permittees to promptly
report any deviations from permit requirements to the
permitting authority. Since individual permitting
authorities are responsible for having programs to attain
and/or maintain air quality within their geographical
boundaries, they are obligated under the operating permits
program to determine, among other things, what constitutes a
prompt notification. Included as factors in determining
prompt notification would be elements such as pollutant
concentration, deviation duration, and authority response
time. Because sources and pollutants of concern vary among
permitting authorities, States have adopted differing prompt
reporting schedules. The Agency has reviewed its obligation
to protect air quality on a national level, and has
determined that its prompt reporting deadline is appropriate
for this obligation. Therefore the deadlines contained in
part 71 remain unchanged from the proposal.
Two commenters requested that part 71 clarify prompt
reporting requirements for deviations other than those
associated with hazardous, toxic, or regulated air
pollutants, as described in sections 71.6(a)(3)(iii)(B)(1)
and (2). The Agency believes that the requirement contained
in section 71.6(a)(3)(iii)(A), in which sources are to
report all instances of deviations from permit requirements
at least every 6 months, provides the basis for prompt
reporting of all other deviations. However, the Agency is
willing to clarify this reporting requirement and has
modified section 71.6(a)(3)(iii)(B) by adding a statement
that directs sources to submit all other deviation reports
in accordance with the timeframe given in
section 71.6(a)(3)(iii)(A).
5. Inclusion of Federally Enforceable Applicable
Requirements in Permits
Two commenters requested that EPA include in part 71
the analogue to section 70.6(b)(2), a provision that
requires the permitting authority to identify in the permit
any applicable requirements that are not federally
enforceable. The EPA disagrees with this request because
part 71 permits will not include any non-federally
enforceable applicable requirements; therefore, a
requirement for the Agency to identify such terms as non-
federally enforceable would be moot, and a part 71 analogue
to section 70.6(b)(2) is not needed. Part 71 differs from
part 70 in this respect. However, section 71.6(b) is
consistent with the first paragraph of section 70.6(b),
which provides that part 70 permit terms and conditions are
to otherwise be federally enforceable.
6. General Permits
The proposal contained provisions at proposed
section 71.6(l) addressing general permits, which were based
on the proposed revisions to the general permits provisions
in the August 1994 notice. Under part 70, the EPA afforded
other permitting authorities the choice of utilizing general
permits, and the Agency intended to provide this flexibility
to itself. The Agency believes that general permits offer
cost-effective means of issuing permits for certain source
categories. The Agency has not yet decided on the proper
approach concerning opportunities for public review and
judicial review associated with general permits, and in the
interim, has decided to remain consistent with the current
part 70 rule. Therefore, under todayžs notice, EPAža
authorization to allow a source to operate pursuant to a
general permit may proceed without public notice and does
not constitute final permit action for judicial review
purposes. Todayžs part 71 general permit provisions are
found at section 71.6(d) and are patterned after the
analogous provisions at current section 70.6(d). In the
Phase II rulemaking, EPA intends to revise the part 71
general permit provisions if necessary to remain consistent
with the approach the Agency ultimately takes in the final
revisions to part 70.
7. Permit Expiration
The proposed rule contained a provision for rescinding
part 71 permits at proposed section 71.4(l)(3). Under
todayžs rulemaking at section 71.6(a)(11), part 71 permits
would contain a provision that automatically cancels the
part 71 permit upon expiration of the initial permit term or
upon issuance of a part 70 permit, without the need for
separate action to rescind the permit. The Agency believes
that a clear expiration date is necessary in order to avoid
potential confusion over which title V permit terms and
conditions are valid. The majority of permitting
authorities are moving towards final approval of part 70
programs. In those few instances where a particular
permitting authority may not have final part 70 program
acceptance by the deadline for implementation of part 71,
the Agency expects that final program approval will occur
well before the 5-year part 71 permit term (12 years for
certain municipal waste combustors) has expired. Once the
part 70 program is approved, sources and permitting
authorities may desire to begin implementation as soon as
possible. The Agency has no desire to be a stumbling block
in those efforts, nor does the Agency wish to promote
confusion over which permit (part 71 or 70) would be in
effect at a particular time.
One of the purposes of title V was to provide sources
with certainty as to their applicable requirements. Part 71
and part 70 permits will be similar, but not necessarily
congruent, e.g., part 71 permits would contain only
federally-enforceable requirements, insignificant activities
could differ, and reporting provisions would differ. In
order to prevent the potential confusion stemming from an
unexpired part 71 permit remaining in effect concurrent with
a part 70 permit, the Agency has decided to preclude the
event from occurring. No such comparable provisions are
needed in part 70 because that program provides just one
title V permit per source. Consequently, section 71.6(a)(11)
provides that a part 71 permit automatically expires upon
the earlier of the expiration of its term or the issuance of
a part 70 permit to the source.
F. Section 71.7 - Permit Review, Issuance, Renewal,
Reopenings, and Revisions
As discussed above, EPA is, on an interim basis,
promulgating final regulations regarding permit issuance,
renewal, reopenings, and revisions for part 71 that are
based upon the existing provisions governing State title V
programs at 40 CFR, section 70.7. Consequently, the
provisions adopted today differ from those contained in the
part 71 proposal, which were based upon the August 1994
proposed revisions to part 70. The EPA is still in the
process of adopting revisions to part 70, and thus is not
able at this time to base part 71's provisions on the
expected future changes to part 70. As a result, EPA has
concluded, in response to comments, that the most reasonable
approach is to model part 71's permit issuance, renewal,
reopenings, and revisions procedures on the corresponding
provisions in the existing part 70 rule. These changes from
the proposal, in addition to other changes in response to
comments, are identified below.
1. Permitting Authority's Action on Permit Application
First, the organization of the paragraphs has been
changed from the proposal to be consistent with 40 CFR
section 70.7(a). In addition, in section 71.7(a)(1), the
word "modification" is now used in place of the word
"revisions," which was used in the proposal. This is a
technical change to the rule to make it conform with the
language used in corresponding provisions in the current
part 70 rule. Also, section 71.7(a)(1)(ii) has been changed
to track section 70.7(a)(1)(ii) by explicitly providing that
changes subject to minor permit modification procedures need
not comply with the public participation requirements of
sections 71.7 and 71.11. This change from the proposal is a
result of the Agency's adoption in today's rule of permit
revision procedures modelled on those contained in the
existing part 70 rule. Moreover, section 71.7(a)(1)(iv) has
been adopted without the language providing that, in some
cases, the terms of the permit need not provide for
compliance with all applicable requirements that are in
force as of the date of permit issuance. Again, this change
is necessary to make section 71.7(a)(1)(iv) consistent with
the corresponding provision at section 70.7(a)(1)(iv), which
does not contain the proposal's language. That language was
first proposed in the August 1994 proposed revisions to part
70, and the Agency is not yet prepared to adopt it into a
final title V rule. Likewise, section 71.7(a)(1)(v) is
being promulgated without references to the administrative
amendment and de minimis permit revision procedures
contained in the proposal in order to better match the
current part 70 provisions at section 70.7(a)(1)(v).
Section 71.7(a)(2) is being adopted without the
language in the proposal which would have required
permitting authorities to take final action within 12 months
after receipt of a complete application for early reductions
permits under section 112(i)(5) of the Act because
regulatory language addressing this requirement was moved to
section 71.4(i)(3). Furthermore, this provision is being
adopted without the language in the proposal that would have
allowed permitting authorities to delay final action where
an applicant fails to provide additional information in a
timely manner as requested by the permitting authority, as
section 70.7(a)(2) currently does not provide such
authority.
A new section 71.7(a)(3) is being promulgated to
require the permitting authority to ensure that priority is
given to taking action on applications for construction or
modification under title I of the Act. This change is made
to make part 71 consistent with the corresponding provision
in current part 70 at section 70.7(a)(3).
Section 71.7(a)(4) (section 71.7(a)(3) in the proposal)
deletes the references in the proposal to the proposed
regulatory provisions addressing administrative amendments,
de minimis permit revisions, and minor permit revisions, and
tracks current section 70.7(a)(4) by providing that
permitting authorities need not make completeness
determinations for applications for minor permit
modifications. This change is a result of EPA's basing
section 71.7 on the current section 70.7. In addition,
sections 71.7(a)(5) and (6) (sections 71.7(a)(4) and (5) in
the proposal) are renumbered in order to track existing
sections 70.7(a)(5) and (6).
The proposal contained a provision at proposed
section 71.7(a)(6) addressing how draft and final permits
may be issued with respect to applicable requirements that
are approved or promulgated by EPA during the permit
process. This provision was proposed in the August 1994
proposed revisions to part 70 and is not contained in the
current part 70 rule. For the reasons stated above, EPA is
not yet prepared to adopt it into part 71, and so is
deleting the proposed provision from today's final rule.
2. Requirement to Apply for a Permit
One commenter suggested revising 71.7(b) regarding the
application shield to say that the permitting authority must
set a reasonable deadline for the submission of additional
information, and commented that EPA should not be able to
request information that is "needed to process the
application" but only that which is "reasonable and
necessary to issue the permit". The Agency disagrees that
the regulation should set a specific deadline for the
submission of additional information because the
determination of what is a reasonable time will vary
depending on the information requested. Also, EPA disagrees
that there is a distinction between information needed to
process the application and information that is reasonable
and necessary to issue the permit.
One commenter suggested revising section 71.7(b) to
allow sources to operate subsequent to submission of a
complete, but late, application or application for renewal.
The Agency believes that extending an application shield to
sources that fail to submit timely applications is
inconsistent with the Act. The proposal for part 70
contained a provision that would have provided a grace
period of up to three months to submit applications after
the required submittal date. The EPA deleted this provision
from the final part 70 rule because extending the
application shield to sources that did not submit a timely
application would have been inconsistent with section 503(c)
of the Act. The Agency is promulgating section 71.7(b) to
closely track the corresponding provision at current
section 70.7(b). Consequently, the references in proposed
section 71.7(b) to the proposed provisions addressing
administrative amendments, de minimis permit revisions, and
minor permit revisions have been deleted and replaced by
references to provisions addressing section 502(b)(10)
changes and minor permit modifications. In addition, the
proposal's reference to section 71.7(a)(3) has been replaced
with a reference to section 71.7(a)(4), due to the
restructuring of section 71.7(a).
3. Permit Renewal and Expiration
Section 71.7(c) is being promulgated to more closely
match the corresponding provision under current
section 70.7(c) than did the proposal. The references in
proposed section 71.7(c)(2) to proposed sections 71.5(b) and
71.5(c) have been replaced by a reference to section
71.5(a)(1)(iii), due to the restructuring of section 71.5.
Moreover, section 71.7(c)(2) (section 71.7(c)(3) in the
proposal) is being promulgated without the language that
would have provided that, where the permitting authority
fails to act on a timely renewal application before the end
of the term of title V permit, the permit shall remain in
effect until the permitting authority does take final
action. Instead that language (which is based upon the
existing section 70.4(b)(10) of the current part 70 rule) is
being promulgated at section 71.7(c)(3).
4. Permit Revisions
Commenters remarked that the Federal title V permit
program as proposed in April 1995 would establish a new,
added layer of permitting which would add unacceptably to
the amount of time needed before a source could implement
process changes. They suggested that even though the April
1995 permit revision tracks attempt to build on existing
preconstruction programs, they still pose substantial new
requirements (e.g., new criteria for adequate prior review
in NSR). These commenters opined that if EPA believes that
insufficient public review is afforded by existing programs,
the Agency should address those shortcomings, not start a
new process. Another commenter suggested that clerical
changes should be handled through notification of the change
by an amendment letter to the permitting authority that
would then be attached to the permit without any EPA review
until permit renewal. The commenter further suggested that
all minor source changes which do not violate any permit
term and do not render the source newly subject to an
applicable requirement should be allowed to follow this
amendment procedure. Other commenters opined that the April
1995 proposed four track permit revision procedures were
fundamentally flawed and must be replaced with simpler
procedures. One commenter suggested that EPA Regions, not
just delegated States, should be authorized to conduct
"merged processing" to add NSR or section 112(g) terms to
title V permits, if such processing is retained in the final
rule. Some suggested that EPA promote consistency between
part 70 and part 71 permit programs to reduce confusion for
sources that have to make a transition between different
regulatory programs.
In light of these and other comments, EPA proposed in
August 1995 a revised permit revision process, developed
with extensive stakeholder input, which proposes several
ways of streamlining permit revisions, particularly for
those changes subject to prior State review (e.g., NSR
changes). In the interim, as discussed earlier in this
preamble, rather than adopting the four-track permit
revision system that the Agency proposed for part 71 on
April 25, 1995, the EPA has decided to adopt, for the first
phase of part 71, the permit revision system in the current
(July 1992) part 70 rule. Current part 70 provides three
ways to revise a permit: the administrative amendment
process, the minor permit modification process and the
significant permit modification process. The specific
regulatory changes to proposed part 71 taken to adopt these
procedures are described below.
One commenter requested that EPA not follow the
approach to "title I Modification" in the August 1994
proposed revisions to part 70 in defining the term for
part 71. In implementing the current part 70 permit
revision procedures during the interim period, EPA would
apply the interpretation of "title I modifications" that
States are allowed to apply under the current part 70 rule.
Under this interpretation, minor NSR actions may be
incorporated into the title V permit using the minor permit
modification procedures of current part 70, or
alternatively, may be made as off-permit changes if they are
eligible.
a. Rationale for Providing Interim Permit Revision
Procedures. The proposal indicated that due to the ongoing
discussions with stakeholders regarding permit revision
procedures under title V, EPA was considering finalizing
part 71 in the interim without provisions for permit
revision procedures. Several commenters suggested that EPA
not finalize any portion of part 71 until permit revision
procedures are finalized because they will influence how
sources design their initial permit applications. The
commenters argued that sources will need the ability to
obtain expeditious revisions to permits, and that there is
thus a need for provisions governing modifications. As
discussed previously, EPA has decided to include the permit
revision procedures of current part 70 in this interim part
71 rule, while reserving the right to adopt procedures based
upon future changes to part 70, when part 70 revisions are
promulgated and Phase II of this rule is completed.
The EPA agrees with commenters that including current
part 70 revision procedures is most appropriate for several
reasons. First, EPA believes that it is premature to adopt
the procedures proposed in April 1995 for part 71, or in
August 1995 for part 70, because both of these proposals
involve outstanding issues. Although the August 1995
proposal contains the latest thinking on streamlined permit
revision procedures, it would be inappropriate to rush to
promulgate a proposed system before the Agency has taken
time to consider comments on the August 1995 proposal and
arrive at a final position. In the meantime, the Agency has
at its disposal the permit procedures of the current part 70
rule under which the Agency continues to approve State
programs.
Second, industry commenters note that a clear
understanding of permit revision procedures is important as
sources prepare their part 71 permit applications. The
revision procedures of part 70 are more clearly understood
than any proposed procedures, having been promulgated by EPA
and adopted by many State programs. Third, adopting the
existing part 70 permit revision procedures insures a smooth
transition from a Federal operating permits program to a
State program due to the similarity between the two
programs.
Finally, the Agency does not believe that many permit
revisions will occur during Phase I of this program. The
timing of permit issuance under part 71 is such that the
Agency believes that few part 71 permits will be issued and
fewer will need to be revised before States receive part 70
approval or before Phase II of part 71 is promulgated.
Permit revision procedures in Phase I of the part 71 rule
become more essential the longer part 71 programs are in
place without a Phase II rule, which is possible if the
Phase II rulemaking is delayed.
b. Description of Permit Revision Procedures. The
part 71 proposal addressed permit revisions at proposed
sections 71.7(d)-(h) using proposed provisions from the
August 1994 part 70 notice. Proposed section 71.7(d) would
have defined when a permit revision is necessary; proposed
section 71.7(e) would have addressed administrative
amendments; proposed sections 71.7(f) and (g) would have
addressed de minimis permit revisions and minor permit
revisions, respectively; and proposed section 71.7(h) would
have covered significant permit revisions. All of these
provisions have been deleted in today's rule, and replaced
with new provisions at sections 71.7(d) and (e) that track
the corresponding provisions in the current part 70 rule
governing administrative amendments, minor permit
modifications, and significant permit modifications. The
EPA directs interested persons to the preamble to the final
part 70 rule, 57 FR 32250 (July 21, 1992) for a detailed
description of these permit revision procedures.
Under section 71.7(d), changes eligible to be processed
as administrative amendments include administrative changes
such as correction of typographical errors, changes in
mailing address, ownership of the source (or part of the
source) unless restricted by title IV, contact persons, and
changes in individuals who have assigned responsibilities,
(including the responsibility to sign permit applications).
Administrative permit amendments can be handled by direct
correspondence from the permitting authority to the facility
after the appropriate information related to the changes has
been supplied by the facility. As under current part 70,
administrative amendments could also be used to address
"enhanced NSR" changes, to which the permitting authority
could also extend the permit shield. Sections 71.7(e)(1)
and (2), which address minor permit modification procedures,
are designed for small changes at a facility which will not
involve complicated regulatory determinations. A source may
make a change immediately upon filing an application for a
minor permit modification, prior to the time the permitting
authority, affected States, and EPA (in the case of a
program delegated pursuant to section 71.10) review the
application. Eligible changes could be processed
individually or in groups, but the permit shield may not
extend to these changes. Section 71.7(e)(3) covers
significant modifications. In this track, the public, the
permitting authority, affected States, and EPA (in the case
of a program delegated pursuant to section 71.10) will
review the modification in the same manner as review during
permit issuance. The permit shield may extend to changes
processed under this track.
5. Permit Reopenings
The proposal addressed permit reopenings at proposed
71.7(i) and (j). These provisions were modeled on the
existing provisions at section 70.7(f) and (g), as proposed
to be revised in the August 1994 notice. One of the
features of that approach was a specific provision for
reopening permits to incorporate new maximum achievable
control technology (MACT) standards promulgated under
section 112 of the Act. As part 70 has not yet been finally
revised to adopt this approach, it is premature at this time
to adopt it for part 71. Consequently, in order to more
closely track the current part 70 rule and promote
consistency with State programs developed and approved under
the current rule, the part 71 provisions for permit
reopenings adopted today at sections 71.7(f) and (g) are
modeled on the existing provisions at sections 70.7(f) and
(g), and do not include the proposed provisions concerning
reopening permits to incorporate new MACT standards.
G. Section 71.8 - Affected State Review
The provisions of section 71.8 differ from provisions
proposed in the part 71 proposal in several respects.
First, because today's rulemaking adopts permit revision
procedures based on the current part 70 rule, rather than
those that were proposed in April, the cross references to
section 71.7 were changed and the reference to de minimis
permit revisions has been deleted. In addition, the final
rule specifically provides, consistent with part 70, that
timing of notice to affected States of major permit
modifications is not tied to the timing of notice to the
public.
Second, section 71.8(b) is being adopted to more
consistently follow section 70.8(b)(2) in providing that
where EPA delegates administration of a part 71 program, the
permitting authority shall transmit notice of refusal to
accept recommendations of an affected State as part of the
permitting authority's submittal of the proposed permit to
EPA.
Third, as discussed in section III.B of this document,
a new paragraph (d) has been added to section 71.8 that
requires that part 71 permitting authorities provide notice
of certain permitting actions to federally recognized Indian
Tribes. While this is a departure from what part 70
currently requires of State permitting authorities, EPA
agrees with commenters who suggested that federally
recognized Indian Tribes should not be required to establish
compliance with any eligibility criteria in order to be
entitled to notice of Federal permitting decisions that may
affect Tribal air quality. One commenter suggested that
applying for treatment in the same manner as a State was a
time consuming and burdensome process for Indian Tribes and
urged the elimination of that requirement for Tribes to
receive notice of permitting actions. Consistent with the
Agency's policy of maintaining government-to-government
relationships with Indian Tribes, EPA (and delegate
agencies) will notify federally recognized Indian Tribes of
draft permits that may be issued to sources that could
affect Tribal air quality, including all draft permits
issued by EPA for the Tribal area and all draft permits for
sources that are within 50 miles of the reservation boundary
or the Tribal area. Accordingly, the Agency has added a new
paragraph that provides that the part 71 permitting
authority shall send notices of draft permits to federally
recognized Indian Tribes whose air quality may be affected
by the permitting action. The EPA is imposing upon itself
this responsibility in order to further its government-to-
government relationship with Tribes.
H. Section 71.9 - Permit Fees
1. Two-Phase Promulgation of Fee Requirements
Consistent with the two-phased approach to part 71
promulgation described in this notice, EPA is today adopting
a two-phased approach to part 71 fee requirements. Upon
Phase I promulgation, collection of fees should be
sufficient to cover the anticipated program costs of Phase
I. On the other hand, because the cost of Phase II is tied
to procedures which will not be finalized until the Phase II
rulemaking (i.e., revised and streamlined permit revision
procedures), a fee amount for Phase II cannot be finalized
in todayžs rule. Thus, the Phase I fee covers all program
costs except those associated with permit revisions which
are excluded because the Phase II rulemaking will finalize
streamlined permit revision procedures that will ultimately
differ substantially from those contained in todayžs rule.
Instead, the Phase II rulemaking will add to the fee the
costs for the new permit revision procedures when they are
finalized. More information on the determination of
specific activities and costs associated with each phase is
contained in the document entitled žFederal Operating
Permits Program Costs and Fee Analysis (Revised),ž which is
contained in the docket for this rulemaking.
The two-phased approach to fee requirements will not
impact the ultimate fee amount owed by a source. For the
majority of sources, EPA expects that the part 71
application and associated fee submittal will occur after
the Phase II rulemaking. For these sources, the fee will be
paid all at once. Sources that submit their applications
prior to the Phase II rulemaking will pay a Phase I fee in
full at the time of application. The balance of the fee
necessary to cover the costs of the Phase II provisions will
be collected once the Phase II rule is promulgated. The
specific timing and amount of the Phase II fee collection
will be discussed in the Phase II rulemaking.
The EPA fully expects that the Phase II rulemaking
finalizing permit revision procedures will be completed
before any part 71 permits are issued and that no program
costs will be incurred in the interim period as a result of
permit revisions. However, EPA recognizes that in the
unlikely event that a part 71 permit is both issued and
revised (under the interim revision procedures in todayžs
rule) fees will not have yet been collected to cover the
cost of the revision and that if the Phase II fee is
finalized based on a streamlined permit revision process,
there may be a shortfall in revenue. However, the
alternative would be to finalize today a Phase I fee based
on the interim revision procedures that potentially
overcharges sources and would necessitate, if and when the
permit revision procedures are streamlined as expected, a
refund. The EPA wishes to avoid this unnecessary and
burdensome process.
2. Fee Amount
The part 71 proposal proposed a base fee amount of $45
per ton/year which was based on a fee analysis which
projected EPAžs direct and indirect costs for implementing
the part 71 program nationwide and dividing that by the
total emissions subject to the fee. A detailed discussion
of this methodology is found in žFederal Operating Permits
Program Costs and Fee Analysis,ž which is contained in the
docket for this rulemaking. Using the same basic
methodology as the original fee analysis, EPA has calculated
the costs of Phase I and has set the base Phase I fee amount
at $32 per ton/year to cover these costs. The determination
of this amount is contained in the report entitled, žFederal
Operating Permits Program Costs and Fee Analysis (Revised)"
(hereafter "Revised Fee Analysis"), which is contained in
the docket for this rulemaking. As proposed, the fee will
be adjusted based on the level of contractor support needed
for those programs where it is necessary for EPA to use
contractors.
One commenter suggested that the $3 per ton surcharge
to cover EPA oversight of contractor and delegated programs
should be eliminated, noting that EPA does not charge
oversight fees for State part 70 programs. The EPA agrees
and believes that such a surcharge would be inconsistent
with the approach taken in part 70. A full evaluation of
the April 1995 comments was made after the development of
the August 1995 proposal, in which EPA proposed to eliminate
the surcharge. This evaluation of comments confirmed the
direction EPA took in the August 1995 proposal. Therefore,
todayžs action both responds to the April comments and is
consistent with the August 1995 proposal. Accordingly, EPA
is today deleting the surcharge provisions from
sections 71.9(c)(2) and (3). The EPA will continue to
consider any comments received on the supplemental proposal,
and, if necessary, will take any additional action on the
surcharge in the Phase II rulemaking.
For reasons similar to those described in the preceding
paragraphs on the surcharge, the EPA is deleting žpreparing
generally applicable guidance regarding the permit program
or its implementation or enforcementž from the list of
activities in section 71.9(b) whose costs are subject to
fees. The EPA believes that this category partially
duplicates the fourth category under section 71.9(b),
general administrative costs. To the extent that it is not
duplicative, it refers to guidance that is issued before an
individual part 71 program is in place. The EPA does not
require that States charge fees for these activities for
part 70 programs, and the Agency does not believe that such
costs should be included in part 71 fees. This change does
not result in a change in the fee structure because costs of
activities which occur before the effective date of the part
71 program were not included in the original fee analysis.
This change simply adjusts the list of activities in
section 71.9(b) to more accurately reflect the activities
whose costs were included in the fee analysis. Consistent
with the deletion of the surcharge, the EPA is taking this
action based on comments received on the part 71 proposal.
If adverse public comment is received regarding this change
as proposed in the August 1995 supplemental proposal, the
EPA will take additional action as necessary in the Phase II
rulemaking.
3. Fees for Delegated Programs
As discussed in the part 71 proposal, EPA intends to
allow delegation of part 71 programs to States in many
cases. Originally, EPA envisioned funding these delegated
part 71 programs with revenue generated from part 71 fees.
However, EPA is aware that many delegate agencies have the
authority under State or local law to collect fees adequate
to fund delegated part 71 programs. In some cases, these
agencies could continue to collect fees even though EPA
would be collecting part 71 fees. Several commenters
pointed out that this would result in the undesirable
situation of paying fees to two permitting authorities. On
the other hand, one commenter noted that if a delegate
agency, in deference to part 71, rescinds its authority to
collect fees, funding for the Small Business Assistance
Program (SBAP) in that State could be adversely affected.
The EPA believes that the best way to address both of
these situations is to suspend collection of part 71 fees
for part 71 programs which are fully delegated to States and
for which the State has adequate authority under State law
to fund fully-delegated part 71 activities with fees
collected from part 71 sources. This ensures that State
revenue is available to administer the program, including
the SBAP, while addressing the commentersž concerns about
double fees. However, EPA cannot suspend fee collection for
partially delegated part 71 programs, since in those
situations EPA will still incur substantial administrative
costs. Suspension of EPA fee collection does not constitute
approval of the Statežs fee structure for part 70 purposes.
Rule language codifying this approach has been added to
section 71.9(c)(2).
The suspension of part 71 fees for delegated programs
was proposed in the August 1995 supplemental proposal.
While the timing of todayžs promulgation has not allowed
thorough evaluation of comments on that proposal, the EPA
agrees with the concerns about duplicate fees and the SBAP
which were raised in reference to the part 71 proposal. A
full evaluation of these comments was made after the
development of the August 1995 proposal on this issue. This
evaluation confirmed the direction EPA had taken in the
August 1995 proposal. Therefore, todayžs action both
responds to the April comments and is consistent with the
August proposal. Furthermore, todayžs action is consistent
with EPAžs position that its fees be based on program costs,
because EPA will not incur any program costs after it fully
delegates a part 71 program. The EPA will still evaluate
all comments received on the August 1995 proposal and will
take any necessary additional regulatory action on the
suspension of part 71 fees for delegated programs in the
Phase II rulemaking.
For part 71 programs that are delegated but for which
EPA does not waive fee collection, EPAžs policy will be to
continue to collect part 71 fees itself. The proposed fee
amount for part 71 programs was based on the assumption that
certain activities would be more costly for EPA to implement
than for States due to increased travel, unfamiliarity with
individual sources, etc. However, commenters pointed out
that when a program is delegated, this assumption is not
applicable. The EPA agrees with this comment, and is today
promulgating language establishing a lower part 71 fee for
delegated programs which omits the increased cost assumption
made for EPA-administered part 71 programs. Where EPA
continues to collect part 71 fees for a fully-delegated
program, the Phase I part 71 fee amount will be $24 per
ton/year. The determination of this amount is contained in
the Revised Fee Analysis. Furthermore, for partially
delegated programs, the part 71 fee that EPA collects will
be lower than the fee for an EPA-administered program
because the fee will be adjusted to account for the
proportion of effort performed by the delegate agency at a
lower cost. For these programs, the Administrator will
determine the fee according to the formula in
section 71.9(c)(4).
4. Timing of Fee Payment
The part 71 proposal provided that sources submitting
their initial fee calculation worksheets must pay one-third
of the initial fee upon submittal, and must pay the balance
of the fee within 4 months. However, EPA believes that two
changes discussed in todayžs preamble make this installment
approach to fee payment infeasible. First, EPA is
promulgating a later due date for permit applications, which
would mean that under the proposed installment approach,
receipt of two-thirds of the fee revenues would be delayed
until the end of the first year of the program, which would
not provide adequate funding for initial program activities.
Second, EPA is promulgating a two-phased approach to fee
collection. The EPA believes that it would be unnecessarily
complicated and potentially confusing to provide for
installment payment of the fee for one or both phases. For
these reasons, EPA is promulgating language at
section 71.9(e)(1) which clarifies that payment of the full
fee amount for the first year is due upon submittal of the
initial fee calculation worksheet.
In addition, because todayžs rule changes the due date
for permit applications, a change must also be made to the
deadlines for the initial part 71 fee calculation worksheets
in the event that EPA withdraws approval of a part 70
program. The proposal contained a schedule for submission
of the fee calculation worksheet based on SIC code. The due
dates ranged from 4 to 7 months after the effective date of
the part 71 program. Changes to section 71.9(f)(1) adjust
the fee calculation worksheet due dates to range from 6 to 9
months after the part 71 effective date, depending on SIC
code.
5. Computation of Emissions Subject to Fees
A commenter pointed out that the rule language in
proposed section 71.9(c)(5)(ii) inadvertently limits the
4000 ton cap on emissions subject to fees solely to programs
administered by EPA, not delegated or contractor-
administered programs. Accordingly, the EPA has amended
this paragraph to clarify that the 4000 ton cap applies to
all types of part 71 programs.
6. Penalties
The part 71 proposal contained a penalty charge of 50
percent of the fee amount if the fee is not paid within 30
days of the due date. In addition, the proposal assessed a
penalty of 50 percent on underpayments with the 50 percent
penalty assessed on the amount by which the source underpaid
the fee owed. The proposal also provided relief from the
penalty for certain underpayments where the source is making
an initial fee calculation based on estimated rather than
actual emissions. The proposal provided that where the
underpayment results from an underestimate of future
emissions and where the underpayment does not exceed 20
percent of the fee amount (i.e., where the source pays more
than 80 percent of the fee owed), no penalty would be
assessed.
Some industry commenters were concerned that
establishing a penalty for underpayment for a source that
underpays by as little as 20 percent would be too harsh in
light of the uncertainty in making emissions estimates.
Although title V requires a penalty to be assessed for
failure to pay any fee lawfully imposed by the
Administrator, the EPA agrees that there is a degree of
uncertainty in estimating emissions, particularly for HAP
sources, which are often smaller, and for which emission
factors are not well-defined.
Upon consideration of comments and evaluation of the
relative uncertainty of emission estimates for HAP listed
pursuant to section 112(b) of the Act, the EPA is today
promulgating in section 71.9(l)(4) an underpayment penalty
which differs slightly from the proposal. For sources who
base their initial fee calculation worksheet on estimated
rather than actual emissions, the EPA will, for HAP
emissions, apply the penalty to an underpayment of 50
percent or more. The penalty will still apply to an
underpayment of 20 percent or more for non-HAP emissions.
If a source is subject to fees for both HAP and non-HAP
emissions, the underpayment which would trigger a penalty
will be prorated based on what portion of the sourcežs
emissions are HAP versus non-HAP. Thus, to determine
whether an underpayment would incur a penalty, such a
sourcežs HAP emissions would be multiplied by the 50 percent
rate, and its non-HAP emissions would be multiplied by the
20 percent rate. The sum of these emissions rates
determines the level of underpayment which, if exceeded,
would incur the underpayment penalty. The EPA believes that
this approach offers significant relief to sources faced
with difficulty in accurately estimating their emissions,
while still ensuring that adequate fee revenues can be
collected in a fair and timely manner.
7. Certification Requirement
The EPA believes that the correct interpretation of the
part 71 certification requirement at section 71.5(d) is that
it applies to all fee calculation documents. However, for
clarity, EPA is today adding a requirement to
sections 71.9(e) and (h) which requires certification of the
fee calculation worksheets by a responsible official. The
added language in section 71.9 is simply a cross reference
to the language in section 71.5(d).
I. Section 71.10 - Delegation of Part 71 Program
1. Delegation of Authority Agreement
With respect to the content of Delegation of Authority
Agreements, EPA wishes to clarify that the adequacy of State
permit fees must be addressed when EPA waives collection of
part 71 permit fees. As described in section III.F.3 of
this preamble, when EPA has determined that a delegate
agency has raised adequate fee revenue from sources subject
to title V to administer a fully-delegated part 71 program
absent any financial assistance from EPA, then EPA will
waive collection of part 71 fees. In such a case, the
Delegation of Authority Agreement would specify that the
delegate agency has sufficient revenue and will collect
sufficient revenue from sources subject to title V to
administer all of its duties as outlined in the Agreement.
The EPA will not waive fees when the part 71 program is
partially delegated or when the delegate agency lacks
sufficient revenue to fund the delegated part 71 program.
2. Appeal of Permits
The Agency has revised proposed section 71.10(i), which
addresses the petition process for permits issued by
delegate agencies. In lieu of restating which persons and
parties may submit petitions to the Environmental Appeal
Board pursuant to section 71.11(l)(1), section 71.10(i)
provides that the appeals of permits under delegated program
shall follow the procedures of section 71.11(l)(1).
3. Transmission of Information to EPA, Prohibition of
Default Issuance, and EPA Objections
The final rule also makes certain changes to the
proposed provisions addressing transmission of information
to the Administrator, the prohibition of default issuance of
permits, and EPA objections to proposed permits at
sections 71.10(d), (f) and (g). Essentially, these changes
are being made today in order to better harmonize the final
rule with corresponding provisions in the currently
promulgated part 70 rule at 70.8(a), (c) and (e). Regarding
transmission of information to EPA, the reference in
proposed section 71.10(d)(1) to proposed section
71.7(a)(1)(v) has been rewritten, and proposed paragraphs
(2) and (3) have been merged into it in order to more
closely track part 70. New paragraph (2) has been adopted
in order to achieve consistency with section 70.8(a)(2).
The provision on prohibition of default issuance has
been changed to follow the existing provision at section
70.8(e). In proposed section 71.10(f)(2), EPA had provided
that the prohibition would not apply to permit revisions
processed through the proposed de minimis permit revision
track, following the August 1994 proposed revisions to part
70. As that track is not being adopted in this Phase I
rule, the exception has been deleted.
Finally, section 71.10(g) on EPA objections has been
changed from the proposal in order to follow the test
established under the current part 70 rule for when EPA
would object to proposed permits, and to follow the
promulgated part 70 language providing for what shall happen
when a permitting authority refuses to respond adequately to
an EPA objection. This change includes deletion of the
proposed reference to proposed section 71.7(a)(6), which is
not being adopted as proposed in this final rule.
J. Section 71.11 - Administrative Record, Public
Participation, and Administrative Review
The Agency has chosen to establish part 71-specific
rules in today's promulgated section 71.11 for
administrative procedures in order to clarify for the public
and the regulated community those requirements associated
specifically with Federal operating permits under title V of
the Act. Today's promulgated section 71.11 is based closely
on the provisions of 40 CFR part 124. Part 124 covers a
number of EPA permitting programs, and the process of
identifying the separate and distinct requirements
associated with those individual programs can be complex.
The Agency feels that it is advantageous in this case to
describe the administrative procedures for today's
promulgated part 71 within the rule itself, since that will
avoid potential confusion as to which provisions of part 124
apply to the part 71 program, and since interested parties
will not be required to refer to separate regulations in
discerning applicable administrative procedures.
Certain aspects of section 71.11 that would correspond
to proposed streamlined part 71 permit revision processes
discussed in the preamble to the supplemental part 70 and 71
proposed rules published on August 31, 1995 (60 FR 45529),
are not addressed in today's notice because the Agency is
not yet prepared to conduct final rulemaking for those
processes. In the meantime, EPA is promulgating permit
revision processes based on the current part 70 rule in
response to numerous comments on the proposed part 71.
To accommodate basing part 71's permit revision
procedures on the existing part 70 rule, today's notice
makes certain changes to the regulatory language of
section 71.11 as proposed on April 27, 1995 (60 FR 20804) in
order to apply administrative procedures to the permit
revision tracks as appropriate. Changes to the regulatory
language that make reference to permit revision procedures
were made in the first paragraph of section 71.11 and in
section 71.11(l)(1). These sections make reference to
specific types of permit revisions which in this promulgated
rule are those permit revision procedures found in 40 CFR
part 70, rather than the four-track permit revision
procedures in the April 27, 1995 proposed part 71. Section
71.11(l)(1) describes the 30-day period within which a
person may request review of a final permit decision. For
significant modifications, the 30-day period begins with the
service of notice of the permitting authorityžs action.
This is unchanged from the proposal. For minor permit
modifications and administrative amendments, the 30-day
period begins on the date the minor permit modification or
administrative amendment is effective.
Section 71.11(d)(3)(i)(D) has been modified in response
to comments received which noted that under the proposal a
requirement to notify any unit of local government having
jurisdiction over the area where a source is located would
result in notices to components of government which have no
relationship to air quality and its impacts. Promulgated
section 71.11(d)(3)(i)(D) stipulates that the local
emergency planning committee (not "any" unit of local
government) and State agencies having authority under State
law with respect to the operation of the source are among
the entities to receive a copy of notices of activities
described in section 71.11(d)(1)(i).
Additional changes to the regulatory language of
section 71.11 relate to treatment of a final permit decision
as enforceable and effective where review by the EAB has
been requested. In proposed sections 71.11(i)(2) and
71.11(l)(6), the Agency proposed that a final permit
decision would become effective immediately upon issuance of
that decision unless a later effective date were specified
in the decision. It was pointed out by several commenters
that, in other EPA permitting programs, such as the Resource
Conservation and Recovery Act and PSD programs, an appeal
request stays the effectiveness of a final permit decision.
See 40 CFR section 124.15(b)(2). The EPA agrees that it
would be unfair to force permittees to comply with permit
terms during the time that they are subject to appeal, and
that the proposal was inappropriately inconsistent with part
124 on this point. Thus, sections 71.11(i)(2) and
71.11(l)(6) have been promulgated to conform to the
longstanding Agency approach reflected in 40 CFR
section 124.15, so that permittees are not unfairly required
to comply with permit terms pending their review by the EAB.
Under the final rule, those specific permit terms and
conditions that are the subject of an appeal to EAB would be
stayed, while the rest of the permit would become effective
as otherwise provided in section 71.11(i)(2). Moreover,
section 71.11 (i)(2) itself has been changed so that it
better tracks part 124, which makes final permit issuance
decisions immediately effective only where no comments
requested a change in the draft permit; otherwise, permits
are effective than sooner than 30 days after the issuance
decision or following the conclusion of appeal proceedings,
as applicable.
In response to comments which expressed concern that
applicants should be able to appeal a final permit decision
even in the absence of having commented on a draft permit,
the Agency believes that applicants can appeal if the final
permit differs from the draft permit, even if the applicant
did not submit comments on the draft permit. The Agency
does not believe it would be appropriate to allow applicants
to appeal where the final permit is identical to the draft
permit, and the applicant had not commented on the draft
permit. It is a far more efficient use of resources to
resolve permitting issues in the administrative issuance
process, rather than to allow applicants to raise issues on
draft permits for the first time on appeal. To further
clarify the ability of the applicant to appeal a final
permit, the following language has been added to
section 71.11(l)(1): "or other new grounds that were not
reasonably foreseeable during the public comment period on
the draft permit".
Section 71.11(l)(6) has been added, incorporating
language from 40 CFR part 124. Part 124 establishes general
procedures clarifying the rules to which appellants are
subject in all permit programs under part 124, and therefore
EPA believes it is appropriate to extend these provisions to
part 71 as well. This section outlines procedures for
motions for reconsideration of appeals of final orders. It
stipulates a 10 day deadline for motions, and notes that
motions are to be directed to the EAB, unless the case had
been referred to the Administrator by the Board, and in
which the Administrator had issued the final order. The
effective date of the final order is not stayed unless
specifically so ordered by the Board.
One commenter suggested that the proposal's requirement
of a right to appeal every permit decision would be overly
burdensome, commenting that even de minimis revisions would
be subject to appeal. The EPA notes that final part 71
permitting actions are final actions for purposes of
judicial review under section 307(b)(1) of the Act.
Consequently, EPA does not have the discretion to eliminate
the opportunity for judicial review of final part 71
permitting actions. Moreover, EPA disagrees that requiring
administrative appeal to the EAB as a prerequisite to
judicial review is either redundant or jeopardizes a
source's ability to rely on its permit. Requiring
administrative exhaustion of remedies is longstanding
practice in EPA permit programs, and EPA notes that States
with approved part 70 programs generally require
administrative appeal as a prerequisite to challenging
permits in State court. Also, in requiring administrative
exhaustion, litigation in Federal court over permit actions
will often be avoided, thus conserving both public and
private resources. Finally, since pending administrative
appeal sources will be able to rely on the application
shield, they will not be placed in any greater "jeopardy"
than if they had directly appealed the final permit to
Federal court.
Changes have been made to section 71.11(n) to replace
the term "Administrator" with "permitting authority," to
allow for those circumstances where a State has been
delegated a part 71 program by EPA.
IV. Administrative Requirements
A. Docket
The docket for this regulatory action is A-93-51. All
the documents referenced in this preamble fall into one of
two categories. They are either reference materials that
are considered to be generally available to the public, or
they are memoranda and reports prepared specifically for
this rulemaking. Both types of documents can be found in
Docket No. A-93-51.
B. Executive Order 12866
Under Executive Order 12866 (58 FR 51735 (October 4,
1993)), the Agency must determine whether the regulatory
action is "significant" and therefore subject to the Office
of Management and Budget (OMB) review and the requirements
of the Executive Order. The Order defines "significant"
regulatory action as one that is likely to lead to a rule
that may:
(1) Have an annual effect on the economy of
$100 million or more, adversely and materially affecting a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local or
Tribal governments or communities;
(2) Create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of
entitlements, grants, user fees, or loan program or the
rights and obligation of recipients thereof;
(4) Raise novel legal or policy issues arising out of
legal mandates, the President's priorities, or the
principles set forth in the Executive Order."
Pursuant to the terms of Executive Order 12866, it has
been determined that this rule is a "significant" regulatory
action. As such, this action was submitted to OMB for
review. Changes made in response to OMB suggestions or
recommendations will be documented in the public record.
The EPA has estimated the annualized cost of the part
71 program based on the number of sources that would be
subject to part 71 permitting requirements in the 8 States
where EPA believes the program will be implemented. A
survey of those States showed that the number of part 71
sources in those States (many of which are not heavily
industrialized) is much smaller than EPA's original
estimates. The EPA had previously assumed that part 71
sources in 8 States would comprise 16 percent of all title V
sources. However, in the States where EPA is likely to
administer a part 71 program, the part 71 source population
comprises slightly less than 6 percent of all title V
sources. The estimated annualized cost of implementing the
part 71 program is $19.8 million to the Federal government
and $18.1 million to respondents, for a total of $37.9
million which reflects industry's total expected costs of
complying with the program. Since any costs incurred by the
Agency in administering a program would be recaptured
through fees imposed on sources, the true cost to the
Federal government is zero. The requirements for the costs
result from section 502(d) of title V which mandates that
EPA develop a Federal operating permits program. The draft
regulatory impact analysis (RIA) was made available for
public comment as part of the April 27, 1995 proposal. The
primary difference between the current RIA and the prior
draft is that the RIA now assesses impacts based on the
streamlined permit revision procedures that were proposed
for part 70 and 71 in August of 1995, in lieu of the more
cumbersome 4-track permit revision procedure that was
contained in the part 71 proposal. The proposed program is
designed to improve air quality by: indirectly improving
the quality of State-administered operating permits
programs; encouraging the adoption of lower cost control
strategies based on economic incentive approaches; improving
the effectiveness of enforcement and oversight of source
compliance; facilitating the implementation of other titles
of the Act, such as title I; and improving the quality of
emissions data and other source-related data.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601) requires
EPA to consider potential impacts of proposed regulations on
small entities. If a preliminary analysis indicates that a
proposed regulation would have a significant adverse
economic impact on a substantial number of small entities,
then a regulatory flexibility analysis must be prepared.
The original part 70 rule and the recently proposed
revisions to part 70 were determined to not have a
significant adverse impact on small entities. See 57 FR
32250, 32294 (July 21, 1992), and 60 FR 45530, 45563 (Aug.
31, 1995). Similarly, a regulatory flexibility screening
analysis of the part 71 rule revealed that the rule would
not have a significant adverse impact on a substantial
number of small entities, since few small entities would be
subject to part 71 permitting requirements as a result of
the rule's deferral of the requirement to obtain a permit
for nonmajor sources.
Consequently, I hereby certify that the part 71
regulations will not have a significant adverse effect on a
substantial number of small entities.
D. Paperwork Reduction Act
The OMB has approved the information collection
requirements contained in this rule under the provisions of
the Paperwork Reduction Act, 44 U.S.C. 3501 et. seq. and has
assigned OMB control number 2060-0336.
The information is planned to be collected to enable
EPA to carry out its obligations under the Act to determine
which sources are subject to the Federal Operating Permits
Program and what requirements should be included in permits
for sources subject to the program. Responses to the
collection of information will be mandatory under
section 71.5(a) which requires owners or operators of
sources subject to the program to submit a timely and
complete permit application and under sections 71.6(a) and
(c) which require that permits include requirements related
to recordkeeping and reporting. As provided in 42 U.S.C.
7661b(e), sources may assert a business confidentiality
claim for the information collected under section 114(c) of
the Act.
The annual average burden on sources for the collection
of information is approximately 678,000 hours per year, or
329 hours per source. The annual cost for the collection of
information to respondents is $18.1 million per year. The
EPA has estimated the annualized costs based on the number
of sources that would be subject to part 71 permitting
requirements in the 8 States where EPA believes the program
will be implemented, most of which have fewer than average
number of part 71 sources per State. There is no burden for
State and local agencies. The annual cost to the Federal
government is $19.8 million (assuming part 71 programs are
delegated), which is recovered from sources through permit
fees. Thus, the total annual cost to sources would be $37.9
million. Burden means the total time, effort, or financial
resources expended by persons to generate, maintain, retain,
or disclose or provide information to or for a Federal
agency. This includes the time needed to review
instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting,
validating, and verifying information, processing and
maintaining information, and disclosing and providing
information; adjust the existing ways to comply with any
previously applicable instructions and requirements; train
personnel to be able to respond to a collection of
information; search data sources; complete and review the
collection of information; and transmit or otherwise
disclose the information.
An Agency may not conduct or sponsor, and a person is
not required to respond to a collection of information
unless it displays a currently valid OMB control number.
The OMB control numbers for EPA's regulations are listed in
40 CFR Part 9 and 48 CFR Chapter 15. The EPA is amending
the table in 40 CFR part 9 of currently approved information
collection request (ICR) control numbers issued by OMB for
various regulations to list the information requirements
contained in this final rule.
Send comments on the Agency's need for this
information, the accuracy of the provided burden estimates,
and any suggested methods for minimizing respondent burden,
including through the use of automated collection
techniques, to the Director, Regulatory Information
Division, Office of Policy, Planning, and Evaluation, U.S.
Environmental Protection Agency (2136), 401 M Street, S.W.,
Washington, DC 20460, and to the Office of Information and
Regulatory Affairs, Office of Management and Budget, 725
17th St., N.W., Washington, DC 20503, marked "Attention:
Desk Officer for EPA." Include the ICR number in any
correspondence.
E. Unfunded Mandates Reform Act
As noted in the ICR document, today's action imposes no
costs on State, local and Tribal governments. This is
because the EPA incurs all costs in cases where it
implements a part 71 program. A State, local, or Tribal
government will incur costs where it elects to take
delegation of a part 71 program. As noted in the ICR
document, EPA expects that, of the estimated eight part 71
programs, States will take delegation of all eight programs.
However, the costs of running these delegated programs do
not represent costs imposed by today's action. This is
because the costs of running a delegated part 71 program are
essentially the same as those of running an approved part 70
program. Furthermore, taking delegation is optional on the
part of States. Regardless of whether a State, local, or
Tribal agency chooses to take delegation of a part 71
program, the costs to these agencies imposed by this rule
over and above the costs of existing part 70 requirements
are zero.
Regarding the private sector, the EPA estimates that
the total cost of complying with the part 71 program would
be $37.9 million per year, assuming that the part 71 program
is in effect in 8 States. The estimated costs of collection
of information would be $18.1 million per year, and $19.8
million would be collected in fees.
For these reasons, EPA believes that the total direct
costs to industry under today's action would not exceed $100
million in any 1 year. Therefore, the Agency concludes that
it is not required by Section 202 of the Unfunded Mandates
Reform Act of 1995 to provide a written statement to
accompany this regulatory action because promulgation of the
rule would not result in the expenditure by State, local,
and Tribal governments, in the aggregate or by the private
sector, of $100,000,000 or more in any 1 year.
F. Submission to Congress and the General Accounting
Office
Under section 801(a)(1)(A) of the Administrative
Procedure Act (APA), as amended by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a
report containing this rule and other required information
to the U.S. Senate, the U.S. House of Representatives, and
the Comptroller General of the General Accounting Office
prior to publication of the rule in today's Federal
Register. This rule is not a "major rule" as defined by
section 804(2) of the APA as amended.
List of Subjects 40 CFR Part 9
Reporting and Recordkeeping Requirements
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
Date Carol M. Browner
Administrator
Billing Code 6560-50-P For the reasons set out in the preamble, title 40,
chapter I of the Code of Federal Regulations is amended as
set forth below.
PART 9--[AMENDED]
1. In Part 9:
a. The authority citation for part 9 continues to read
as follows:
Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C.
2001, 2003, 2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a,
348; 31 U.S.C. 9701; 33 U.S.C. 1251 et seq., 1311, 1313d,
1314, 1318, 1321, 1326, 1330, 1342, 1344, 1345 (d) and (e),
1361; E.O. 11735, 38 FR 21243, 3 CFR, 1971-1975 Comp. p.
973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g, 300g-1,
300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2,
300j-3, 300j-4, 300j-9, 1857 et seq., 6901-6992k, 7401-
7671q, 7542, 9601-9657, 11023, 11048. b. Section 9.1 is amended by adding the new entries to
the table to read as follows:
9.1 OMB approvals under the Paperwork Reduction Act.
* * * * *
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄž
40 CFR Citation OMB Control No.
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄž
* * * * *
part 71
71.5 2060-0336
71.6(a,c,d,g) 2060-0336
71.7 2060-0336
71.9(e-j) 2060-0336
* * * * *
PART 55--[AMENDED]
2. The authority citation for part 55 continues to
read as follows:
Authority: Section 328 of the Clean Air Act (Act) (42
U.S.C. 7401, et seq.) as amended by Public Law 101-549.
3. Section 55.6 is amended by adding paragraph (c)(3)
to read as follows:
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.
* * * * *
4. Section 55.10 is amended by revising paragraph
(a)(1) and by adding paragraph (b) to read as follows:
55.10 Fees.
(a) * * *
(1) The EPA will calculate and collect operating
permit fees from OCS sources in accordance with the
requirements of 40 CFR part 71.
* * * * *
(b) The OCS sources
located beyond 25 miles of States' seaward boundaries. The
EPA will calculate and collect operating permit fees from
OCS sources in accordance with the requirements of 40 CFR
part 71.
5. Section 55.13 is amended by adding paragraph (f) to
read as follows:
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).
* * * * *
6. The authority citation for part 71 continues to
read as follows:
Authority: 42 U.S.C. 7401 et seq.
7. Subpart A of part 71 is added to read as follows:
Subpart A--OPERATING PERMITS
Sec.
71.1 Program overview.
71.2 Definitions.
71.3 Sources subject to permitting requirements.
71.4 Program implementation.
71.5 Permit applications.
71.6 Permit content.
71.7 Permit 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.
Subpart A--Operating Permits
71.1 Program overview.
(a) This part sets forth the comprehensive Federal air
quality operating permits permitting program consistent with
the requirements of title V of the Act (42 U.S.C. 7401, et
seq.) and defines the requirements and the corresponding
standards and procedures by which the Administrator will
issue operating permits. This permitting program is
designed to promote timely and efficient implementation of
goals and requirements of the Act.
(b) All sources subject to the operating permit
requirements of title V and this part shall have a permit to
operate that assures compliance by the source with all
applicable requirements.
(c) The requirements of this part, including
provisions regarding schedules for submission and approval
or disapproval of permit applications, shall apply to the
permitting of affected sources under the acid rain program,
except as provided herein or as modified by title IV of the
Act and 40 CFR parts 72 through 78.
(d) Issuance of permits under this part may be
coordinated with issuance of permits under the Resource
Conservation and Recovery Act (42 U.S.C. 6901, et seq.) and
under the Clean Water Act (33 U.S.C. 1251, et seq.), whether
issued by the State, the U.S. Environmental Protection
Agency (EPA), or the U.S. Army Corps of Engineers.
(e) Nothing in this part shall prevent a State from
administering an operating permits program and establishing
more stringent requirements not inconsistent with the Act.
71.2 Definitions.
The following definitions apply to part 71. Except as
specifically provided in this section, terms used in this
part retain the meaning accorded them under the applicable
requirements of the Act.
Act means the Clean Air Act, as amended, 42 U.S.C.
7401, et seq.
Affected source shall have the meaning given to it in
40 CFR 72.2.
Affected States are:
(1) All States and Tribal areas whose air quality may
be affected and that are contiguous to the State or Tribal
area in which the permit, permit modification or permit
renewal is being proposed; or that are within 50 miles of
the permitted source. A Tribe and any associated Tribal
area shall be treated as a State under this paragraph
(1) only if EPA has determined that the Tribe is an eligible
Tribe.
(2) The State or Tribal area in which a part 71
permit, permit modification, or permit renewal is being
proposed. A Tribe and any associated Tribal area shall be
treated as a State under this paragraph (2) only if EPA has
determined that the Tribe is an eligible Tribe.
(3) Those areas within the jurisdiction of the air
pollution control agency for the area in which a part 71
permit, permit modification, or permit renewal is being
proposed.
Affected unit shall have the meaning given to it in 40
CFR 72.2.
Applicable requirement means all of the following as
they apply to emissions units in a part 71 source (including
requirements that have been promulgated or approved by EPA
through rulemaking at the time of issuance but have future
compliance dates):
(1) Any standard or other requirement provided for in
the applicable implementation plan approved or promulgated
by EPA through rulemaking under title I of the Act that
implements the relevant requirements of the Act, including
any revisions to that plan promulgated in part 52 of this
chapter;
(2) Any term or condition of any preconstruction
permits issued pursuant to regulations approved or
promulgated through rulemaking under title I, including
parts C or D, of the Act;
(3) Any standard or other requirement under
section 111 of the Act, including section 111(d);
(4) Any standard or other requirement under
section 112 of the Act, including any requirement concerning
accident prevention under section 112(r)(7) of the Act;
(5) Any standard or other requirement of the acid rain
program under title IV of the Act or 40 CFR parts 72 through
78;
(6) Any requirements established pursuant to section
114(a)(3) or 504(b) of the Act;
(7) Any standard or other requirement governing solid
waste incineration, under section 129 of the Act;
(8) Any standard or other requirement for consumer and
commercial products, under section 183(e) of the Act;
(9) Any standard or other requirement for tank
vessels, under section 183(f) of the Act;
(10) Any standard or other requirement of the program
to control air pollution from outer continental shelf
sources, under section 328 of the Act;
(11) Any standard or other requirement of the
regulations promulgated at 40 CFR part 82 to protect
stratospheric ozone under title VI of the Act, unless the
Administrator has determined that such requirements need not
be contained in a title V permit; and
(12) Any national ambient air quality standard or
increment or visibility requirement under part C of title I
of the Act, but only as it would apply to temporary sources
permitted pursuant to section 504(e) of the Act.
Delegate agency means the State air pollution control
agency, local agency, other State agency, Tribal agency, or
other agency authorized by the Administrator pursuant to
71.10 to carry out all or part of a permit program under
part 71.
Designated representative shall have the meaning given
to it in section 402(26) of the Act and 40 CFR 72.2.
Draft permit means the version of a permit for which
the permitting authority offers public participation under
71.7 or 71.11 and affected State review under 71.8.
Eligible Indian Tribe or eligible Tribe means a Tribe
that has been determined by EPA to meet the criteria for
being treated in the same manner as a State, pursuant to the
regulations implementing section 301(d)(2) of the Act.
Emissions allowable under the permit means a federally
enforceable permit term or condition determined at issuance
to be required by an applicable requirement that establishes
an emissions limit (including a work practice standard) or a
federally enforceable emissions cap that the source has
assumed to avoid an applicable requirement to which the
source would otherwise be subject.
Emissions unit means any part or activity of a
stationary source that emits or has the potential to emit
any regulated air pollutant or any pollutant listed under
section 112(b) of the Act. This term is not meant to alter
or affect the definition of the term "unit" for purposes of
title IV of the Act.
The EPA or the Administrator means the Administrator of
the U.S. Environmental Protection Agency (EPA) or his or her
designee.
Federal Indian reservation, Indian reservation or
reservation means all land within the limits of any Indian
reservation under the jurisdiction of the United States
Government, notwithstanding the issuance of any patent, and
including rights-of-way running through the reservation.
Final permit means the version of a part 71 permit
issued by the permitting authority that has completed all
review procedures required by 71.7, 71.8, and 71.11.
Fugitive emissions are those emissions which could not
reasonably pass through a stack, chimney, vent, or other
functionally-equivalent opening.
General permit means a part 71 permit that meets the
requirements of 71.6(d).
Indian Tribe or Tribe means any Indian Tribe, band,
nation, or other organized group or community, including any
Alaskan native village, which is federally recognized as
eligible for the special programs and services provided by
the United States to Indians because of their status as
Indians.
Major source means any stationary source (or any group
of stationary sources that are located on one or more
contiguous or adjacent properties, and are under common
control of the same person (or persons under common
control)), belonging to a single major industrial grouping
and that are described in paragraph (1), (2), or (3) of this
definition. For the purposes of defining "major source,"
a stationary source or group of stationary sources shall be
considered part of a single industrial grouping if all of
the pollutant emitting activities at such source or group of
sources on contiguous or adjacent properties belong to the
same Major Group (i.e., all have the same two-digit code) as
described in the Standard Industrial Classification Manual,
1987.
(1) A major source under section 112 of the Act, which
is defined as:
(i) For pollutants other than radionuclides, any
stationary source or group of stationary sources located
within a contiguous area and under common control that emits
or has the potential to emit, in the aggregate, 10 tpy or
more of any hazardous air pollutant which has been listed
pursuant to section 112(b) of the Act, 25 tpy or more of any
combination of such hazardous air pollutants, or such lesser
quantity as the Administrator may establish by rule.
Notwithstanding the preceding sentence, emissions from any
oil or gas exploration or production well (with its
associated equipment) and emissions from any pipeline
compressor or pump station shall not be aggregated with
emissions from other similar units, whether or not such
units are in a contiguous area or under common control, to
determine whether such units or stations are major sources;
or
(ii) For radionuclides, "major source" shall have the
meaning specified by the Administrator by rule.
(2) A major stationary source of air pollutants or any
group of stationary sources as defined in section 302 of the
Act, that directly emits, or has the potential to emit,
100 tpy or more of any air pollutant (including any major
source of fugitive emissions of any such pollutant, as
determined by rule by the Administrator). The fugitive
emissions of a stationary source shall not be considered in
determining whether it is a major stationary source for the
purposes of section 302(j) of the Act, unless the source
belongs to one of the following categories of stationary
source:
(i) Coal cleaning plants (with thermal dryers);
(ii) Kraft pulp mills;
(iii) Portland cement plants;
(iv) Primary zinc smelters;
(v) Iron and steel mills;
(vi) Primary aluminum ore reduction plants;
(vii) Primary copper smelters;
(viii) Municipal incinerators capable of charging more
than 250 tons of refuse per day;
(ix) Hydrofluoric, sulfuric, or nitric acid plants;
(x) Petroleum refineries;
(xi) Lime plants;
(xii) Phosphate rock processing plants;
(xiii) Coke oven batteries;
(xiv) Sulfur recovery plants;
(xv) Carbon black plants (furnace process);
(xvi) Primary lead smelters;
(xvii) Fuel conversion plants;
(xviii) Sintering plants;
(xix) Secondary metal production plants;
(xx) Chemical process plants;
(xxi) Fossil-fuel boilers (or combination thereof)
totaling more than 250 million British thermal units per
hour heat input;
(xxii) Petroleum storage and transfer units with a
total storage capacity exceeding 300,000 barrels;
(xxiii) Taconite ore processing plants;
(xxiv) Glass fiber processing plants;
(xxv) Charcoal production plants;
(xxvi) Fossil-fuel-fired steam electric plants of more
than 250 million British thermal units per hour heat input;
or
(xxvii) Any other stationary source category which, as
of August 7, 1980, is being regulated under section 111 or
112 of the Act;
(3) A major stationary source as defined in part D of
title I of the Act, including:
(i) For ozone nonattainment areas, sources with the
potential to emit 100 tpy or more of volatile organic
compounds or oxides of nitrogen in areas classified as
"marginal" or "moderate," 50 tpy or more in areas classified
as "serious," 25 tpy or more in areas classified as
"severe," and 10 tpy or more in areas classified as
"extreme;" except that the references in this paragraph
(3)(i) to 100, 50, 25, and 10 tpy of nitrogen oxides shall
not apply with respect to any source for which the
Administrator has made a finding, under section 182(f)(1) or
(2) of the Act, that requirements under section 182(f) of
the Act do not apply;
(ii) For ozone transport regions established pursuant
to section 184 of the Act, sources with the potential to
emit 50 tpy or more of volatile organic compounds;
(iii) For carbon monoxide nonattainment areas:
(A) That are classified as "serious," and
(B) in which stationary sources contribute
significantly to carbon monoxide levels as determined under
rules issued by the Administrator, sources with the
potential to emit 50 tpy or more of carbon monoxide; and
(iv) For particulate matter (PM-10) nonattainment
areas classified as "serious," sources with the potential to
emit 70 tpy or more of PM-10.
Part 70 permit means any permit or group of permits
covering a part 70 source that has been issued, renewed,
amended or revised pursuant to 40 CFR part 70.
Part 70 program or State program means a program
approved by the Administrator under 40 CFR part 70.
Part 70 source means any source subject to the
permitting requirements of 40 CFR part 70, as provided in
70.3(a) and 70.3(b).
Part 71 permit, or permit (unless the context suggests
otherwise) means any permit or group of permits covering a
part 71 source that has been issued, renewed, amended or
revised pursuant to this part.
Part 71 program means a Federal operating permits
program under this part.
Part 71 source means any source subject to the
permitting requirements of this part, as provided in
71.3(a) and 71.3(b). Permit modification means a
revision to a part 71 permit that meets the requirements of
71.7(e) 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).
Permit revision means any permit modification or
administrative permit amendment.
Permitting authority means one of the following:
(1) The Administrator, in the case of EPA-implemented
programs;
(2) A delegate agency authorized by the Administrator
to carry out a Federal permit program under this part; or
(3) The State air pollution control agency, local
agency, other State agency, Indian Tribe, or other agency
authorized by the Administrator to carry out a permit
program under 40 CFR part 70.
Proposed permit means the version of a permit that the
delegate agency proposes to issue and forwards to the
Administrator for review in compliance with 71.10(d).
Regulated air pollutant means the following:
(1) Nitrogen oxides or any volatile organic compounds;
(2) Any pollutant for which a national ambient air
quality standard has been promulgated;
(3) Any pollutant that is subject to any standard
promulgated under section 111 of the Act;
(4) Any Class I or II substance subject to a standard
promulgated under or established by title VI of the Act; or
(5) Any pollutant subject to a standard promulgated
under section 112 of the Act or other requirements
established under section 112 of the Act, including
sections 112(g), (j), and (r) of the Act, including the
following:
(i) Any pollutant subject to requirements under
section 112(j) of the Act. If the Administrator fails to
promulgate a standard by the date established pursuant to
section 112(e) of the Act, any pollutant for which a subject
source would be major shall be considered to be regulated on
the date 18 months after the applicable date established
pursuant to section 112(e) of the Act; and
(ii) Any pollutant for which the requirements of
section 112(g)(2) of the Act have been met, but only with
respect to the individual source subject to
section 112(g)(2) requirements.
Regulated pollutant (for fee calculation), which is
used only for purposes of 71.9(c), means any regulated air
pollutant except the following:
(1) Carbon monoxide;
(2) Any pollutant that is a regulated air pollutant
solely because it is a Class I or II substance subject to a
standard promulgated under or established by title VI of the
Act; or
(3) Any pollutant that is a regulated air pollutant
solely because it is subject to a standard or regulation
under section 112(r) of the Act.
Renewal means the process by which a permit is reissued
at the end of its term.
Responsible official means one of the following:
(1) For a corporation: a president, secretary,
treasurer, or vice-president of the corporation in charge of
a principal business function, or any other person who
performs similar policy or decision-making functions for the
corporation, or a duly authorized representative of such
person if the representative is responsible for the overall
operation of one or more manufacturing, production, or
operating facilities applying for or subject to a permit and
either:
(i) the facilities employ more than 250 persons or have
gross annual sales or expenditures exceeding $25 million (in
second quarter 1980 dollars); or
(ii) the delegation of authority to such representative
is approved in advance by the permitting authority;
(2) For a partnership or sole proprietorship: a
general partner or the proprietor, respectively;
(3) For a municipality, State, Federal, or other
public agency: Either a principal executive officer or
ranking elected official. For the purposes of this part, a
principal executive officer of a Federal agency includes the
chief executive officer having responsibility for the
overall operations of a principal geographic unit of the
agency (e.g., a Regional Administrator of EPA); or
(4) For affected sources:
(i) The designated representative insofar as actions,
standards, requirements, or prohibitions under title IV of
the Act or 40 CFR parts 72 through 78 are concerned; and
(ii) The designated representative for any other
purposes under part 71.
Section 502(b)(10) changes are changes that contravene
an express permit term. Such changes do not include changes
that would violate applicable requirements or contravene
federally enforceable permit terms and conditions that are
monitoring (including test methods), recordkeeping,
reporting, or compliance certification requirements.
State means any non-Federal permitting authority,
including any local agency, interstate association, or
statewide program. The term "State" also includes the
District of Columbia, the Commonwealth of Puerto Rico, the
Virgin Islands, Guam, American Samoa, and the Commonwealth
of the Northern Marianas Islands. Where such meaning is
clear from the context, "State" shall have its conventional
meaning. For purposes of the acid rain program, the term
"State" shall be limited to authorities within the
48 contiguous States and the District of Columbia as
provided in section 402(14) of the Act.
Stationary source means any building, structure,
facility, or installation that emits or may emit any
regulated air pollutant or any pollutant listed under
section 112(b) of the Act.
71.3 Sources Subject to Permitting Requirements.
(a) Part 71 sources. The following sources are
subject to the permitting requirements under this part:
(1) Any major source;
(2) Any source, including an area source, subject to a
standard, limitation, or other requirement under section 111
of the Act;
(3) Any source, including an area source, subject to a
standard or other requirement under section 112 of the Act,
except that a source is not required to obtain a permit
solely because it is subject to regulations or requirements
under section 112(r) of the Act;
(4) Any affected source; and
(5) Any source in a source category designated by the
Administrator pursuant to this section.
(b) Source category exemptions.
(1) All sources listed in paragraph (a) of this
section that are not major sources, affected sources, or
solid waste incineration units required to obtain a permit
pursuant to section 129(e) of the Act are exempted from the
obligation to obtain a part 71 permit until such time as the
Administrator completes a rulemaking to determine how the
program should be structured for nonmajor sources and the
appropriateness of any permanent exemptions in addition to
those provided for in paragraph (b)(4) of this section.
(2) In the case of nonmajor sources subject to a
standard or other requirement under either section 111 or
112 of the Act after July 21, 1992 publication, the
Administrator will determine whether to exempt any or all
such applicable sources from the requirement to obtain a
part 70 or part 71 permit at the time that the new standard
is promulgated.
(3) Any source listed in paragraph (a) of this section
exempt from the requirement to obtain a permit under this
section may opt to apply for a permit under a part 71
program.
(4) The following source categories are exempted from
the obligation to obtain a part 71 permit:
(i) All sources and source categories that would be
required to obtain a permit solely because they are subject
to 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.
(c) Emissions units and part 71 sources.
(1) For major sources, the permitting authority shall
include in the permit all applicable requirements for all
relevant emissions units in the major source.
(2) For any nonmajor source subject to the part 71
program under paragraphs (a) or (b) of this section, the
permitting authority shall include in the permit all
applicable requirements applicable to emissions units that
cause the source to be subject to the part 71 program.
(d) Fugitive emissions. Fugitive emissions from a
part 71 source shall be included in the permit application
and the part 71 permit in the same manner as stack
emissions, regardless of whether the source category in
question is included in the list of sources contained in the
definition of major source.
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 [30
days following date of publication], 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 [30
days following date of publication]. The effective date of
such a part 71 program is [30 days following date of
publication].
(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 [30 days
following date of publication], whichever is later. Such a
part 71 program shall be effective upon expiration of the
interim approval or [30 days following date of publication]
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, or
by a rulemaking, when an operating permits program for the
area which meets the requirements of part 70 of this chapter
has not been granted full or interim approval by the
Administrator by [30 days following date of publication].
(1) [Reserved]
(2) The effective date of a part 71 program for a
Tribal area shall be November 15, 1997.
(3) Notwithstanding paragraph (b)(2) of this section,
the Administrator, in consultation with the governing body
of the Tribal area, may adopt an earlier effective date.
(4) Notwithstanding paragraph (i)(2) of this section,
within 2 years of the effective date of the part 71 program
for the Tribal area, the Administrator shall take final
action on permit applications from part 71 sources that are
submitted within the first full year after the effective
date of the part 71 program.
(c) Part 71 programs imposed due to inadequate
implementation.
(1) The Administrator will administer and enforce an
operating permits program for a permitting authority if the
Administrator has notified the permitting authority, in
accordance with 70.10(b)(1) of this chapter, of the
Administrator's determination that a permitting authority is
not adequately administering or enforcing its approved
operating permits program, or any portion thereof, and the
permitting authority fails to do either of the following:
(i) Correct the deficiencies within 18 months after
the Administrator issues the notice; or
(ii) Take significant action to assure adequate
administration and enforcement of the program within 90 days
of the Administrator's notice.
(2) The effective date of a part 71 program
promulgated in accordance with this paragraph (c) shall be:
(i) Two years after the Administrator's notice if the
permitting authority has not corrected the deficiency within
18 months after the date of the Administrator's notice; or
(ii) Such earlier time as the Administrator determines
appropriate if the permitting authority fails, within 90
days of the Administrator's notice, to take significant
action to assure adequate administration and enforcement of
the program.
(d) Part 71 programs for OCS sources.
(1) Using the procedures of this part, the
Administrator will issue permits to any source which is an
outer continental shelf (OCS) source, as defined under
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) shall apply on
[30 days following date of publication].
(3) The requirements of 71.4(d)(1)(ii) apply upon
the effective date of a part 71 program for the
corresponding onshore area.
(e) Part 71 program for permits issued to satisfy an
EPA objection. Using the procedures of this part and 40 CFR
70.8 (c) or (d), or 40 CFR 70.7(g)(4) or (5) (i) and (ii),
as appropriate, the Administrator will deny, terminate,
revise, revoke or reissue a permit which has been proposed
or issued by a permitting authority or will issue a part 71
permit when:
(1) A permitting authority with an approved part 70
operating permits program fails to respond to a timely
objection to the issuance of a permit made by the
Administrator pursuant to section 505(b) of the Act and
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) shall apply
on [30 days following date of publication].
(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). The
promulgation of this part serves as the notice for the part
71 permit programs described in 71.4(d)(1) (i) and (e).
The EPA will also publish a notice in the Federal Register
of any delegation of a portion of the part 71 program to a
State, eligible Tribe, or local agency pursuant to the
provisions of 71.10. In addition to notices published in
the Federal Register under this paragraph (g), the
Administrator will, to the extent practicable, publish
notice in a newspaper of general circulation within the area
subject to the part 71 program effectiveness or delegation,
and will send a letter to the Tribal governing body for an
Indian Tribe or the Governor (or his or her designee) of the
affected area to provide notice of such effectiveness or
delegation.
(h) Effect of limited deficiencies in State or Tribal
programs. The Administrator may administer and enforce a
part 71 program in a State or Tribal area even if only
limited deficiencies exist either in the initial program
submittal for a State or eligible Tribe under part 70 of
this chapter or in an existing State or Tribal program that
has been approved under part 70 of this chapter.
(i) Transition plan for initial permit issuance. If a
full or partial part 71 program becomes effective in a State
or Tribal area prior to the issuance of part 70 permits to
all part 70 sources under an existing program that has been
approved under part 70 of this chapter, the Administrator
shall take final action on initial permit applications for
all part 71 sources in accordance with the following
transition plan.
(1) All part 71 sources that have not received part 70
permits shall submit permit applications under this part
within 1 year after the effective date of the part 71
program.
(2) Final action shall be taken on at least one-third
of such applications annually over a period not to exceed 3
years after such effective date.
(3) Any complete permit application containing an
early reduction demonstration under section 112(i)(5) of the
Act shall be acted on within 12 months of receipt of the
complete application.
(4) Submittal of permit applications and the
permitting of affected sources shall occur in accordance
with the deadlines in title IV of the Act and 40 CFR parts
72 through 78.
(j) Delegation of part 71 programs. The Administrator
may promulgate a part 71 program in a State or Tribal area
and delegate part of the responsibility for administering
the part 71 program to the State or eligible Tribe in
accordance with the provisions of 71.10; however,
delegation of a part of a program will not constitute any
type of approval of a State or Tribal operating permits
program under part 70 of this chapter. Where only selected
portions of a part 71 program are administered by the
Administrator and the State or eligible Tribe is delegated
the remaining portions of the program, the Delegation
Agreement referred to in 71.10 will define the respective
roles of the State or eligible Tribe and the Administrator
in administering and enforcing the part 71 operating permits
program.
(k) EPA administration and enforcement of part 70
permits. When the Administrator administers and enforces a
part 71 program after a determination and notice under
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.
(l) Transition to approved part 70 program. The
Administrator will suspend the issuance of part 71 permits
promptly upon publication of notice of approval of a State
or Tribal operating permits program that meets the
requirements of part 70 of this chapter. The Administrator
may retain jurisdiction over the part 71 permits for which
the administrative or judicial review process is not
complete and will address this issue in the notice of State
program approval. After approval of a State or Tribal
program and the suspension of issuance of part 71 permits by
the Administrator:
(1) The Administrator, or the permitting authority
acting as the Administrator's delegated agent, will continue
to administer and enforce part 71 permits until they are
replaced by permits issued under the approved part 70
program. Until such time as part 71 permits are replaced by
part 70 permits, the Administrator will revise, reopen,
revise, terminate, or revoke and reissue part 71 permits
using the procedures of the part 71 program. However, if
the Administrator has delegated authority to administer part
71 permits to a delegate agency, the delegate agency will
revise, reopen, terminate, or revoke and reissue part 71
permits using the procedures of the approved part 70
program. If a part 71 permit expires prior to the issuance
of a part 70 permit, all terms and conditions of the part 71
permit, including any permit shield that may be granted
pursuant to 71.6(f), shall remain in effect until the part
70 permit is issued or denied, provided that a timely and
complete application for a permit renewal was submitted to
the permitting authority in accordance with the requirements
of the approved part 70 program.
(2) A State or local agency or Indian Tribe with an
approved part 70 operating permits program may issue part 70
permits for all sources with part 71 permits in accordance
with a permit issuance schedule approved as part of the
approved part 70 program or may issue part 70 permits to
such sources at the expiration of the part 71 permits.
(m) Exemption for certain territories. Upon petition
by the Governor of Guam, American Samoa, the Virgin Islands,
or the Commonwealth of the Northern Marianas Islands, the
Administrator may exempt any source or class of sources in
such territory from the requirement to have a part 71 permit
under this chapter. Such an exemption does not exempt such
source or class of sources from any requirement of section
112 of the Act, including the requirements of section 112(g)
or (j).
(1) Such exemption may be granted if the Administrator
finds that compliance with part 71 is not feasible or is
unreasonable due to unique geographical, meteorological, or
economic factors of such territory, or such other local
factors as the Administrator deems significant. Any such
petition shall be considered in accordance with section
307(d) of the Act, and any exemption granted under this
paragraph (m) shall be considered final action by the
Administrator for the purposes of section 307(b) of the Act.
(2) The Administrator shall promptly notify the
Committees on Energy and Commerce and on Interior and
Insular Affairs of the House of Representatives and the
Committees on Environment and Public Works and on Energy and
Natural Resources of the Senate upon receipt of any petition
under this paragraph (m) and of the approval or rejection of
such petition and the basis for such action.
(n) Retention of records. The records for each draft,
proposed, and final permit application, renewal, or
modification shall be kept by the Administrator for a period
of 5 years.
71.5 Permit applications.
(a) Duty to apply. For each part 71 source, the owner
or operator shall submit a timely and complete permit
application in accordance with this section.
(1) Timely application.
(i) A timely application for a source which does not
have an existing operating permit issued by a State under
the State's approved part 70 program and is applying for a
part 71 permit for the first time is one that is submitted
within 12 months after the source becomes subject to the
permit program or on or before such earlier date as the
permitting authority may establish. Sources required to
submit applications earlier than 12 months after the source
becomes subject to the permit program will be notified of
the earlier submittal date at least 6 months in advance of
the date.
(ii) Part 71 sources required to meet the requirements
under section 112(g) of the Act, or to have a permit under
the preconstruction review program approved into the
applicable implementation plan under part C or D of title I
of the Act, shall file a complete application to obtain the
part 71 permit or permit revision within 12 months after
commencing operation or on or before such earlier date as
the permitting authority may establish. Sources required to
submit applications earlier than 12 months after the source
becomes subject to the permit program will be notified of
the earlier submittal date at least 6 months in advance of
the date. Where an existing part 70 or 71 permit would
prohibit such construction or change in operation, the
source must obtain a permit revision before commencing
operation.
(iii) For purposes of permit renewal, a timely
application is one that is submitted at least 6 months but
not more that 18 months prior to expiration of the part 70
or 71 permit.
(iv) Applications for initial phase II acid rain
permits shall be submitted to the permitting authority by
January 1, 1996 for sulfur dioxide, and by January 1, 1998
for nitrogen oxides.
(2) Complete application. To be deemed complete, an
application must provide all information required pursuant
to paragraph (c) of this section, except that applications
for permit revision need supply such information only if it
is related to the proposed change. To be found complete, an
initial or renewal application must remit payment of fees
owed under the fee schedule established pursuant to
71.9(b). Information required under paragraph (c) of this
section must be sufficient to evaluate the subject source
and its application and to determine all applicable
requirements. A responsible official must certify the
submitted information consistent with paragraph (d) of this
section. Unless the permitting authority determines that an
application is not complete within 60 days of receipt of the
application, such application shall be deemed to be
complete, except as otherwise provided in 71.7(a)(4) 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, it may request such information in writing and
set a reasonable deadline for a response. The source's
ability to operate without a permit, as set forth in
71.7(b), shall be in effect from the date the application
is determined or deemed to be complete until the final
permit is issued, provided that the applicant submits any
requested additional information by the deadline specified
by the permitting authority.
(3) Confidential information. An applicant may assert
a business confidentiality claim for information requested
by the permitting authority using procedures found at part
2, subpart B of this chapter.
(b) Duty to supplement or correct application. Any
applicant who fails to submit any relevant facts or who has
submitted incorrect information in a permit application
shall, upon becoming aware of such failure or incorrect
submittal, promptly submit such supplementary facts or
corrected information. In addition, an applicant shall
provide additional information as necessary to address any
requirements that become applicable to the source after the
date it filed a complete application but prior to release of
a draft permit.
(c) Standard application form and required
information. The permitting authority shall provide sources
a standard application form or forms. The permitting
authority may use discretion in developing application forms
that best meet program needs and administrative efficiency.
The forms and attachments chosen, however, shall include the
elements specified below. An application may not omit
information needed to determine the applicability of, or to
impose, any applicable requirement, or to evaluate the fee
amount required under the schedule established pursuant to
71.9 of this part.
(1) Identifying information, including company name
and address (or plant name and address if different from the
company name), owner's name and agent, and telephone number
and names of plant site manager/contact.
(2) A description of the source's processes and
products (by Standard Industrial Classification Code)
including any associated with each alternate scenario
identified by the source.
(3) The following emissions-related information:
(i) All emissions of pollutants for which the source
is major, and all emissions of regulated air pollutants. A
permit application shall describe all emissions of regulated
air pollutants emitted from any emissions unit, except where
such units are exempted under this paragraph (c) of this
section. The permitting authority shall require additional
information related to the emissions of air pollutants
sufficient to verify which requirements are applicable to
the source, and other information necessary to collect any
permit fees owed under the fee schedule established pursuant
to 71.9(b) of this part.
(ii) Identification and description of all points of
emissions described in paragraph (c)(3)(i) of this section
in sufficient detail to establish the basis for fees and
applicability of requirements of the Act.
(iii) Emissions rates in tpy and in such terms as are
necessary to establish compliance consistent with the
applicable standard reference test method.
(iv) The following information to the extent it is
needed to determine or regulate emissions: fuels, fuel use,
raw materials, production rates, and operating schedules.
(v) Identification and description of air pollution
control equipment and compliance monitoring devices or
activities.
(vi) Limitations on source operation affecting
emissions or any work practice standards, where applicable,
for all regulated pollutants at the part 71 source.
(vii) Other information required by any applicable
requirement (including information related to stack height
limitations developed pursuant to section 123 of the Act).
(viii) Calculations on which the information in
paragraphs (c)(3)(i) through (vii) of this section is based.
(4) The following air pollution control requirements:
(i) Citation and description of all applicable
requirements, and
(ii) Description of or reference to any applicable
test method for determining compliance with each applicable
requirement.
(5) Other specific information that may be necessary
to implement and enforce other applicable requirements of
the Act or of this part or to determine the applicability of
such requirements.
(6) An explanation of any proposed exemptions from
otherwise applicable requirements.
(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)(9) or to define permit terms and conditions
implementing 71.6(a)(10) or 71.6(a)(13) of this part.
(8) A compliance plan for all part 71 sources that
contains all the following:
(i) A description of the compliance status of the
source with respect to all applicable requirements.
(ii) A description as follows:
(A) For applicable requirements with which the source
is in compliance, a statement that the source will continue
to comply with such requirements.
(B) For applicable requirements that will become
effective during the permit term, a statement that the
source will meet such requirements on a timely basis.
(C) For requirements for which the source is not in
compliance at the time of permit issuance, a narrative
description of how the source will achieve compliance with
such requirements.
(iii) A compliance schedule as follows:
(A) For applicable requirements with which the source
is in compliance, a statement that the source will continue
to comply with such requirements.
(B) For applicable requirements that will become
effective during the permit term, a statement that the
source will meet such requirements on a timely basis. A
statement that the source will meet in a timely manner
applicable requirements that become effective during the
permit term shall satisfy this provision, unless a more
detailed schedule is expressly required by the applicable
requirement.
(C) A schedule of compliance for sources that are not
in compliance with all applicable requirements at the time
of permit issuance. Such a schedule shall include a
schedule of remedial measures, including an enforceable
sequence of actions with milestones, leading to compliance
with any applicable requirements for which the source will
be in noncompliance at the time of permit issuance. This
compliance schedule shall resemble and be at least as
stringent as that contained in any judicial consent decree
or administrative order to which the source is subject. Any
such schedule of compliance shall be supplemental to, and
shall not sanction noncompliance with, the applicable
requirements on which it is based.
(iv) A schedule for submission of certified progress
reports no less frequently than every 6 months for sources
required to have a schedule of compliance to remedy a
violation.
(v) The compliance plan content requirements specified
in this paragraph shall apply and be included in the acid
rain portion of a compliance plan for an affected source,
except as specifically superseded by regulations promulgated
under parts 72 through 78 of this chapter with regard to the
schedule and method(s) the source will use to achieve
compliance with the acid rain emissions limitations.
(9) Requirements for compliance certification,
including the following:
(i) A certification of compliance with all applicable
requirements by a responsible official consistent with
paragraph (d) of this section and section 114(a)(3) of the
Act;
(ii) A statement of methods used for determining
compliance, including a description of monitoring,
recordkeeping, and reporting requirements and test methods;
(iii) A schedule for submission of compliance
certifications during the permit term, to be submitted no
less frequently than annually, or more frequently if
specified by the underlying applicable requirement or by the
permitting authority; and
(iv) A statement indicating the source's compliance
status with any applicable enhanced monitoring and
compliance certification requirements of the Act.
(10) The use of nationally-standardized forms for acid
rain portions of permit applications and compliance plans,
as required by regulations promulgated under parts 72
through 78 of this chapter.
(11) Insignificant activities and emissions levels.
The following types of insignificant activities and
emissions levels need not be included in permit
applications. However, for insignificant activities which
are exempted because of size or production rate, a list of
such insignificant activities must be included in the
application. An application may not omit information needed
to determine the applicability of, or to impose, any
applicable requirement, or to calculate the fee amount
required under the schedule established pursuant to 71.9
of this part.
(i) Insignificant activities:
(A) Mobile sources;
(B) Air-conditioning units used for human comfort that
are not subject to applicable requirements under title VI of
the Act and do not exhaust air pollutants into the ambient
air from any manufacturing or other industrial process;
(C) Ventilating units used for human comfort that do
not exhaust air pollutants into the ambient air from any
manufacturing or other industrial process;
(D) Heating units used for human comfort that do not
provide heat for any manufacturing or other industrial
process;
(E) Noncommercial food preparation;
(F) Consumer use of office equipment and products;
(G) Janitorial services and consumer use of janitorial
products; and
(H) Internal combustion engines used for landscaping
purposes.
(ii) Insignificant emissions levels. Emissions
meeting the criteria in paragraph (c)(11)(ii)(A) or
(c)(11)(ii)(B) of this section need not be included in the
application, but must be listed with sufficient detail to
identify the emission unit and indicate that the exemption
applies. Similar emission units, including similar
capacities or sizes, may be listed under a single
description, provided the number of emission units is
included in the description. No additional information is
required at time of application, but the permitting
authority may request additional information during
application processing.
(A) Emission criteria for regulated air pollutants,
excluding hazardous air pollutants (HAP). Potential to emit
of regulated air pollutants, excluding HAP, for any single
emissions unit shall not exceed 2 tpy.
(B) Emission criteria for HAP. Potential to emit of
any HAP from any single emissions unit shall not exceed
1,000 lb per year or the de minimis level established under
section 112(g) of the Act, whichever is less.
(d) Any application form, report, or compliance
certification submitted pursuant to these regulations shall
contain certification by a responsible official of truth,
accuracy, and completeness. This certification and any
other certification required under this part shall state
that, based on information and belief formed after
reasonable inquiry, the statements and information in the
document are true, accurate, and complete.
71.6 Permit content.
(a) Standard permit requirements. Each permit issued
under this part shall include the following elements:
(1) Emission limitations and standards, including
those operational requirements and limitations that assure
compliance with all applicable requirements at the time of
permit issuance.
(i) The permit shall specify and reference the origin
of and authority for each term or condition, and identify
any difference in form as compared to the applicable
requirement upon which the term or condition is based.
(ii) The permit shall state that, where an applicable
requirement of the Act is more stringent than an applicable
requirement of 40 CFR parts 72 thorough 78, both provisions
shall be incorporated into the permit and shall be
enforceable by the Administrator.
(iii) If an applicable implementation plan allows a
determination of an alternative emission limit at a part 71
source, equivalent to that contained in the plan, to be made
in the permit issuance, renewal, or significant modification
process, and the permitting authority elects to use such
process, any permit containing such equivalency
determination shall contain provisions to ensure that any
resulting emissions limit has been demonstrated to be
quantifiable, accountable, enforceable, and based on
replicable procedures.
(2) Permit duration. The permitting authority shall
issue permits for a fixed term of 5 years in the case of
affected sources, and for a term not to exceed 5 years in
the case of all other sources. Notwithstanding this
requirement, the permitting authority shall issue permits
for solid waste incineration units combusting municipal
waste subject to standards under section 129(e) of the Act
for a period not to exceed 12 years and shall review such
permits at least every 5 years.
(3) Monitoring and related recordkeeping and reporting
requirements.
(i) Each permit shall contain the following
requirements with respect to monitoring:
(A) All emissions monitoring and analysis procedures
or test methods required under the applicable requirements,
including any procedures and methods promulgated pursuant to
sections 114(a)(3) or 504(b) of the Act;
(B) Where the applicable requirement does not require
periodic testing or instrumental or noninstrumental
monitoring (which may consist of recordkeeping designed to
serve as monitoring), periodic monitoring sufficient to
yield reliable data from the relevant time period that are
representative of the source's compliance with the permit,
as reported pursuant to paragraph (a)(3)(iii) of this
section. Such monitoring requirements shall assure use of
terms, test methods, units, averaging periods, and other
statistical conventions consistent with the applicable
requirement. Recordkeeping provisions may be sufficient to
meet the requirements of this paragraph (a)(3)(i)(B); and
(C) As necessary, requirements concerning the use,
maintenance, and, where appropriate, installation of
monitoring equipment or methods.
(ii) With respect to recordkeeping, the permit shall
incorporate all applicable recordkeeping requirements and
require, where applicable, the following:
(A) Records of required monitoring information that
include the following:
(1) The date, place as defined in the permit, and time
of sampling or measurements;
(2) The date(s) analyses were performed;
(3) The company or entity that performed the analyses;
(4) The analytical techniques or methods used;
(5) The results of such analyses; and
(6) The operating conditions as existing at the time
of sampling or measurement;
(B) Retention of records of all required monitoring
data and support information for a period of at least 5
years from the date of the monitoring sample, measurement,
report, or application. Support information includes all
calibration and maintenance records and all original strip-
chart recordings for continuous monitoring instrumentation,
and copies of all reports required by the permit.
(iii) With respect to reporting, the permit shall
incorporate all applicable reporting requirements and
require the following:
(A) Submittal of reports of any required monitoring at
least every 6 months. All instances of deviations from
permit requirements must be clearly identified in such
reports. All required reports must be certified by a
responsible official consistent with 71.5(d).
(B) Prompt reporting of deviations from permit
requirements, including those attributable to upset
conditions as defined in the permit, the probable cause of
such deviations, and any corrective actions or preventive
measures taken. Where the underlying applicable requirement
contains a definition of prompt or otherwise specifies a
time frame for reporting deviations, that definition or time
frame shall govern. Where the underlying applicable
requirement fails to address the time frame for reporting
deviations, reports of deviations shall be submitted to the
permitting authority based on the following schedule:
(1) For emissions of a hazardous air pollutant or a
toxic air pollutant (as identified in an applicable
regulation) that continue for more than an hour in excess of
permit requirements, the report must be made with 24 hours
of the occurrence.
(2) For emissions of any regulated air pollutant,
excluding those listed in paragraph (a)(3)(iii)(B)(1) of
this section, that continue for more than two hours in
excess of permit requirements, the report must be made
within 48 hours.
(3) For all other deviations from permit requirements,
the report shall be contained in the report submitted in
accordance with the timeframe given in paragraph
(a)(3)(iii)(A).
(4) A permit may contain a more stringent reporting
requirement than required by paragraphs (a)(3)(iii)(B)(1),
(2), or (3).
If any of the above conditions are met, the source must
notify the permitting authority by telephone or facsimile
based on the timetable listed in paragraphs
(a)(3)(iii)(B)(1) through (4) of this section. A written
notice, certified consistent with 71.5(d), must be
submitted within 10 working days of the occurrence. All
deviations reported under paragraph (a)(3)(iii)(A) of this
section must also be identified in the 6 month report
required under paragraph (a)(3)(iii)(A) of this section.
(C) For purposes of paragraph (a)(3)(iii)(B) of this
section, deviation means any condition determined by
observation, by data from any monitoring protocol, or by any
other monitoring which is required by the permit that can be
used to determine compliance, that identifies that an
emission unit subject to a part 71 permit term or condition
has failed to meet an applicable emission limitation or
standard or that a work practice was not complied with or
completed. For a condition lasting more than
24 hours which constitutes a deviation, each 24 hour period
is considered a separate deviation. Included in the meaning
of deviation are any of the following:
(1) A condition where emissions exceed an emission
limitation or standard;
(2) A condition where process or control device
parameter values demonstrate that an emission limitation or
standard has not been met;
(3) Any other condition in which observations or data
collected demonstrates noncompliance with an emission
limitation or standard or any work practice or operating
condition required by the permit.
(4) A permit condition prohibiting emissions exceeding
any allowances that the source lawfully holds under 40 CFR
parts 72 through 78.
(i) No permit revision shall be required for increases
in emissions that are authorized by allowances acquired
pursuant to the acid rain program, provided that such
increases do not require a permit revision under any other
applicable requirement.
(ii) No limit shall be placed on the number of
allowances held by the source. The source may not, however,
use allowances as a defense to noncompliance with any other
applicable requirement.
(iii) Any such allowance shall be accounted for
according to the procedures established in regulations 40
CFR parts 72 through 78.
(5) A severability clause to ensure the continued
validity of the various permit requirements in the event of
a challenge to any portions of the permit.
(6) Provisions stating the following:
(i) The permittee must comply with all conditions of
the part 71 permit. Any permit noncompliance constitutes a
violation of the Act and is grounds for enforcement action;
for permit termination, revocation and reissuance, or
modification; or for denial of a permit renewal application.
(ii) Need to halt or reduce activity not a defense.
It shall not be a defense for a permittee in an enforcement
action that it would have been necessary to halt or reduce
the permitted activity in order to maintain compliance with
the conditions of this permit.
(iii) The permit may be modified, revoked, reopened,
and reissued, or terminated for cause. The filing of a
request by the permittee for a permit modification,
revocation and reissuance, or termination, or of a
notification of planned changes or anticipated noncompliance
does not stay any permit condition.
(iv) The permit does not convey any property rights of
any sort, or any exclusive privilege.
(v) The permittee shall furnish to the permitting
authority, within a reasonable time, any information that
the permitting authority may request in writing to determine
whether cause exists for modifying, revoking and reissuing,
or terminating the permit or to determine compliance with
the permit. Upon request, the permittee shall also furnish
to the permitting authority copies of records required to be
kept by the permit or, in the case of a program delegated
pursuant to 71.10 of this part, for information claimed to
be confidential, the permittee may furnish such records
directly to the Administrator along with a claim of
confidentiality.
(7) A provision to ensure that a part 71 source pays
fees to the Administrator consistent with the fee schedule
approved pursuant to 71.9.
(8) Emissions trading. A provision stating that no
permit revision shall be required, under any approved
economic incentives, marketable permits, emissions trading
and other similar programs or processes for changes that are
provided for in the permit.
(9) Terms and conditions for reasonably anticipated
operating scenarios identified by the source in its
application as approved by the permitting authority. Such
terms and conditions:
(i) Shall require the source, contemporaneously with
making a change from one operating scenario to another, to
record in a log at the permitted facility a record of the
scenario under which it is operating;
(ii) May extend the permit shield described in
paragraph (f) of this section to all terms and conditions
under each such operating scenario; and
(iii) Must ensure that the terms and conditions of
each such alternative scenario meet all applicable
requirements and the requirements of this part.
(10) Terms and conditions, if the permit applicant
requests them, for the trading of emissions increases and
decreases in the permitted facility, to the extent that the
applicable requirements provide for trading such increases
and decreases without a case-by-case approval of each
emissions trade. Such terms and conditions:
(i) Shall include all terms required under paragraphs
(a) and (c) of this section to determine compliance;
(ii) May extend the permit shield described in
paragraph (f) of this section to all terms and conditions
that allow such increases and decreases in emissions; and
(iii) Must meet all applicable requirements and
requirements of this part.
(11) Permit
expiration. A provision to ensure that a part 71 permit
expires upon the earlier occurrence of the following events:
(i) twelve years elapses from the date of issuance to
a solid waste incineration unit combusting municipal waste
subject to standards under section 112(e) of the Act; or
(ii) five years elapses from the date of issuance; or
(iii) the source is issued a part 70 permit.
(12) Off Permit Changes. A provision allowing changes
that are not addressed or prohibited by the permit, other
than those subject to the requirements of 40 CFR parts 72
through 78 or those that are modifications under any
provision of title I of the Act to be made without a permit
revision, provided that the following requirements are met:
(i) Each such change shall meet all applicable
requirements and shall not violate any existing permit term
or condition;
(ii) Sources must provide contemporaneous written
notice to the permitting authority (and EPA, in the case of
a program delegated pursuant to 71.10) of each such
change, except for changes that qualify as insignificant
under 71.5(c)(11). Such written notice shall describe
each such change, including the date, any change in
emissions, pollutants emitted, and any applicable
requirement that would apply as a result of the change;
(iii) The change shall not qualify for the shield
under 71.6(f);
(iv) The permittee shall keep a record describing
changes made at the source that result in emissions of a
regulated air pollutant subject to an applicable
requirement, but not otherwise regulated under the permit,
and the emissions resulting from those changes.
(13) Operational flexibility. Provisions consistent
with paragraphs (a)(3)(i) through (iii) of this section to
allow changes within a permitted facility without requiring
a permit revision, if the changes are not modifications
under any provision of title I of the Act and the changes do
not exceed the emissions allowable under the permit (whether
expressed therein as a rate of emissions or in terms of
total emissions): Provided, that the facility provides the
Administrator (in the case of a program delegated pursuant
to 71.10) and the permitting authority with written
notification as required below in advance of the proposed
changes, which shall be a minimum of 7 days.
(i) The permit shall
allow the permitted source to make section 502(b)(10)
changes without requiring a permit revision, if the changes
are not modifications under any provision of title I of the
Act and the changes do not exceed the emissions allowable
under the permit (whether expressed therein as a rate of
emissions or in terms of total emissions).
(A) For each such change, the written notification
required above shall include a brief description of the
change within the permitted facility, the date on which the
change will occur, any change in emissions, and any permit
term or condition that is no longer applicable as a result
of the change.
(B) The permit shield described in 71.6(f) of this
part shall not apply to any change made pursuant to this
paragraph (a)(13)(i).
(ii) The permit may provide for the permitted source
to trade increases and decreases in emissions in the
permitted facility, where the applicable implementation plan
provides for such emissions trades without requiring a
permit revision and based on the 7-day notice prescribed in
this paragraph (a)(13)(ii) of this section. This provision
is available in those cases where the permit does not
already provide for such emissions trading.
(A) Under this paragraph (a)(13)(ii), the written
notification required above shall include such information
as may be required by the provision in the applicable
implementation plan authorizing the emissions trade,
including at a minimum, when the proposed change will occur,
a description of each such change, any change in emissions,
the permit requirements with which the source will comply
using the emissions trading provisions of the applicable
implementation plan, and the pollutants emitted subject to
the emissions trade. The notice shall also refer to the
provisions with which the source will comply in the
applicable implementation plan and that provide for the
emissions trade.
(B) The permit shield described in 71.6(f) of this
part shall not extend to any change made under this
paragraph (a)(13)(ii). Compliance with the permit
requirements that the source will meet using the emissions
trade shall be determined according to requirements of the
applicable implementation plan authorizing the emissions
trade.
(iii) The permit shall require the permitting
authority, if a permit applicant requests it, to issue
permits that contain terms and conditions, including all
terms required under 71.6(a) and (c) of this part to
determine compliance, allowing for the trading of emissions
increases and decreases in the permitted facility solely for
the purpose of complying with a federally-enforceable
emissions cap that is established in the permit independent
of otherwise applicable requirements. The permit applicant
shall include in its application proposed replicable
procedures and permit terms that ensure the emissions trades
are quantifiable and enforceable. The permitting authority
shall not be required to include in the emissions trading
provisions any emissions units for which emissions are not
quantifiable or for which there are no replicable procedures
to enforce the emissions trades. The permit shall also
require compliance with all applicable requirements.
(A) Under this paragraph (a)(13)(iii), the written
notification required above shall state when the change will
occur and shall describe the changes in emissions that will
result and how these increases and decreases in emissions
will comply with the terms and conditions of the permit.
(B) The permit shield described in 71.6(f) of this
part may extend to terms and conditions that allow such
increases and decreases in emissions.
(b) Federally-enforceable requirements.
(1) All terms and conditions in a part 71 permit,
including any provisions designed to limit a source's
potential to emit, are enforceable by the Administrator and
citizens under the Act.
(c) Compliance requirements. All part 71 permits
shall contain the following elements with respect to
compliance:
(1) Consistent with paragraph (a)(3) of this section,
compliance certification, testing, monitoring, reporting,
and recordkeeping requirements sufficient to assure
compliance with the terms and conditions of the permit. Any
document (including reports) required by a part 71 permit
shall contain a certification by a responsible official that
meets the requirements of 71.5(d).
(2) Inspection and entry requirements that require
that, upon presentation of credentials and other documents
as may be required by law, the permittee shall allow the
permitting authority or an authorized representative to
perform the following:
(i) Enter upon the permittee's premises where a part
71 source is located or emissions-related activity is
conducted, or where records must be kept under the
conditions of the permit;
(ii) Have access to and copy, at reasonable times, any
records that must be kept under the conditions of the
permit;
(iii) Inspect at reasonable times any facilities,
equipment (including monitoring and air pollution control
equipment), practices, or operations regulated or required
under the permit; and
(iv) As authorized by the Act, sample or monitor at
reasonable times substances or parameters for the purpose of
assuring compliance with the permit or applicable
requirements.
(3) A schedule of compliance consistent with
71.5(c)(8).
(4) Progress reports consistent with an applicable
schedule of compliance and 71.5(c)(8) to be submitted at
least semiannually, or at a more frequent period if
specified in the applicable requirement or by the permitting
authority. Such progress reports shall contain the
following:
(i) Dates for achieving the activities, milestones, or
compliance required in the schedule of compliance, and dates
when such activities, milestones or compliance were
achieved; and
(ii) An explanation of why any dates in the schedule
of compliance were not or will not be met, and any
preventive or corrective measures adopted.
(5) Requirements for compliance certification with
terms and conditions contained in the permit, including
emission limitations, standards, or work practices. Permits
shall include each of the following:
(i) The frequency (not less than annually or such more
frequent periods as specified in the applicable requirement
or by the permitting authority) of submissions of compliance
certifications;
(ii) In accordance with 71.6(a)(3), a means for
monitoring the compliance of the source with its emissions
limitations, standards, and work practices;
(iii) A requirement that the compliance certification
include the following:
(A) The identification of each term or condition of
the permit that is the basis of the certification;
(B) The compliance status;
(C) Whether compliance was continuous or intermittent;
(D) The method(s) used for determining the compliance
status of the source, currently and over the reporting
period consistent with paragraph (a)(3) of this section; and
(E) Such other facts as the permitting authority may
require to determine the compliance status of the source;
(iv) A requirement that all compliance certifications
be submitted to the Administrator as well as to the
permitting authority; and
(v) Such additional requirements as may be specified
pursuant to sections 114(a)(3) and 504(b) of the Act.
(6) Such other provisions as the permitting authority
may require.
(d) General permits.
(1) The permitting
authority may, after notice and opportunity for public
participation provided under 71.11, issue a general permit
covering numerous similar sources. Any general permit shall
comply with all requirements applicable to other part 71
permits and shall identify criteria by which sources may
qualify for the general permit. To sources that qualify,
the permitting authority shall grant the conditions and
terms of the general permit. Notwithstanding the shield
provisions of paragraph (f) of this section, the source
shall be subject to enforcement action for operation without
a part 71 permit if the source is later determined not to
qualify for the conditions and terms of the general permit.
General permits shall not be authorized for affected sources
under the acid rain program unless otherwise provided in 40
CFR parts 72 through 78.
(2) Part 71 sources
that would qualify for a general permit must apply to the
permitting authority for coverage under the terms of the
general permit or must apply for a part 71 permit consistent
with 71.5. The permitting authority may, in the general
permit, provide for applications which deviate from the
requirements of 71.5, provided that such applications meet
the requirements of title V of the Act, and include all
information necessary to determine qualification for, and to
assure compliance with, the general permit. Without
repeating the public participation procedures required under
71.11, the permitting authority may grant a source's
request for authorization to operate under a general permit,
but such a grant shall not be a final permit action for
purposes of judicial review.
(e) Temporary sources. The permitting authority may
issue a single permit authorizing emissions from similar
operations by the same source owner or operator at multiple
temporary locations. The operation must be temporary and
involve at least one change of location during the term of
the permit. No affected source shall be permitted as a
temporary source. Permits for temporary sources shall
include the following:
(1) Conditions that will assure compliance with all
applicable requirements at all authorized locations;
(2) Requirements that the owner or operator notify the
permitting authority at least 10 days in advance of each
change in location; and
(3) Conditions that assure compliance with all other
provisions of this section.
(f) Permit shield.
(1) Except as provided in this part, the permitting
authority may expressly include in a part 71 permit a
provision stating that compliance with the conditions of the
permit shall be deemed compliance with any applicable
requirements as of the date of permit issuance, provided
that:
(i) Such applicable requirements are included and are
specifically identified in the permit; or
(ii) The permitting authority, in acting on the permit
application or revision, determines in writing that other
requirements specifically identified are not applicable to
the source, and the permit includes the determination or a
concise summary thereof.
(2) A part 71 permit that does not expressly state
that a permit shield exists shall be presumed not to provide
such a shield.
(3) Nothing in this paragraph or in any part 71 permit
shall alter or affect the following:
(i) The provisions of section 303 of the Act
(emergency orders), including the authority of the
Administrator under that section;
(ii) The liability of an owner or operator of a source
for any violation of applicable requirements prior to or at
the time of permit issuance;
(iii) The applicable requirements of the acid rain
program, consistent with section 408(a) of the Act; or
(iv) The ability of EPA to obtain information from a
source pursuant to section 114 of the Act.
(g) Emergency
provision.
(1) Definition. An
"emergency" means any situation arising from sudden and
reasonably unforeseeable events beyond the control of the
source, including acts of God, which situation requires
immediate corrective action to restore normal operation, and
that causes the source to exceed a technology-based emission
limitation under the permit, due to unavoidable increases in
emissions attributable to the emergency. An emergency shall
not include noncompliance to the extent caused by improperly
designed equipment, lack of preventative maintenance,
careless or improper operation, or operator error.
(2) Effect of an
emergency. An emergency constitutes an affirmative defense
to an action brought for noncompliance with such technology-
based emission limitations if the conditions of paragraph
(g)(3) of this section are met.
(3) The affirmative
defense of emergency shall be demonstrated through properly
signed, contemporaneous operating logs, or other relevant
evidence that:
(i) An emergency occurred and that the permittee can
identify the cause(s) of the emergency;
(ii) The permitted
facility was at the time being properly operated;
(iii) During the period of the emergency the permittee
took all reasonable steps to minimize levels of emissions
that exceeded the emission standards, or other requirements
in the permit; and
(iv) The permittee submitted notice of the emergency
to the permitting authority within 2 working days of the
time when emission limitations were exceeded due to the
emergency. This notice fulfills the requirement of
paragraph (a)(3)(iii)(B) of this section. This notice must
contain a description of the emergency, any steps taken to
mitigate emissions, and corrective actions taken.
(4) In any
enforcement proceeding, the permittee seeking to establish
the occurrence of an emergency has the burden of proof.
(5) This provision is
in addition to any emergency or upset provision contained in
any applicable requirement.
71.7 Permit issuance, renewal, reopenings, and revisions.
(a) Action on application.
(1) A permit, permit modification, or renewal may be
issued only if all of the following conditions have been
met:
(i) The permitting authority has received a complete
application for a permit, permit modification, or permit
renewal, except that a complete application need not be
received before issuance of a general permit under
71.6(d);
(ii) Except for modifications qualifying for minor
permit modification procedures under paragraphs (e)(1) and
(2) of this section, the permitting authority has complied
with the requirements for public participation under this
section or 71.11, as applicable;
(iii) The permitting authority has complied with the
requirements for notifying and responding to affected States
under 71.8(a);
(iv) The conditions of the permit provide for
compliance with all applicable requirements and the
requirements of this part; and
(v) In the case of a program delegated pursuant to
71.10, the Administrator has received a copy of the
proposed permit and any notices required under 71.10(d)
and has not objected to issuance of the permit under
71.10(g) within the time period specified therein.
(2) Except as provided under the initial transition
plan provided for under 71.4(i) or under 40 CFR part 72 or
title V of the Act for the permitting of affected sources
under the acid rain program, the permitting authority shall
take final action on each permit application (including a
request for permit modification or renewal) within 18 months
after receiving a complete application.
(3) The permitting authority shall ensure that
priority is given to taking action on applications for
construction or modification under title I, parts C and D of
the Act.
(4) The permitting authority shall promptly provide
notice to the applicant of whether the application is
complete. Unless the permitting authority requests
additional information or otherwise notifies the applicant
of incompleteness within 60 days of receipt of an
application, the application shall be deemed complete. For
modifications processed through minor permit modification
procedures, such as those in paragraphs (e)(1) and (2) of
this section, the permitting authority need not make a
completeness determination.
(5) The permitting authority shall provide a statement
that sets forth the legal and factual basis for the draft
permit conditions (including references to the applicable
statutory or regulatory provisions). The permitting
authority shall send this statement to any person who
requests it, and to EPA, in the case of a program delegated
pursuant to 71.10.
(6) The submittal of a complete application shall not
affect the requirement that any source have a
preconstruction permit under title I of the Act.
(b) Requirement for a permit. Except as provided in
the following sentence, 71.6(a)(13), and paragraphs
(e)(1)(v) and (2)(v) of this section, no part 71 source may
operate after the time that it is required to submit a
timely and complete application under this part, except in
compliance with a permit issued under this part. If a part
71 source submits a timely and complete application for
permit issuance (including for renewal), the source's
failure to have a part 71 permit is not a violation of this
part until the permitting authority takes final action on
the permit application, except as noted in this section.
This protection shall cease to apply if, subsequent to the
completeness determination made pursuant to paragraph (a)(4)
of this section, and as required by 71.5(c), the applicant
fails to submit by the deadline specified in writing by the
permitting authority any additional information identified
as being needed to process the application.
(c) Permit renewal and expiration.
(1) (i) Permits being renewed are subject to the same
procedural requirements, including those for public
participation, affected State review, and EPA review (in the
case of a program delegated pursuant to 71.10) that apply
to initial permit issuance.
(ii) Permit expiration terminates the source's right
to operate unless a timely and complete renewal application
has been submitted consistent with paragraph (b) of this
section and 71.5(a)(1)(iii).
(2) In the case of a program delegated pursuant to
71.10, if the permitting authority fails to act in a
timely way on permit renewal, EPA may invoke its authority
under section 505(e) of the Act to terminate or revoke and
reissue the permit.
(3) If a timely and complete application for a permit
renewal is submitted, consistent with 71.5(a)(2), but the
permitting authority has failed to issue or deny the renewal
permit before the end of the term of the previous part 70 or
71 permit, then the permit shall not expire until the
renewal permit has been issued or denied and any permit
shield that may be granted pursuant to 71.6(f) may extend
beyond the original permit term until renewal; or all the
terms and conditions of the permit including any permit
shield that may be granted pursuant to 71.6(f) shall
remain in effect until the renewal permit has been issued or
denied.
(d) Administrative permit amendments.
(1) An "administrative permit amendment" is a permit
revision that:
(i) Corrects typographical errors;
(ii) Identifies a change in the name, address, or
phone number of any person identified in the permit, or
provides a similar minor administrative change at the
source;
(iii) Requires more frequent monitoring or reporting
by the permittee;
(iv) Allows for a change in ownership or operational
control of a source where the permitting authority
determines that no other change in the permit is necessary,
provided that a written agreement containing a specific date
for transfer of permit responsibility, coverage, and
liability between the current and new permittee has been
submitted to the permitting authority;
(v) Incorporates into the part 71 permit the
requirements from preconstruction review permits authorized
under an EPA-approved program, provided that such a program
meets procedural requirements substantially equivalent to
the requirements of 71.7 and 71.8 (and 71.10 in the
case of a delegated program) that would be applicable to the
change if it were subject to review as a permit
modification, and compliance requirements substantially
equivalent to those contained in 71.6; or
(vi) Incorporates any other type of change which the
Administrator has determined to be similar to those in
paragraphs (d)(1)(i) through (iv) of this section.
(2) Administrative permit amendments for purposes of
the acid rain portion of the permit shall be governed by 40
CFR part 72.
(3) Administrative permit amendment procedures. An
administrative permit amendment may be made by the
permitting authority consistent with the following:
(i) The permitting authority shall take no more than
60 days from receipt of a request for an administrative
permit amendment to take final action on such request, and
may incorporate such changes without providing notice to the
public or affected States provided that it designates any
such permit revisions as having been made pursuant to this
paragraph.
(ii) The permitting authority shall submit a copy of
the revised permit to the Administrator in the case of a
program delegated pursuant to 71.10.
(iii) The source may implement the changes addressed
in the request for an administrative amendment immediately
upon submittal of the request.
(4) The permitting authority may, upon taking final
action granting a request for an administrative permit
amendment, allow coverage by the permit shield in 71.6(f)
for administrative permit amendments made pursuant to
paragraph (d)(1)(v) of this section which meet the relevant
requirements of 71.6, 71.7, and 71.8 for significant
permit modifications.
(e) Permit modifications. A permit modification is
any revision to a part 71 permit that cannot be accomplished
under the provisions for administrative permit amendments
under paragraph (d) of this section. A permit modification
for purposes of the acid rain portion of the permit shall be
governed by 40 CFR part 72.
(1) Minor permit modification procedures.
(i) Criteria.
(A) Minor permit modification procedures may be used
only for those permit modifications that:
(1) Do not violate any applicable requirement;
(2) Do not involve significant changes to existing
monitoring, reporting, or recordkeeping requirements in the
permit;
(3) Do not require or change a case-by-case
determination of an emission limitation or other standard,
or a source-specific determination for temporary sources of
ambient impacts, or a visibility or increment analysis;
(4) Do not seek to establish or change a permit term
or condition for which there is no corresponding underlying
applicable requirement and that the source has assumed to
avoid an applicable requirement to which the source would
otherwise be subject. Such terms and conditions include:
(A) A federally enforceable emissions cap assumed to
avoid classification as a modification under any provision
of title I; and
(B) An alternative emissions limit approved pursuant
to regulations promulgated under section 112(i)(5) of the
Act;
(5) Are not modifications under any provision of title
I of the Act; and
(6) Are not required to be processed as a significant
modification.
(B) Notwithstanding paragraphs (e)(1)(i)(A) and
(e)(2)(i) of this section, minor permit modification
procedures may be used for permit modifications involving
the use of economic incentives, marketable permits,
emissions trading, and other similar approaches, to the
extent that such minor permit modification procedures are
explicitly provided for in an applicable implementation plan
or in applicable requirements promulgated by EPA.
(ii) Application. An application requesting the use
of minor permit modification procedures shall meet the
requirements of 71.5(c) and shall include the following:
(A) A description of the change, the emissions
resulting from the change, and any new applicable
requirements that will apply if the change occurs;
(B) The source's suggested draft permit;
(C) Certification by a responsible official,
consistent with 71.5(d), that the proposed modification
meets the criteria for use of minor permit modification
procedures and a request that such procedures be used; and
(D) Completed forms for the permitting authority to
use to notify affected States (and the Administrator in the
case of a program delegated pursuant to 71.10) as required
under 71.8 and 71.10(d).
(iii) EPA and affected State notification. Within 5
working days of receipt of a complete permit modification
application, the permitting authority shall meet its
obligation under 71.8(a) to notify affected States (and
its obligation under 71.10(d) to notify the Administrator
in the case of a program delegated pursuant to 71.10) of
the requested permit modification. In the case of a program
delegated pursuant to 71.10, the permitting authority
promptly shall send any notice required under 71.8(b) to
the Administrator.
(iv) Timetable for issuance. In the case of a program
delegated pursuant to 71.10, the permitting authority may
not issue a final permit modification until after EPA's 45-
day review period or until EPA has notified the permitting
authority that EPA will not object to issuance of the permit
modification, whichever is first, although the permitting
authority can approve the permit modification prior to that
time. Within 90 days of the permitting authority's receipt
of an application under minor permit modification procedures
(or 15 days after the end of the Administrator's 45-day
review period under 71.10(g) in the case of a program
delegated pursuant to 71.10, whichever is later), the
permitting authority shall:
(A) Issue the permit modification as proposed;
(B) Deny the permit modification application;
(C) Determine that the requested modification does not
meet the minor permit modification criteria and should be
reviewed under the significant modification procedures; or
(D) Revise the draft permit modification (and, in the
case of a program delegated pursuant to 71.10, transmit to
the Administrator the new proposed permit modification as
required by 71.10(d)).
(v) Source's ability to make change. The source may
make the change proposed in its minor permit modification
application immediately after it files such application.
After the source makes the change allowed by the preceding
sentence, and until the permitting authority takes any of
the actions specified in paragraphs (e)(1)(iv)(A) through
(C) of this section, the source must comply with both the
applicable requirements governing the change and the
proposed permit terms and conditions. During this time
period, the source need not comply with the existing permit
terms and conditions it seeks to modify. However, if the
source fails to comply with its proposed permit terms and
conditions during this time period, the existing permit
terms and conditions it seeks to modify may be enforced
against it.
(vi) Permit shield. The permit shield under 71.6(f)
may not extend to minor permit modifications.
(2) Group processing of minor permit modifications.
Consistent with this paragraph, the permitting authority may
modify the procedure outlined in paragraph (e)(1) of this
section to process groups of a source's applications for
certain modifications eligible for minor permit modification
processing.
(i) Criteria. Group processing of modifications may
be used only for those permit modifications:
(A) That meet the criteria for minor permit
modification procedures under paragraph (e)(1)(i)(A) of this
section; and
(B) That collectively are below the threshold level of
10 percent of the emissions allowed by the permit for the
emissions unit for which the change is requested, 20 percent
of the applicable definition of major source in 71.2, or 5
tpy, whichever is least.
(ii) Application. An application requesting the use
of group processing procedures shall meet the requirements
of 71.5(c) and shall include the following:
(A) A description of the change, the emissions
resulting from the change, and any new applicable
requirements that will apply if the change occurs.
(B) The source's suggested draft permit.
(C) Certification by a responsible official,
consistent with 71.5(d), that the proposed modification
meets the criteria for use of group processing procedures
and a request that such procedures be used.
(D) A list of the source's other pending applications
awaiting group processing, and a determination of whether
the requested modification, aggregated with these other
applications, equals or exceeds the threshold set under
paragraph (e)(2)(i)(B) of this section.
(E) Certification, consistent with 71.5(d), that, in
the case of a program delegated pursuant to 71.10, the
source has notified EPA of the proposed modification. Such
notification need only contain a brief description of the
requested modification.
(F) Completed forms for the permitting authority to
use to notify affected States as required under 71.8 (and
the Administrator as required under 71.10(d) in the case
of a program delegated pursuant to 71.10).
(iii) EPA and affected State notification. On a
quarterly basis or within 5 business days of receipt of an
application demonstrating that the aggregate of a source's
pending applications equals or exceeds the threshold level
set under paragraph (e)(2)(i)(B) of this section, whichever
is earlier, the permitting authority promptly shall meet its
obligation under 71.8(a) to notify affected States (and
its obligation under 71.10(d) to notify EPA in the case of
a program delegated pursuant to 71.10) of the requested
permit modification. The permitting authority shall send
any notice required under 71.8(b) to the Administrator in
the case of a program delegated pursuant to 71.10.
(iv) Timetable for issuance. The provisions of
paragraph (e)(1)(iv) of this section shall apply to
modifications eligible for group processing, except that the
permitting authority shall take one of the actions specified
in paragraphs (e)(1)(iv)(A) through (D) of this section
within 180 days of receipt of the application (or, in the
case of a program delegated pursuant to 71.10, 15 days
after the end of the Administrator's 45-day review period
under 71.10(g), whichever is later).
(v) Source's ability to make change. The provisions
of paragraph (e)(1)(v) of this section shall apply to
modifications eligible for group processing.
(vi) Permit shield. The provisions of paragraph
(e)(1)(vi) of this section shall also apply to modifications
eligible for group processing.
(3) Significant modification procedures.
(i) Criteria. Significant modification procedures
shall be used for applications requesting permit
modifications that do not qualify as minor permit
modifications or as administrative amendments. Every
significant change in existing monitoring permit terms or
conditions and every relaxation of reporting or
recordkeeping permit terms or conditions shall be considered
significant. Nothing herein shall be construed to preclude
the permittee from making changes consistent with this part
that would render existing permit compliance terms and
conditions irrelevant.
(ii) Significant permit modifications shall meet all
requirements of this part, including those for applications,
public participation, review by affected States, and review
by EPA (in the case of a program delegated pursuant to
71.10), as they apply to permit issuance and permit
renewal. The permitting authority shall design and
implement this review process to complete review on the
majority of significant permit modifications within 9 months
after receipt of a complete application.
(f) Reopening for cause.
(1) Each issued permit shall include provisions
specifying the conditions under which the permit will be
reopened prior to the expiration of the permit. A permit
shall be reopened and revised under any of the following
circumstances:
(i) Additional applicable requirements under the Act
become applicable to a major part 71 source with a remaining
permit term of 3 or more years. Such a reopening shall be
completed not later than 18 months after promulgation of the
applicable requirement. No such reopening is required if
the effective date of the requirement is later than the date
on which the permit is due to expire, unless the original
permit or any of its terms and conditions have been extended
pursuant to paragraph (c)(3) of this section.
(ii) Additional requirements (including excess
emissions requirements) become applicable to an affected
source under the acid rain program. Upon approval by the
Administrator, excess emissions offset plans shall be deemed
to be incorporated into the permit.
(iii) The permitting authority (or EPA, in the case of
a program delegated pursuant to 71.10) determines that the
permit contains a material mistake or that inaccurate
statements were made in establishing the emissions standards
or other terms or conditions of the permit.
(iv) The permitting authority (or EPA, in the case of
a program delegated pursuant to 71.10) determines that the
permit must be revised or revoked to assure compliance with
the applicable requirements.
(2) Proceedings to reopen and issue a permit shall
follow the same procedures as apply to initial permit
issuance and shall affect only those parts of the permit for
which cause to reopen exists, and shall be made as
expeditiously as practicable.
(3) Reopenings under paragraph (f)(1) of this section
shall not be initiated before a notice of such intent is
provided to the part 71 source by the permitting authority
at least 30 days in advance of the date that the permit is
to be reopened, except that the permitting authority may
provide a shorter time period in the case of an emergency.
(g) Reopenings for cause by EPA for delegated
programs.
(1) In the case of a program delegated pursuant to
71.10, if the Administrator finds that cause exists to
terminate, modify, or revoke and reissue a permit pursuant
to paragraph (f) of this section, the Administrator will
notify the permitting authority and the permittee of such
finding in writing.
(2) The permitting authority shall, within 90 days
after receipt of such notification, forward to EPA a
proposed determination of termination, modification, or
revocation and reissuance, as appropriate. The
Administrator may extend this 90-day period for an
additional 90 days if he or she finds that a new or revised
permit application is necessary or that the permitting
authority must require the permittee to submit additional
information.
(3) The Administrator will review the proposed
determination from the permitting authority within 90 days
of receipt.
(4) The permitting authority shall have 90 days from
receipt of an EPA objection to resolve any objection that
EPA makes and to terminate, modify, or revoke and reissue
the permit in accordance with the Administrator's objection.
(5) If the permitting authority fails to submit a
proposed determination pursuant to paragraph (g)(2) of this
section or fails to resolve any objection pursuant to
paragraph (g)(4) of this section, the Administrator will
terminate, modify, or revoke and reissue the permit after
taking the following actions:
(i) Providing at least 30 days notice to the permittee
in writing of the reasons for any such action. This notice
may be given during the procedures in paragraphs (g)(1)
through (4) of this section.
(ii) Providing the permittee an opportunity for
comment on the Administrator's proposed action and an
opportunity for a hearing.
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, on or
before the time that the permitting authority provides this
notice to the public pursuant to 71.7 or 71.11(d) except
to the extent 71.7(e)(1) or (2) requires the timing of the
notice to be different.
(b) Notice of refusal to accept recommendations.
Prior to issuance of the final permit, the permitting
authority shall notify any affected State in writing of any
refusal by the permitting authority to accept all
recommendations for the proposed permit that the affected
State submitted during the public or affected State review
period. The notice shall include the permitting authority's
reasons for not accepting any such recommendation. The
permitting authority is not required to accept
recommendations that are not based on applicable
requirements or the requirements of this part. In the case
of a program delegated pursuant to 71.10, the permitting
authority shall include such notice as part of the submittal
of the proposed permit to the Administrator (or as soon as
possible after the submittal for minor permit modification
procedures allowed under 71.7(e)(1) or (2)).
(c) Waiver of notice requirements. The Administrator
may waive the requirements of paragraph (a) of this section
for any category of sources (including any class, type, or
size within such category) other than major sources by
regulation for a category of sources nationwide.
(d) Notice provided to Indian Tribes. The permitting
authority shall provide notice of each draft permit to any
federally recognized Indian Tribe whose air quality may be
affected by the permitting action and whose reservation or
Tribal area is contiguous to the jurisdiction in which the
part 71 permit is proposed or is within 50 miles of the
permitted source.
71.9 Permit fees
(a) Fee requirement. The owners or operators of
part 71 sources shall pay annual fees, or the equivalent
over some other period, that are sufficient to cover the
permit program costs, in accordance with the procedures
described in this section.
(b) Permit program costs. These costs include, but
are not limited to, the costs of the following activities as
they relate to a part 71 program:
(1) Reviewing and acting on any application for a
permit, permit revision, or permit renewal, including the
development of an applicable requirement as part of the
processing of a permit, or permit revision or renewal;
(2) Processing permit reopenings;
(3) General administrative costs of the permit
program, including transition planning, interagency
coordination, contract management, training, informational
services and outreach activities, assessing and collecting
fees, the tracking of permit applications, compliance
certifications, and related data entry;
(4) Implementing and enforcing the terms of any
part 71 permit (not including any court costs or other costs
associated with an enforcement action), including adequate
resources to determine which sources are subject to the
program;
(5) Emissions and ambient monitoring, modeling,
analyses, demonstrations, preparation of inventories, and
tracking emissions, provided these activities are needed in
order to issue and implement part 71 permits; and
(6) Providing direct and indirect support to small
business stationary sources in determining applicable
requirements and in receiving permits under this part (to
the extent that these services are not provided by a State
Small Business Stationary Source Technical and Environmental
Compliance Assistance Program).
(c) Establishment of fee schedule.
(1) For part 71 programs that are administered by EPA,
each part 71 source shall pay an annual fee in the amount of
$32 per ton (as adjusted pursuant to the criteria set forth
in paragraph (n)(1) of this section) times the total tons of
the actual emissions of each regulated pollutant (for fee
calculation) emitted from the source, including fugitive
emissions.
(2) For part 71 programs that are fully delegated
pursuant to 71.10:
(i) Where the EPA has not suspended its part 71 fee
collection pursuant to paragraph (c)(2)(ii) of this section,
the annual fee for each part 71 source shall be $24 per ton
(as adjusted pursuant to the criteria set forth in
paragraph (n)(1) of this section) times the total tons of
the actual emissions of each regulated pollutant (for fee
calculation) emitted from the source, including fugitive
emissions.
(ii) Where the delegate State collects fees from part
71 sources under State law which are sufficient to fund the
delegated part 71 program, the EPA may suspend its
collection of part 71 fees. The specific terms and
conditions regarding the suspension of fee collection will
be addressed in the applicable delegation agreement pursuant
to 71.10.
(3) For part 71 programs that are administered by EPA
with contractor assistance, the per ton fee shall vary
depending on the extent of contractor involvement and the
cost to EPA of contractor assistance. The EPA shall
establish a per ton fee that is based on the contractor
costs for the specific part 71 program that is being
administered, using the following formula: Cost per
ton = (E x 32) + [(1-E) x $C]
Where E represents EPA's proportion of total effort
(expressed as a percentage of total effort) needed to
administer the part 71 program, 1-E represents the
contractor's effort, and C represents the contractor
assistance cost on a per ton basis. C shall be computed by
using the following formula:
C = [B + T + N] divided by 12,300,000
Where B represents the base cost (contractor costs), where T
represents travel costs, and where N represents nonpersonnel
data management and tracking costs.
(4) For programs that are delegated in part, the fee
shall be computed using the following formula:
Cost per ton = (E x 32) + (D x 24) + [(1-E-D) x $C]
Where E and D represent, respectively, the EPA and delegate
agency proportions of total effort (expressed as a
percentage of total effort) needed to administer the part 71
program, 1-E-D represents the contractor's effort, and C
represents the contractor assistance cost on a per ton
basis. C shall be computed using the formula for contractor
assistance cost found in paragraph (c)(3) of this section
and shall be zero if contractor assistance is not utilized.
(5) The following emissions shall be excluded from the
calculation of fees under paragraph (c)(1) through (c)(4) of
this section:
(i) The amount of a part 71 source's actual emissions
of each regulated pollutant (for fee calculation) that the
source emits in excess of four thousand (4,000) tpy;
(ii) A part 71 source's actual emissions of any
regulated pollutant (for fee calculation) already included
in the fee calculation; and
(iii) The insignificant quantities of actual emissions
not required to be listed or calculated in a permit
application pursuant to 71.5(c)(11).
(6) "Actual emissions" means the actual rate of
emissions in tpy of any regulated pollutant (for fee
calculation) emitted from a part 71 source over the
preceding calendar year. Actual emissions shall be
calculated using each emissions unit's actual operating
hours, production rates, in-place control equipment, and
types of materials processed, stored, or combusted during
the preceding calendar year.
(7) Notwithstanding the 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 of the
full amount must accompany each initial fee calculation work
sheet.
(2) The fee calculation work sheet shall require the
source to submit a report of its actual emissions for the
preceding calendar year and to compute fees owed based on
those emissions. For sources that have been issued part 70
or part 71 permits, actual emissions shall be computed using
compliance methods required by the most recent permit. If
actual emissions cannot be determined using the compliance
methods in the permit, the actual emissions should be
determined using federally recognized procedures. If a
source commenced operation during the preceding calendar
year, the source shall estimate its actual emissions for the
current calendar year. In such a case, fees for the source
shall be based on the total emissions estimated.
(3) The initial fee
calculation worksheet shall be certified by a responsible
official consistent with
71.5(d).
(f) Deadlines for submission.
(1) When EPA withdraws approval of a part 70 program
and implements a part 71 program, part 71 sources shall
submit initial fee calculation work sheets and fees in
accordance with the following schedule:
(i) Sources having SIC codes between 0100 and 2499
inclusive shall complete and submit fee calculation work
sheets and fees within 6 months of the effective date of the
part 71 program;
(ii) Sources having SIC codes between 2500 and 2999
inclusive shall complete and submit fee calculation work
sheets and fees within 7 months of the effective date of the
part 71 program;
(iii) Sources having SIC codes between 3000 and 3999
inclusive shall complete and submit fee calculation work
sheets and fees within 8 months of the effective date of the
part 71 program;
(iv) Sources having SIC codes higher than 3999 shall
complete and submit fee calculation work sheets and fees
within 9 months of the effective date of the part 71
program.
(2) Sources that are required under either
paragraph (f)(1) or (g) of this section to submit fee
calculation work sheets and fees between January 1 and
March 31 may estimate their emissions for the preceding
calendar year in lieu of submitting actual emissions data.
If the source's initial fee calculation work sheet was based
on estimated emissions for the source's preceding calendar
year, then the source shall reconcile the fees owed when it
submits its annual emissions report, as provided in
paragraph (h)(3) of this section.
(3) When EPA implements a part 71 program that does
not replace an approved part 70 program, part 71 sources
shall submit initial fee calculation work sheets and initial
fees when submitting their permit applications in accordance
with the requirements of 71.5(a)(1).
(4) Notwithstanding the above, sources that become
subject to the part 71 program after the program's effective
date shall submit an initial fee calculation work sheet and
initial fees when submitting their permit applications in
accordance with the requirements of 71.5(a)(1).
(g) Fees for sources that are issued part 71 permits
following an EPA objection pursuant to 71.4(e). Fees for
such sources shall be determined as provided in
paragraph (c)(1) of this section. However, initial fee
calculation work sheets for such sources and full payment of
the initial fee shall be due three months after the date on
which the source's part 71 permit is issued.
(h) Annual emissions reports.
(1) Deadlines for submission. Each part 71 source
shall submit an annual report of its actual emissions for
the preceding calendar year, a fee calculation work sheet
(based on the report), and full payment of the annual fee
each year on the anniversary date of its initial fee
calculation work sheet, except that sources that were
required to submit initial fee calculation work sheets
between January 1 and March 31 inclusive shall submit
subsequent annual emissions reports and fee calculation work
sheets by April 1.
(2) Annual emissions reports and fee calculation
worksheets shall be certified by a responsible official
consistent with 71.5(d).
(3) For sources that have been issued part 70 or
part 71 permits, actual emissions shall be computed using
methods required by the most current permit for determining
compliance.
(4) If the source's initial fee calculation work sheet
was based on estimated emissions for the source's current or
preceding calendar year, then the source shall reconcile the
fees owed when it submits its annual emissions report. The
source shall compare the estimated emissions from the
initial work sheet and the actual emissions from the report
and shall enter such information on the fee calculation work
sheet that accompanies the annual report. The source shall
recompute the initial fee accordingly and shall remit any
underpayment with the report and work sheet. The EPA shall
credit any overpayment to the source's account.
(i) Recordkeeping requirements. Part 71 sources shall
retain, in accordance with the provisions of
71.6(a)(3)(ii), all work sheets and other materials used
to determine fee payments. Records shall be retained for
5 years following the year in which the emissions data is
submitted.
(j) Fee assessment errors.
(1) If EPA determines than a source has completed the
fee calculation work sheet incorrectly, the permitting
authority shall bill the applicant for the corrected fee or
credit overpayments to the source's account.
(2) Each source notified by the permitting authority
of additional amounts due shall remit full payment within
30 days of receipt of an invoice from the permitting
authority.
(3) An owner or operator of a part 71 source who
thinks that the assessed fee is in error shall provide a
written explanation of the alleged error to the permitting
authority along with the assessed fee. The permitting
authority shall, within 90 days of receipt of the
correspondence, review the data to determine whether the
assessed fee was in error. If an error was made, the
overpayment shall be credited to the account of the part 71
source.
(k) Remittance procedure.
(1) Each remittance under this section shall be in
United States currency and shall be paid by money order,
bank draft, certified check, corporate check, or electronic
funds transfer payable to the order of the U.S.
Environmental Protection Agency.
(2) Each remittance shall be sent to the Environmental
Protection Agency to the address designated on the fee
calculation work sheet or the invoice.
(l) Penalty and interest assessment.
(1) The permitting authority shall assess interest on
payments which are received later than the date due. The
interest rate shall be the sum of the Federal short-term
rate determined by the Secretary of the Treasury in
accordance with section 6621(a)(2) of the Internal Revenue
Code of 1986, plus 3 percentage points.
(2) The permitting authority shall assess a penalty
charge of 50 percent of the fee amount if the fee is not
paid within 30 days of the payment due date.
(3) If a source underpays the fee owed, except as
provided in paragraph (l)(4) of this section, the permitting
authority shall assess a penalty charge of 50 percent on the
amount by which the fee was underpaid. Interest shall also
be assessed, computed under paragraph (l)(1) of this
section, on the amount by which the fee was underpaid.
(4) If a source bases its initial fee calculation on
estimated emissions from the source's current or preceding
calendar year, as provided under paragraph (h)(4) of this
section, and underpays its fee based on an underestimation
of these emissions, the permitting authority shall assess a
penalty charge of 50 percent on certain of these
underpayments, according to the following provisions:
(i) The penalty charge shall be assessed whenever a
source's underpayment exceeds the underpayment penalty
cutoff established in paragraph (l)(4)(iii). The penalty
amount shall be 50 percent of the portion of the
underpayment which is in excess of the underpayment penalty
cutoff.
(ii) Where a source is subject to a penalty for
underpayment pursuant to paragraph (l)(4)(i), interest as
computed under paragraph (l)(1) of this section shall be
assessed on that portion of the underpayment which is in
excess of the underpayment penalty cutoff established in
paragraph (l)(4)(iii).
(iii) The underpayment penalty cutoff for a source
shall be the sum of the following:
(A) 50 percent of the portion of the initial fee
amount which was calculated from estimated emissions of HAP
listed pursuant to 112(b) of the Act, and
(B) 20 percent of the portion of initial fee amount
which was calculated from estimated emissions of the
remainder of the regulated air pollutants (for fee
calculation).
(m) Failure to remit fees. The permitting authority
shall not issue a final permit or permit revision until all
fees, interest and penalties assessed against a source under
this section are paid. The initial application of a source
shall not be found complete unless the source has paid all
fees owed.
(n) Adjustments of fee schedules.
(1) The fee schedules provided in paragraphs (c)(1)-
(4) of this section shall remain in effect until
December 31, 1996. Thereafter, the fee schedules shall be
changed annually by the percentage, if any, of any annual
increase in the Consumer Price Index.
(2) Part 71 permit program costs and fees will be
reviewed by the Administrator at least every 2 years, and
changes will be made to the fee schedule as necessary to
reflect permit program costs.
(3) When changes to a fee schedule are made based on
periodic reviews by the Administrator, the changes will be
published in the Federal Register 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
that the delegate agency shall be authorized to implement,
and shall be entered into by the Administrator and the
delegate agency. The Agreement shall become effective upon
the date that both the Administrator and the delegate agency
have signed the Agreement. Once delegation becomes
effective, the delegate agency will be responsible, to the
extent specified in the Agreement, for administering the
part 71 program for the area subject to the Agreement.
(b) Publication of Notice of Delegation of Authority
Agreement. The Administrator shall publish a notice in the
Federal Register informing the public of any delegation of a
portion of the part 71 program to a State, eligible Tribe,
or local agency.
(c) Revision or revocation of Delegation of Authority
Agreement. An Agreement may be modified, amended, or
revoked, in part or in whole, by the Administrator after
consultation with the delegate agency.
(d) Transmission of information to the Administrator.
(1) When a part 71 program has been delegated in
accordance with the provisions of this section, the delegate
agency shall provide to the Administrator a copy of each
permit application (including any application for permit
modification), each proposed permit, and each final part 71
permit.
The applicant may be required by the delegate agency to
provide a copy of the permit application (including the
compliance plan) directly to the Administrator.
Upon agreement with the Administrator, the delegate
agency may submit to the Administrator a permit application
summary form and any relevant portion of the permit
application and compliance plan, in place of the complete
permit application and compliance plan. To the extent
practicable, the preceding information shall be provided in
computer-readable format compatible with EPA's national
database management system.
(2) The Administrator may waive the requirements of
paragraph (d)(1) of this section for any category of sources
(including any class, type, or size within such category)
other than major sources by regulation for a category of
sources nationwide.
(e) Retention of records. The records for each draft,
proposed, and final permit, and application for permit
renewal or modification shall be kept for a period of 5
years by the delegate agency. The delegate agency shall
also submit to the Administrator such information as the
Administrator may reasonably require to ascertain whether
the delegate agency is implementing, administering, and
enforcing the delegated part 71 program in compliance with
the requirements of the Act and of this part.
(f) Prohibition of default issuance.
(1) For the purposes of Federal law and title V of the
Act, when a part 71 program has been delegated in accordance
with the provisions of this section, no part 71 permit
(including a permit renewal or modification) will be issued
until affected States have had an opportunity to review the
draft permit as required pursuant to 71.8(a) and EPA has
had an opportunity to review the proposed permit.
(2) To receive delegation of signature authority, the
legal opinion submitted by the delegate agency pursuant to
paragraph (a) of this section shall certify that no
applicable provision of State, local or Tribal law requires
that a part 71 permit or renewal be issued after a certain
time if the delegate agency has failed to take action on the
application (or includes any other similar provision
providing for default issuance of a permit), unless EPA has
waived such review for EPA and affected States.
(g) EPA objection.
(1) The Administrator will object to the issuance of
any proposed permit determined by the Administrator not to
be in compliance with applicable requirements or
requirements under this part. No permit for which an
application must be transmitted to the Administrator under
paragraph (d)(1) of this section shall be issued if the
Administrator objects to its issuance in writing within 45
days of receipt of the proposed permit and all necessary
supporting information. When a part 71 program has been
delegated in accordance with the provisions of this section,
failure of the delegate agency to do any of the following
shall constitute grounds for an objection by the
Administrator:
(i) Comply with paragraph (d) of this section;
(ii) Submit any information necessary to review
adequately the proposed permit;
(iii) Process the permit under the procedures required
by 71.7 and 71.11; or
(iv) Comply with the requirements of 71.8(a).
(2) Any EPA objection under paragraph (g)(1) of this
section shall include a statement of the Administrator's
reason(s) for objection and a description of the terms and
conditions that the permit must include to respond to the
objection. The Administrator will provide the permit
applicant a copy of the objection.
(3) If the delegate agency fails, within 90 days after
the date of an objection under paragraph (g)(1) of this
section, to revise and submit to the Administrator the
proposed permit in response to the objection, the
Administrator shall issue or deny the permit in accordance
with the requirements of this part.
(h) Public petitions. In the case of a delegated
program, any interested person may petition the
Administrator to reopen a permit for cause as provided in
71.11(n).
(i) Appeal of permits. When a part 71 program has
been delegated with signature authority in accordance with
the provisions of this section, any person or affected State
that submitted recommendations or comments on the draft
permit, or that participated in the public hearing process
may petition the Environmental Appeals Board in accordance
with 71.11(l)(1).
(j) Nondelegable conditions.
(1) The Administrator's authority to object to the
issuance of a part 71 permit cannot be delegated to an
agency not within EPA.
(2) The Administrator's authority to act upon
petitions submitted pursuant to paragraph (h) of this
section cannot be delegated to an agency not within EPA.
71.11 Administrative record, public participation, and
administrative review.
The provisions of this section shall apply to all
permit proceedings. Notwithstanding the preceding sentence,
paragraphs (a) through (h) and paragraph (j) of this section
shall not apply to permit revisions qualifying as minor
permit modifications or administrative amendments, except
that public notice of the granting of appeals of such
actions under paragraph (l)(3) of this section shall be
provided pursuant to paragraph (d)(1)(i)(E) of this section,
and except that affected States shall be provided notice of
minor permit modifications under 71.8 as pursuant to
paragraph (d)(3)(i)(B) of this section.
(a) Draft permits.
(1) The permitting authority shall promptly provide
notice to the applicant of whether the application is
complete pursuant to 71.7(a)(3).
(2) Once an application for an initial permit, permit
revision, or permit renewal is complete, the permitting
authority shall decide whether to prepare a draft permit or
to deny the application.
(3) If the permitting authority initially decides to
deny the permit application, it shall issue a notice of
intent to deny. A notice of intent to deny the permit
application is a type of draft permit and follows the same
procedures as any draft permit prepared under this section.
If the permitting authority's final decision is that the
initial decision to deny the permit application was
incorrect, it shall withdraw the notice of intent to deny
and proceed to prepare a draft permit under paragraph (a)(4)
of this section.
(4) If the permitting authority decides to prepare a
draft permit, it shall prepare a draft permit that contains
the permit conditions required under 71.6.
(5) All draft permits prepared under this section
shall be publicly noticed and made available for public
comment.
(b) Statement of basis. The permitting authority
shall prepare a statement of basis for every draft permit
subject to this section. The statement of basis shall
briefly describe the derivation of the conditions of the
draft permit and the reasons for them or, in the case of
notices of intent to deny or terminate, reasons supporting
the initial decision. The statement of basis shall be sent
to the applicant and, on request, to any other person.
(c) Administrative
record for draft permits.
(1) The provisions of a draft permit shall be based on
the administrative record defined in this section.
(2) For preparing a draft permit, the administrative
record shall consist of:
(i) The application and any supporting data furnished
by the applicant;
(ii) The draft permit or notice of intent to deny the
application or to terminate the permit;
(iii) The statement of basis;
(iv) All documents cited in the statement of basis;
and
(v) Other documents contained in the supporting file
for the draft permit.
(3) Material readily available at the permitting
authority or published material that is generally available,
and that is included in the administrative record under
paragraphs (b) and (c) of this section need not be
physically included with the rest of the record as long as
it is specifically referred to in the statement of basis.
(d) Public notice of permit actions and public comment
period.
(1) Scope.
(i) The permitting authority shall give public notice
that the following actions have occurred:
(A) A permit application has been initially denied
under paragraph (a) of this section;
(B) A draft permit has been prepared under
paragraph (a) of this section;
(C) A hearing has been scheduled under paragraph (f)
of this section;
(D) A public comment period has been reopened under
paragraph (h) of this section;
(E) An appeal has been granted under paragraph (l)(3)
of this section.
(ii) No public notice is required when a request for
permit revision, revocation and reissuance, or termination
has been denied under paragraph (a)(2) of this section.
Written notice of that denial shall be given to the
requester and to the permittee.
(iii) Public notices may describe more than one permit
or permit action.
(2) Timing.
(i) Public notice of the preparation of a draft
permit, (including a notice of intent to deny a permit
application), shall allow at least 30 days for public
comment.
(ii) Public notice of a public hearing shall be given
at least 30 days before the hearing. Public notice of the
hearing may be given at the same time as public notice of
the draft permit and the two notices may be combined.
(iii) The permitting authority shall provide such
notice and opportunity for participation to affected States
on or before the time that the permitting authority provides
this notice to the public.
(3) Methods. Public notice of activities described in
paragraph (d)(1)(i) of this section shall be given by the
following methods:
(i) By mailing a copy of a notice to the following
persons (any person otherwise entitled to receive notice
under paragraph (d) of this section may waive his or her
rights to receive notice for any permit):
(A) The applicant;
(B) Affected States;
(C) Air pollution control agencies of affected States,
Tribal and local air pollution control agencies which have
jurisdiction over the area in which the source is located,
the chief executives of the city and county where the source
is located, any comprehensive regional land use planning
agency and any State or Federal Land Manager whose lands may
be affected by emissions from the source;
(D) The local emergency planning committee having
jurisdiction over the area where the source is located, and
State agencies having authority under State law with respect
to the operation of such source;
(E) Persons on a mailing list developed by:
(1) Including those who request in writing to be on
the list;
(2) Soliciting persons for "area lists" from
participants in past permit proceedings in that area; and
(3) Notifying the public of the opportunity to be put
on the mailing list through periodic publication in the
public press and, where deemed appropriate by the permitting
authority, in such publications as regional and State funded
newsletters, environmental bulletins, or State law journals.
The permitting authority may update the mailing list from
time to time by requesting written indication of continued
interest from those listed. The permitting authority may
delete from the list the name of any person who fails to
respond to such a request.
(ii) By publication of a notice in a daily or weekly
newspaper of general circulation within the area affected by
the source.
(iii) By any other method reasonably calculated to
give actual notice of the action in question to the persons
potentially affected by it, including press releases or any
other forum or medium to elicit public participation.
(4) Contents.
(i) All public notices. All public notices issued
under this subpart shall contain the following minimum
information:
(A) The name and address of the permitting authority
processing the permit;
(B) The name and address of the permittee or permit
applicant and, if different, of the facility regulated by
the permit, except in the case of draft general permits;
(C) The activity or activities involved in the permit
action;
(D) The emissions change involved in any permit
revision;
(E) The name, address, and telephone number of a
person whom interested persons may contact for instructions
on how to obtain additional information, such as a copy of
the draft permit, the statement of basis, the application,
relevant supporting materials, and other materials available
to the permitting authority that are relevant to the
permitting decision.
(F) A brief description of the comment procedures
required by paragraph (e) of this section, a statement of
procedures to request a hearing (unless a hearing has
already been scheduled) and other procedures by which the
public may participate in the final permit decision;
(G) The location of
the administrative record, the times at which the record
will be open for public inspection, and a statement that all
data submitted by the applicant are available as part of the
administrative record; and
(H) Any additional information considered necessary or
proper.
(ii) Public notices for hearings. Public notice of a
hearing may be combined with other notices required under
paragraph (d)(1) of this section. Any public notice of a
hearing under paragraph (f) of this section shall contain
the following information:
(A) The information described in paragraph (d)(4)(i)
of this section;
(B) Reference to the date of previous public notices
relating to the permit;
(C) The date, time, and place of the hearing; and
(D) A brief description of the nature and purpose of
the hearing, including the applicable rules and the comment
procedures.
(5) All persons
identified in paragraphs (d)(3)(i)(A), (B), (C), (D), and
(E) of this section shall be mailed a copy of the public
hearing notice described in paragraph (d)(4)(ii) of this
section.
(e) Public comments and requests for public hearings.
During the public comment period provided under
paragraph (a) of this section, any interested person may
submit written comments on the draft permit and may request
a public hearing, if no hearing has already been scheduled.
A request for a public hearing shall be in writing and shall
state the nature of the issues proposed to be raised at the
hearing. All comments shall be considered in making the
final decision and shall be answered as provided in
paragraph (j) of this section. The permitting authority
will keep a record of the commenters and of the issues
raised during the public participation process, and such
records shall be available to the public.
(f) Public hearings.
(1) The permitting authority shall hold a hearing
whenever it finds, on the basis of requests, a significant
degree of public interest in a draft permit.
(2) The permitting authority may also hold a public
hearing at its discretion, whenever, for instance, such a
hearing might clarify one or more issues involved in the
permit decision.
(3) Public notice of the hearing shall be given as
specified in paragraph (d) of this section.
(4) Whenever a public hearing is held, the permitting
authority shall designate a Presiding Officer for the
hearing who shall be responsible for its scheduling and
orderly conduct.
(5) Any person may submit oral or written statements
and data concerning the draft permit. Reasonable limits may
be set upon the time allowed for oral statements, and the
submission of statements in writing may be required. The
public comment period under paragraph (d) of this section
shall be automatically extended to the close of any public
hearing under this section. The hearing officer may also
extend the comment period by so stating at the hearing.
(6) A tape recording or written transcript of the
hearing shall be made available to the public.
(g) Obligation to
raise issues and provide information during the public
comment period. All persons, including applicants, who
believe any condition of a draft permit is inappropriate or
that the permitting authority's initial decision to deny an
application, terminate a permit, or prepare a draft permit
is inappropriate, must raise all reasonably ascertainable
issues and submit all reasonably ascertainable arguments
supporting their position by the close of the public comment
period (including any public hearing). Any supporting
materials that are submitted shall be included in full and
may not be incorporated by reference, unless they are
already part of the administrative record in the same
proceeding, or consist of State or Federal statutes and
regulations, EPA documents of general applicability, or
other generally available reference materials. In the case
of a program delegated pursuant to 71.10, if requested by
the Administrator, the permitting authority shall make
supporting materials not already included in the
administrative record available to EPA. The permitting
authority may direct commenters to provide such materials
directly to EPA. A comment period longer than 30 days may
be necessary to give commenters a reasonable opportunity to
comply with the requirements of this section. Additional
time shall be granted to the extent that a commenter who
requests additional time demonstrates the need for such
time.
(h) Reopening of the
public comment period.
(1) The permitting authority may order the public
comment period reopened if the procedures of paragraph (h)
of this section could expedite the decision making process.
When the public comment period is reopened under
paragraph (h) of this section, all persons, including
applicants, who believe any condition of a draft permit is
inappropriate or that the permitting authority's initial
decision to deny an application, terminate a permit, or
prepare a draft permit is inappropriate, must submit all
reasonably available factual grounds supporting their
position, including all supporting material, by a date not
less than 30 days after public notice under paragraph (h)(2)
of this section, set by the permitting authority.
Thereafter, any person may file a written response to the
material filed by any other person, by a date, not less than
20 days after the date set for filing of the material, set
by the permitting authority.
(2) Public notice of any comment period under this
paragraph (h) shall identify the issues to which the
requirements of paragraphs (h)(1)-(4) of this section shall
apply.
(3) On its own motion or on the request of any person,
the permitting authority may direct that the requirements of
paragraph (h)(1) of this section shall apply during the
initial comment period where it reasonably appears that
issuance of the permit will be contested and that applying
the requirements of paragraph (h)(1) of this section will
substantially expedite the decision making process. The
notice of the draft permit shall state whenever this has
been done.
(4) A comment period of longer than 30 days may be
necessary in complicated proceedings to give commenters a
reasonable opportunity to comply with the requirements of
this section. Commenters may request longer comment periods
and they may be granted to the extent the permitting
authority finds it necessary.
(5) If any data, information, or arguments submitted
during the public comment period appear to raise substantial
new questions concerning a permit, the permitting authority
may take one or more of the following actions:
(i) Prepare a new draft permit, appropriately
modified;
(ii) Prepare a revised statement of basis, and reopen
the comment period; or
(iii) Reopen or extend the comment period to give
interested persons an opportunity to comment on the
information or arguments submitted.
(6) Comments filed during the reopened comment period
shall be limited to the substantial new questions that
caused the reopening. The public notice shall define the
scope of the reopening.
(7) Public notice of any of the above actions shall be
issued under paragraph (d) of this section.
(i) Issuance and effective date of permit.
(1) After the close of the public comment period on a
draft permit, the permitting authority shall issue a final
permit decision. The permitting authority shall notify the
applicant and each person who has submitted written comments
or requested notice of the final permit decision. This
notice shall include reference to the procedures for
appealing a decision on a permit. For the purposes of this
section, a final permit decision means a final decision to
issue, deny, revise, revoke and reissue, renew, or terminate
a permit.
(2) A final permit decision shall become effective 30
days after the service of notice of the decision, unless:
(i) A later effective date is specified in the
decision; or
(ii) Review is requested under paragraph (l) of this
section (in which case the specific terms and conditions of
the permit which are the subject of the request for review
shall be stayed); or
(iii) No comments requested a change in the draft
permit, in which case the permit shall become effective
immediately upon issuance.
(j) Response to comments.
(1) At the time that any final permit decision is
issued, the permitting authority shall issue a response to
comments. This response shall:
(i) Specify which provisions, if any, of the draft
permit have been changed in the final permit decision, and
the reasons for the change; and
(ii) Briefly describe and respond to all significant
comments on the draft permit raised during the public
comment period, or during any hearing.
(2) Any documents cited in the response to comments
shall be included in the administrative record for the final
permit decision as defined in paragraph (k) of this section.
If new points are raised or new material supplied during the
public comment period, the permitting authority may document
its response to those matters by adding new materials to the
administrative record.
(3) The response to comments shall be available to the
public.
(4) The permitting authority will notify in writing
any affected State of any refusal to accept recommendations
for the permit that the State submitted during the public or
affected State review period.
(k) Administrative record for final permits.
(1) The permitting authority shall base final permit
decisions on the administrative record defined in
paragraph (k)(2) of this section.
(2) The administrative record for any final permit
shall consist of:
(i) All comments received during any public comment
period, including any extension or reopening;
(ii) The tape or transcript of any hearing(s) held;
(iii) Any written material submitted at such a
hearing;
(iv) The response to comments and any new materials
placed in the record;
(v) Other documents contained in the supporting file
for the permit;
(vi) The final permit;
(vii) The application and any supporting data
furnished by the applicant;
(viii) The draft permit or notice of intent to deny
the application or to terminate the permit;
(ix) The statement of basis for the draft permit;
(x) All documents cited in the statement of basis;
(xi) Other documents contained in the supporting file
for the draft permit.
(3) The additional documents required under
paragraph (k)(2) of this section should be added to the
record as soon as possible after their receipt or
publication by the permitting authority. The record shall
be complete on the date the final permit is issued.
(4) Material readily available at the permitting
authority, or published materials which are generally
available and which are included in the administrative
record under the standards of paragraph (j) of this section
need not be physically included in the same file as the rest
of the record as long as it is specifically referred to in
the statement of basis or in the response to comments.
(l) Appeal of permits.
(1) Within 30 days after a final permit decision has
been issued, any person who filed comments on the draft
permit or participated in the public hearing may petition
the Environmental Appeals Board to review any condition of
the permit decision. Any person who failed to file comments
or failed to participate in the public hearing on the draft
permit may petition for administrative review only to the
extent of the changes from the draft to the final permit
decision or other new grounds that were not reasonably
foreseeable during the public comment period on the draft
permit. The 30-day period within which a person may request
review under this section begins with the service of notice
of the permitting authority's action unless a later date is
specified in that notice, except that the 30-day period
within which a person may request review of a minor permit
modification or administrative amendment begins upon the
effective date of such action to revise the permit. The
petition shall include a statement of the reasons supporting
that review, including a demonstration that any issues
raised were raised during the public comment period
(including any public hearing) to the extent required by
these regulations unless the petitioner demonstrates that it
was impracticable to raise such objections within such
period or unless the grounds for such objection arose after
such period, and, when appropriate, a showing that the
condition in question is based on:
(i) A finding of fact or conclusion of law which is
clearly erroneous; or
(ii) An exercise of discretion or an important policy
consideration which the Environmental Appeals Board should,
in its discretion, review.
(2) The Board may also decide on its initiative to
review any condition of any permit issued under this part.
The Board must act under paragraph (l) of this section
within 30 days of the service date of notice of the
permitting authority's action.
(3) Within a reasonable time following the filing of
the petition for review, the Board shall issue an order
either granting or denying the petition for review. To the
extent review is denied, the conditions of the final permit
decision become final agency action. Public notice of any
grant of review by the Board under paragraph (l)(1) or (2)
of this section shall be given as provided in paragraph (d)
of this section. Public notice shall set forth a briefing
schedule for the appeal and shall state that any interested
person may file an amicus brief. Notice of denial of review
shall be sent only to the permit applicant and to the
person(s) requesting review.
(4) A petition to the Board under paragraph (l)(1) of
this section is, under 42 U.S.C. 307(b), a prerequisite to
seeking judicial review of the final agency action.
(5) For purposes of judicial review, final agency
action occurs when a final permit is issued or denied by the
permitting authority and agency review procedures are
exhausted. A final permit decision shall be issued by the
permitting authority:
(i) When the Board issues notice to the parties that
review has been denied;
(ii) When the Board issues a decision on the merits of
the appeal and the decision does not include a remand of the
proceedings; or
(iii) Upon the completion of remand proceedings if the
proceedings are remanded, unless the Board's remand order
specifically provides that appeal of the remand decision
will be required to exhaust administrative remedies.
(6) Motions to reconsider a final order shall be filed
within ten (10) days after service of the final order.
Every such motion must set forth the matters claimed to have
been erroneously decided and the nature of the alleged
errors. Motions for reconsideration under this provision
shall be directed to, and decided by, the Board. Motions
for reconsideration directed to the Administrator, rather
than to the Board, will not be considered, except in cases
that the Board has referred to the Administrator and in
which the Administrator has issued the final order. A
motion for reconsideration shall not stay the effective date
of the final order unless specifically so ordered by the
Board.
(m) Computation of time.
(1) Any time period scheduled to begin on the
occurrence of an act or event shall begin on the day after
the act or event.
(2) Any time period scheduled to begin before the
occurrence of an act or event shall be computed so that the
period ends on the day before the act or event, except as
otherwise provided.
(3) If the final day of any time period falls on a
weekend or legal holiday, the time period shall be extended
to the next working day.
(4) Whenever a party or interested person has the
right or is required to act within a prescribed period after
the service of notice or other paper upon him or her by
mail, 3 days shall be added to the prescribed time.
(n) Public petitions
to the Permitting Authority.
(1) Any interested person (including the permittee)
may petition the permitting authority to reopen a permit for
cause, and the permitting authority may commence a permit
reopening on its own initiative. However, the permitting
authority shall not revise, revoke and reissue, or terminate
a permit except for the reasons specified in 71.7(f)(1) or
71.6(a)(6)(i). All requests shall be in writing and shall
contain facts or reasons supporting the request.
(2) If the permitting authority decides the request is
not justified, it shall send the requester a brief written
response giving a reason for the decision. Denials of
requests for revision, revocation and reissuance, or
termination are not subject to public notice, comment, or
hearings. Denials by the permitting authority may be
informally appealed to the Environmental Appeals Board by a
letter briefly setting forth the relevant facts. The Board
may direct the permitting authority to begin revision,
revocation and reissuance, or termination proceedings under
paragraph (n)(3) of this section. The appeal shall be
considered denied if the Board takes no action within 60
days after receiving it. This informal appeal is, under 42
U.S.C. 307, a prerequisite to seeking judicial review of
EPA action in denying a request for revision, revocation and
reissuance, or termination.
(3) If the permitting authority decides the request is
justified and that cause exists to revise, revoke and
reissue or terminate a permit, it shall initiate proceedings
to reopen the permit pursuant to 71.7(f) or 71.7(g).
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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